United States v. Plachy
| Decision Date | 08 May 2013 |
| Docket Number | 4:12CR3049 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. NICHOLAS H. PLACHY, Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the court for sentencing. This memorandum opinion supplements findings made on the record at a sentencing hearing on April 26, 2013.
The defendant was charged with receipt and distribution of child pornography.1 Pursuant to a conditional plea agreement in which he reserved the right to challenge on appeal the denial of his motion to suppress the evidence obtained in the search, he entered a plea of guilty to Count I of the indictment and agreed to forfeiture of the computer equipment involved in the offense. Filing No. 61; Findings and Recommendation ("F&R"); Filing No. 74, Order. The government agreed to dismiss Count II at sentencing and to move for a three-level reduction for acceptance of responsibility. Filing No. 59, Plea Agreement at 4-5. The court accepted thedefendant's plea, 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 Plachy's sentence under the United States Sentencing Guidelines ("the Guidelines"). Filing No. 61, F&R.
In the PSR, the Probation Office based its outline of the offense conduct on the prosecutor's version of events. Filing No. 88, PSR (sealed) at 3-4. As part of an investigation, the Lincoln Police Department used automated software to determine that a computer was sharing child pornography through the Internet. Id. at 6. Police officers downloaded at least five files containing child pornography and obtained a search warrant. Id. A search warrant was then executed and numerous computers and storage devices were seized by law enforcement. Id. at 3-6. A forensic examination of the computers and related storage media revealed over 250 gigabytes of videos and digital images of child pornography. Id. at 6. The material included videos and digital images of graphic sexually explicit conduct and prepubescent minors engaged in sexually explicit conduct. Id. The defendant received the images from October 2008 to April 2012. Id. Law enforcement officers conducted an interview while executing the search warrant and Plachy admitted to viewing, possessing, and sharing images and videos of child pornography since he was a minor. Id.
In the plea agreement, the parties stipulated that the defendant's base offense level was 22 under U.S.S.G. § 2G2.2(a)(2). Id. at 4. They also stipulated to the following upward adjustments: a two-level increase under U.S.S.G. § 2G2.2(b)(2) (); a four-level increase underU.S.S.G. § 2G2.2(b)(4) ();2 a two-level increase under U.S.S.G. § 2G2.2(b)(6) (); and a five-level increase under U.S.S.G. § 2G2.2(b)(7) (). Id. at 6-7. The parties did not agree on whether U.S.S.G. § 2G2.2(b)(1) or § 2G2.2(b)(3) applied in relation to distribution for pecuniary gain or for receipt of a thing of value, but the Probation Office later determined that a five level adjustment for distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain, was appropriate. Id. at 9, 17. The application of these enhancements results in an adjusted offense level of 40. Id. at 10. After subtracting three levels for acceptance of responsibility under U.S.S.G. § 3E1.1, Plachy's total offense level under the Guidelines is 37. Id. Plachy has zero criminal history points, resulting in a criminal history category of I. Id. At offense level 37 and criminal history category I, Plachy's range of imprisonment under the Guidelines would be 210 to 262 months, but the Guidelines sentence is capped at the statutory maximum of twenty years, so the guideline imprisonment range becomes 235 to 240 months. U.S.S.G. § 5G1.1(c)(1).
Plachy is twenty-three years old. Filing No. 88, PSR at 2. He has a high school diploma and has attended some college. Id. at 11-12. He was awarded a full tuition scholarship to the University of Nebraska. Id. at 13. He has been employed as an office assistant, grocery store meat counter clerk and a Web designer, but has not worked since he was charged with this offense. Id. at 15-16.
A psychological evaluation indicates that the defendant is at relatively low risk to perpetrate sexual abuse on children in his environment or in the community. Id. at 14. The psychological report notes that, although the defendant readily admits to chronic use of child pornography and sexual fantasies about children, specifically males, there is no evidence to indicate he has acted on these fantasies beyond his involvement with child pornography. Id. The defendant admitted during the evaluation that he has taken cellphone pictures of children in public places but has never had any physical contact. Id. The defendant was diagnosed with the following: "pedophilia, sexually attracted to both, nonexclusive type; social phobia; and dysthymic disorder." Id. Further, the psychological report indicates that the "defendant's risk of sexual perpetration is also mitigated by his acknowledgment of the problematic nature of his thinking and his amenability to engage in intensive psychological sex offender treatment." Id. The record shows the defendant attended individual counseling sessions from July 31, 2012, until November 16, 2012. Id.
The defendant reported he was diagnosed with depression during his senior year of high school, following his parents' divorce. Id. at 13. He was treated in Lincoln, Nebraska, by a psychiatrist, a psychologist and a counselor form 2007 to 2012. Id. The defendant has been diagnosed as suffering from depression and attention deficit hyperactivity disorder and has been prescribed Wellbutrin and Vyvanse. Id. at 13-14. He takes Wellbutrin daily, but has not taken Vyvanse since November 17, 2012. Id. at 14.
At the sentencing hearing, both the government and the defendant indicated that they accepted and adopted the findings in the PSR. The government moved for anorder of restitution on behalf of five victims under 18 U.S.C. § 2252A(a)(2). Filing No. 81. The defendant moved for a variance from the Guidelines based on his history and characteristics and because application of the Guidelines results in an extremely harsh imprisonment range for a first-time offender. Filing No. 77, Motion for variance. He argued that he should be sentenced to the statutory minimum sentence of five years. The government urged the court to sentence Plachy to the low end of the Guidelines range which amounts to seventeen and a half years.
With respect to the claims for restitution, the government, on behalf of five victims identified as ZJ, PJ, DD, ED, and LD, who are depicted in the "8 kids" series (formerly known as the "Erik Series") seeks restitution in the amount of $2,000 for each victim. Filing No. 81, Amended Statement of Position. In support of its request, the government has submitted materials compiled by the victims' attorney, including victim impact statements, rehabilitation counseling reports, and an economist's report. The materials show that the five victims have suffered profound psychological harm and emotional distress and have incurred or will incur between $924,409 and $1,174,060, respectively, in economic losses as a result of having been abused and the subsequent distribution of the images of that abuse.
The Sentencing Guidelines are no longer mandatory and 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, 552 U.S. 38, 59 (2007). District courts must "give respectful consideration to the Guidelines," butare permitted "'to tailor the sentence in light of other statutory concerns as well.'" Kimbrough v. United States, 552 U.S. 85, 101 (2007) (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. 38, 41, 49-50 & n.6; Booker, 543 U.S. at 259-60; Nelson v. United States, 555 U.S. 350, 351 (2009). 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. See, e.g., United States v. Shannon, 414 F.3d 921, 923-24 (8th Cir. 2005); United States v. VandeBrake, 679 F.3d 1030, 1040 n.7 (). "'[T]he standards justifying departures under the advisory Guidelines are narrower than the factors enumerated in § 3553(a),' and a variance based on the statutory factors may be appropriate even where a departure would be unjustified." United States v. Green,691 F.3d 960, 966 (8th Cir. 2012) (quoting United...
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