In
2014, the United States indicted Mr. Freeman and his
co-defendant Crystal Lozano on charges of producing,
distributing, receiving, and possessing child pornography, in
violation of 18 U.S.C. §§ 2251(a) and 2 (Count
One), 18 U.S.C. § 2252A(a)(2) (Count Three), and 18
U.S.C. § 2252A(a)(5)(B) (Count Four). [Superseding
Indictment, Doc. 14, at 2-3, No.
2:14-CR-00073-2-JRG].[1]After unsuccessfully moving, through his
attorney, to quash or dismiss the indictment,[2] Mr. Freeman
entered into a plea agreement with the United States, though
the Court ordered two competency examinations before holding
a change-of-plea hearing. [Orders
for Mental Exam, Docs. 42 & 78, No. 2:14-CR-00073-2-JRG].
He pleaded guilty to knowingly possessing child pornography,
in violation of § 2252A(a)(5)(B). [Plea Agreement, Doc.
67, at 1, No. 2:14-CR-00073-2-JRG; Minute Entry, Doc. 105,
No. 2:14-CR-00073-2-JRG]. The plea agreement's factual
basis states:
On November 1, 2013, a forensic interview was conducted with
a minor child at the Children's Advocacy Center in
Mosheim, Tennessee. During the interview, the child indicated
that photographs had been taken of her private parts
[pointing to the vagina on an anatomical drawing].
On April 1, 2014, the Greeneville Police Department, went to
the residence of co-defendant Crystal Lozano, 406 Elk Street,
Apartment Q92, Greeneville, Tennessee, to speak with Lozano
about a statement Lozano made to Tennessee Department of
Children's Services regarding Lozano taking child
pornographic photographs of the aforementioned child, and
sending them to her boyfriend, the defendant. Lozano signed a
waiver of her rights and wrote a confession statement.
Lozano admitted in her confession statement that she took
child pornographic pictures at the request of the defendant.
Lozano stated that, “I took 3 pics of her with her
vagina opened and one with just her panties pulled to the
side,” referring to pictures taken of a prepubescent
child. Lozano further admitted that, a couple of days later,
she took some additional photos of the child while the child
was sleeping. At the time, the child had only a night shirt
and panties on. Those pictures were sent to the
defendant's cellular telephone. The defendant possessed
the photographs on his phone while residing in the Eastern
District of Tennessee. On May 9, 2014, an examiner with the
FBI conducted a forensic interview of the aforementioned
minor child. During the interview, the child identified nude
photos of herself, indicating that they were photos possessed
by the defendant and Lozano.
On June 12, 2014, a search warrant and arrest warrant were
executed at the residence of Lozano. Lozano agreed to talk
with FBI agents, and admitted that she had taken photographs
of a minor child's vagina. The photos were taken on a
Casio Exilim C721 cellular telephone, which was manufactured
outside the United States. The defendant gave Lozano the
telephone. After taking the pictures, Lozano sent them to the
defendant via text message to the defendant's cellular
telephone.
On June 27, 2014, FBI agents in the Eastern District of
Michigan executed a search warrant and arrest warrant at the
residence of the defendant. Two laptop computers and a
cellular telephone were seized during the search, all of
which were manufactured outside the State of Tennessee. A
forensic examination of the computers and cellular telephone
revealed the presence of child pornography, including
photographs of the aforementioned prepubescent child, which
had been texted by Lozano to Freeman.
The defendant admits that he knowingly possessed visual
depictions of child pornography, depicting a lascivious
exhibition of the genitals of prepubescent children, and that
said visual depictions traveled in interstate commerce.
[Plea Agreement at 2-3]. In the plea agreement, Mr. Freeman
agreed to a waiver provision, in which he waived his right to
collaterally attack his sentence and conviction but with the
exception that he could pursue claims for prosecutorial
misconduct and ineffective assistance of counsel.
[Id. at 8].
Leading
up to Mr. Freeman's sentencing, the probation officer
prepared and filed a presentence investigation report, in
which he applied several offense-specific enhancements: (1) a
two-level increase under USSG § 2G2.2(b)(2) because the
pornographic images involved a prepubescent minor, (2) a
four-level increase under § 2G2.2(b)(4) because the
pornographic images portrayed sadistic or masochistic conduct
or other depictions of violence, (3) a five-level increase
under § 2G2.2(b)(5) because Mr. Freeman engaged in a
pattern of activity involving sexual exploitation or abuse of
a minor, (4) a two-level increase under § 2G2.2(b)(6)
because his offense involved use of a computer, and (5) a
three-level increase under § 2G2.2(b)(7)(B) because his
offense involved at least 150, but fewer than 300,
pornographic images. [PSR, Doc. 109, ¶¶ 30-34, No.
2:14-CR-00073-2-JRG].
The
probation officer also concluded that Mr. Freeman, under 18
U.S.C. § 2252A(b)(2),[3]was subject to an enhanced statutory
penalty of ten to twenty years' imprisonment because he
had a prior conviction for second-degree criminal sexual
conduct with a minor in Michigan-
a prior conviction for which he received a prison sentence.
[Id. ¶¶ 46, 68].[4] Mr. Freeman's attorney
did not dispute that Mr. Freeman was subject to this enhanced
statutory penalty. With a criminal history category of II and
a total offense level of 31, Mr. Freeman had an advisory
guidelines range of 121 to 151 months' imprisonment,
[id. ¶ 69; Statement of Reasons, Doc. 124, at
1, No. 2:14-CR-00073-2-JRG], and he faced a minimum term of
supervision of five years and a maximum term of life, 18
U.S.C. § 3583(k). Applying this guidelines range and a
statutory range of a mandatory minimum ten years up to a
maximum of twenty, [Sent. Hr'g Tr., Doc. 142, at
49:19-21], the Court sentenced him to 151 months'
imprisonment and a lifetime term of supervised release, [J.,
Doc. 123, at 2-3, No. 2:14-CR-00073-2-JRG]. The Court also
ordered him to comply with several special conditions of
supervised release under Standing Order 15-06, including:
(1) The defendant shall participate in a program of sex
offender mental health treatment at his/her own expense, as
approved by the probation officer, until such time as he/she
is discharged from treatment by the provider and as approved
by the probation officer. The defendant shall comply with the
policies and procedures of the treatment program. The
defendant shall waive all rights to confidentiality regarding
sex offender mental health treatment in order to allow
release of information to the United States Probation
Officer, and to authorize open communication between the
probation officer and the treatment providers.
(2) The defendant shall have no direct or third-party
contact, by any means available to him/her, with any
victim(s) of a sex offense committed by the defendant.
(3) Other than incidental contact, which is defined as
contact occurring merely by chance or without intention or
calculation, the defendant shall not associate and/or be
alone with children under 18 years of age, nor shall he/she
be at any residence where children under the age of 18 are
residing, without the prior written approval of the probation
officer. If the defendant has any contact with any such minor
not otherwise addressed in this condition, the defendant
shall immediately leave the situation and notify the
probation officer. This
provision shall not apply to contact with the defendant's
own minor children unless the court expressly so finds.
(4) The defendant shall not visit, frequent, or linger about
any place that is primarily associated with children under
the age of 18 or at which children under the age of 18
normally congregate without the prior written approval of the
probation officer.
(5) The defendant shall not associate with anyone, under any
circumstance, that he/she knows to be a sex offender, someone
who engages in sexual activity with children under 18 years
of age, or someone who condones and/or supports the sexual
abuse/exploitation of children under 18 years of age (e.g.,
NAMBLA, BOYCHAT, Boylover Message Board), except while
participating in sex offender mental health treatment or for
employment purposes as approved by the probation officer.
(6) The defendant shall not possess any printed photographs,
paintings, recorded material, or electronically produced
material designed to produce arousal of sexual interest in
children under 18 years of age. Nor shall he/she visit,
frequent, or linger about any place where material designed
to produce arousal of sexual interest in children is
available to him/her.
(8) The defendant shall submit to a psychosexual assessment
at his/her own expense, as directed by the probation officer.
(9) The defendant shall submit to polygraph testing at
his/her own expense, as directed by the probation officer, in
order to determine if he/she is in compliance with the
conditions of supervision, or to facilitate sex offender
treatment. The defendant shall be truthful during polygraph
evaluations.
(10) All
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