843 F.3d 74 (2nd Cir. 2016), 13-1706-cr, United States v. Brown

Docket Nº:13-1706-cr
Citation:843 F.3d 74
Opinion Judge:DRONEY, Circuit Judge :
Party Name:UNITED STATES, Appellee, v. NATHAN BROWN, Defendant-Appellant
Attorney:BRENDA K. SANNES AND RICHARD D. BELLISS, Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee. S. MICHAEL MUSA-OBREGON, Maspeth, NY, for Defendant-Appellant.
Judge Panel:Before: POOLER, SACK, and DRONEY, Circuit Judges. Judge SACK concurs in the result in a separate opinion. Judge POOLER dissents in a separate opinion. SACK, Circuit Judge, concurring: POOLER, Circuit Judge, dissenting:
Case Date:December 06, 2016
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
FREE EXCERPT

Page 74

843 F.3d 74 (2nd Cir. 2016)

UNITED STATES, Appellee,

v.

NATHAN BROWN, Defendant-Appellant

No. 13-1706-cr

United States Court of Appeals, Second Circuit

December 6, 2016

Submitted February 17, 2015

Appeal from the United States District Court for the Northern District of New York. No. 12-cr-145 - Gary L. Sharpe, Judge.

Appeal from a January 29, 2013 judgment of the United States District Court for the Northern District of New York (Sharpe, J.) sentencing Defendant-Appellant Nathan Brown to 60 years' imprisonment for producing and possessing child pornography. We AFFIRM.

BRENDA K. SANNES AND RICHARD D. BELLISS, Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

S. MICHAEL MUSA-OBREGON, Maspeth, NY, for Defendant-Appellant.

Before: POOLER, SACK, and DRONEY, Circuit Judges. Judge SACK concurs in the result in a separate opinion. Judge POOLER dissents in a separate opinion.

OPINION

DRONEY, Circuit Judge

Nathan Brown pleaded guilty to three counts of production of child pornography in violation of 18 U.S.C. § 2251(a) and two counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court (Sharpe, J. ) imposed a sentence of 240 months for each of the three counts of production of child pornography (to be served consecutively) and 120 months for each of the two counts of possession of child pornography (to be served concurrently with the other sentences) for a total effective sentence of 60 years' imprisonment. Brown challenges his sentence, arguing the district court miscalculated his Guidelines range and that his sentence is substantively unreasonable.

We AFFIRM the judgment of the district court.

BACKGROUND

Brown has never objected to the factual portions of his Pre-Sentence Report (" PSR" ) prepared by the United States Probation Office. In addition, as part of his plea agreement, he expressly admitted certain details of his criminal conduct. The facts--undisputed by Brown--are the following.

In February 2012, the United States Department of Homeland Security Investigations (" HSI" ) discovered eleven images on a child pornography website that appeared to have been uploaded by the same person. Several of the images depicted the same girl, referred to here as " Jane Doe 1." It was later determined that Jane Doe 1 was eight years old at the time the images were taken. In one image, Jane Doe 1 was pictured with only a shirt on, with her vagina exposed, and with an open diaper next to each of her legs. In another, she was naked in a bathtub, again with her genitalia exposed. Additional pictures contained close-up images of her vagina, and one showed a male hand pulling aside her underwear. In several of the images, Jane Doe 1 was sleeping. Among these photographs was a picture of her hand holding an adult penis and two images of semen on her hand.

The pictures on the website also included images of another young girl, who was ten or eleven years old at the time the images were taken, (" Jane Doe 2" ). The photographs showed Jane Doe 2 with her underwear pulled to the side and her vagina exposed; with her breast exposed; with an adult penis next to her mouth; and with an adult penis on her lips. Like Jane Doe 1, the images also included close-up pictures of her vagina. Jane Doe 2 was also sleeping in several of the pictures.

By examining metadata1 from one of the images, investigators were able to determine that the image had been taken using a Motorola Droid X cell phone. The metadata also revealed global positioning system (" GPS" ) coordinates associated with the image. With assistance from the cell phone carrier in that region for the Motorola Droid X, investigators were able to determine the approximate area where the photograph was taken. Investigators then spoke with the superintendent for schools within that area, who identified a sanitized image of Jane Doe 1.

The HSI agents visited Jane Doe 1's home and spoke with her parents. Through these interviews, the HSI learned that Jane Doe 1 and Jane Doe 2 were cousins. Investigators then spoke to Jane Doe 2's mother as well. The HSI learned that Brown--the former boyfriend of Jane Doe 2's mother--had frequently babysat both girls at Jane Doe 2's trailer home, where the photographs were taken.

Jane Doe 1 and Jane Doe 2 were interviewed. The girls reported that while babysitting Brown would " play house" with them, and Jane Doe 1 would play the " baby" and wear a diaper. PSR ¶ ¶ 18, 20, 31-33. According to Jane Doe 1, Brown would periodically " change" the diaper as if it were soiled. PSR ¶ 33. Jane Doe 1 reported that, while doing so, Brown had touched her as he " clean[ed]" her vaginal area with a baby wipe. PSR ¶ 33. Brown also took pictures of the girls as this was occurring.

Both girls were able to recognize themselves in the photographs that they were shown by investigators, and they remembered a number of the pictures which had been taken while they were awake. Jane Doe 1 told investigators that Brown had offered to buy her an iPad if she allowed him to take more pictures of her, which she refused.

Based on the information provided by the girls and their parents, the HSI agents obtained a search warrant for Brown's residence and electronic devices. On March 9, 2012, law enforcement officers executed the warrant at Brown's trailer home, and found him attempting to delete child pornography from his computer. Brown was arrested. Among the items seized from Brown's apartment were multiple computers, cell phones, storage devices, and a pinhole camera.

After his arrest, Brown told investigators that he had been viewing child pornography online daily using software that hid his IP address. He admitted to taking nude photographs of children with his phone, including approximately 100 photographs of Jane Doe 1 and Jane Doe 2 that he uploaded from his phone to his computer. Brown told investigators that he had taken the pictures of Jane Doe 1 because the " opportunity was there." PSR ¶ 26.

Brown told investigators that he had also taken sexually-explicit photographs and videos of a third victim (" Jane Doe 3" ), who was nine years old at the time. Jane Doe 3 was his ex-wife's sister. Images and videos of Jane Doe 3 were also found on Brown's computers. One video showed Brown touching his penis to her hand and ejaculating on it. Another showed him ejaculating on her feet, and a third showed him pulling down her underwear and spreading her vagina with his fingers. Brown admitted to pulling down Jane Doe 3's underwear and photographing her while she was sleeping during a family trip to Lake George in December 2011. Jane Doe 3 currently has no knowledge that the photographs were taken; she was asleep at the time.

After Brown's arrest, investigators conducted a forensic analysis of his computers and phones. The eleven images that originally prompted the investigation were found on Brown's computers. The search also revealed that Brown had produced pornographic images of at least five children--Jane Does 1, 2, and 3, and two additional unidentified victims. The unidentified victims were a young girl (age eight or nine) and an infant.2 Investigators also discovered photographs that Brown had taken by hiding his pinhole camera (1) in the bathroom of a home where a pool party was being held and (2) in the bathroom of a public water park in Lake George. The pinhole camera had captured images of children changing their clothes.

Brown possessed an extraordinary quantity of other child pornography not involving these five victims. His computers collectively contained over 25,000 still images and 365 videos, including approximately 4 still images involving torture, 60 displaying bondage, 30 depicting bestiality, 1,873 involving sexual intercourse, 160 involving objects, and 18 involving infants. In total, 294 victims were identified in these images.

On March 21, 2012, Brown was indicted in the Northern District of New York on five counts: three counts of production of child pornography in violation of 18 U.S.C. § § 2251(a), (e) and 2256(8) (Counts One to Three), and two counts of possession of child pornography in violation of 18 U.S.C. § § 2252A(a)(5)(B), (b)(2) and 2256(8)(A) (Counts Four and Five).3 The three production counts were based on the separate conduct involving Jane Does 1, 2, and 3. Brown pled guilty to all counts of the indictment.

At sentencing, the district court accepted the PSR's Guidelines calculation. In determining Brown's Guideline range, the PSR grouped Counts 1, 4, and 5 pursuant to U.S.S.G. § 3D1.2. The base offense level for this group (" Group 1" ) was calculated under U.S.S.G. § 2G2.1(a) to be...

To continue reading

FREE SIGN UP