United States v. McGrath

• Decision Date: 31 January 2014
• Docket Number: 8:12CR422
• Court: U.S. District Court — District of Nebraska
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. AARON MCGRATH, Defendant.

UNITED STATES OF AMERICA, Plaintiff, v. AARON MCGRATH, Defendant.

8:12CR422

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

Dated: January 31, 2014

SENTENCING MEMORANDUM

This matter is before the court for sentencing. This memorandum opinion supplements findings made on the record at a sentencing hearing on December 6, 2013.

I. BACKGROUND

A. Facts

The defendant was charged in a seven-count indictment with one count of knowingly engaging in a child exploitation enterprise, in violation of 18 U.S.C. § 2252A(g); one count of knowingly conspiring to make, print, and publish, and cause to be made, printed, and published, any notice and advertisement seeking and offering to traffic in child pornography, in violation of 18 U.S.C. § 2251(d)(l) and (e); one count of knowingly making, printing and publishing child pornography, in violation of 18 U.S.C. § 2251(d)(1); and four counts of transporting and shipping child pornography by computer in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(1).¹ Filing No. 18, Indictment. He entered a plea of guilty to Count I of the Indictment. Filing No. 46, Plea Agreement.

In the plea agreement, the United States ("the government") agreed to dismiss Counts II through VII and to file a motion for downward departure under U.S.S.G. 5K1.1.² Id. at 1, 3. The court accepted McGrath's plea of guilty but deferred acceptance of the plea agreement pending the preparation of a Presentence Investigation Report (hereinafter, "PSR") by the United States Office of Probation (hereinafter, "the Probation Office") that calculated McGrath's sentence under the United States Sentencing Guidelines ("the Guidelines"). Filing No. 43, Minute Entry.

In the PSR, the Probation Office based its outline of the offense conduct on the prosecutor's version of events and conversations with a case agent. Id. at 6-9. The defendant created and operated three separate websites dedicated to the advertising and distribution of child pornography between January of 2009 and November of 2012. Filing No. 57, PSR (sealed) at 6. The websites run by the defendant operated on a "hidden service" located on the Tor network. Id. at 7. Mr. McGrath was the sole administrator of the websites, hosting and operating them from computers at his home and workplace. Id. The Tor network, also known as the Onion Router, operates on an anonymity network that is now available to the public at large and users must download free software in order to access the network. Id. at 7. The prosecutor stated that one of the sites had over 5,600 members, over 3,000 message threads and over 24,000 postings as of December of 2012. Id. at 6. The forum for posting images on the site contained sub-forums that were categorized by age and gender, including separate sections for "Babies," prepubescent boys, prepubescent girls, teenage boys, andteenage girls. Id. The text areas of the site included a forum specifically designated for discussion of matters pertinent to pedophilia. Id.

The Probation Office determined that the defendant's base offense level was 35 under U.S.S.G. § 2G2.6(a). Id. at 10. It found the following upward adjustments were applicable: a four-level increase under U.S.S.G. § 2G2.6(b)(1)(A) (for a victim under the age of 12); a two-level increase under U.S.S.G. § 2G2.6b)(4) (for using a computer or interactive computer service in furtherance of the offense); and a four-level increase under U.S.S.G. § 3B1.1(a). Id. at 10. The application of these enhancements results in an adjusted offense level of 45. Id. After subtracting three levels for acceptance of responsibility under U.S.S.G. § 3E1.1, McGrath's total offense level under the Guidelines is 42. Id.

The Probation Office assessed no criminal history points because the defendant had only been convicted of traffic violations that do not qualify for criminal history points under U.S.S.G. § 4A1.2(c) (2) (speeding and an improper turn). Id. at 11. At offense level 42 and criminal history category I, McGrath's range of imprisonment under the Guidelines is 360 months (thirty years) to life and his supervised release range is five years to life. Id. at 16.

In the PSR, the Probation Office related that McGrath is 30 years old. Id. at 12. He is single and has no children. He has no history of mental health treatment or counseling, but was diagnosed with attention deficit disorder as a child. Id. He is a light drinker and has never used illicit substances. Id. at 13. He graduated from Hastings St. Cecilia High School in 2001, and attended Creighton University and the University of Nebraska. Id. He was most recently employed as a systems administrator, earning$30,000 per year. Id. at 14. Previously, he was employed as an electronics salesperson, as a technical support person, a telephone customer support person and a retail sales associate. Id.

The government accepted and adopted the PSR. Filing No. 52. It later moved for a two-level departure from the PSR's calculated Guidelines determination based on defendant's cooperation. Filing No. 55. It stated, however, that "Due to the limited nature of defendant's assistance, this motion is limited to Section 5K 1.1 and does not authorize departure below any mandatory minimum sentence." Id. The government argued for a sentence of 360 months and the Probation Office recommended the same sentence.

The defendant objected to the four-level enhancement for being a leader or organizer under U.S.S.G. § 3B1.1 and to the enhancement for use of a computer under U.S.S.G. § 2G2.6(b)(4). Filing No. 50. He argued that he created the website but "did nothing to organize, lead, manage or supervise" any of the individuals who accessed the website. Filing No. 51, Brief at 2.

At the sentencing hearing, the government offered several exhibits, including interface reports, that showed a record of user topics, the rules of the site, and McGrath's level of interaction with the site. Filing No. 59, Exs. 1-4.

B. LAW

1. Sentencing

Because the Sentencing Guidelines are no longer mandatory, the range of choice in sentencing dictated by the facts of the case has been significantly broadened. See United States v. Booker, 543 U.S. 220, 260-61 (2005); Gall v. United States, 552U.S. 38, 59 (2007); Kimbrough v. United States, 552 U.S. 85, 101 (2007); Rita v. United States, 551 U.S. 338, 349-50 (2007); Cunningham v. California, 549 U.S. 270, 286-87 (2007). District courts must "give respectful consideration to the Guidelines," but are permitted "'to tailor the sentence in light of other statutory concerns as well.'" Kimbrough, 552 U.S. at 101 (quoting Booker, 543 U.S. at 245-246).

In imposing a sentence, the district court must consider the factors set out in the Sentencing Reform Act at 18 U.S.C. § 3553(a), including the nature of the offense, history and characteristics of the defendant, the need to deter criminal conduct, and the need to protect the public from further crimes by the defendant. See, e.g., Gall, 552 U.S. at 41, 49-50 & n.6; Booker, 543 U.S. at 259-60; Nelson v. United States, 555 U.S. 350, 351-52 (2009) (per curiam). That statute "contains an overarching provision instructing district courts to 'impose a sentence sufficient, but not greater than necessary' to accomplish the goals of sentencing." Kimbrough, 552 U.S. at 101 (quoting 18 U.S.C. § 3553(a)).

The sentencing court must first calculate the Guidelines range, and then consider what sentence is appropriate for the individual defendant in light of the statutory sentencing factors explaining any variance from the former with reference to the latter. Nelson, 55 U.S. at 351; United States v. VandeBrake, 679 F.3d 1030, 1040 n.7 (8th Cir. 2012) (explaining that the three steps in the post-Booker sentencing process are: (1) to determine the initial advisory guideline sentencing range, (2) to determine any appropriate departures (upward or downward) from the guidelines, and (3) to decide whether to vary from the advisory guideline range based on the factors set forth in§ 3553(a), so long as such a variance is reasonable). A sentencing court may not presume that a sentence within the applicable Guidelines range is reasonable. Id.

In determining a sentence, the court can consider whether the guideline at issue exemplifies the Sentencing Commission's "exercise of its characteristic institutional role" which is "to formulate and constantly refine national sentencing standards, basing its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise." Kimbrough, 552 U.S. at 108-09; Rita, 551 U.S. at 349-50. When Guidelines are not the result of the Commission's exercise of its characteristic institutional role, such as when they are not based on any identified empirical approach, but are instead keyed to or guided by statutory directives, a court is not presented with the "ordinary case," in which "the Commission's recommendation of a sentencing range will 'reflect a rough approximation of sentences that might achieve § 3553(a)'s objectives'" and it is "not an abuse of discretion for a district court to conclude when sentencing a particular defendant" that application of the guideline "yields a sentence 'greater than necessary' to achieve § 3553(a)'s purposes even in a mine-run case." Kimbrough, 552 U.S. at 109-110 (quoting Rita, 551 U.S. at 350); Gall, 552 U.S. at 46 n.2.

In formulating most Guidelines, the Commission developed and used data on past practices and recidivism to establish offense levels for each crime, linked to a recommended imprisonment range, based on these sentencing statistics. See United States Sentencing Comm'n, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 14, 72-73 (November 2004), available at http:// www.ussc.gov/Research_and_Statisitics/Research_Projects/Miscellaneous/15_year_study/index.cfm ("Fifteen-Year Assessment") (last visited Jan....