United States v. Marshall
| Decision Date | 21 November 2013 |
| Docket Number | No. 12–3805.,12–3805. |
| Citation | 736 F.3d 492 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Dylan MARSHALL, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
OPINION TEXT STARTS HERE
ARGUED: Charles L. Gerstein, University of Michigan Law School Federal Appellate Litigation Clinic, Ann Arbor, Michigan, for Appellant. Alissa M. Sterling, United States Attorney's Office, Toledo, Ohio, for Appellee. ON BRIEF: Charles L. Gerstein, Rachel Rose Goldberg, University of Michigan Law School Federal Appellate Litigation Clinic, Ann Arbor, Michigan, Melissa M. Salinas, Dennis G. Terez, Office of the Federal Public Defender, for Appellant. Ava R. Dustin, United States Attorney's Office, Toledo, Ohio, for Appellee.
Before: McKEAGUE and DONALD, Circuit Judges; Lawson, District Judge.*
DONALD, J., joined, and LAWSON, D. J., joined in the result. LAWSON, D.J. (pp. 15–25), delivered a separate opinion concurring in the judgment.
Dylan Marshall pled guilty to receiving child pornography over a period of 5 years, from the time he was 15 until he was 20. The district court varied downward from the guideline range and sentenced him to 5 years in prison—the mandatory minimum sentence for the offense—expressing its concerns with the perceived harshness of that sentence as it did so. Marshall has a rare physiological condition called Human Growth Hormone Deficiency, which he believes entitles him to the Eighth Amendment protections accorded to juveniles. But despite his condition, Marshall was an adult at the time of the offense. We therefore affirm his sentence.
In the summer of 2010, an FBI agent discovered that an individual operating under the name “Gotanks721” was using a peer-to-peer file sharing program to share files containing child pornography. The agent traced the IP address of the individual's computer to a residence in Wauseon, Ohio.
FBI agents obtained a warrant and searched the residence, seizing two computers and other miscellaneous electronic media. They also interviewed Marshall, age 20 at the time, who lived in the house with his parents. Marshall admitting to using a file sharing program to share and download child pornography. He told the agents that he possessed pornographic images and videos of children ranging in age from four to twelve.
The FBI's analysis of Marshall's computer and other media revealed 261 images and 46 videos containing child pornography. The date stamps on the files ranged from May 2005 to September 2010. The analysis also revealed that beginning in 2009, Marshall had participated in online chat sessions discussing child pornography.
In December 2011, the government charged Marshall with one count of receiving child pornography in violation of 18 U.S.C. § 2252(a) and (b). Marshall pled guilty.
Aside from his involvement with child pornography, it appears that Marshall was headed toward becoming a productive member of society. He graduated from high school. He lived with his parents. He attended a community college part-time for four semesters, pursuing a career as a lab technician and paying his own tuition. He worked as a machine operator for a commercial bakery. He owned a car and had a credit card.
During an interview with his probation officer, Marshall said that he first started using file sharing programs to acquire music. He soon discovered the availability of pornography and viewed it almost every day. In his words, he used the file-sharing programs to look for “naked kids of my age.” PSR ¶ 29. According to his probation officer, PSR ¶ 30.
Indeed, Marshall's size and self-perceived age undergird most of the arguments he has raised on this appeal. In 2005, when Marshall was 15, he was diagnosed with Human Growth Hormone Deficiency. According to the Child Growth Foundation:
Growth hormone deficiency or insufficiency occurs when the pituitary gland, a small pea sized gland at the base of the brain, fails to produce adequate levels of growth hormone. Part of the brain called the hypothalamus controls the levels of hormones in the blood by triggering the pituitary gland into producing the required hormones. This low level of growth hormone may be due to problems with the hypothalamus or with the link between the hypothalamus and the pituitary gland or with the pituitary gland itself.... The level of growth hormone insufficiency may vary from mild to severe but as growth hormone is now available in large quantities, all children whose growth hormone levels are inadequate should be able to receive appropriate replacement treatment.
Children with growth hormone deficiency are very short but with normal body proportions, facial appearance and intelligence. Prior to treatment the child may also be “chubby” as growth hormone helps to control the fat under the skin. These children may look young for their age as physical development and bone age is delayed and consequently the skull will be immature producing the facial proportions of a younger child.
Child Growth Foundation, Growth Hormone Deficiency, Growth Hormone Deficiency: A Guide for Parents and Patients, 4 (Jan.2003), available at http:// www. childgrowth foundation.org/CMS/FILES/02_Growth_Hormone_ Deficiency.pdf. In addition to stunted growth, growth hormone deficiency can result in delayed pubertal development. Child Growth Foundation, Puberty and the Growth Hormone Deficient Child, Growth Hormone Deficiency: A Guide for Parents and Patients, 4 (June 2010), available at http:// www. childgrowth foundation. org/ CMS/ FILES/ 03_ Growth Hormone Deficiency. pdf.
When he was diagnosed at age 15, Marshall was extremely small for his age and had not yet entered puberty. He was treated with hormone injections for about five years. When his Presentence Investigation Report was prepared in 2012, he was 5'5? and weighed 117 pounds.
Before his sentencing hearing, Marshall was evaluated on two separate occasions by a clinical psychologist named Gregory Forgac. Marshall told Dr. Forgac that he started viewing child pornography when he was 15. He said that he began by looking for people his own age. He did not know it was wrong until the FBI appeared at his parents' house.
Dr. Forgac noted that Marshall appeared younger than his chronological age. He administered a test called the Ammons Quick Test, which indicated that Marshall had an I.Q. of 87 and a mental age of 15 1/2. Dr. Forgac found Marshall's diagnosis of Human Growth Hormone Deficiency to be noteworthy. He stated in his report that in addition to delayed physical growth, “[i]t is quite possible that self-perception and self-concept would also be significantly delayed.” R. 12–1, Report, PageID # 44. He found that Marshall “appear[ed] to be quite immature for his chronological age due to his condition, ... which inhibited his growth and maturation physically, emotionally and socially.” Id. “It is quite likely that in all ways other than chronological age, this individual was still a juvenile at the time of his arrest.” Id. Dr. Forgac believed that “Marshall's behavior was a product of adolescent curiosity, moral immaturity and easy availability of pornography.” Id. at PageID # 44–45. He recommended “education, monitoring and supervision and the opportunity to mature to age appropriate levels both physically and psychologically.” Id. at PageID # 45.
Marshall submitted Dr. Forgac's report to the district court along with his sentencing memorandum. His sentencing hearing was scheduled for June 4, 2012, but after reviewing the case and meeting with counsel, the district court postponed the hearing so that Dr. Forgac could appear and testify.
The hearing recommenced on June 25, 2012. Dr. Forgac appeared and testified. He explained that the Ammons Quick Test, which he had administered to Marshall, is a “brief screening device” that takes 10–15 minutes to administer and produces both an I.Q. score and an estimated mental age. R. 36, Hrg. Tr., PageID # 192, 206. It involves asking the subject to match pictures with words that “[s]tart out pretty concrete or simple” and “become increasingly more abstract.” Id. at PageID # 205. Dr. Forgac stated that Marshall's I.Q. score of 87 was in “the low average range of intelligence” and his mental age of 15 1/2 was consistent with his academic performance. Id. at PageID # 194. However, he noted that Marshall was “not developmentally delayed intellectually.” Id. at PageID # 199.
Dr. Forgac explained that the adolescence period does not end at 18 but actually extends into an individual's mid–20s. “[D]evelopmental maturation goes to the mid, sometimes even late 20s so that people will receive developing adult identity from early 20s to late 20s.” Id. at PageID # 198. Dr. Forgac thought “the only way that [Marshall was] not still a juvenile [was] his chronological age” and that “he [was] functioning at a juvenile level.” Id. at PageID # 203. He believed that Marshall “viewed himself as a much younger individual and was functioning as a much younger individual.” Id.
The district court asked Dr. Forgac to explain exactly what role Marshall's growth hormone deficiency played in the crime he committed. Dr. Forgac explained that Human Growth Hormone Deficiency “basically prevents maturation.” Id. at PageID # 211. He identified several “different aspects of maturation”: chronological age, physical age, social age, emotional age, and intellectual age. Id. at PageID # 212.
Dr. Forgac further explained that adolescents search for a “group identity.” Id. By interacting with their peers, they experience “consensual validation,” “start feeling an affiliation with a group,” and “are able to mature.” Id. This group interaction “is the road to an adult individual...
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