United States v. Streett

• Decision Date: 09 November 2021
• Docket Number: CR 14-3609 JB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. BENTLEY A. STREETT, Defendant.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA, Plaintiff, v. BENTLEY A. STREETT, Defendant.

No. CR 14-3609 JB

United States District Court, D. New Mexico

November 9, 2021

Fred J. Federici Acting United States Attorney Alexander Mamoru Max UballezNicholas Jon Ganjei Sarah Jane Mease Assistant United States Attorneys United State Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

Paul M. Linnenburger Lane, Linnenburger, and Lane, LLP Albuquerque, New Mexico Attorney for the Defendant

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before Court on the Defendant's Objections to the Presentence Report, filed July 2, 2021 (Doc 257)("Objections). The primary issues are: (i) whether Defendant Bentley Streett knowingly had online contact with several people with the intent to engage in sexual activity (ii) whether Streett traveled to Illinois in July, 2013, for the purpose of engaging in illicit sexual contact with Jane Doe 1; (iii) whether, on or about July 31, 2013, to August 4 2013, Streett tried to get on top of Jane Doe 1; (iv) whether, in May, 2013, Jane Doe 1 provided to Streett a photograph of her breasts; (v) whether Streett threatened to expose John Doe as gay; (vi) whether ¶¶ 27 and 28 at 8, of the Presentence Investigation Report, filed February 14, 2019 (Doc. l88)("PSR"), are repetitive; (vii) whether there were 127 images of minors engaged in sexually explicit conduct saved to Streett's laptop computer or whether those images were merely bookmarked; (viii) whether Streett asked for nude photographs from a girl in Minnesota while knowing that the girl was a minor; (ix) whether PSR ¶¶ 34 and 35, at 10 omit information about Streett's cooperation with law enforcement and his acceptance of responsibility; (x) whether PSR ¶ 37, at 10 is unnecessary, repetitive, or belongs in a different part of the PSR, and whether Streett was communicating with Jane Doe 1 with a computer or telephone; (xi) whether the Court should exclude PSR ¶ 38, at 10-11, because it is unnecessary and repetitive; (xii) whether the Court can apply a 2-level sentencing enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G.") §2Gl.3(b)(2)(B), because Streett unduly influenced Jane Doe 1 to engage in prohibited sexual conduct; (xiii) whether the Court can apply a 2-level sentencing enhancement pursuant to U.S.S.G. § 2G1.3(b)(4)(A), because Streett used a telephone and not a computer to communicate with Jane Doe 1; (xiv) whether the PSR incorrectly states Street's adjusted offense level, because his actual adjusted offense level is 26; (xv) whether the PSR groups improperly Counts 8 and 11 for the purposes of calculating Streett's offense level, because Streett's distribution of child pornography (Count 8) is a "separate offense" from his possession of child pornography (Count 11), Objections at 8; (xvi) whether, for Count 8, (a) the Court can apply a 2-level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(2), because Streett did not plea to distributing prepubescent child pornography, (b) the Court can apply a 7-level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(E), because there is direct connection between Streett requesting images and the minor sending images, (c) the Court can apply a 5-level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(5), because doing so does not require prohibited double-counting, (d) the Court can apply a 2-level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(6), because Streett used a telephone and not a computer to possess and distribute child pornography, (e) the Court can apply a 2-level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(7)(A), because there is no evidence that Streett distributed at least ten images of child pornography, and, therefore, (f) Streett's adjusted offense level is 27 and not 40; (xvii) whether, for Count 11, (a) the Court must calculate Streett's offense level by considering Count 11 independently and, pursuant to U.S.S.G. § 2G2.2(a)(1), Streett's base offense level for Count 11 is 18, (b)the Court can apply a 2-level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(2), because there is no evidence that Streett distributed prepubescent child pornography, (c) the Court can apply a 5-level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(5), because doing so does not require prohibited double-counting, (d) the Court can apply a 2-level sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(7)(A), because there is no evidence Streett distributed at least ten images of child pornography, and, therefore, (e) Streett's adjusted offense level is 27, and not 40; (xviii) whether Streett's multiple-count adjustment is 5, because count 8 must be treated independently from count 11; (xix) whether Streett's greater of the adjusted offense level is 36 and not 40; (xx) whether Streett's total offense level is 42, and not 43; (xxi) whether Streett's guideline range is 360 or 2, 640 months, because the PSR applies incorrectly the U.S.S.G.; and (xxii) whether there are any factors that warrant a departure from the applicable sentencing guidelines. See Objections at 1-18. The Court concludes that: (i) Although Streett knowingly had online contact with several people with the intent to engage in sexual activity, not all of his online activity was for this purpose; (ii) Street traveled to Illinois in July, 2013, for the purpose of engaging in illicit sexual contact with Jane Doe; (iii) During at least one of the trips to Sycamore, Illinois, Streett removed all his clothing and tried to get on top of Jane Doe 1; (iv) Jane Doe 1 provided Streett a photograph of her breasts in May, 2013; (v) Streett threatened to out John Doe as gay; (vi) PSR ¶¶ 27 and 28, at 8, are not repetitive, because they describe separate incidents; (vii) Streett has 127 images on his computer that depict possible child pornography, at least ten of which depict minors engaged in sexually explicit conduct; (viii) Streett asked the "girl in Minnesota" for nude photographs while knowing that she was a minor; (ix) Streett cooperated with law enforcement and accepts responsibility for his actions; (x) PSR ¶ 37, at 10, is not unnecessarily repetitive and states correctly that Streett used a computer, because a cellular telephone is a "computer" under U.S.S.G. §2G2.1; (xi)PSR ¶38, at 10, is not unnecessarily repetitive and does not include incorrect information; (xii) the Court will apply U.S.S.G. § 2Gl.3(b)(2)(B)'s 2-level sentencing enhancement; (xiii) the Court will apply U.S.S.G. § 2Gl.3(b)(3)'s 2-level sentencing enhancement; (xiv) PSR ¶ 51, at 12, states correctly Streett's adjusted offense level; (xv)the PSR groups properly Count 8 and Count 11; (xvi)the PSR calculates properly Count 8's offense level, because (a) the Court will apply U.S.S.G. § 2G2.2(b)(2)'s 2-level sentencing enhancement, (b) the Court will apply U.S.S.G. § 2G22(b)(3)(E)'s 7-level sentencing enhancement, (c) the Court will apply U.S.S.G. § 2G2.2(b)(5)'s 5-level sentencing enhancement, (d) the Court will apply U.S.S.G. § 2G2.2(b)(6)'s 2-level sentencing enhancement, (e) the Court will apply U.S.S.G. § 2G2.2(b)(7)(A)'s 2-level sentencing enhancement, and (f) PSR¶ 96, at 15, states correctly Count 8's adjusted offense level; (xvii)the PSR calculates properly Count 11's offense level, because (a)the PSR states correctly Count 11's base-offense level, (b)the Court will apply U.S.S.G. § 2G2.2(b)(2)'s 2-level sentencing enhancement, (c) the Court will apply U.S.S.G. § 2G2.2(b)(5)'s 5-level sentencing enhancement, (d) the Court will apply U.S.S.G. § 2G2.2(b)(7)(A)'s 2-level sentencing enhancement, and (e) PSR ¶ 96, at 15, states correctly Count 11's adjusted offense level; (xviii) PSR¶ 97, at 15-16, states correctly the combined offense level's number of units; (xix) Streett's greatest adjusted offense level is 40; (xx) Streett's total offense level is 43; (xxi) Streett's U.S.S.G. range is 2, 640 months; and (xxii) the Court will not depart downward based on Streett's criminal history, childhood struggles, community ties, post-offense rehabilitation, or any overlapping enhancements. Accordingly, the Court will sustain Streett's Objections in part as to Objections 1, 7, and 9, but will overrule the rest of the Objections.

FINDINGS OF FACT

The Court takes its facts from the PSR, the Objections, the Addendum to the Presentence Investigation Report, filed October 29, 2020 (Doc. 23l)("First Addendum"), the Second Addendum to the Presentence Investigation Report filed November 4, 2020 (Doc. 233)("Second Addendum"), the United States' Response to Defendant's Objections to the Presentence Report, filed July 26, 2021 (Doc. 257)("Response"), and the Third Addendum to the Presentence Investigation Report, filed August 3, 2021 (Doc. 26O)("Third Addendum"), and the Conditional Plea Agreement, filed December 7, 2018 (Doc l84)("Plea Agreement"). The Court makes its findings of fact by a preponderance of the evidence. See United States v. Williams, No. CR. 17-2556 JB, 2020 WL 4016108, at *6 (D.N.M. July 16, 2020)(Browning, J.)(citing United States v. Olsen, 5l9F.3d 1096, 1105 (10th Cir. 2008)). Accord United States v. Zapata, 546 F.3d 1179, 1192 (10th Cir. 2008). The Court may rely on hearsay if the hearsay is reliable. See United States v. Banda, 168 Fed.Appx. 284, 289 (10th Cir. 2006)(unpublished)("[T]here is no prohibition on considering hearsay testimony at sentencing, provided it bears indicia of reliability."). ^[1] The evidence and information upon which the Court relies must have sufficient indicia of reliability. See U.S.S.G. § 6A1.3 ("In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the...