United States v. Kliebert, 121812 FED6, 12-1324

Docket Nº:12-1324
Opinion Judge:DLOTT, District Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GARY KLIEBERT, Defendant-Appellant.
Judge Panel:BEFORE: McKEAGUE and GRIFFIN, Circuit Judges; and DLOTT, District Judge.
Case Date:December 18, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

GARY KLIEBERT, Defendant-Appellant.

No. 12-1324

United States Court of Appeals, Sixth Circuit

December 18, 2012

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: McKEAGUE and GRIFFIN, Circuit Judges; and DLOTT, District Judge. [*]

OPINION

DLOTT, District Judge.

Gary Kliebert challenges the procedural and substantive reasonableness of his above-Guidelines, statutory maximum sentence for receipt of child pornography. For the reasons that follow, we affirm.

I. BACKGROUND

Information from Italy's Centre for Combating Pedophilia Online directed Homeland Security Investigations ("HSI") agents to an Internet Protocol ("IP") address registered to Martha Kliebert, wife of Defendant Gary Kliebert. Agents obtained a search warrant for the Kliebert home, and Gary Kliebert consented to be interviewed by the agents. Kliebert confessed to frequently downloading child pornography and led agents to a hidden location in his basement where he had stored two laptop computers, an external hard drive, a hand video recorder, a wireless router, money, and letters. Kliebert had hidden these items below a fake panel in a shelving unit in his basement.

Kliebert admitted to the agents that he had started looking at child pornography about eight years previously while working as a special education teacher and that his viewing of child pornography "got worse" after his retirement. Kliebert told an agent that he masturbated to child pornography and adult pornography each day and spent approximately two to three hours each day viewing child pornography. However, he told the agents that he could never molest a child.

Initial forensic investigation of one of Kliebert's two laptops revealed 1, 492 images of known child pornography including 16 images of child pornography with animals and 9 images of child pornography involving bondage; 1, 112 images of suspected child pornography; 556 child pornography videos; 3 child pornography videos involving bondage; and 1 child pornography video involving bestiality. Initial forensic review of the external hard drive revealed 15, 375 images of known child pornography including 1 image specifically identified as a bondage/torture image and 470 known child pornography videos, 23 suspected child pornography videos, and over 100, 000 additional images of suspected child pornography. According to the Presentence Investigation Report ("PSIR"), investigators did not come up with a precise number of child pornographic images on the hard drive due to the sheer number of images. A forensic examination of Kliebert's electronic media completed subsequent to the preparation of the revised PSIR found the equivalent of 872, 138 images of rape, abuse, and sexual exploitation of children. When asked at his plea hearing the quantity of child pornographic images he had received, Kliebert responded that it was approximately one million.

During a consensual polygraph examination that took place after his initial interview with investigating agents, Kliebert admitted that, in fact, he had sexually abused a child. Specifically, he admitted that he once had sexual contact with his minor niece five or six years ago when she was approximately sixteen years old.

Agents then interviewed Kliebert's niece, at that point a college student. She informed them that Kliebert had had sexual contact with her not once, but numerous time over a period of five years beginning when she was eleven years old. The incidents of contact typically entailed Kliebert touching his minor niece's breasts and vaginal area over her clothing. Kliebert continued to molest his niece until she was sixteen, when Kliebert's wife found his laptop computer with the pornography on it and alerted the victim's mother. Kliebert was never alone with his niece after that.

A few weeks after his release on bond, Kliebert consulted Dr. Gerald A. Shiener, M.D., a fellow with the American Psychiatric Association, for a psychiatric evaluation. Kliebert told Dr. Shiener that he cooperated with the police and told them "everything." He also described "an incident" with his niece in which he admitted he "went too far" and touched her perineum. Based on his interview with Kliebert, Dr. Shiener concluded that Kliebert's interest in child pornography was "more in keeping with a fetish than with any diagnosis of pedophilia, " that Kliebert had no history of pedophilic behavior, and that Kliebert was unlikely to be a threat to the community. Dr. Shiener was unaware of the extent and frequency of Kliebert's molestation of his niece.

Three days after his psychiatric evaluation with Dr. Shiener, Kliebert began psychotherapy with licensed social worker Martha Maceroni. Kliebert participated in therapy sessions weekly or a minimum of twice per month from August 2011 until at least January 2012. Maceroni wrote in a Clinical Progress Report provided to the district court that Kliebert had complied with psychiatric medication treatment, that he remained on anti-depressant and anti-anxiety medications, and that he reported significant positive outcomes. Maceroni stated that Kliebert had done much self-examination, was committed to this work, and had made impressive therapeutic gains. Maceroni also reported that Kliebert took full responsibility for his actions and had remorse for those choices. In conclusion, Maceroni opined that there was a high probability that Kliebert could and would resolve his sexual preoccupation.

Kliebert pleaded guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2). Kliebert's sexual abuse of his niece is not a charged offense in this case. Kliebert's total offense level was thirty-five following various enhancements and a reduction for the acceptance of responsibility. Kliebert had no criminal history, corresponding to a criminal history category of I. Kliebert's resulting advisory sentencing guidelines range was 168 to 210 months of imprisonment. Pursuant to 18 U.S.C. § 2252A(b)(1), the minimum term of imprisonment was five years with a maximum term of twenty years.

In its sentencing memorandum, the Government asked the district court to sentence Kliebert to 210 months, the top of the Guideline range, focusing largely on the fact that the number of images and the number of children involved in Kliebert's collection of child pornography was simply staggering.

In his sentencing memorandum, Kliebert requested a downward variance to a below-Guidelines sentence of 60 months, the mandatory minimum for the crime. Kliebert's attorney emphasized that Kliebert had been a participant in group therapy, had taken full responsibility for his inappropriate conduct, and was taking steps to address his psychiatric and criminal issues through medication and therapy.

A few days before Kliebert's sentencing hearing, the agents assigned to the case received a phone call from one of Kliebert's sisters, who put them in touch with another sister who then provided a statement to the agents. A woman who identified herself as Kliebert's sister told the agents that Kliebert himself, in addition to their father, sexually abused her when they were living together and growing up as kids. She also said that she did not believe that Kliebert was sexually assaulted by their father. The agents gave the woman an opportunity to make a written statement, but she declined to do so. The Assistant United States Attorney provided this information to the district court and defense counsel prior to the sentencing hearing.

At the outset of the sentencing hearing, the district court advised the parties that it had carefully reviewed the PSIR, the Government's Sentencing Memorandum and victim letters, the Defendant's Sentencing Memorandum, Dr. Shiener's and the therapist's letters, and letters from Kliebert's friends and family.

The district court then considered an objection raised by Kliebert's attorney regarding the statement Kliebert's sister had...

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