U.S. v. Jacob
| Decision Date | 26 June 2009 |
| Docket Number | No. CR 07-2002-MWB.,No. CR 07-2017-MWB.,CR 07-2017-MWB.,CR 07-2002-MWB. |
| Citation | 631 F.Supp.2d 1099 |
| Parties | UNITED STATES of America, Plaintiff, v. Kelly Leonard JACOB, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Sean R. Berry, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.
TABLE OF CONTENTS
1. INTRODUCTION ................................................... 1101
A. Charges And Pleas ........................................... 1101
B. Offense Conduct ............................................. 1102
C. The Defendant's Personal Characteristics .................... 1103
D. Sentencing Proceedings ...................................... 1105
II. LEGAL ANALYSIS ................................................ 1106
A. The Methodology For Determination Of A Sentence ............ 1106
B. Application Of The Methodology In Beiermann ................ 1107
1. Step 1 .................................................. 1107
2. Step 2 .................................................. 1107
3. Step 3 .................................................. 1108
C. Application Of The Methodology To Jacob .................... 1110
1. Step 1: Determination of the guideline range ............ 1110
2. Step 2: Determination of whether to depart or vary ...... 1112
3. Step 3: Application of § 3553(a) factors ........... 1115
a. The nature and circumstances of the offense .......... 1116
b. The history and characteristics of the defendant ..... 1117
c. The need for the sentence imposed .................... 1118
d. The kinds of sentences available and the sentencing ranges
for similar offenses ................................. 1119
e. Any pertinent policy statement ....................... 1120
f. The need to avoid unwarranted disparities ............ 1121
g. The need to provide restitution ...................... 1123
4. Summary and concurrent sentence calculation ............. 1123
III. CONCLUSION ................................................... 1124
Defendant Kelly Leonard Jacob came before me for a sentencing hearing on April 14, 2009, and for imposition of sentence on June 26, 2009, on his guilty pleas to charges, in two indictments, of using the Internet to entice a minor to engage in sexual activity prohibited by state law and interstate transportation of child pornography. Recognizing that I categorically rejected one "child pornography" sentencing guideline otherwise applicable here, U.S.S.G. § 2G2.2, in United States v. Beiermann, 599 F.Supp.2d 1087 (N.D.Iowa 2009), defendant Jacob moved for a downward variance from his advisory guideline sentencing range on the ground that another "child exploitation" guideline, U.S.S.G. § 2G2.1, suffers from similar infirmities and that the advisory guideline sentencing range in this case is excessive under 18 U.S.C. § 3553(a). Also recognizing my prior categorical rejection of U.S.S.G. § 2G2.2, the prosecution acknowledged that I was likely to reject that guideline again, and conceded that some downward variance was appropriate in this case, but argued that U.S.S.G. § 2G2.1 does not necessarily suffer from the same infirmities as U.S.S.G. § 2G2.2, so that a sentence within the guideline range established by U.S.S.G. § 2G2.1, and disregarding U.S.S.G. § 2G2.2, is appropriate in this case. I now enter this written explanation of my rationale for a sentence tailored to defendant Jacob's circumstances in light of the applicable guidelines and 18 U.S.C. § 3553(a) factors.
On June 8, 2007, a Grand Jury in the Northern District of Iowa handed down an Indictment in Case No. CR 07-2017-MWB (the Iowa Indictment), charging defendant Kelly Leonard Jacob with three offenses. Count 1 charges that, from on or about June 24, 2007, until on or about July 21, 2007, in the Northern District of Iowa and elsewhere, defendant Jacob, using a facility and means of interstate and foreign commerce, namely, the Internet, knowingly attempted to persuade, induce, entice, and coerce a person that he believed to be under the age of sixteen to engage in sexual activity for which a person could be charged with criminal offenses under the laws of the State of Iowa, that is, IOWA CODE § 709.4(2)(c)(4), sexual abuse in the third degree, all in violation of 18 U.S.C. § 2422(b) (the Iowa enticement offense). Count 2 charges that, on or about July 13, 2007, in the Northern District of Iowa and elsewhere, defendant Jacob knowingly transported and attempted to transport in interstate commerce a visual depiction of a minor engaging in sexually explicit conduct, all in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1) (). Count 3 charges that, on or about July 21, 2007, in the Northern District of Iowa and elsewhere, defendant Jacob knowingly traveled in interstate commerce from Minnesota to Black Hawk County, Iowa, for the purpose of engaging in sexual acts in violation of IOWA CODE § 709.4(2)(c)(4), sexual abuse in the third degree, with a person that he believed to be under the age of sixteen, all in violation of 18 U.S.C. § 2423(b) ().
On November 29, 2007, defendant Jacob consented to the transfer to this court from the Middle District of Florida a July 26, 2007, Indictment (the Florida Indictment), which was assigned available Case No. CR 07-2002-MWB in this district. The Florida Indictment charges defendant Kelly Leonard Jacob, a/k/a "jewman_19," a/k/a "kljacob19," a/k/a "kelly jacob," with two offenses. Count 1 charges that, from on or about January 24, 2007, through on or about March 28, 2007, at Jacksonville, in the Middle District of Florida, in the District of Minnesota, and elsewhere, defendant Jacob, by means of a facility of interstate and foreign commerce, that is, by computer via the Internet, knowingly and intentionally attempted to persuade, induce, entice, and coerce B.S., a person whom he believed had not attained the age of 18 years, to engage in sexual activity for which a person could be charged with criminal offenses under the laws of the State of Florida, that is, the crime of lewd or lascivious conduct on a person less than 16 years of age, in violation of Section 800.04, Florida Statutes, and the crime of promotion of sexual performance by a child less than 18 years of age, in violation of Section 827.071(3), Florida Statutes, all in violation of 18 U.S.C. § 2422(b) (the Florida enticement offense). Count 2 of the Florida Indictment charges that, on or about February 1, 2007, at Jacksonville, in the Middle District of Florida, in the District of Minnesota, and elsewhere, defendant Jacob knowingly transported and shipped in interstate and foreign commerce, by any means, including by computer, visual depictions, the production of which involved the use of minors engaging in sexually explicit conduct, which visual depictions were of such conduct, all in violation of 18 U.S.C. § 2252(a)(1) and (b)(1) (). The Florida Indictment also included a forfeiture allegation concerning property used to commit or promote the commission of the charged offenses.
On January 10, 2008, defendant Jacob entered pleas of guilty, pursuant to a plea agreement, to Counts 1 and of the Iowa Indictment (the Iowa enticement and transporting child pornography offenses) and Count 1 of the Florida Indictment (the Florida enticement offense) before a magistrate judge of this court. Jacob's plea agreement provided that, in exchange for his guilty pleas to the counts identified, the prosecution would dismiss all remaining counts (the Iowa interstate travel offense and the Florida transporting child pornography offense) and would not file any additional charges based on the information in its possession. On January 10, 2008, the magistrate judge filed a Report and Recommendation (docket no. 24 in Case No. CR 07-2017-MWB; docket no. 13 in Case No. CR 07-2002-MWB) recommending that I accept Jacob's guilty pleas, which I did by Order (docket no. 25 in Case No. CR 07-2017-MWB; docket no. 14 in Case No. CR 07-2002-MWB) dated January 25, 2008.
This description of defendant Jacob's offense conduct is drawn primarily from the Presentence Investigation Report (PSIR).
On January 24, 2007, an investigator with the State of Florida Attorney General's Office, Child Predator Cyber Crime Unit, logged into a Yahoo! computer "chat room" using an undercover computer located in Jacksonville, Florida, for the purpose of investigating individuals involved in the distribution and receipt of child pornography. The investigator was posing as a 13-year-old female from Florida and was using a particular screen name that identified the investigator as such. On January 24 and 29, 2007, February 1, 12, and 19, 2007, and March 9, 19, and 28, 2007, the investigator was contacted by defendant Jacob, identified by various user names stated in the Florida Indictment, in "chat rooms" and through instant messages. In the course of these various contacts, defendant Jacob identified himself as a 22-year-old male from Minnesota and, inter alia, asked if the supposed 13-year-old female wanted to have sex; suggested that the supposed 13-year-old female have sex with "her" fictional 11-year-old brother, and instructed the supposed 13-year-old female, in detail, how to engage in sexual conduct with "her" brother; described sex acts that he wanted to perform on the supposed 13-year-old female or that he wanted "her" to perform on him; sent live video by webcam of himself masturbating on several occasions, occasionally showing his face; sent the supposed 13-year-old images of child pornography (five on one occasion); and indicated...
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