U.S. v. Fiorella
| Decision Date | 11 February 2009 |
| Docket Number | No. 07-CR-60-LRR.,07-CR-60-LRR. |
| Parties | UNITED STATES of America, Plaintiff, v. Heather FIORELLA a/k/a Heather Gonsorcik, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Ian Thornhill, US Attorney's Office, Cedar Rapids, IA, for Plaintiff.
Michael K. Lahammer, Lahammer Law Firm, PC, Cedar Rapids, IA, for Defendant.
SENTENCING MEMORANDUM
I. INTRODUCTION ........................................................... 1061
II. RELEVANT PRIOR PROCEEDINGS ............................................. 1061
A. Second Superseding Indictment ....................................... 1061
B. Shuler .............................................................. 1061
C. Defendant ........................................................... 1062
III. SENTENCING FRAMEWORK ................................................... 1063
IV. EVIDENTIARY RULES ...................................................... 1063
V. ALLEGATIONS OF DOMESTIC ABUSE .......................................... 1064
VI. ADVISORY SENTENCING GUIDELINES RANGE ................................... 1065
A. Possession of Child Pornography—USSG § 2G2.2 ............. 1065
1. Sadistic, Masochistic or Otherwise Violent Photographs—USSG
§ 2G2.2(b)(4) ............................................. 1065
2. Pattern of Activity—USSG § 2G2.2(b)(5) ................ 1066
3. Number of Images—USSG § 2G2.2(b)(7)(D) ................ 1067
4. Cross-Reference—USSG § 2G2.2(c)(1) .................... 1068
a. KG. ........................................................... 1068
b. M.G. .......................................................... 1069
c. Application ................................................... 1070
B. Sexually Exploiting Minors—USSG § 2G2.1 .................. 1070
1. K.G .............................................................. 1070
2. M.B. ............................................................. 1070
C. Obstruction of Justice—§ 3C1.1 ........................... 1070
D. Multiple Count Adjustment—USSG § 3D1.4 ................... 1071
E. Acceptance of Responsibility—USSG § 3E1.1 ................ 1072
F. Range ............................................................... 1073
VII. MOTION FOR DOWNWARD VARIANCE ........................................... 1073
VIII. DISPOSITION ............................................................ 1076
The matter before the court is the sentencing of Defendant Heather Fiorella a/k/a Heather Gonsorcik.
On October 24, 2007, a grand jury returned a five-count Second Superseding Indictment (docket no. 56) against Defendant and John Shuler. Count 1 charged Defendant and Shuler with Conspiracy to Sexually Exploit Children, in violation of 18 U.S.C. § 2251(a) and (e). Count 2 charged Defendant with Permitting a Minor Daughter to Engage in Sexually Explicit Conduct for the Purpose of Producing a Visual Depiction of Such Conduct, in violation of 18 U.S.C. § 2251(b) and (e). Count 3 charged Defendant and Shuler with Sexual Exploitation of a Child, in violation of 18 U.S.C. § 2251(a) and (e) and § 2. Count 4 charged Defendant and Shuler with Attempted Sexual Exploitation of a Child, in violation of 18 U.S.C. § 2251(a) and (e) and § 2. Count 5 charged Defendant and Shuler with Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2) and § 2.
On October 26, 2007, Shuler appeared before a United States Magistrate Judge and pled guilty to Counts 1 and 3 of the Second Superseding Indictment. Shuler pled guilty pursuant to a Plea Agreement (docket no. 61-2), in which the government agreed to move to dismiss Counts 4 and 5 at the time of sentencing. On November 13, 2007, the undersigned accepted Shuler's guilty plea.
On September 9, 2008, the undersigned presided over Shuler's sentencing hearing. The undersigned determined that Shuler's advisory Sentencing Guidelines range was life imprisonment. Shuler had a total offense level of 43 and was a Criminal History Category II. After considering all of the factors at 18 U.S.C. § 3553(a), the undersigned sentenced Shuler to 470 months of imprisonment on Counts 1 and 3 and dismissed Counts 4 and 5.1
The undersigned also announced an alternative sentence for Shuler in the event the Eighth Circuit Court of Appeals found error in one discrete aspect of the calculation of his advisory Sentencing Guidelines range. Specifically, the undersigned held that, if the Eighth Circuit Court of Appeals determined the undersigned wrongly held that Shuler was subject to a four-level increase pursuant to USSG § 2G2.1(b)(4), the court would nonetheless vary upward and impose a 470-month sentence.2
On September 22, 2008, Shuler filed a Notice of Appeal (docket no. 123) to the Eighth Circuit Court of Appeals.
On December 11, 2007, Defendant appeared before the Magistrate Judge, waived her right to indictment and pled guilty to a three-count Third Superseding Information ("Superseding Information") (docket no. 93). All three counts charged Defendant with Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Defendant pled guilty pursuant to a Plea Agreement (docket no. 98-2). On December 12, 2007, the undersigned accepted Defendant's guilty plea.
On May 16, 2008, the United States Probation Office ("USPO") prepared Defendant's Presentence Investigation Report ("PSIR"). Defendant and the government objected to the PSIR. On August 26, 2008, the USPO revised the PSIR.
On October 10, 2008, the government filed a Sentencing Memorandum (docket no. 130). On the same date, Defendant filed a Sentencing Memorandum (docket no. 131). On October 15, 2008, Defendant filed a Revised Sentencing Memorandum (docket no. 135). On October 20, 2008, the government filed a Response (docket no. 137). On October 22, 2008, Defendant filed a Second Revised Sentencing Memorandum (docket no. 138). On October 23, 2008, the government filed a Second Response (docket no. 139).
On October 24, 2008, the court commenced Defendant's sentencing hearing ("Hearing"). Assistant United States Attorney Sean R. Berry represented the government. Attorney Michael K. Lahammer represented Defendant, who was personally present.
At the Hearing, the court (1) received evidence; (2) accepted the parties' stipulation that a certain disc contained child pornography and videos of Defendant performing sexual acts on a number of males; (3) heard the testimony of one witness, Ms. Mary Ann Pedde; (4) received argument on all outstanding sentencing issues; and (5) heard Defendant's allocution. Because of the factual and legal complexity of the sentencing issues, the court reserved ruling pending the instant written sentencing memorandum opinion. The court advised the parties it would take the issues under advisement, issue a written opinion and then reconvene the Hearing to impose sentence.
While the sentencing issues were under advisement, the government requested a status conference. On December 15, 2008, counsel for the government and Defendant appeared in chambers for the status conference. The government alerted the court that Shuler was raising a new argument to the Eighth Circuit Court of Appeals as to why a four-level enhancement under USSG § 2G2.1(b)(4) for possession of sadistic, masochistic or otherwise violent child pornography was not appropriate in his case. Namely, Shuler was advancing the purely legal argument that a § 2G2.1(b)(4) enhancement does not apply to a defendant who does not produce the sadistic, masochistic or otherwise violent child pornography he is found to have possessed. (In the district court, Shuler had only asserted, on purely factual grounds, that he had not possessed certain sadistic, masochistic or otherwise violent child pornography.) Because the government believes Defendant is similarly situated to Shuler for purposes of the USSG § 2G2.1(b)(4), the government alerted counsel for Defendant to Shuler's new legal argument. The government expressed the desire to litigate this new legal argument before the undersigned in Defendant's case to avoid plain-error review before the Eighth Circuit Court of Appeals.
Both parties requested the opportunity to brief the new legal issue. The court granted the parties' joint request. On January 19, 2009, Defendant filed a Supplemental Sentencing Memorandum (docket no. 144). On the same date, the government filed a Supplemental Sentencing Memorandum (docket no. 145).
All of the contested legal and factual issues in Defendant's sentencing are now fully submitted and ready for decision. On February 19, 2009, at 8:30 a.m., in the Temporary Courthouse in Cedar Rapids, Iowa, the court shall reconvene the Hearing and impose sentence in a manner consistent with the instant Sentencing Memorandum.
A "district court should begin [a sentencing proceeding] with a correct calculation of the [defendant's] advisory Sentencing Guidelines range." United States v. Braggs, 511 F.3d 808, 812 (8th Cir.2008). The defendant's advisory Sentencing Guidelines range "is arrived at after determining the appropriate Guidelines range and evaluating whether any traditional Guidelines departures are warranted." United States v. Washington, 515 F.3d 861, 865 (8th Cir.2008).
"[A]fter giving both parties a chance to argue for the sentence they deem appropriate, the court should consider all of the factors listed in 18 U.S.C. § 3553(a) to determine whether they support the sentence requested by either party." Braggs, 511 F.3d at 812. "The district court may not assume that the Guidelines range is reasonable, but instead `must make...
To continue reading
Request your trial
-
U.S. v. Feemster
...of child pornography offenses and fails to promote respect for law and to provide just punishment. See United States v. Fiorella, 602 F.Supp.2d 1057, 1074-75 (N.D.Iowa 2009). The Sentencing Commission presumably will catalog these and other variations for consideration by the courts and Con......
-
U.S. v. Jacob
...error in doing so). In Beiermann, the prosecution urged me to consider the Northern District of Iowa case of United States v. Fiorella, 602 F.Supp.2d 1057 (N.D.Iowa 2009), a sentencing decision from this district by Chief Judge Linda R. Reade, in support of its contention that defendant Bei......
-
U.S. v. Miknevich
...created in the first place.” United States v. Cunningham, 680 F.Supp.2d 844, 854 (N.D.Ohio 2010); see also United States v. Fiorella, 602 F.Supp.2d 1057, 1075 n. 8 (N.D.Iowa 2009) (“It is easier to overlook the horrors of child pornography when, as is often the case, the material at issue i......
-
United States v. Knight
...examine images or videos to "get a true sense of the depravity they depict." Id. at 853–54 ; see also United States v. Fiorella, 602 F.Supp.2d 1057, 1069 n. 6 (N.D.Iowa 2009) (observing that "[m]ere words" may be "inadequate to convey the shocking, disgusting, and predatory" conduct of a de......