United States v. Christy

Decision Date30 September 2012
Docket NumberNo. CR 10–1534 JB.,CR 10–1534 JB.
Citation888 F.Supp.2d 1169
PartiesUNITED STATES of America, Plaintiff, v. Edward CHRISTY, Defendant.
CourtU.S. District Court — District of New Mexico

OPINION TEXT STARTS HERE

Kenneth J. Gonzales, United States Attorney, Charlyn E. Rees, Holland S. Kastrin, Assistant United States Attorneys Albuquerque, NM, for the Plaintiff.

Lee P. McMillian, Law Offices of Lee McMillian, P.C., South Houston, TX, for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant Edward Christy's Motion to Reconsider Sentence, filed August 17, 2012 (Doc. 225)(“Motion”). The primary issue is whether the Court has authority to modify Christy's sentence by modifying the length of Christy's supervised release or recommending he serve his imprisonment in a sex offender treatment program. The Court will deny the Motion. Under the circumstances presented, the Court does not have the statutory authority to grant the relief that Christy requests.

PROCEDURAL BACKGROUND

Christy, pursuant to a Plea Agreement, filed September 30, 2011 (Doc. 37), pled guilty to the Indictment, filed May 26, 2010 (Doc. 2), charging him in Count I with a violation of 18 U.S.C. § 2422(a), Coercion and Enticement, and in Count II, a violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), and 2256, that being Possession of a Matter Containing Visual Depictions of Minors Engaged in Sexually Explicit Conduct. The parties agree to a sentence for “a term of imprisonment of 9 years (108 months).” Plea Agreement ¶ 9(a), at 5. Both Christy and the Plaintiff United States of America further agree that “neither a request for an upward departure nor a request for downward departure is permitted by either of the parties.” Plea Agreement ¶ 9(c), at 5. Christy understands and agrees that “by pleading guilty, the Defendant will be required to register as a sex offender upon the Defendant's release from prison as a condition of supervised release pursuant to 18 U.S.C. § 3583(d).” Plea Agreement ¶ 20, at 13. He agrees to waive his right to appeal his “conviction and any sentence that is consistent with the sentence agreed to by the parties in this agreement, as well as any fine and/or restitution ordered by the Court.” Plea Agreement ¶ 22, at 15.

The United States Probation Office (“USPO”) disclosed a Presentence Investigation Report (“PSR”) for Christy in December 2011. In the PSR, the USPO calculates Christy's total offense level for both counts to be thirty-one (31). See PSR ¶ 65, at 20. The PSR applies a base offense level of twenty-four (24) for coercion and enticement pursuant to U.S.S.G. § 2G1.3. See PSR ¶ 50, at 17. The PSR includes a 2–level upward adjustment under U.S.S.G. § 2G1.3(b)(2)(B), because the age difference between Christy and Doe constituted Christy unduly influencing a minor to engage in a sexual act. See PSR ¶ 51, at 17. The PSR includes a further 2–level upward increase under U.S.S.G. § 2G1.1(b)(4), because the offense involved a sex act or sexual contact. See PSR ¶ 53, at 18. Christy's total offense level for Count I, coercion and enticement, therefore, is thirty (30). See PSR ¶ 57, at 18. The PSR applies a base offense level for possession of child pornography of eighteen (18) pursuant to U.S.S.G. § 2G2.2(a)(2). See PSR ¶ 59, at 19. The PSR includes a 2–level upward adjustment under U.S.S.G. § 2G2.2(b)(2), because the material in Christy's possession involved a prepubescent minor. See PSR ¶ 60, at 19. The PSR also includes a 4–level upward adjustment pursuant to U.S.S.G. § 2G2.2(b)(4) because the material portrayed sadistic or masochistic abuse. See PSR ¶ 61, at 19. The PSR includes a 5–level upward adjustment under U.S.S.G. § 2G2.2(b)(5) for Christy's engaging in a pattern of the activity, see PSR ¶ 62, at 19, and a 2–level upward adjustment under U.S.S.G. § 2G2.2(b)(6), because the commission of the offense involved the use of a computer. See PSR ¶ 63, at 19–20. The PSR finally contains a 5–level upward adjustment, pursuant to U.S.S.G. § 2G2.2(b)(7)(C), for Christy's possession of over 600 images of child pornography. See PSR ¶ 64, at 20. The PSR calculates an adjusted offense level of thirty-six (36) for Count II. See PSR ¶ 68, at 20.

After making an adjustment for the multiple counts under U.S.S.G. § 3D1.4, the USPO calculates a combined adjusted offense level of thirty-seven (37). See PSR ¶¶ 69–75, at 20. The PSR includes a 3–level reduction under U.S.S.G. § 3E1.1 based on Christy's acceptance of responsibility. See PSR ¶ 76, at 20. The PSR calculates a total offense level of thirty-four (34). See ¶ 77, at 20. The PSR lists his criminal history category as I, based on 0 criminal history points. See PSR ¶ 80, at 21. The PSR calculates that an offense level of thirty-four (34) and a criminal history category of I results in a guideline imprisonment range of 151 to 188 months. See PSR ¶ 107, at 27

At the sentencing hearing on May 23, 2012, the Court sentenced Christy to 108–months imprisonment, with a lifetime of supervised release. See Sentencing Minute Sheet at 1, filed May 23, 2012 (Doc. 227); Motion ¶ 12, at 2. At the hearing, the Court then heard testimony from Dr. Carmen Petzold regarding an appropriate term of supervised release for Christy, and, specifically, Christy's risk of recidivism. Dr. Petzold testified that she spent approximately sixty hours working on Christy's case and about fourteen hours in diagnostic interviews with him. See Transcript of Hearing at 6:3–7 50:14–51:1 (taken May 23, 2012)(“Tr.”)(McMillian, Petzold); 1 Motion ¶ 6, at 2 (Defendant presented the testimony of Dr. Carmen Petzold, Ph.D., ... who described more than 60 hours of work performed in interviewing, testing, and evaluating Mr. Christy.”). Dr. Petzold stated that, based on Christy's history, there were not many indicators suggesting that he would be likely to commit crimes. See Tr. at 55:22–56:12, 59:12–59:1 (Petzold). Dr. Petzold concluded that Christy is not a pedophile, because he does not have ongoing sexual fantasies or interest in prepubescent individuals, and because Doe consented to the sexual acts in question. See Tr. at 71:1–7 (Petzold). On August 2, 2012, 888 F.Supp.2d 1107, 2012 WL 3255107 (D.N.M.2012), the Court filed its Memorandum Opinion and Order. See Doc. 221 (“ MOO”). In its MOO, the Court stated that it was granting Christy's request for a sentence of 108–months, but denying his request for a 5–year term of supervised release; instead, the Court granted the United States' request for lifetime supervised release. SeeMOO at 1167–68, at *56–57.

On August 17, 2012, Christy filed his Motion seeking the that the Court “reconsider that portion of the Order ... imposing a sentence of lifetime supervised release upon Defendant's release ..., as well as the Court's omission of a recommendation to the Bureau of Prisons for placement in the sex offender treatment program.” See Motion at 1. Christy asserts that the Court “declined to act on the recommendations of the only relevant expert, and declined to give consideration of the only competent evidence presented by any party.” Motion ¶ 12, at 2. He asserts that, [t]he Court has apparently disregarded the competent and relevant evidence before it in the matter ... and instead relied upon a ten-year-old study promulgated by the Department of Justice and not since updated.” Motion ¶ 1, at 3. Christy:

respectfully request the Court to reconsider the evidence and testimony before it, reconsider the conclusions drawn from the evidence, and resentence Mr. Christy to 108 months of incarceration, and five years of supervised release, with a written recommendation to the Bureau of Prisons that Mr. Christy serve his sentence of incarceration in a sex offender treatment program, such as the one available at the Seagoville, Texas F.C.I.

Motion at 1.

The United States filed the United States' Response in Opposition to Defendant's Motion to Reconsider Sentence on August 23, 2012. See Doc. 229 (“MTR Response”). The United States argues that Christy's motion should be denied because: (i) the “motion is time-barred by Federal Rule of Criminal Procedure 35(a),” and (ii) the motion “does not meet the standard set forth in Rule 35(a).” MTR Response at 1. The United States asserts that a district court may only modify a sentence in three circumstances, pursuant to 18 U.S.C. § 3582(c):

(1) in certain circumstances “upon motion of the Director of the Bureau of Prisons;” (2) “to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure; and (3) in cases where the applicable sentencing range “has subsequently been lowered by the Sentencing Commission.

MTR Response at 2 (quoting 18 U.S.C. § 3582(c)). The United States asserts that Christy can only seek to modify his sentence under rule 35, which permits a court to “correct a sentence that resulted from arithmetical, technical, or other clear error ... [w]ithin 14 days after sentencing.” MTR Response (quoting Fed.R.Crim.P. 35(a)). The United States contends that Christy's Motion, filed on August 17, 2012, is time-barred because the Court sentenced Christy on May 23, 2012. See MTR Response at 3.

The United States argues that, even if the Motion were not time-barred, because “the Court's sentencing did not include any ‘arithmetical, technical, or other clear error,’ the Court should deny Christy's motion. MTR Response at 3. It contends that Christy's motion is an attempt to “reopen issues resolved at the sentencing hearing,” rather than a request that the Court modify its sentence in light of an arithmetical or technical defect. MTR Response at 3–4. The United States argues that the Court should deny the Motion, because the Motion shows that Christy “simply disagrees with the Court's decision,” but it states that “disagreement does not support a finding of clear error—the standard required by Rule 35(a).” MTR Response at 4.

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  • United States v. Pate
    • United States
    • U.S. District Court — Middle District of Tennessee
    • March 4, 2022
    ...court does not have inherent authority to modify a previously imposed sentence; it may do so only pursuant to statutory authorization.” Id. at 1172. In Christy, the defendant asking the court to modify his “term of imprisonment” by altering the length of his term of supervised release. Id. ......

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