U.S. v. Croxford

Decision Date07 July 2004
Docket NumberNo. 2:02-CR-00302-PGC.,2:02-CR-00302-PGC.
Citation324 F.Supp.2d 1230
PartiesUNITED STATES of America, Plaintiff, v. Brent CROXFORD, Defendant.
CourtU.S. District Court — District of Utah

Michele M. Christiansen, Esq., U.S. Attorney's Office, Robert L. Steele, Esq., Office of the Guardian AD Litem, Salt Lake City, UT, for Plaintiff.

David V. Finlayson, Esq., Salt Lake City, UT, for Plaintiff.

AMENDED MEMORANDUM OPINION AND ORDER FINDING APPLICATION OF THE FEDERAL SENTENCING GUIDELINES UNCONSTITUTIONAL

CASSELL, District Judge.

Defendant Brent Croxford is before the court for sentencing on the offense of sexual exploitation of a child in violation of 18 U.S.C. § 2251(a). For more than fifteen years, sentencings such as Croxford's have been governed by the federal sentencing guidelines. Last Thursday, however, the United States Supreme Court ruled that portions of the State of Washington's sentencing guidelines were unconstitutional. The Court held that Washington's guidelines scheme deprived a defendant of his Sixth Amendment right to a jury trial by increasing his presumptive sentence based on a judge's, rather than a jury's, factual findings regarding sentencing factors. Because the federal sentencing guidelines suffer from the same constitutional infirmity, the court holds that, as applied to this case, the federal sentencing guidelines are unconstitutional and cannot govern defendant Croxford's sentencing. Because of the potentially cataclysmic implications of such a holding, the reasoning underlying this conclusion will be set out at some length.

I. FACTUAL BACKGROUND

On November 21, 2001, a case worker, Lori Thomassen, from the Division of Family Services called detective Craig Ellertson of the South Jordan Police Department. Thomassen advised Ellertson that a young girl, who the court will refer to as "C.C.," had disclosed that her adoptive father was taking inappropriate photographs of her.1 At the time of the hearing, C.C. was approximately eight or nine years old.2 Shortly after this telephone conversation, Ellertson, along with Thomassen and another officer, went over to the Croxford residence to investigate the matter. Upon arriving at the Croxfords, Mr. and Mrs. Croxford granted Ellertson and Thomassen permission to interview C.C. alone.3

During the interview, C.C. told Ellertson and Thomassen that Croxford was taking nude photos of her with a digital camera. C.C. described the sexually explicit poses and the things that Croxford, her adoptive father asked her to do in the photographs.4 C.C. also explained that she thought that Croxford was putting them on the Internet and that she thought Croxford had taken similar photos of another young girl who had previously been a foster child in the Croxford home.5

After Ellertson and Thomassen had interviewed C.C., Ellertson requested that Croxford accompany him to the police station for questioning. During an interview with Ellertson, Croxford explained that he had taken "bathtub" photographs of C.C.6 Croxford also confirmed that he owned a Sony digital camera, was an Internet provider for certain customers, and that he repaired and worked on computers in his home. At the conclusion of the interview, in response to questions about taking sexually explicit pictures of C.C., Croxford did not deny that he had taken such pictures, and stated "I meant to delete all of those" and "You should take me out and shoot me."7

Ellertson obtained a search warrant for Croxford's home. During the execution of the search warrant, officers discovered several computer diskettes in a file cabinet which contained sexually explicit pictures of C.C.8 Upon examination of Croxford's computer equipment it was discovered that Croxford had downloaded thousands of pornographic images, including child pornography.9 It was further discovered that the defendant had DVD disks containing photographs of C.C. and a previous foster child of the defendant, "A.M.," posing in lewd positions.

On May 16, 2002, a federal grand jury returned a two-count indictment against Croxford. Count I charged sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a). Count II charged possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The defendant was arraigned on May 30, and thereafter filed a motion to suppress the evidence against him. Following an evidentiary hearing and additional time for briefing requested by the parties, the court denied the motion to suppress in a memorandum decision on October 10, 2002. Thereafter, the defendant requested additional time in which to consider entering a guilty plea and to file additional motions challenging the indictment. Because a guilty plea would avoid the need for C.C. to testify, the court granted the additional time and set a new trial date of April 23, 2003. However, shortly before the trial was to begin, the court was notified by the probation office that the defendant had disappeared. On April 7, 2003, the court issued a warrant for the defendant's arrest. On April 15, 2003, the defendant was found in Knoxville, Tennessee, after an apparent suicide attempt. The defendant was placed in U.S. Marshal custody and transferred back to the District of Utah.

On May 16, 2003, based on the suicide attempt, the court ordered a psychological and psychiatric examination. The defendant was then transferred to Springville, Missouri, where he was detained until December 17, 2003. The psychiatric examination concluded that the defendant was competent to stand trial. After his return to Utah, on February 25, 2004, the defendant entered into a plea agreement with the government, pleading guilty to Count I of the indictment while Count II was dismissed. The parties apparently contemplated that Croxford's sentence would fall within a Guidelines range of 121 to 151 months. In the agreement, the government specifically agreed not to argue for any upward departures from the applicable Guideline range.

The probation office then prepared a pre-sentence report in the matter, including calculations under the federal sentencing guidelines. This court noticed that missing from the pre-sentence report was a recommendation for a two-level enhancement for obstruction of justice based upon Croxford's fleeing of the jurisdiction shortly before trial. After an amendment which added the obstruction of justice enhancement, the final pre-sentence report concluded that the defendant should be sentenced under the Guidelines at an offense level of 34 and a criminal history of I, which produces a Guidelines sentence of between 151-188 months.

The probation office arrived at this conclusion in four steps. First, the office calculated the guidelines for the sexual exploitation of the victim identified in the indictment: C.C. The base offense level for this offense was 27, increased by four levels because the victim was under the age of twelve, increased a further two levels because the defendant was a parent, relative, or legal guardian of the victim, and increased a further two levels because the defendant obstructed justice by absconding before trial.10 This produced a total adjusted offense level of 35.

As a second step, the office calculated guidelines for another young victim the defendant had photographed: A.M. Although the defendant had not been charged in the indictment with exploiting A.M., his victimization of her was part of the "relevant conduct" for determining his sentencing guideline, as it was part of his common scheme or plan.11 The guidelines calculation for the exploitation of A.M. was exactly the same as for C.C. — base offense level of 27, increased by four levels because the victim was under the age of 12, increased by a further two levels because the defendant was a parent, relative, or legal guardian of the minor, and finally increased by a further 2 levels for obstruction of justice. This produced a total adjusted offense level of 35.

As the next step, the probation office applied the "grouping rules" for aggregating these two separate calculations. Under the applicable grouping rules,12 the two separate victims produced two "units" of victimization, which requires an additional two-level enhancement above the highest base offense level previously calculated — the level 35 was increased to a level 37.

As a final step, the defendant was given credit for accepting responsibility for his offense, producing a reduction of three levels to a level 34. Because the defendant had no prior criminal history, his sentencing guideline range is 151 to 188 months.

However, five days before sentencing, the United States Supreme Court struck down Washington's sentencing guidelines in Blakely v. Washington.13 The defendant now argues that Blakely requires the same fate for the federal sentencing guidelines — at least as to the two enhancements at issue in this case. This court reluctantly agrees.

II. UNITED STATES V. BLAKELY.

In Blakely v. Washington, the Supreme Court struck down the Washington State sentencing guideline scheme Blakely is the third in a line of cases that have cast serious doubts on the constitutionality of the federal sentencing guidelines. In the first of these cases, Apprendi v. New Jersey,14 the Supreme Court struck down a New Jersey sentencing statute that allowed a judge to enhance a defendant's sentence based on the judge's finding that the crime was committed with a biased purpose. The holding of Apprendi was that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."15 This holding was based on the Court's understanding of the Due Process Clause and the Sixth Amendment's right to trial by jury. "These rights," the Court reasoned, "indisputably entitle a criminal defendant to `a jury determination that [he] is guilty of every element of the crime...

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