U.S. v. Shipley

• Decision Date: 19 June 2008
• Docket Number: No. 4:07-cr-00081.,4:07-cr-00081.
• Citation: 560 F.Supp.2d 739
• Parties: UNITED STATES of America, Plaintiff, v. Philip Allen SHIPLEY, Defendant.
• Court: U.S. District Court — Southern District of Iowa

560 F.Supp.2d 739

UNITED STATES of America, Plaintiff, v. Philip Allen SHIPLEY, Defendant.

No. 4:07-cr-00081.

United States District Court, S.D. Iowa, Central Division.

June 19, 2008.

J. Keith Rigg, J. Keith Rigg Attorney at Law, Des Moines, IA, for Defendant.

Craig P. Gaumer, U.S. Attorney's Office, Des Moines, IA, for Plaintiff.

SENTENCING MEMORANDUM OPINION AND ORDER

ROBERT W. PRATT, Chief Judge.

Before the Court is the matter of sentencing the Defendant, Philip Allen Shipley. This memorandum opinion and order supplements the findings made on the record at the sentencing hearing held on June 19, 2008.

I. FACTS

On June 22, 2007, the Defendant pleaded guilty to Count One of an Indictment charging him with receiving visual depictions of minors engaging in sexually explicit conduct from June 1, 2006 through October 13, 2006, in violation of 18 U.S.C. § 2252(a)(2). The Defendant was using the Google "Hello" file sharing program, a peer to peer picture sharing program, to chat about and trade images of child pornography. Immigration and Customs Enforcement (ICE) agents identified "Hello" user Nicholas Farmer as an individual trading child pornography, and determined that the Defendant had received child pornography from Farmer. During execution of a search warrant on his residence, the Defendant immediately admitted his involvement with child pornography, stated that he was shocked he had let himself get involved in it, and that his involvement with child pornography "snowballed" after receiving an invitation to trade pictures in a chat room, to the point that he was trading child pornography "almost daily." The Defendant led agents to six compact discs containing images he intended to trade and acknowledged also using Yahoo! to trade child pornography. He also indicated that he had several screen names because he would get upset with himself and delete the program, only to later reinstall it and return to trading.

II. LAW

The Supreme Court held in United States v. Booker that the mandatory nature of the sentencing guidelines system violated the Sixth Amendment of the United States Constitution. 543 U.S. 220, 226-27, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). To remedy this, the Supreme Court modified the federal sentencing statute to make the sentencing guidelines truly guidelines — advisory, but not binding on the sentencing court. Id. at 245, 125 S.Ct. 738. Subsequent litigation has affirmed the authority of the sentencing court to sentence within the range of choice dictated by the facts and applicable law of the case before it. See Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 602, 169 L.Ed.2d 445 (2007) (upholding a sentence outside the advisory guideline range as reasonable); Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007) (noting that sentencing courts may vary from the advisory guideline range based solely on policy considerations, including disagreement with the policy underlying the guidelines in a case); Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007) (stating that a district court may consider arguments that "the Guidelines sentence itself fails to properly reflect [18 U.S.C] § 3553(a) considerations"). The result of this development in sentencing law is that sentencing courts must "take account of the advisory guideline range as part of all the sentencing goals and factors enumerated in 18 U.S.C. § 3553(a), but are no longer bound by the sentencing range indicated by the applicable guideline in the case. Cunningham v. California, 549 U.S. 270, ___, 127 S.Ct. 856, 867, 166 L.Ed.2d 856 (2007); Booker, 543 U.S. at 261, 125 S.Ct. 738.

The advisory guidelines are, therefore, "the starting point and the initial benchmark" in determining a sentence. Gall, 128 S.Ct. at 596 (stating that "a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range"). While district courts must "give respectful consideration to the Guidelines," they are permitted "`to tailor the sentence in light of other statutory concerns as well'" Kimbrough, 128 S.Ct. at 570 (quoting Booker, 543 U.S. at 245-46, 125 S.Ct. 738). "[T]he Guidelines are not the only consideration, [and] the district judge should consider all of the § 3553(a) factors" to fashion the appropriate sentence. Gall, 128 S.Ct. at 596. As required by the Sentencing Reform Act, the "overarching provision instruct[s][the] district courts to `impose a sentence sufficient, but not greater than necessary' to accomplish the goals of sentencing, including `to reflect the seriousness of the offense,' `to promote respect for the law,' `to provide just punishment for the offense,' `to afford adequate deterrence to criminal conduct,' and `to protect the public from further crimes of the defendant.'" Kimbrough, 128 S.Ct. at 570 (quoting 18 U.S.C. § 3553(a)).

In determining the sentence that is "sufficient, but not greater than necessary," the statute further directs the sentencing court to consider the nature and circumstances of the offense, the history and characteristics of the defendant, the sentencing range and any pertinent policy statement issued by the Sentencing Commission, the kinds of sentences available, the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct, and the need to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a); accord Kimbrough, 128 S.Ct. at 570. The sentencing court "may not presume that the Guidelines range is reasonable," but rather must "make an individualized assessment based on the facts presented" to arrive at a sentence that is sufficient, but not greater than necessary, in a given case. Gall, 128 S.Ct. at 597. While the rationale for a non-guideline sentence will necessarily be more detailed the further the deviation from the advisory guideline suggested by the Sentencing Commission, there is no legal requirement that "extraordinary circumstances" are a prerequisite to imposition of a non-guideline sentence. Id. The sentencing judge has a greater familiarity with an individual case than either the Sentencing Commission of the Court of Appeals, and is "therefore, `in a superior position to find facts and judge their import under § 3553(a)' in each particular case." Kimbrough, 128 S.Ct. at 574 (quoting Gall, 128 S.Ct. at 597).

III. ANALYSIS

A. Advisory Guideline Calculation

The Court finds that the Defendant's base offense level under the advisory sentencing guidelines is 22.¹ See U.S.S.G. § 2G2.2(a)(1). Because the material involves a minor under the age of twelve, two levels are added. See U.S.S.G. § 2G2.2(b)(2). Five levels are added because the offense involved distribution for the receipt, or expectation of receipt, of a thing of value, though not pecuniary gain. See U.S.S.G. § 2G2.2(b)(3)(B). Four levels are added because the material portrays sadistic, masochistic conduct or other depictions of violence. See U.S.S.G. § 2G2.2(b)(4). Two levels are added because the offense involved the use of a computer for the possession, transmission, receipt, or distribution of the material. See U.S.S.G. § 2G2.2(b)(6). Finally, five levels are added because the offense involved at least 600 images. See U.S.S.G. § 2G2.2(b)(7)(D). The Court finds that the two level adjustment for acceptance of responsibility is warranted in light of the Defendant's timely guilty plea, and the Government has moved for application of a third point reduction for acceptance of responsibility as well. See U.S.S.G. § 3E1.1(a) & (b). The Defendant's total offense level is, therefore, 37. The Defendant has no prior criminal history of any sort, resulting in a criminal history category of I. The resulting advisory sentencing range of imprisonment is 210 to 240 months. The top of the range would be higher but for the statutory maximum sentence of 20 years. 18 U.S.C. § 2252(b)(1).

B. 18 U.S.C. § 3553(a)

The Court's duty is to impose a sentence that is "sufficient but not greater than necessary" after considering all the factors set forth in the sentencing statute, 18 U.S.C. § 3553(a). One of the factors is the need for the sentence imposed to reflect the seriousness of the offense. Child pornography offenses are very serious, as is amply shown by the victim impact statement on file with the United States Postal Inspectors from the mother of one of the children depicted in one of the images found on the Defendant's computer. The statement correctly notes that individuals trading such images create the market for the images that resulted in the exploitation and victimization of her daughter. The statement also discusses the severe psychological harm that the child endured, and how it manifests in her actions, appearance, and behaviors. As the Government notes in its sentencing memorandum, the market for such images helps foster conduct that is punishable by life in prison in many states for the crimes that are inflicted on children to create such images. Many child victims will never live a normal life.

The Court must also consider the nature and circumstances of the offense and the history and characteristics of the Defendant when determining the sentence that is sufficient, but not greater than necessary. The Defendant is 46 years old. His father was an alcoholic who was unable to maintain a job, and his parents divorced when he was a pre-teen. The Defendant's mother remarried a few years later, and she and the Defendant are close. .When the Defendant was in second grade, he was sexually abused by a neighbor of his grandmother. He never reported the abuse at the time. The Defendant served in the military in active service from December of 1985 through July of 1995. He spent three years and one month in foreign service, and received the National Defense Service Medal, Meritorious Service Medal, and Army Commendation Medal. He was honorably...