USA v. Wellman

• Citation: 716 F.Supp.2d 447
• Decision Date: 02 June 2010
• Docket Number: Criminal Action No. 1:08-cr-00043.
• Court: United States District Courts. 4th Circuit. Southern District of West Virginia
• Parties: UNITED STATES of America, Plaintiff, v. John Charles WELLMAN, Defendant.

716 F.Supp.2d 447

UNITED STATES of America, Plaintiff,

v.John Charles WELLMAN, Defendant.

Criminal Action No. 1:08-cr-00043.

United States District Court, S.D. West Virginia.

June 2, 2010.

Karen B. Schommer, U.S. Attorney's Office, Charleston, WV, for Plaintiff.

David R. Bungard, Federal Public Defender's Office, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS E. JOHNSTON, District Judge.

Before the Court are factual objections to the Presentence Investigation Report (PSR) and legal arguments contained in the Sentencing Memoranda of both parties [Dockets 144 and 147-1] as well as supplemental memoranda filed by both parties. Also before the Court is the Motion by the United States to Seal Sentencing Memorandum [Docket 147]. ¹

I. BACKGROUND

This Court conducted a jury trial in the above-styled case on January 27 and 28, 2009. At trial the government presented evidence that the Defendant had been collecting, and later viewing over the Internet, child pornography for the past thirty years. The Government also showed that a search of Defendant's home had revealed DVDs, disks, and hard drives containing hundreds of images and videos of child pornography including, among other forms of child molestation, child rape and child bestiality. In addition, the Government offered evidence that Defendant had previously been convicted of “Sexual Abuse in the First Degree,” in violation of W. Va.Code § 61-8B-7 (a)(3). On January 28, 2009, the jury returned a verdict of guilty on Counts One, Two, and Three of the Indictment. ² Specifically, the jury found Defendant guilty of knowingly receiving a visual depiction of a minor engaging in sexually explicit conduct that is obscene and had been shipped or transported in interstate commerce by any means, including by computer, in violation of 18 U.S.C. § 1466A(a) as charged in Count One; knowingly receiving an obscene visual representation of the sexual abuse of a child while being required by federal or other law to register as a sex offender in violation of 18 U.S.C. § 2260A as charged in Count Two; and possessing computer disks and computer graphic image files containing an image or video of child pornography which had been shipped or transported in interstate or foreign commerce by means that included a computer in violation of 18 U.S.C. § 2252A(a)(5)(B) as charged in Count Three.

Under the United States Sentencing Guidelines (U.S.S.G.), Defendant's imprisonment range is 210 to 262 months for Count One ³ and 210 to 240 months for Count Three. See U.S. Sentencing Guidelines Manual § 2G2.2 (2009). The sentences for Count One and Three are to run concurrently. See 18 U.S.C. § 3584. In addition, as a result of his conviction on Count Two, Defendant is facing an additional statutory and Guideline sentence of ten years, which must run consecutive to the sentence for Counts One and Three. Therefore, if the Court were to impose a sentence under the Sentencing Guidelines, Defendant would face between 330 months and 363 months of imprisonment.

On February 2, 2009, the Court entered a Judgment Order [Docket 134] directing the Probation Office to submit a draft PSR to the Government and counsel for the Defendant no later than April 29, 2009; directing the Government attorney and counsel for Defendant to file any objections to the PSR no later than June 1, 2009; and directing both parties to file sentencing memoranda addressing the factors set forth in 18 U.S.C. § 3553(a). The Probation Office timely submitted its PSR, and Defendant timely filed objections to the inclusion of information in the PSR that he claims is not relevant to sentencing. In addition, in his Sentencing Memorandum filed on June 5, 2009 [Docket 144], Defendant argues that a variance from the Sentencing Guidelines is necessary in this case because the Sentencing Guidelines are unsupported by empirical evidence, and he raises Eighth Amendment concerns. The Government timely filed its Sentencing Memorandum [Docket 147-1], responding to Defendant's sentencing memorandum and recommending a sentence within the guideline range. With leave of the Court, Defendant filed a Reply memorandum [Dockets 149], and the Government filed a Surreply [Docket 151]. The Court heard oral argument on these issues on July 6, 2009. This matter is now ripe for the Court's consideration.

II. ANALYSIS

A. Request for Variance from Sentencing Guideline Range

Defendant requests that the Court vary from the Sentencing Guidelines when imposing sentence. Under U.S.S.G. § 2G2.2, Defendant's base offense level is 22. The offense level is enhanced 2 levels under U.S.S.G. § 2G2.2(b)(2) because the material involved prepubescent minors or minors under age twelve; it is increased 2 levels under U.S.S.G. § 2G2.2(b)(3)(F) because the material was distributed through peer-to-peer file sharing rather than any distribution method described in subsections A-E; 4 levels are added under U.S.S.G. § 2G2.2(b)(4) because the material portrayed sadistic or masochistic conduct or other depictions of violence; it is enhanced by 2 levels under U.S.S.G. § 2G2.2(b)(6) for use of a computer; and 5 more levels are added under U.S.S.G. § 2G2.2(b)(7)(D) for more than 600 images. Defendant's adjusted offense level is 37. Based on a total offense level of 37 and a criminal history category of I, the Sentencing Guidelines yield a range of 210-262 months of imprisonment for Count One. ⁴ Thus, the low end of the guideline range is 30 months greater than the statutory minimum of 180 months under 18 U.S.C. § 2252A(b)(1).

Defendant requests that the Court vary from the Sentencing Guidelines and “impose the [statutory] mandatory minimum term of imprisonment of 180 months for the sentence imposed for Count One and a concurrent mandatory minimum term of imprisonment of 120 months for Count Three.” (Docket 144 at 10.) Defendant claims that though this sentence would be a variance from the guideline range, it “would serve as a ‘sufficient, but not greater than necessary’ sentence for purposes of achieving the statutory goals of 18 U.S.C. § 3553(a).” ( Id.)

In support of this argument, Defendant first challenges the Guideline for child pornography offenses, U.S.S.G. § 2G2.2. Defendant asserts that “[t]here is a growing number of district courts which have held that the U.S.S.G. § 2G2.2 guideline for child pornography offenses should be afforded less deference as it was not based upon the type of empirical data and national experience which the Sentencing Commission has relied upon in determining other Sentencing Guidelines.” ( Id. at 10-11.) Defendant cites several district courts “that have relied upon the Supreme Court's decisions in Kimbrough and Gall as the authority for rejecting those Sentencing Guidelines which do not reflect the Sentencing Commission's exercise of its ‘characteristic institutional role.’ ” ( Id. at 11.) Further, Defendant claims that a variance is warranted because “[t]he majority of the offense level enhancements for the U.S.S.G. § 2G2.2 guideline do not provide any insight into any aggravating factors pertaining to a defendant's offense conduct,” ⁵ ( id. at 17), and “[t]here is no explanation offered by the Sentencing Commission as to why [an] arbitrary distinction exists between receipt/distribution and possession offenses when virtually all forms of child pornography found on computers are downloaded from the Internet,” ( id. at 17-18). Defendant asserts that under Kimbrough and Gall, the Court may vary from the Sentencing Guidelines based on these policy considerations and not based on any particular circumstance of his.

(1)

To address this argument, the Court will examine the Supreme Court precedent regarding the discretion of sentencing courts to vary from the Sentencing Guidelines. Prior to the enactment of the Sentencing Reform Act of 1984 (SRA), as amended, 18 U.S.C. § 3551 et seq., 28 U.S.C. § 991 et seq., sentencing courts were permitted wide discretion in imposing criminal sentences within statutory minimums and maximums. ⁶ United States v. Pauley, 511 F.3d 468, 471 (4th Cir.2007) (citing Mistretta v. United States, 488 U.S. 361, 363, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)). However, the SRA created the Sentencing Commission “as an independent commission in the judicial branch of the United States” authorized to establish and implement Sentencing Guidelines for the federal judicial system. Id. (citing 28 U.S.C. § 991(a)).

Before the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Sentencing Guidelines were mandatory and binding on all federal sentencing and appellate courts. Pauley, 511 F.3d at 472. However, in Booker, the Supreme Court “instructed district courts to read the United States Sentencing Guidelines as ‘effectively advisory.’ ” Kimbrough, 552 U.S. at 90, 128 S.Ct. 558. Nevertheless, the Supreme Court “stressed in that case that a sentencing court still must take the Guidelines into account at sentencing along with the factors set forth in § 3553(a).” Pauley, 511 F.3d at 472 (citing Booker, 543 U.S. at 264, 125 S.Ct. 738).

In 2007, the Supreme Court issued two opinions outlining the mechanics of Booker. Id. at 473 (citing Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) and Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Gall provided the following steps for a sentencing court: (1) calculate the Guidelines range; (2) give both parties an opportunity to argue for an “appropriate” sentence; (3) consider all factors listed in § 3553(a) to determine if they support a sentence requested by either party; and (4) adequately explain its reasons for choosing the sentence, including any justification for any variance. Gall, 552 U.S. at 49-50, 128 S.Ct. 586. In Kimbrough, the Supreme Court held that, because the crack cocaine Guidelines were predominantly based on statutory minimum sentences...