United States v. E.L., 15-CR-137

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Writing for the Court: Jack B. Weinstein, Senior United States District Judge.
• Citation: 188 F.Supp.3d 152
• Parties: United States of America v. E.L., Defendant.
• Docket Number: 15-CR-137
• Decision Date: 19 May 2016

188 F.Supp.3d 152

United States of America
v.
E.L., Defendant.

15-CR-137

United States District Court, E.D. New York.

Signed May 19, 2016

188 F.Supp.3d 154

Mildred M. Whalen, Michael Daniel Weil, Federal Defenders of New York, Inc., Defendant.

Robert L. Capers, United States Attorney, E.D.N.Y., By: David K. Kessler, United States.

Statement of Reasons for Sentencing Pursuant to 18 U.S.C. § 3553(c)(2)

Jack B. Weinstein, Senior United States District Judge.

Table of Contents

I. Introduction ...155

A. Instant Case ...155

B. Consistency in Sentencing ...156

II. Facts and Procedural History ...156

A. Background ...156

B. Sexual History ...157

C. Child Pornography ...157

D. Arrest ...157

E. Mental Health Treatment ...158

F. Guilty Plea ...159

III. Sentencing Hearing ...159

A. Medical ...159

1. Alexander S. Bardey, M.D. ...159

a) Credentials ...159

b) Evaluation ...160

c) No Risk of Contact Offense ...161

d) Low Recidivism Risk with Treatment ...162

2. Larry Menzie, LCSW ...164

B. Social Worker ...164

C. Wife ...166

IV. Sentence Imposed ...166

V. Sentencing Law ...166

188 F.Supp.3d 155

A. Discretion of Sentencing Judge ...166

B. Applicable Statute ...167

C. Advisory Nature of the Sentencing Guidelines ...167

1. Section 3553(a) Factors ...167

2. Departures Based on Disagreement with Commission Policy ...168

3. Statement of Reasons Required ...169

D. Restitution ...169

VI. Application of Law to Facts ...170

A. Guidelines Sentencing Range ...170

B. Analysis of Section 3553(a) Factors ...170

1. Circumstances of Offense; Characteristics of Defendant ...171

2. Purposes of Sentencing ...172

3. Kinds of Sentences Available ...175

4. Guidelines, Policy, and Other Criteria of Sentencing Commission ...175

5. Unwarranted Sentence Disparities ...176

C. Policy Considerations ...177

VII. Conclusion ...179

I. Introduction

A. Instant Case

This case underscores the unreasonableness of current child pornography sentencing patterns, and the excessive incarceratory terms recommended by the Sentencing Commission. The law in this field is overdue for revisiting.

Defendant pled guilty to one count of possession of child pornography in violation of sections 2252(a)(4)(B) and 2252(b)(2) of title 18 of the United States Code. The Guideline sentence was 51 to 63 months in prison. Imposed was a sentence of five years of probation with substantial and adequate continuing controls and treatment to protect the public. See infra Part IV.

Defendant admits to having downloaded on his computer images involving young girls—most between twelve and fourteen years old—posing naked, engaging in "lascivious display." He first viewed and downloaded adult pornography during a period of depression and isolation when he was unemployed and separated from his family. This led to viewing child pornography. There is no evidence that defendant ever produced such materials, or that he took any steps towards engaging in any kind of inappropriate contact with a minor.

The court conducted an extensive Fatico evidentiary hearing before sentencing. Convincing medical and expert testimony demonstrated that defendant poses no current or future risk to any child. He has been successfully engaged in psychological and sex offender treatment for a year. Experts testified that treatment required by the court will decrease his already low risk of re-engaging in any sex offense.

Possession of child pornography is a serious crime. "The theory is that (1) computer depiction of children being sexually exploited creates a permanent widespread record of abuse, perpetuating and potentially exacerbating the harm initially suffered by the victim in the production, and (2) acquisition of these images encourages abuse of children in their production since viewers create demand." United States v. R.V. , 157 F.Supp.3d 207, 209, 2016 WL 270257, at *1 (E.D.N.Y. Jan. 21, 2016).

No mandatory minimum applies to the instant offense. The sentencing factors under section 3553(a) of title 18 of the United States Code require a sentencing judge to perform an "individualized assessment" of the situation. See 18 U.S.C. § 3553(a) ;

188 F.Supp.3d 156

Gall v. United States , 552 U.S. 38, 49–50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Analysis is guided by "[r]easonableness" and an "individualized application of the statutory sentencing factors." United States v. Dorvee , 616 F.3d 174, 184 (2d Cir.2010) (citing Gall , 552 U.S. at 46–47, 128 S.Ct. 586 ) (emphasis added).

The judge's sense of proportionality must be applied. In the present case, a sentence of probation, with strict controls and required continuing treatment, is appropriate. Defendant's life will always be shadowed by the stain of a federal felony conviction for a sex-related crime. Extensive restrictions affecting where he can live and work, and how he will be controlled, will follow him. An incarceratory Guidelines sentence would have an adverse impact on the substantial progress that defendant has already made through his participation in individual and group therapy. It will deprive his family of vital financial and emotional support while doing little to further protect the public. It will unnecessarily add to taxpayers' burdens.

B. Consistency in Sentencing

This court has been attempting to rationalize its own sentences by establishing general criteria for similar cases, a project required by the wide discretion in sentencing afforded under United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See, e.g., United States v. Chin Chong , 13–CR–570, 2014 WL 4773978, at *1 (E.D.N.Y. Sept. 24, 2014) (accounting for prospect of deportation when imposing a term of incarceration); United States v. Sarpong , No. 14–CR–242, 2014 WL 5363775, at *2 (E.D.N.Y. Oct. 21, 2014) (same); United States v. Palaguachy , No. 14–CR–0184, 2014 WL 6606668, at *2 (E.D.N.Y. Nov. 19, 2014) (same); United States v. Florez Parra , No. 14–CR–332, 2015 WL 105885, at *2 (E.D.N.Y. Jan. 7, 2015) (same); United States v. D.M. , 942 F.Supp.2d 327, 352 (E.D.N.Y.2013) (sentencing defendant who pled guilty to one count of possession of child pornography to five years' probation); R.V. , 157 F.Supp.3d at 223–24, 2016 WL 270257, at *14 (sentencing defendant who pled guilty to one count of possession of child pornography to time served and seven years' supervised release); see also United States v. G.L. , 305 F.R.D. 47, 48 (E.D.N.Y.2015) ("With the increase in sentencing discretion and concern over unnecessarily long incarcerations has come an increased need for each judge to try to avoid inconsistency in his or her own sentences. Stating reasons for sentencing in memoranda helps minimize both dangers.").

II. Facts and Procedural History

Defendant will be referred to by his initials, "E.L.," to enhance rehabilitation and reduce adverse impact on his family, in particular harm to his young children. See R.V. , 157 F.Supp.3d at 212–13, 2016 WL 270257, at *4.

Relevant information has been derived primarily from a comprehensive Fatico hearing and the Presentence Investigation Report ("PSR") submitted by the Department of Probation. See PSR, Feb. 9, 2016; Def.'s Objections to PSR, Mar. 19, 2016, ECF No. 35 ("PSR Objections"); Hr'g Tr., Mar. 23, 2016, ECF No. 42 ("Sent. Hr'g"), at 137:10-24 (incorporating defendant's corrections to the PSR).

A. Background

E.L. is a fifty-one year old male residing in Brooklyn. See PSR at 2. He was raised in Yonkers, New York, primarily by his maternal grandmother, since both of his parents were alcoholics. Id. at ¶¶ 36, 44; PSR Objections at ¶ 3. His mother was abusive. PSR at ¶ 44. She died from liver

188 F.Supp.3d 157

failure and his father died from lung cancer. Id. at ¶ 35. He has no siblings. Id.

He graduated from Lincoln High School in Yonkers. Id. at ¶ 54. He received a bachelor's degree in computer information systems from Mercy College. Id. at ¶ 53. He worked for several years as a computer programmer, with intermittent periods of unemployment. See id. at ¶¶ 56-58. Since 2012, defendant has been employed as a senior information technology consultant in Brooklyn. Id. at ¶ 55.

E.L. is married and has nine year old twin boys. Id. at ¶ 38. He is the sole financial provider for the family. Id. In addition to his wife and children, E.L. furnishes financial support to his mother-in-law and father-in-law. See PSR Objections at ¶ 1. His father-in-law was recently diagnosed with bladder cancer and his mother-in-law is in the early stages of Alzheimer's disease. Id. at ¶ 4. Defendant's wife and children reside at a home that the family owns in Stroudsburg, Pennsylvania. PSR at ¶ 37. The defendant travels there on the...