U.S. v. Stern

590 F.Supp.2d 945

UNITED STATES of America, Plaintiff, v. Evan M. STERN, Defendant.

No. 5:07-CR-00524.

United States District Court, N.D. Ohio, Eastern Division.

December 19, 2008.

COPYRIGHT MATERIAL OMITTED

Robert J. Becker, Office of the U.S. Attorney, Akron, OH, for Plaintiff.

James Michael Campbell, Akron, OH, for Defendant.

MEMORANDUM & ORDER

KATHLEEN McDONALD O'MALLEY, District Judge.

Before the Court is Defendant Evan M. Stern, who previously pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4), a conviction with respect to which the Government and Stern did not reach a plea agreement. In light of the unusual circumstances underlying this conviction, the Court conducted a lengthy initial sentencing hearing during which witnesses testified extensively about the particular facts of this case and about the Defendant himself. The Court did not rule at that hearing, but rather took the matter under advisement to carefully weigh the arguments advanced by both the Government and Stern.¹

The United States Sentencing Commission's Advisory Sentencing Guidelines ("Guidelines") suggest that a defendant with Stern's offense level and criminal history should be sentenced to a term of imprisonment of between 46 and 57 months. The Court, however, must independently consider the sentencing factors set forth in 18 U.S.C. § 3553(a) to determine whether such a sentence is appropriate in this case. Indeed, the Court is forbidden from assuming that the Guidelines are reasonable as specifically applied to Stern. While the Government argues that 46-57 months represents a just sentence, Stern urges this Court to deviate from the guidelines based on the § 3553(a) factors. (Doc. 12.) Stern, in fact, has asked this Court not to impose any term of imprisonment whatsoever. (Id.)

As an initial matter, the Court wishes to make clear that it has consistently imposed harsh sentences upon defendants who possess child pornography. Indeed, the Court rarely has disagreed with the Government's recommended sentences in cases involving this crime—and, when it has, it has only deviated marginally from the Government's recommended term. Yet, as more fully explained below, here the Court is faced with an extraordinary and unique case that compels a different result. While any reading of this sentence as a harbinger of future leniency in the absence of such extraordinary circumstances would be mistaken, the Court finds that the sentence the Government urges is more than reasonably necessary to serve all of the sentencing considerations by which this Court must be guided. The Court does not, however, find it appropriate to deviate as far from the Guidelines as is urged by Stern. Accordingly, Stern shall be sentenced to the custody of the Bureau of Prisons for a term of 12 months and 1 day.²

BACKGROUND

In 2004, the Pittsburgh Division of the FBI and the Pennsylvania Police Department were jointly investigating file servers dedicated to distributing images involving child pornography and their subscribers. During the course of this investigation, the agencies identified numerous criminal users of child pornography, including Stern, then a student at Kent State.

On October 18, 2005, the FBI went to Stern's home and explained that Stern had been identified as a viewer of child pornography. Stern then admitted to possession of this material and surrendered his computer. At that time, he explained how to access the unlawful files on his computer and stated that he wished to cooperate. The FBI spent nearly a year analyzing the contents of Stern's computer. On August 25, 2006, the FBI completed their forensic analysis and identified in excess of 1000 images as child pornography. Slightly over a year later, on October 15, 2007, the Government charged Stern in a one count information with possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4).

GOVERNING LAW

A. The Three-Step Sentencing Procedure

Criminal sentencing is a three-step procedure. See United States v. Baird, 580 F.Supp.2d 889, 892-94 (D.Neb.2008) (Bataillon, C.J.).³ A district court must begin by calculating the sentence recommended by the United States Sentencing Commission. Id. at 892; Rita v. United States, 551 U.S. 338, ___, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007) ("[A sentencing court must] normally begin by considering the presentence report and its interpretation of the Guidelines."). To make this calculation, a court determines both the classification of the crime for which the defendant has been convicted and the defendant's criminal history. See United States v. Boyd, No. 3:07-CR-3, 2008 WL 4963198, at * 14-16, 2008 U.S. Dist. LEXIS 94565, at *43-48 (E.D.Tenn. Nov. 18, 2008).

Next, a sentencing court must determine whether the particular facts of the case justify a departure—either upward or downward—under the Guidelines themselves. Baird, 580 F.Supp.2d at 893. For example, a court may depart from the suggested Guidelines range upon motion of the Government, in recognition of substantial assistance to the government, see U.S.S.G. § 5K1.0, and the Guidelines instruct a court to consider "prior sentences not used in computing criminal history [and] prior similar adult criminal conduct not resulting in a criminal conviction," Boyd, 2008 WL 4963198, at *16, 2008 U.S. Dist. LEXIS 94565, at *48-49 (citation omitted). But cf. Baird, 580 F.Supp.2d at 893 ("The PROTECT Act of 2003 eliminated judicial departures [in sexual exploitation cases] for all reasons except those specifically authorized in Chapter Five, Part K, of the Guidelines Manual." (citation omitted)). If a court finds that an adjustment is appropriate under the Guidelines, the court then recalculates the defendant's recommended sentence based on that adjustment. See Boyd, 2008 WL 4963198, at *18-20, 2008 U.S. Dist. LEXIS 94565, at *54-59.

Finally, a sentencing court must independently evaluate each of the factors in 18 U.S.C. § 3553(a), which details the considerations that a district court must weigh before sentencing a criminal defendant. Although the Guidelines form a starting point in the district court's analysis under 18 U.S.C. § 3553(a), a district court may not presume that the sentence suggested by the Guidelines is appropriate for an individual criminal defendant. United States v. Ross, 501 F.3d 851, 853 (7th Cir.2007) ("[T]he presumption of reasonableness applicable when reviewing a within guidelines sentence on appeal does not carry over to the choice of sentence by the district court." (citing Rita, 127 S.Ct. at 2465)). A district court may "hear arguments by prosecution or defense that the Guidelines sentence should not apply." Rita, 127 S.Ct. at 2465. In this way, a "sentencing court subjects the defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure." Id. (citation omitted). Ultimately, however, a court must exercise its independent judgment in sentencing a defendant. See id.

B. The Sentencing Court's Discretion

Although a sentencing court must apply the above procedure rigorously, a court has considerable discretion when determining the proper sentence for a criminal defendant. Gall v. United States, ___ U.S. ___, ___, 128 S.Ct. 586, 595, 169 L.Ed.2d 445 (2007); United States v. Prisel, No. 07-3281, 2008 WL 4899451, at *10, ___ Fed.Appx. ___, ___ (6th Cir.2008) (affirming a sentence indicating one week imprisonment for possession of child pornography); United States v. Whitehead, 532 F.3d 991, 993 (9th Cir.2008) (per curiam) ("Even if we are certain that we would have imposed a different sentence had we worn the district judge's robe, we can't reverse on that basis."); United States v. Vonner, 516 F.3d 382, 392 (6th Cir.2008) (en banc) ("[D]istrict courts have considerable discretion in [sentencing] and thus deserve the benefit of the doubt when we review their sentences and the reasons given for them."). Although a court "must include the Guidelines range in the array of factors warranting consideration," Kimbrough v. United States, ___ U.S. ___, ___, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007), there need not be "extraordinary circumstances to justify a sentence outside [that] range," Gall, 128 S.Ct. at 595. See Kimbrough, 128 S.Ct. at 577 (Scalia, J., concurring) ("[T]he district court is free to make its own reasonable application of the § 3553(a) factors, and to reject (after due consideration) the advice of the Guidelines."); see also United States v. Erpenbeck, 532 F.3d 423, 445 (6th Cir.2008) ("[A] district court's sentencing determination is reviewed under a deferential abuse of discretion standard." (citation omitted)).

Nevertheless, when sentencing a criminal defendant, a district court must "explain its reasoning to a sufficient degree to allow for meaningful appellate review." United States v. Vowell, 516 F.3d 503, 510 (6th Cir.2008). It must "set forth enough facts to [demonstrate] that it [has] considered the parties' arguments and had a reasoned basis for exercising its own legal decision making authority." United States v. Garrett, 2008 WL 4471420, at *2, 295 Fed.Appx. 778, 780 (6th Cir.2008); see also Vonner, 516 F.3d at 392 393 (Martin, J., dissenting) ("I want to focus on the need for district courts to adequately explain the reasons for a given sentence ... regardless of whether the sentence is above, below, or within the proposed guidelines range, so that we, as an appellate court, may adequately review [those] sentences.").

ANALYSIS

A. Stern's Total Offense Level Under the Guidelines

The Court finds that Stern's base offense level under the Guidelines is 18. See U.S.S.G. § 2G2.2(a)(1). The Court applies a two level upward adjustment for distribution, see U.S.S.G. § 2G2.2(b)(3)(F), a four level upward adjustment based on the quantity of child pornography,⁴ see U.S.S.G. § 2G2.2(b)(7)(C), and a two level increase for use of a computer, see U.S.S.G. § 2G2.2(b)(6)....