United States v. Roberts

• Decision Date: 11 March 2020
• Docket Number: CAUSE NO. 3:19-CR-82 DRL-MGG
• Parties: UNITED STATES of America, Plaintiff, v. Jonathan E. ROBERTS, Defendant.
• Court: U.S. District Court — Northern District of Indiana

463 F.Supp.3d 860

UNITED STATES of America, Plaintiff,

v.Jonathan E. ROBERTS, Defendant.

CAUSE NO. 3:19-CR-82 DRL-MGG

United States District Court, N.D. Indiana, South Bend Division.

Signed March 11, 2020

John M. Maciejczyk, US Attorney's Office, South Bend, IN, for Plaintiff.

SENTENCING MEMORANDUM

Damon R. Leichty, Judge

Following peer-to-peer lead information obtained by undercover software, law enforcement executed a search warrant on Jonathan E. Roberts and his home that discovered approximately 151 videos and 347 images of child pornography. Certain images depicted children under age twelve, including toddlers and sadistic behavior. Mr. Roberts pleaded guilty to possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2).

SENTENCING GUIDELINES

The court must first compute the guideline sentence correctly, then decide whether the guideline sentence is the right and reasonable sentence for this defendant. Nelson v. United States, 555 U.S. 350, 351, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009) ; United States v. Garcia , 754 F.3d 460, 483 (7th Cir. 2014). The court applies the 2018 manual of the sentencing guidelines because there are no ex post facto concerns. See Peugh v. United States , 569 U.S. 530, 531, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) ; U.S.S.G. § 1B1.11.

Neither party objected to the final presentence investigation report, so the court adopts as its own findings ¶¶ 1-87 of the presentence report, specifically including ¶¶ 62-69 concerning Mr. Roberts’ financial condition and earning ability. Both sides advised the court they had no objections to the proposed conditions of supervision, as amended (ECF 35), and the court has reviewed them and independently found them appropriate for this case. 18 U.S.C. § 3583(d).

Mr. Roberts’ base offense level is 18. U.S.S.G. § 2G2.2(a)(1). His offense level is increased two levels because the material involved prepubescent minors or minors under age 12, U.S.S.G. § 2G2.2(b)(2), four more levels because the material portrayed sadistic or masochistic conduct or other depictions of violence, U.S.S.G. § 2G2.2(b)(4), five more levels because he possessed in excess of the equivalent of 600 images of child pornography, U.S.S.G. § 2G2.2(b)(7) and app. n.6(B)(ii), and two more levels because the offense involved the use of a computer device or software for possessing or accessing with the intent to view the material, U.S.S.G. § 2G2.2(b)(6). These enhancements bring his offense level to level 31.

Mr. Roberts has demonstrated acceptance of responsibility for his offense. He entered into a plea agreement, pleaded guilty to a one-count information, provided the court with a synopsis of his offense, and assisted authorities in the investigation and prosecution of his offense, so his offense level is adjusted downward three levels (supported by the government's oral motion at the hearing) to level 28. U.S.S.G. §§ 3E1.1(a), (b).

Mr. Roberts has no criminal history, so the sentencing guidelines place him in criminal history category I. U.S.S.G. Chap. 5A. The sentencing guidelines recommend a sentencing range of 78 to 97 months, U.S.S.G. Chap. 5A, less than the maximum sentence of twenty years (240 months) that the crime of conviction carries by statute. 18 U.S.C. §§ 2252(a)(4)(B), (b)(2).

DISCUSSION

The court decides this sentence under 18 U.S.C. § 3553(a) and United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Turning to the statutory factors, the court must arrive at a reasonable sentence: one sufficient but not greater than necessary to satisfy the statute's purposes. 18 U.S.C. § 3553(a).

The Sentencing Commission has suggested a need to reassess the sentencing guidelines for child pornography cases. In December 2012, the Sentencing Commission submitted a report to Congress in which it critiqued federal sentencing policy in such cases. See United States Sentencing Commission, Report to Congress: Federal Child Pornography Offenses , 311-331 (2012). The Commission's focus then was on non-production offenses under U.S.S.G. § 2G2.2, like the case before the court. Based on its research, the Sentencing Commission recommended several categories of offender behavior that should be considered in imposing sentences in U.S.S.G. § 2G2.2 cases, including the content of an offender's child pornography collection, the nature of his collecting behavior, his degree of engagement with other offenders, and his history of engaging in sexually abusive or predatory conduct. See id. at 320. The Sentencing Commission viewed these factors as serving the federal sentencing goals of retribution, incapacitation, and deterrence. See id. at 321; see also Tapia v. United States , 564 U.S. 319, 325, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011) (district court should fashion sentence to achieve these goals).

In proposing this new research and recommendations, the Sentencing Commission observed that the current guidelines might recommend both overly severe sentences in certain cases based on "outdated and disproportionate enhancements related to their collecting behavior" and, at the same time, "unduly lenient ranges for other offenders who engaged in aggravated collecting behaviors not currently addressed in the guideline." See U.S.S.C. 2012 Report at 321.

The United States Department of Justice agreed with the Commission's 2012 viewpoint: "[A]dvancements in technologies and the evolution of the child pornography ‘market’ have led to a significantly changed landscape—one that is no longer adequately represented by the existing sentencing guidelines.... [T]he existing Specific Offense Characteristics (‘SOCs’) in U.S.S.G. § 2G2.2 may not accurately reflect the seriousness of an offender's conduct, nor fairly account for differing degrees of offender dangerousness." U.S. Dept. of Justice, Letter to The Honorable Paul B. Saris, Chair, United States Sentencing Commission at 1 (Mar. 5, 2013). The Department of Justice concluded that the guidelines "can at times under-represent and at times over-represent the seriousness of an offender's conduct and the danger an offender possesses." Id.

The Sentencing Commission sought legislation from Congress that would authorize a full panoply of amendments to the sentencing guidelines in child pornography cases, see U.S.S.C. 2012 Report at 322, but that seems not to have come. Indeed, one of the last congressional acts in this area was the PROTECT Act of 2003 that strengthened laws against child pornography. Pub. L. No. 108-21, 117 Stat. 650 (2003) (codified as amended at 18 U.S.C. § 3553(b)(2) ). That law was partly a response to the frequency of downward departures and a congressional viewpoint of the general inadequacy of sentences in child pornography cases. See H.R. Rep. No. 108-66, 108th Cong., 2d Sess. 58-59 (2003). The Department of Justice in 2012 thus recommended targeted adjustments to the guidelines while maintaining a "robust and strict sentencing scheme" to address trafficking and distribution. See 2013 DOJ Letter at 2. The Department of Justice also challenged the Sentencing Commission's views that recidivism rates were overstated and that rehabilitation rates were efficacious. See id. at 4-5.

One area of focus has been the two-level enhancement assessed because an offense involves the use of a computer device. U.S.S.G. § 2G2.2(b)(6). In this day and age, it nary requires a thought that child pornography would be maintained by way of a computer or computer service, and the 2018 sentencing guidelines offer no commentary in their publication why possession in such commonplace manner is deserving of a two-level enhancement. Mr. Roberts offered statistics whereby a computer device today is used in more than 90 percent of cases. This is not the 1980s or even 1990s when such possession would be more avant garde. Certainly, to the extent such possession facilitates distribution or perhaps merely serves as a prelude to or risk of ready distribution, such possession on a computer is worthy of greater opprobrium. In fact, Congress, in enacting the Sex Crimes Against Children Prevention Act of 1995 (SCACPA), increased punishment for use of a computer in child pornography offenses, identifying four concerns: (a) wide dissemination and instantaneous transmission that can be facilitated by computers; (b) the increased difficulty of investigation and prosecution by law enforcement; (c) the increased likelihood that child pornography will be viewed by children to their detriment; and (d) the potential for pedophiles to lure children into sexual relationships. See H.R. Rep. No. 90, 104th Cong., 1st Sess. 3-4 (1995) reprinted in 1996 U.S.C.C.A.N. 759. Building on this, the Sentencing Commission, back in 1996, observed that "[f]ederal cases to date typically do not involve the type of computer use that would result in either wide dissemination or a likelihood that the material will be viewed by children." United States Sentencing Commission, Report to Congress: Sex Offenses Against Children: Findings and Recommendations Regarding Federal Penalties 25-29 (June 1996). The Sentencing Commission observed that "a person's culpability depends on how they use a computer," noting that "[n]ot all computer use is equal." Id. at 29.

That said, as written, the two-level enhancement under U.S.S.G. § 2G2.2(b)(6) applies whether the computer was used for possession or distribution; and the absence of a stated differential in culpability and harm to victims and public from distribution suggests a more mechanical, thus less thoughtful, imposition of two more levels for possession, however wrongful that conduct and however worthy of a strong sentence. See U.S.S.C. 2012 Report at 323-24 (reiterating this concern). That could prove problematic in certain cases and lend argument to an emerging chorus that the sentencing guidelines at times are disproportionately severe. See , e.g. , United States v. Huffstatler , 571 F.3d 620, 622-23 (7th Cir. 2009) (collecting district...