U.S. v. Beiermann
| Decision Date | 24 February 2009 |
| Docket Number | No. CR 07-4018-MWB.,CR 07-4018-MWB. |
| Citation | 599 F.Supp.2d 1087 |
| Parties | UNITED STATES of America, Plaintiff, v. Brandon J. BEIERMANN, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Peter E. Deegan, Jr., U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.
Priscilla Elizabeth Forsyth, Federal Public Defender, Sioux City, IA, for Defendant.
TABLE OF CONTENTS
I. INTRODUCTION .............................................. 1091
A. The Charges And The Guilty Pleas ....................... 1091
B. Offense Conduct ........................................ 1092
C. Defendant's Personal Characteristics ................... 1093
II. LEGAL ANALYSIS ........................................... 1094
A. The Methodology For Determination Of A Sentence ........ 1094
B. Determination Of The Guideline Sentence ................ 1097
C. Determination Of Whether To Depart Or Vary ............. 1098
1. Arguments of the parties ............................ 1098
2. Analysis ............................................ 1100
a. Judicial rejections of the child pornography guideline.. 1100
b. The degree of deference due the guideline......... 1100
c. Categorical rejection of the guideline...... 1104
d. The reasoned alternative basis for sentencing..... 1106
D. Consideration Of § 3553(a) Factors ................ 1108
1. The nature and circumstances of the offense ......... 1108
2. The history and characteristics of the defendant .... 1110
3. The need for the sentence imposed ................... 1111
4. The kinds of sentences available and the sentencing
ranges for similar offenses .............................. 1114
5. Any pertinent policy statement ........................ 1114
6. The need to avoid unwarranted disparities............. 1114
7. The need to provide restitution...................... 1117
III. CONCLUSION ................................................ 1117
This case, one of approximately 2,200 sentencings over which I have presided in nearly fifteen years on the federal bench, came before me for sentencing of a defendant who had been an Eagle Scout, with no criminal history points, for offenses involving possessing, receiving, transporting, and shipping child pornography in violation of 18 U.S.C. § 2252A. This case raises the question of the merits of the advisory United States Sentencing Guideline for defendants convicted of child pornography offenses, U.S.S.G. § 2G2.2, where, inter alia, this guideline purportedly is the result of congressional mandates rather than the United States Sentencing Commission's exercise of its institutional expertise and empirical analysis.1 Although I find that the defendant's offenses are very serious, I nevertheless find, as have several other district court judges, that a sentence in strict accordance with the advisory guideline for child pornography offenses would be at odds with the "parsimony provision" of the federal sentencing statute, 18 U.S.C. § 3553(a), which directs me to impose a sentence that is "sufficient, but not greater than necessary" to accomplish the goals of sentencing. This memorandum, therefore, explains my rationale for the sentence imposed.
In an Indictment (docket no. 2) handed down on February 28, 2007, defendant Brandon J. Beiermann was charged with the following offenses: Count 1 charged that, from in or about September 2005, through about January 11, 2006, defendant Beiermann knowingly transported and shipped and attempted to transport and ship, in interstate and foreign commerce, visual depictions of minors engaged in sexually explicit conduct, all in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1); Count 2 charged that, from in or about September 2005, through about January 11, 2006, defendant Beiermann knowingly received and attempted to receive visual depictions of minors engaged in sexually explicit conduct, said visual depictions having been transported in interstate or foreign commerce, all in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1); and Count 3 charged that, on or about January 11, 2006, defendant Beiermann knowingly possessed and attempted to possess visual depictions of minors engaged in sexually explicit conduct, said visual depictions having been produced using materials that had been shipped and transported in interstate and foreign commerce, namely, a Hewlett Packard computer that was manufactured outside the state of Iowa, all in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).
Eventually, on September 5, 2007, defendant Beiermann entered guilty pleas to all three counts against him, pursuant to a plea agreement, before a magistrate judge of this district. On September 20, 2007, 2007 WL 2757258, I accepted the magistrate judge's recommendation to accept defendant Beiermann's guilty pleas.
On December 26, 2007, the prosecution filed a motion for upward departure (docket no. 34), but later withdrew that motion on November 14, 2008. See docket no. 51. On February 15, 2008, defendant Beiermann filed a motion for downward variance (docket no. 37). On April 9, 2008, I entered an order (docket no. 41) directing defendant Beiermann to submit to a presentence examination and study, to include a psychosexual assessment. By order (docket no. 43) dated May 15, 2008, I appointed Dr. Craig Rypma to perform the evaluation in question. In a memorandum opinion and order (docket no. 50), filed October 31, 2008, see United States v. Beiermann, 584 F.Supp.2d 1167 (N.D.Iowa 2008), I denied the prosecution's request, in this and the three other child pornography cases pending before me, for the opportunity to collect information from and to speak to Dr. Rypma prior to each sentencing hearing and to call Dr. Rypma as a witness at each sentencing hearing.
Defendant Beiermann's sentencing hearing began on November 19, 2008, but I continued it, after hearing the parties' arguments, rather than imposing sentence that day, so that I could give due consideration to my concerns with the applicable Sentencing Guideline and determine the appropriate sentence. On February 13, 2009, shortly before the scheduled completion of the sentencing hearing, the prosecution filed, without prior leave of court, a lengthy consolidated brief in this case and a similar case2 on the issues raised in the Stabenow article, cited infra. By order (docket no. 61) dated February 17, 2009, I denied the prosecution leave to file a brief in excess of the page limit imposed by local rules as a sanction for failure to seek leave to file such a brief in this case, and untimely filing of such a brief after requesting leave to do so in the other case.3 I set a deadline of February 18, 2009, for the prosecution to file a brief in compliance with the page limit in the applicable local rule and also set a deadline of February 20, 2009, for any response by defendant Beiermann to the prosecution's unexpected brief. The prosecution refiled its considerably shortened version of the brief (docket no. 62) on February 18, 2009. Beiermann filed a response (docket no. 64) on February 20, 2009. I have considered these additional briefs in my final determination of Beiermann's sentence.
Defendant Beiermann's sentencing hearing was completed on February 23, 2009, with further arguments on the variance issue, the defendant's allocution, and the imposition of sentence. I now state in some detail the reasons for the sentence imposed, which were only touched on at the conclusion of defendant Beiermann's sentencing, with the intention that this Memorandum Opinion And Order Regarding Sentencing will be incorporated by reference, in its entirety, into the Statement of Reasons and Judgment in this case.
The Presentence Investigation Report (PSIR) reveals the following offense conduct, to which Beiermann has not objected. On December 27, 2005, the National Center for Missing and Exploited Children (NCMEC) received a tip from the Custodian of Records for Yahoo! Inc. about Beiermann's possible involvement in the distribution of child pornography. This information was then forwarded to the Iowa Division of Criminal Investigation and the Clay County Sheriff's Department for investigation.
The investigation revealed that, on October 20, 2005, Beiermann received a visual depiction of child pornography on his home computer. The depiction showed two actual, naked, prepubescent minor females, one laying on her back and exposing her vaginal area, and one placing her face near the other's vaginal area. The investigation further verified that, on December 19, 2005, Beiermann used his home computer and the user name "brandylesbian69" to transmit five depictions of child pornography to a newsgroup maintained by Yahoo on computer servers outside of the state of Iowa. These depictions revealed an actual, naked, prepubescent minor female laying on her stomach with her legs spread apart and the camera focused on her anus and vaginal area; a prepubescent female sitting on the floor exposing her vaginal area; a prepubescent female undressed from the waist down, sitting in a chair with her legs spread apart and holding a pen in her hand; and a photo of what appears to be a prepubescent vagina with a child's fingers spreading it open. According to Yahoo's records, the defendant's profile under the name "brandylesbian69" indicated that his interests included young girls, incest, nudism, naturalism, pussy, and breasts. The profile also stated, "Hello" is a type of internet service specifically geared to share images.
On January 11, 2006, law enforcement officers executed a...
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