United States v. Brown, 061416 FED2, 13-1706

Docket Nº:13-1706
Opinion Judge:POOLER, Circuit Judge
Party Name:UNITED STATES OF AMERICA, 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. DRONEY, Circuit Judge, dissenting:
Case Date:June 14, 2016
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit



NATHAN BROWN, Defendant-Appellant.

No. 13-1706

United States Court of Appeals, Second Circuit

June 14, 2016

Submitted: February 17, 2015

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. The sentencing transcript suggests that the district court may have based its sentence on a clearly erroneous understanding of the facts. Accordingly, we remand for resentencing.

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.

POOLER, 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 60 years' imprisonment. Brown now challenges that sentence, arguing that the district court miscalculated his guidelines range and that the sentence is otherwise procedurally and substantively unreasonable. We reject Brown's challenge to the guidelines calculations, but we remand for resentencing to ensure that the sentence is not based on a clearly erroneous understanding of the facts.


In February 2012, federal investigators discovered eleven images on a child-pornography website that appeared to have been uploaded by the same person. Two of the images depicted the same eight-year-old girl. By examining metadata from one of the images, investigators determined that the image had been taken using a Motorola Droid X cell phone. The metadata also revealed GPS coordinates associated with the image. With assistance from the cell phone carrier in that region for the Motorola Droid X, investigators determined the approximate area where the photograph was taken. They then spoke with the superintendent of schools within that area, who identified the girl after viewing a sanitized version of the photograph.

Federal agents visited the girl's home and spoke with her mother, who identified her daughter in four images of child pornography. The girl's mother also recognized her thirteen-year-old niece in two of the images. The mother told investigators that the two girls would sometimes spend time together at a trailer home that had been rented by defendant Nathan Brown and the mother's sister.

Investigators interviewed the eight-year-old girl, who told them that, while babysitting, Brown would "play house" with the girls, and she would play the "baby" and wear a diaper. Brown would periodically "change" the diaper as if it were soiled. She reported that, while doing so, Brown had touched her as he "cleaned" her vaginal area with a baby wipe. Brown also took pictures of the girls as this was occurring.

Both girls recognized themselves in the photographs that they were shown by investigators, and they remembered a number of the pictures that had been taken while they were awake. One of the girls told investigators that Brown 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, federal agents obtained a search warrant for Brown's residence and electronic devices. They executed the warrant at Brown's home and found him attempting to delete child pornography from his computer. The agents arrested Brown and seized his computers, cell phones, storage devices, and cameras.

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 the two girls depicted on the child-pornography website that he uploaded from his phone to his computer. Images of the eight-year-old girl included a picture of her wearing only a shirt, with her vagina exposed, and with an open diaper next to each of her legs. In another, the girl was naked in a bathtub, again with her genitalia exposed. Additional pictures included close-up images of the girl's vagina, an image of a male hand pulling aside the girl's underwear, and an image of a child's hand holding an adult penis. The girl is sleeping in several of these images. The images of the girl's cousin showed her sleeping, 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. The images also included close-up pictures of her vagina.

Brown told investigators that he had also taken sexually explicit photographs and videos of a third victim, who was eight years old at the time. Investigators found images and videos of this third victim on Brown's computer. 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 her underwear and photographing her while she was sleeping. The third victim was "asleep the entire time during the production of the images and videos" and has "no knowledge of having been victimized by Brown." PSR ¶ 35.

After Brown's arrest, investigators conducted forensic analysis of his computers and phones. They found the eleven images that originally prompted the investigation on Brown's computers. They also discovered photos that Brown had taken by hiding a pinhole camera in the bathroom of a home during a pool party and in the bathroom of a hotel at a public water park. The presentence report indicates that Brown also produced 33 files of a "Victim #4" and 2 files of a "Victim #5." PSR ¶ 36. The images of Victim #4 "depicted a female approximately eight to nine years old with black hair opening her vagina, " and the images of Victim #5 "depict an unknown infant." PSR ¶ 37.

Brown's computers collectively contained over 25, 000 still images and 365 videos of child pornography, 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, 299 victims were identified in these images.

A grand jury indicted Brown with three counts of producing child pornography and two counts of possessing child pornography. Brown pleaded guilty to all five counts pursuant to a plea agreement. Under the plea agreement, Brown faced a mandatory minimum of 15 years' imprisonment, and he reserved the right to appeal any sentence greater than 405 months' imprisonment.

The probation office prepared a presentence investigation report in advance of Brown's sentencing. In determining Brown's guidelines range, the presentence report "grouped" Counts 1, 4, and 5, because those counts involved "substantially the same harm." U.S.S.G. § 3D1.2(b). The base offense level for this group was 32. The base offense level was then increased 14 levels because of five sentencing enhancements: (1) a four-level increase pursuant to Section 2G2.1(b)(1)(A) because "the offense involved a minor who had . . . not attained the age of twelve years;" (2) a two-level increase pursuant to Section 2G2.1(b)(2)(A) because "the offense involved[] the commission of . . . sexual contact;" (3) a four-level increase pursuant to Section 2G2.2(b)(4) because the offense "involved material that portrays sadistic or masochistic conduct or other depictions of violence;" (4) a two-level increase pursuant to Section 2G2.1(b)(5) because "the minor was . . . in the custody, care, or supervisory control of the defendant;" and (5) a two-level increase pursuant to Section 3A1.1(b)(1) because "the defendant knew or should have known that a victim of the offense was a vulnerable victim." These enhancements increased Brown's adjusted offense level for this group to 46.

The presentence report then repeated this process for Groups 2 and 3, which corresponded to Counts 2 and 3, and determined that each of those counts carried a total offense level of 42. This resulted in a "combined adjusted offense level" on all counts of 49. Brown received another five-level enhancement pursuant to Section 4B1.5(b) because he "engaged in a pattern of activity involving prohibited sexual conduct, " raising the adjusted offense level to 54. Finally, Brown received a three-level reduction pursuant to Section 3E1.1 because he accepted responsibility for his crimes, resulting in a total offense level of 51. This was "treated as" an offense level of 43, the maximum offense level under the guidelines. See U.S.S.G. ch. 5, pt. A, application note 2.

At criminal history category I and offense level 43, Brown's recommended sentence under the guidelines was initially life imprisonment. Because each count was subject to a statutory maximum, however, Brown's recommended sentence became 110 years' imprisonment.

At sentencing, the government requested this maximum sentence. Defense counsel requested the mandatory minimum sentence of 15 years' imprisonment. The court heard from the families of the victims, who described the significant behavioral issues from which the victims suffer and how they struggled to maintain relationships with family and friends. One victim's family told the court that the family "fel[t] violated in the worst imaginable way" and that the victim "lives in fear" and continues to "struggle...

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