U.S. v. McElheney

• Decision Date: 02 July 2009
• Docket Number: Case No. 1:06-CR-113.
• Citation: 630 F.Supp.2d 886
• Parties: UNITED STATES of America v. Earl McELHENEY.
• Court: U.S. District Court — Eastern District of Tennessee

630 F.Supp.2d 886

UNITED STATES of America v. Earl McELHENEY.

Case No. 1:06-CR-113.

United States District Court, E.D. Tennessee, Southern Division, at Chattanooga.

July 2, 2009.

John P. Maccoon, U.S. Department of Justice, Office of U.S. Attorney, Chattanooga, TN, for United States of America.

Gerald H. Summers, Summers & Wyatt, PC, Chattanooga, TN, for Earl McElheney.

SENTENCING MEMORANDUM

CURTIS L. COLLIER, Chief Judge.

Upon remand from the United States Court of Appeals for the Sixth Circuit, the Court held a hearing on June 17, 2009, to determine the sentence of Defendant Dr. Earl McElheney ("Defendant"), who stood convicted of one count of receiving child pornography. Defendant's initial sentence was to a term of imprisonment of 135 months, which was at the bottom of his United States Sentencing Guidelines ("Guidelines") range. Since Defendant's initial sentence, two developments have occurred that convinced the Court to impose a non-Guidelines sentence of imprisonment for 78 months. Most important, a growing number of courts have questioned the reliability of the child pornography Guidelines. In addition, a new psychosexual assessment determined Defendant's risk to reoffend is low.

I. PROCEDURAL BACKGROUND

Defendant was indicted by a grand jury on 44 counts of knowingly receiving or possessing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), (a)(5)(B). He was arrested on October 24, 2006, and released on bond, but was arrested for violation of his bond conditions on December 4, 2006, and detained. Defendant entered into a plea agreement and pleaded guilty to count 40 of the indictment on February 22, 2007 (Court File Nos. 31, 32). The agreed factual basis stipulated child pornography images were found on Defendant's computer at his workplace, which was password protected.

The parties filed a joint motion for a psychosexual evaluation, which was granted (Court File Nos. 25, 31). The Center for Individual and Family Effectiveness completed the examination, which was forwarded to the Court and counsel for the defendant and the government.

The Court held a sentencing hearing on September 27, 2007, and, after ruling on Defendant's objections to the presentence report ("PSR"), sentenced Defendant to 135 months of imprisonment, supervised release for life, a $25,000 fine, and a $100 special assessment (Court File No. 75). The government moved to dismiss the remaining counts, which motion was granted. Defendant's motion to self report to prison was denied. The full circumstances of Defendant's sentencing are recounted in the Court's original sentencing memorandum. United States v. McElheney, 524 F.Supp.2d 983 (E.D.Tenn.2007).

On appeal, the Sixth Circuit vacated Defendant's sentence, United States v. McElheney, 310 Fed.Appx. 857 (6th Cir.2009), and remanded for resentencing in light of the Supreme Court's decision in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), which altered circuit case law and held district courts need not justify substantial deviations from the advisory Guidelines range with extraordinary circumstances. 128 S.Ct. at 596.

Because of the Court's concern that recent litigation in the federal courts raised questions as to the deference that should be accorded the Guidelines governing child pornography, the Court ordered the parties to file briefs regarding "whether the applicable sentencing guidelines are indicative of the sentences actually being imposed in these cases." (Court File No. 88). Both parties filed multiple memoranda (Court File Nos. 89, 91, 93, 94, 96, 97, 100, 101, 102, 103, 105, 106, 107, 108, 109, 110).

II. THE COURT'S POST BOOKER SENTENCING METHODOLOGY

After the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), making the Guidelines advisory, the Court announced the methodology it will typically follow in arriving at a sentencing decision. United States v. Phelps, 366 F.Supp.2d 580 (E.D.Tenn.2005); see also McElheney, 524 F.Supp.2d at 986-87 (finding Phelps in line with Sixth Circuit and Supreme Court precedent); United States v. Swafford, 2008 WL 5204064 (E.D.Tenn. Dec. 11, 2008) (reaffirming the Phelps methodology in light of Kimbrough). That methodology involves a three-step sentencing process. As a first step the Court determines the proper advisory Guidelines range. Gall, 128 S.Ct. at 596 ("a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range"); see also United States v. Bolds, 511 F.3d 568, 579 (6th Cir.2007) (noting the Guidelines are the benchmark of sentencing analysis). To make this determination the Court often will have to resolve objections to the PSR's Guidelines calculations as well as any factual disputes.

The second step requires the Court to determine whether, pursuant to the United States Sentencing Guidelines Manual, any departures from the advisory Guidelines range apply. USSG ch. 5, pt. K; Phelps, 366 F.Supp.2d at 586. The Court considers arguments and motions filed by the parties for upward or downward departures under the Guidelines or the Sentencing Commission's policy statements. 18 U.S.C. § 3553(a)(4), (5).

After the Court has determined the proper Guidelines range and decided the appropriateness of any departures, the Court must identify the appropriate sentence in light of the factors set forth in 18 U.S.C. § 3553(a). Phelps, 366 F.Supp.2d at 586. This is based on an "individualized assessment based on the facts presented." Gall, 128 S.Ct. at 597. The court may impose a sentence within the applicable Guidelines range (after any clearly applicable departures) if such is consistent with the court's consideration of the § 3553(a) factors, or impose a non-Guidelines sentence if such is justified by the § 3553(a) factors. See United States v. Vonner, 516 F.3d 382, 387 (6th Cir.2008) (en banc). A non-Guidelines sentence need not be supported by factors that would have justified a departure under the old, mandatory regime. However, departure case law is helpful in determining whether a Guidelines sentence is appropriate and in assisting the Court in determining the appropriate sentence.

III. DEFERENCE DUE GUIDELINE § 2G2.2

A. Introduction

As the Court noted earlier, two developments occurred since Defendant's initial sentencing. First, and the most crucial, courts across the country have been questioning the Guidelines on child pornography and increasingly imposing non-Guidelines sentences. Second, Defendant underwent a recent psychosexual examination and the psychologist provided an opinion that Defendant was at low risk to reoffend.

The Court had invited counsel to file briefs on the first issue and cited two cases in its order: United States v. Beiermann, 599 F.Supp.2d 1087 (N.D.Iowa 2009), and United States v. Stern, 590 F.Supp.2d 945 (N.D.Ohio 2008). Because the Court deemed this the most important issue in the sentencing hearing, the Court took up this issue with counsel first and will discuss it first here.

B. The Institutional Role of the Sentencing Commission

Congress established the United States Sentencing Commission ("Sentencing Commission" or "Commission") with the goals of (1) establishing "sentencing policies and practices" that "(A) assure the meeting of the purposes of sentencing as set forth in [18 U.S.C. § 3553(a)(2)]; (B) provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities ...; and (C) reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process;" and (2) developing "means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing." 28 U.S.C. § 991(b).

The Sentencing Commission thus occupies an institutional role in developing Guidelines that are developed by a professional staff and are based on empirical evidence. Gall, 128 S.Ct. at 594 ("For even though the Guidelines are advisory rather than mandatory, they are, as we pointed out in Rita, the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions.")(citing Rita v. United States, 551 U.S. 338, 349-50, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)).

[W]e have nevertheless preserved a key role for the Sentencing Commission. As explained in Rita and Gall, district courts must treat the Guidelines as the "starting point and the initial benchmark[.]" Congress established the Commission to formulate and constantly refine national sentencing standards. Carrying out its charge, the Commission fills an important institutional role: It has the capacity courts lack to "base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise."

Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 574, 169 L.Ed.2d 481 (2007) (citations omitted).

As described in Chapter One, Part A, of the Guidelines, the Sentencing Commission's objectives in creating the Guidelines were to clarify the sentence imposed, create reasonable uniformity in sentencing, and impose proportionality in sentences. USSG § 1A1, pt. 3 (The Basic Approach). To accomplish these objectives, the Sentencing Commission used an empirical approach whereby it analyzed data from presentence investigations and criminal statutes among other sources. Id. The Guidelines emerged as both descriptive, since they resulted from the accumulation of statistical analyses, and prescriptive, since district courts were initially required to follow the Guidelines.

C. The Descriptive/Prescriptive Function of the Guidelines

When the Sentencing Commission functions in its institutional role, utilizing its professional staff and basing its determinations on empirical data and national experience, the Guidelines, even though advisory, should reflect...