United States v. Reingold

Decision Date26 September 2013
Docket NumberDocket No. 11–2826–CR.
PartiesUNITED STATES of America, Appellant, v. Corey REINGOLD, Defendant–Appellee.
CourtU.S. Court of Appeals — Second Circuit

OPINION TEXT STARTS HERE

Ali Kazemi (Amy Busa, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellant.

Colleen P. Cassidy, Appeals Bureau, Federal Defenders of New York, Inc., New York, NY, for DefendantAppellee.

Before: SACK, RAGGI, and LOHIER, Circuit Judges.

REENA RAGGI, Circuit Judge:

Corey Reingold pleaded guilty in the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge ) to one count of distributing child pornography. See18 U.S.C. § 2252(a)(2). The United States now appeals from that part of the June 21, 2011 judgment of conviction as sentenced Reingold to 30 months' incarceration. The government contends that the district court erred in refusing to impose the minimum five-year prison term mandated by 18 U.S.C. § 2252(b)(1) on the ground that applying such a punishment to this immature 19–year–old defendant would violate the Cruel and Unusual Punishment Clause. SeeU.S. Const. amend. VIII. The government further disputes the district court's Sentencing Guidelines calculations. The district court explained its sentencing decisions both on the record and in a 401–page opinion accompanied by 55 pages of appendices. See United States v. C.R., 792 F.Supp.2d 343 (E.D.N.Y.2011).2 Having carefully reviewed that opinion, the applicable law, and the record as a whole, we conclude that the district court erred in both respects identified by the government. We therefore remand the case to the district court with directions that it vacate the sentence and resentence the defendant consistent with this opinion.

I. BackgroundA. Events Leading to Reingold's Prosecution

On November 16, 2008, an agent of the Federal Bureau of Investigation (“FBI”), investigating child pornography in an undercover capacity, accessed a computer program called “GigaTribe,” which allows users to download material onto their computers and then to place some in folders designated for sharing with others. For GigaTribe users to access each other's designated sharing folders, they must be on the same “closed network of buddies,” which is accomplished by invitation. Id. at 352 (internal quotation marks omitted) (citing United States v. Ladeau, No. 09–CR–40021–FDS, 2010 WL 1427523, at *1 (D.Mass. Apr. 7, 2010) (describing operation of GigaTribe)).

When the undercover agent accessed GigaTribe on November 16, he observed child pornography in the mini-profile of a person with the username “Boysuck0416.” The agent also noted that this user's full profile contained the terms “Boy Love KDV PJK BCP,” which the agent identified as child pornography search terms. The agent invited the user to share files, and after the user agreed, the agent downloaded ten videos and one still image of child pornography from the user's designated share folder. See United States v. Ladeau, 2010 WL 1427523, at *1 (“A user can also join the networks of other GigaTribe users, but only with the permission of the user who created the network.”). He then proceeded to trace the user's Internet Protocol address to a residence at 3–14 Beach 147th Street in Queens, New York, which turned out to be the home of Jamie and Brian McLeod, the mother and stepfather of defendant Corey Reingold.

On January 15, 2009, FBI agents executed a search warrant at the McLeod home and seized two computers used exclusively by Reingold, each of which contained child pornography. Reingold, who was present at the time of the search, admitted that he was “Boysuck0416”; that he had opened a GigaTribe account in November 2008 and used it and another file sharing program, LimeWire, to download “a ton” of child pornography onto the seized computers; and that he had shared child pornography files in designated folders with between 10 and 20 other GigaTribe users. Pre–Sentence Report (“PSR”) ¶ 9; see United States v. C.R., 792 F.Supp.2d at 353. Subsequent forensic analysis would confirm that the seized Reingold computer linked to GigaTribe contained more than 100 video files and at least 208 digital images of child pornography, while the seized computer linked to LimeWire contained 10 videos of child pornography.

B. Reingold's Admissions to Sexual Conduct with Minors

As part of initial plea negotiations with federal prosecutors, Reingold agreed to take a polygraph examination with the understanding that he would be allowed to plead guilty to simple possession of child pornography, see18 U.S.C. § 2252(a)(4)(B),3 if he could truthfully state that he had not had any sexual contact with minors. Even before the polygraph examination, however, Reingold admitted to federal authorities that he had engaged his minor half-sister in sexual activities on three occasions over a course of three years. Specifically, Reingold stated that (1) when he was 15 and his sister eight, he had the child manually stimulate his penis; (2) when Reingold was 16 and his sister nine, he again had the girl manually stimulate his penis while he rubbed his hand over her vagina through her underwear; and (3) when Reingold was 18 and his sister 11, he had the girl manually stimulate his penis while he rubbed her vagina both over and beneath her underwear. Reingold subsequently admitted that during this third sexual encounter, he also coached the child to perform oral sex on him and, in turn, performed oral sex on her.4

C. Plea and Sentencing

1. Entry and Acceptance of Reingold's Guilty Plea

On March 18, 2009, Reingold was indicted by a grand jury sitting in the Eastern District of New York on four counts of distributing child pornography based on the GigaTribe “sharing” of four specified video files to the undercover agent on November 17, 2008, see18 U.S.C. § 2252(a)(2), (b)(1); and one count of possessing child pornography, see id. § 2252(a)(4)(B), (b)(2). On September 16, 2009, Reingold pleaded guilty before a magistrate judge to the first distribution count.

Before formally accepting Reingold's guilty plea and in anticipation of sentencing, the district court conducted hearings between September 2009 and May 2011 where it heard from “a dozen expert witnesses in the fields of child sexual abuse; online child pornography; risk assessment; treatment of sex offenders; and neuropsychology and adolescent brain development.” United States v. C.R., 792 F.Supp.2d at 349. Together with prosecutors, defense counsel, and two of his law clerks, the district judge also traveled to Massachusetts and personally toured FMC Devens, the Bureau of Prisons facility that offers inmates sex offender treatment. See id. at 520–24.

On May 10, 2011, the initial sentencing date, the district court declined to accept Reingold's guilty plea before the magistrate judge, questioning whether the undercover agent's retrieval of child pornography from Reingold's designated shared folder on GigaTribe was enough to make the defendant guilty of distribution under 18 U.S.C. § 2252(a)(2). Although the government and defense counsel both urged acceptance of the plea,5 the district court adjourned the case to May 16, 2011, to allow it to consider the matter further.

On May 16, 2011, the district court accepted Reingold's guilty plea. On the record, it explained that its acceptance was “based on the allocution and all other information now known to me.” May 16, 2011 Sentencing Tr. 5:21–22. In its published opinion filed the same day, however, the district court expressed continued reservations as to whether the defendant had adequately admitted knowing and intentional distribution of child pornography as proscribed by 18 U.S.C. § 2252(a)(2). See United States v. C.R., 792 F.Supp.2d at 353–55 (construing statute to require proof of both “active intent[ ] to transfer child pornography to another person and “active participation” in delivery of such pornography).6 In the end, however, the district court accepted the guilty plea, explaining that the statute's distribution element might be construed to reach Reingold's conduct; that “a jury could reasonably find that [Reingold] was not truthful when he testified that he did not intend to distribute his files to another individual”; that a court can accept a guilty plea even when a defendant maintains his innocence, “as long as there is a strong factual basis for the plea”; and that the record showed Reingold to have thoroughly considered his decision to plead guilty with the support of close relatives and able counsel, and to have demonstrated a wish to accept responsibility for his conduct. Id. at 356–57 (citing North Carolina v. Alford, 400 U.S. 25, 37–38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)).7

2. Reingold's Sentencing

In its PSR to the district court, the Probation Department advised that Reingold's crime of conviction was subject to a mandatory minimum prison sentence of five years pursuant to 18 U.S.C. § 2252(b)(1). Further, based on Sentencing Guidelines calculations yielding a total offense level of 35 and a criminal history category of I, the PSR reported that Reingold's recommended sentencing range was 168 to 210 months' imprisonment.8

The district court viewed the case quite differently. Rejecting the Probation Department's application of various enhancements to Reingold's Guidelines calculation, the district court concluded that the applicable Sentencing Guidelines range in Reingold's case was 63 to 78 months' imprisonment. 9 The district court further determined that Reingold should not be sentenced even within that reduced Guidelines range because such a term of imprisonment was greater than necessary to achieve the objectives of 18 U.S.C. § 3553(a). Insofar as Congress had statutorily mandated a prison sentence of at least five years for any defendant guilty of distributing child pornography,...

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