United States v. Debus
| Docket Number | CRIMINAL 1:22-CR-192 |
| Decision Date | 23 August 2023 |
| Parties | UNITED STATES OF AMERICA v. JONATHAN LEE DEBUS, Defendant |
| Court | U.S. District Court — Middle District of Pennsylvania |
Defendant Jonathan Lee Debus pled guilty on September 12, 2022, to one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2). Presently before the court are the parties' memoranda in aid of sentencing. In addition to addressing the salient 18 U.S.C. § 3553(a) factors Debus objects to application of a pair of five-level enhancements to his offense level. The first implicates defendants who “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor,” see U.S.S.G. § 2G2.2(b)(5) (U.S. SENT'G COMM'N 2018); the second applies when the offense of conviction involves 600 or more images of child pornography see Id. § 2G2.2(b)(7)(D). We will sustain Debus's objection to the pattern-of-activity enhancement and overrule his objection based upon the number of images attributed to him.
In the fall of 2008, when Debus was 29 years old, he had sexual intercourse with a 14-year-old girl in York County, Pennsylvania, approximately 15 times over several weeks. (See Doc. 38 ¶ 52). Debus pled guilty in state court to unlawful contact with a minor and statutory sexual assault, and he was sentenced to 18 to 60 months' imprisonment. . More than a decade later, in December 2021, a cloud-based service provider operating on Verizon's behalf informed federal investigators an account associated with Debus's telephone number uploaded suspected child pornography to its network. (See id. ¶¶ 5-6). Agents with the Federal Bureau of Investigation obtained a search warrant for Debus's account and found “numerous image and video files depicting illegal child sexual abuse material (CSAM).”[2] (See id. ¶ 7). Special Agent Angela Strause-a 13-year veteran of the FBI specializing in human-trafficking cases and crimes against children-arrested Debus on May 12, 2022, and Mirandized him. (See id. ¶ 18; 4/19/23 Tr. 22:7-12). Debus admitted to viewing child pornography; his habits generally included accessing child pornography “every day or two,” watching it, and then deleting the files that night or the next day. (See 4/19/23 Tr. 22:13-18, 34:2-10).
Agents catalogued the contents of Debus's cloud-based account and “identified approximately 47 video files, 17 image files, and two computer-generated imagery (CGI) files depicting CSAM of prepubescent children.” (See Doc. 38 ¶ 9). A forensic examination of Debus's cell phone revealed an additional 70 unique images of child pornography he had received the evening before his arrest. (See id. ¶ 9). His laptop also contained four unique images of CSAM. (See id.).
Debus pled guilty pursuant to a written agreement. The United States Probation Office prepared a PSR that calculates his total offense level (35) using the five-level enhancements he now challenges. With respect to the image enhancement, the PSR attributes a total of 3,544 images to Debus, of which only 17 are traditional image files. (See Doc. 38 ¶ 34). To reach that number, the probation officer relies upon commentary to the Sentencing Guidelines providing “[e]ach video, video-clip, movie, or similar visual depiction shall be considered to have 75 images.” See U.S.S.G. § 2G2.2, cmt. n.6(B)(ii). Debus objects on the ground that the United States Sentencing Commission's 75:1 rule contravenes recent decisions from the United States Supreme Court and our court of appeals. (See Doc. 41 at 3-13 (citing, inter alia, Kisor v. Wilkie, 588 U.S., 139 S.Ct. 2400 (2019); United States v. Adair, 38 F.4th 341 (3d Cir. 2022))). He asserts he only “received 66 images” because each video should count as a single image, no matter its duration. (See Id. at 12). The government stands by the 75:1 rule. (See Doc. 49 at 8-24 (citing, inter alia, United States v. Phillips, 54 F.4th 374 (6th Cir. 2022))).
Our assessment of the parties' conflicting proposals revealed a third option- a frame-based standard-from Judge Larsen's concurring opinion in Phillips. See Phillips, 54 F.4th at 386-98 (Larsen, J., concurring in the judgment). That metric calculates an image number for each video by identifying the number of frames in which child pornography is depicted. See Id. at 398. We advised the parties of this potential alternative and scheduled an evidentiary hearing for the purpose of determining “the number of unique still-frame images depicting child pornography that may be derived from each video attributed to” Debus. (See Doc. 54). Agent Strause testified at the hearing. She prepared by examining the still-image and video files Debus received, watching each video in its entirety, and drafting a detailed report of her investigative methods and findings. (See 4/19/23 Tr. 1:25-3:13, 6:20-9:9; see also Gov't Ex. 1). She also compiled a spreadsheet listing the video files' properties, including file names, file types, frame rates (in frames per second (“fps”), if known), total duration and total CSAM duration (both in seconds), total frames of CSAM, and descriptions of the subject matter depicted. (See Gov't Ex. 2).
We summarize Agent Strause's findings as follows. Agent Strause examined 102 still-image files[3] and 46 video files depicting child pornography recovered from Debus's account and devices. (See Gov't Ex. 1 at 2; see also 4/19/23 Tr. 16:7-14, 34:22-35:2). After excluding various duplicate, incalculable, or otherwise non-CSAM files,[4] Agent Strause reports the total duration of the 37 remaining video files is 12,089 seconds (3 hours, 21 minutes). (See Gov't Ex. 1 at 4; see also 4/19/23 Tr. 18:1121). The total duration of child pornography depicted in those 37 videos is 10,760 seconds (2 hours, 59 minutes). (See Gov't Ex. 1 at 4; see also 4/19/23 Tr. 18:14-18).
Agent Strause found frame-rate information in the metadata of 34 video files. (See Gov't Ex. 1 at 2-4; see also 4/19/23 Tr. 7:22-8:4, 11:15-22). Frame rates ranged from 10 fps to 30 fps, with an average frame rate of 26.65 fps. (See Gov't Ex. 1 at 2, 4; see also 4/19/23 Tr. 18:22-19:4). Videos with lower frame rates “tended to be of poorer quality, i.e., movements appeared to be slower, and the content was a bit more pixelated.” (See Gov't Ex. 1 at 2; see also 4/19/23 Tr. 12:7-11). Three video files (Files #13, #45, and #46) had a total CSAM duration of 198 seconds but lacked frame-rate data. (See Gov't Ex. 1 at 2; see also 4/19/23 Tr. 14:8-12). Agent Strause multiplied the duration (in seconds) of child pornography depicted in each of the 34 video files for which frame-rate data was available by their respective frame rates and found a total of 306,111 individual frames of CSAM. (See Gov't Ex. 1 at 3-4; see also 4/19/23 Tr. 13:24-14:1, 16:21-18:4). Counting each of those 306,111 frames as images and adding the 102 still-image files recovered from Debus's devices equals 306,213 images of CSAM. (See Gov't Ex. 1 at 3-4; see also 4/19/23 Tr. 18:5-10).
In sentencing, a court must engage in a three-step process pursuant to Gall v. United States, 552 U.S. 38 (2007). First, it must calculate the advisory Guidelines range. See United States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011). Second, it must formally rule on any motions for departure and state the impact, if any, of such ruling on the Guidelines calculation. See id. Third, the court is required to exercise its discretion and consider the sentencing factors set forth in 18 U.S.C. § 3553(a), which may vary from the advisory Guidelines range. See id. The government generally bears the burden of proving any facts that may warrant a Guidelines enhancement by a preponderance of the evidence. See United States v. Ali, 508 F.3d 136, 143 (3d Cir. 2007).
Whether the enhancements under Guidelines Sections 2G2.2(b)(5) and (b)(7)(D) apply to Debus's case turns upon what weight, if any, we must give the Sentencing Commission's commentary supplementing those provisions. The United States Supreme Court's decision in Kisor v. Wilkie, 588 U.S., 139 S.Ct. 2400 (2019), and our court of appeals' recent decisions in United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc), and United States v. Adair, 38 F.4th 341 (3d Cir. 2022), guide this analysis.
Kisor marked a sea change in the Supreme Court's administrative law jurisprudence. Before Kisor, the Court counseled that the Sentencing Commission's commentary should control-even if it expanded the Guidelines, and “particularly when the commentary is ‘interpretive and explanatory'”-so long as the Commission's determinations were not “plainly erroneous or inconsistent with the regulation.” See Nasir, 17 F.4th at 470 (quoting Stinson v. United States, 508 U.S. 36, 45, 46-47 (1993)). Lower courts routinely misread that passage as sanctioning “uncritical and broad deference to agency interpretations of regulations.” See id. at 471. Kisor corrected that misreading, teaching “that Auer, or Seminole Rock,[5] deference should only be applied when a regulation is genuinely ambiguous.” Id. (citing Kisor, 139 S.Ct. at 2414-15). Courts “must exhaust all the traditional tools of construction” to resolve latent ambiguities before even considering deference. See id. (quoting Kisor, 139 S.Ct. at 2415).
This new paradigm, however, provided “only half of the framework for analyzing the Commission's interpretive commentary.” Adair, 38 F.4th at 348. As our court of appeals explained following Kisor existence of a genuine ambiguity in the Sentencing Guidelines is merely a necessary condition for Auer deference, not a sufficient one. See id. Once genuine ambiguity is established, we must determine how much...
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