United States v. Christy, CR 10–1534 JB.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Citation888 F.Supp.2d 1107
Docket NumberNo. CR 10–1534 JB.,CR 10–1534 JB.
PartiesUNITED STATES of America, Plaintiff, v. Edward CHRISTY, Defendant.
Decision Date02 August 2012

888 F.Supp.2d 1107

UNITED STATES of America, Plaintiff,
Edward CHRISTY, Defendant.

No. CR 10–1534 JB.

United States District Court,
D. New Mexico.

Aug. 2, 2012.

[888 F.Supp.2d 1110]

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

[888 F.Supp.2d 1111]

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


JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the United States' Sentencing Memorandum and Recommendation, filed January 20, 2012 (Doc. 200) (“USA Sentencing Memorandum”); and (ii) the Defendant's Objections to Presentence Report, filed March 15, 2012 (Doc. 203–1)(“Objections”). The Court held a sentencing hearing on May 23, 2012. The primary issues are: (i) whether the Court should sustain Defendant Edward Christy's objections to various factual statements in the Re–Disclosed Presentence Investigation Report, disclosed February 8, 2012 (“Re–Disclosed PSR”); (ii) whether a 2–level enhancement under U.S.S.G. § 2G1.3(b)(2) for the exercise of undue influence over a minor to engage in prohibited sexual conduct is appropriate; (iii) whether a 2–level enhancement under U.S.S.G. § 2G1.3(b)(4) for the commission of a sex act or sexual contact is appropriate; (iv) whether a 4–level enhancement under U.S.S.G. § 2G2.2(b)(4) for possession of an image that portrays sadistic or masochistic conduct is appropriate; (v) whether a 5–level enhancement under U.S.S.G. § 2G2.2(b)(5) for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor is appropriate; (vi) what amount, if any, in restitution should the Court award to one of the individuals—“Vicky”—who appears in some child pornography photographs found in Christy's possession; (vii) whether the Court should vary downward to a sentence of 108–months imprisonment in light of the parties' rule 11(c)(1)(C) plea agreement; and (viii) whether the Court should impose a lifetime sentence of supervised release for Christy. The Court will overrule many of Christy's objections to the Re–Disclosed PSR on the basis that: (i) the United States Probation Office (“USPO”) has corrected information in the Re–Disclosed PSR to account for his objections; (ii) the parties reached a compromise at the sentencing hearing regarding some of the statements Christy found objectionable; and (iii) there is sufficient evidence to support a finding by a preponderance of the evidence that certain facts Christy finds objectionable have occurred. Furthermore, Christy did not pursue many of his factual objections at the sentencing hearing, and, rather than ruling on those objections, the Court will disregard certain facts he finds objectionable when arriving at his sentence. The Court concludes that a 2–level enhancement under U.S.S.G. § 2G1.3(b)(2) is appropriate, given that Christy has not presented evidence to rebut the rebuttable presumption of undue influence that applies to this case. The Court finds that a 2–level enhancement under U.S.S.G. § 2G1.3(b)(4) is appropriate, because Christy engaged in sexual contact with Jane Doe—a victim of the offense—within the meaning of U.S.S.G. § 2G1.3(b)(4). The Court concludes that a 4–level enhancement under U.S.S.G. § 2G2.2(b)(4) is not appropriate, given that the child pornography image in question is not sadistic or masochistic. The Court concludes that a 5–level enhancement under U.S.S.G. § 2G2.2(b)(5) is appropriate given that Christy engaged in a pattern of activity involving the sexual abuse or exploitation of a minor. While the Court concludes that no amount of restitution is appropriate for Vicky given the lack of causation and lack of proof of her damages, the parties' stipulation to $500.00 in restitution relieves Plaintiff United States of America of the burden of proving that this restitution amount is appropriate. The

[888 F.Supp.2d 1112]

Court sentences Christy, as to Counts 1 and 2, to 108–months imprisonment and a lifetime term of supervised release, because that sentence best reflects the factors contained in 18 U.S.C. § 3553(a).


Christy “was born on June 8, 1952,” and his “father passed away in 1965 from emphysema.” Re–Disclosed PSR ¶ 83, at 22. Christy “described his childhood as normal as his basic needs were met, and absent of any abuse.” Re–Disclosed PSR ¶ 83, at 22. Christy related that his first sexual experience was when “he was approximately 15 years old after receiving a call from a female friend who asked him to come over to her house as her parents were out of town.” Re–Disclosed PSR ¶ 91, at 24. Christy states that “he has never been a victim of sexual abuse.” Re–Disclosed PSR ¶ 91, at 24. Christy asserts “that he always becomes emotionally involved in” relationships, because “he is a protector by nature.” Re–Disclosed PSR ¶ 92, at 24. Christy has been employed as an engineer from approximately 1986 to 2009. See Re–Disclosed PSR ¶¶ 98–100, at 25. “[F]rom 1986 to 1992, he was employed at Honeywell Incorporated in Albuquerque, New Mexico as an engineer....” Re–Disclosed PSR ¶ 100, at 25. “[F]rom 1996 to November of 2009, he was employed at EG & G Technical Services in Albuquerque, New Mexico, as a senior engineer....” Re–Disclosed PSR ¶ 98, at 25. Christy spent approximately six years “in the United States Army Reserve, being honorably discharged in 1980.” Re–Disclosed PSR ¶ 101, at 26.

“On November 8, 2009, Jane Doe's (juvenile female) father allegedly made a report regarding a missing juvenile, his daughter, to the Westminster Police Department in Westminster, California.” Re–Disclosed PSR ¶ 10, at 7. “Jane Doe's ... father advised that when [he and his wife] awoke on November 8, 2009, they found a note from Jane Doe ... stating she had run away.” Re–Disclosed PSR ¶ 10, at 7. “On November 8, 2009, Jane Doe's ... father returned to the Westminster Police Department to report he had learned from a friend of Jane Doe ... that Jane Doe ... had been in contact with an adult male on the internet.” Re–Disclosed PSR ¶ 10, at 7. After obtaining some nude photographs of Christy from Doe's father, an officer with the Westminster Police Department was able to locate an online profile for Christy for an account with which Doe had been communicating. See Re–Disclosed PSR ¶ 11, at 7.

Shortly afterwards, “an investigator for the Orange County District Attorney's Office was contacted to report she was investigating a missing juvenile whom she believed left the state with an adult male.” Re–Disclosed PSR ¶ 12, at 7. Investigators obtained contact information for Doe and Christy from Doe's cellular telephone and electronic mail records. See Re–Disclosed PSR ¶ 12, at 7. From a review of cellular telephone records, investigators learned that Christy and Doe had traveled from California to Arizona, and then to Albuquerque, New Mexico. See Re–Disclosed PSR ¶ 13, at 8.

“In the evening of November 9, 2009, the investigators in California contacted the Bernalillo County Sheriff's Office ... in Albuquerque, New Mexico, requesting they respond to Mr. Christy's address to perform a welfare check in reference to a missing juvenile from Orange County, California.” Re–Disclosed PSR ¶ 15, at 8. “Upon arriving at Mr. Christy's residence, deputies looked through a window, noticing what appeared to be a young female who matched the description of the missing juvenile.” Re–Disclosed PSR ¶ 9, at 6. “During questioning, both Mr. Christy and Jane Doe ... admitted to having sexual intercourse on two separate occasions.”

[888 F.Supp.2d 1113]

Re–Disclosed PSR ¶ 9, at 6. “Mr. Christy stated he believed Jane Doe ... to be 18 years old and had asked her to send him naked photographs of herself, of which Mr. Christy received two.” Re–Disclosed PSR ¶ 17, at 9. “Mr. Christy further stated that, on or about November 6, 2009, Jane Doe ... told him if she could not leave her home and stay with him, Jane Doe ... was going to kill herself.” Re–Disclosed PSR ¶ 18, at 9. “Jane Doe ... mentioned that Mr. Christy insisted on using a cover story in case they were caught, stating that Mr. Christy had rescued her from her abusive father.” Re–Disclosed PSR ¶ 21, at 10.

“A subsequent search of Mr. Christy's residence revealed multiple images of child pornography and hundreds of chats involving minor children (9 to 15 years old), several of which were sexual in nature.” Re–Disclosed PSR ¶ 9, at 6. On one computer in Christy's possession, officers found “310 possible child pornography images, including 32 possible images of Jane Doe.” Re–Disclosed PSR ¶ 27, at 11. Officers also found “10 possible cartoon child pornography images; 4 images appearing to be Mr. Christy; and [images of] 112 underage girls in sexually suggestive positions who were half-clothed, known to be child erotica.” Re–Disclosed PSR ¶ 27, at 11–12. “One of the images found on the Hewlett Packard HDX laptop” in Christy's possession “had an image titled ‘JPEG_ 5796074.jpg.’ ... which depicted an image of a young child with an adult penis in her mouth.” Re–Disclosed PSR ¶ 27, at 12.

The USPO relates:

Deputies ... located drawings made with crayon that appeared to have been made by a young child and [that] appeared to be addressed, in a child's writing, stating “to Ed from Re Re.” A note was also located, which appeared to be made by a teenage girl, who stated she was upset with her parents for making plans to move to Nova Scotia. The note also stated the girl wanted to run away from her parents, and go camping with Mr. Christy again. Further investigation revealed that Mr. Christy was the Kung Fu instructor for this particular girl (14 or 15 years old at the time) for approximately three years in Tijeras, New Mexico. The information discovered correlates to a note found in Mr. Christy's residence.

Re–Disclosed PSR ¶ 32, at 13. “During the investigation by the FBI, they learned several...

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