United States v. Cottrell

579 F.Supp.3d 1051

UNITED STATES of America, Plaintiff,

v.Terry COTTRELL, Defendant.

CAUSE NO. 3:19-CR-091 DRL-MGG

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

Signed January 12, 2022

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

SENTENCING MEMORANDUM

Damon R. Leichty, Judge

Law enforcement discovered 9,860 images (including seven videos) of child pornography depicting prepubescent minors and infants on devices owned by Terry Cottrell. Mr. Cottrell pleaded guilty to a one-count indictment for possessing child pornography. See 18 U.S.C. § 2252(a)(4)(B).

SENTENCING GUIDELINES

The court must first calculate the guideline sentence correctly, then decide what it 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 uses the 2018 sentencing guidelines. 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 side objects to the final presentence investigation report, so the court adopts ¶¶ 1-114 of the presentence report as its findings.

Mr. Cottrell starts at level 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 the exploitation of an infant or toddler, U.S.S.G. § 2G2.2(b)(4)(B), five more levels because he possessed in excess of 600 images of child pornography, U.S.S.G. § 2G2.2(b)(7)(D), app. n.6(B)(ii), and two more levels because the offense involved the use of a computer device or software, U.S.S.G. § 2G2.2(b)(6). From level 31, his clear and timely acceptance of responsibility reduces his offense level to level 28. U.S.S.G. §§ 3E1.1(a), (b).

Mr. Cottrell receives six criminal history points, thereby falling within criminal history category III. U.S.S.G. Chap. 5A. There the sentencing guidelines recommend a sentencing range of 97 to 120 months, U.S.S.G. Chap. 5A, once capped by the statutory maximum sentence of 10 years, 18 U.S.C. §§ 2252(a)(4)(B), (b)(2).

DISCUSSION

The court decides this sentence under 18 U.S.C. § 3553(a) and Booker v. United States , 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).

What proves particularly troubling is Mr. Cottrell's unrelenting exploitation of children. This isn't a first-time occurrence. In 2003, at age 19, he was convicted for burglary after he broke into a public library and viewed child pornography on a computer in the children's section. This prior history and his admitted cycle of ongoing engagement with child pornography (going cold turkey but then relapsing), given the need for deterrence and public protection, ground him squarely within the guideline range. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C).

In 2009, at age 25, Mr. Cottrell was charged with fifteen counts of sexual misconduct (including child molesting) occurring over more than two years with four minors under age 14. He pleaded insanity. The charges were dismissed, so the court views this arrest history circumspectly. See United States v. Drain , 740 F.3d 426, 432 (7th Cir. 2014) ("an arrest alone does not necessarily mean guilt"). The underlying record proves more likely than not reliable though—not least because he spent about seven years involuntarily committed to the Logansport State Hospital as a result of these charges, because of his admitted cycle of ongoing engagement with child pornography, because his outpatient services even after Logansport's treatment involved, as he says, his "issues with children," because his conduct, as alleged, occurred over more than two years with four minors under age 14, rather than for a brief period or with even one child, and given his diagnosis twice for pedophilia. See 18 U.S.C. § 3661 ; United States v. Mansfield , 21 F.4th 946, 955-58 (7th Cir. 2021) (permitting consideration of reliable and similar arrest history); see also United States v. Jordan , 435 F.3d 693, 697 (7th Cir. 2006) (considering pedophilia diagnosis). This added history tends to support the court's sentence, though the court reaches its sentence notwithstanding this history rather than use it to move higher. See 18 U.S.C. § 3553(a)(1), (a)(5) ; U.S.S.G. § 4A1.3(a)(3).

The risk of recidivism is real. See 18 U.S.C. §§ 3553(a)(2)(B), (a)(2)(C). Mr. Cottrell's prior commitment in 2010 provided resources to reform his conduct, and he received ongoing outpatient services beginning May 2017 to continue his recovery. While seemingly receiving these services still in 2019, he again acquired child pornography, which led to his federal conviction here. His return, despite ongoing treatment, strongly indicates the need for incapacitation and public protection. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C). The risk of recidivism for child pornography offenders may generally be lower than other frequent federal offenses, see, e.g., United States Sent. Comm'n (USSC), Federal Sentencing of Child Pornography: Non-Production Offenses 62-66 (2021); Recidivism of Federal Offenders Released in 2010 app. E (2021); USSC, Report to Congress: Federal Child Pornography Offenses 293-310 (2012), but Mr. Cottrell's history and candid assessment of his challenges counsel more caution, see also Smith v. Doe , 538 U.S. 84, 103, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (risk of recidivism posed by sex offenders is "frightening").

Life isn't easy for Mr. Cottrell. See 18 U.S.C. § 3553(a)(1). He struggles with various mental health challenges, antisocial disorders, and suicidal ideations. He becomes overwhelmed with routine tasks and responsibilities. He relies on others for his needs (most recently his brother). He disdains other people and self-isolates. Medications appear to help his mood and antisocial tendencies, but his compliance has been far from perfect. Some of his difficulties stem from a traumatic childhood. His mother's death at a young age had a lasting impact. He faced sexual and other abuse from family members and others as he grew up. He was placed in foster care at 14 only to be adopted by a man who emotionally abused him. He ran away. He was homeless. He has never had a permanent residence. It is a heartbreaking history, and the absence of stability has left him without much education (seventh grade) or employment that might otherwise productively preoccupy him. A heavy-handed sentence for those with significant mental health challenges will often have less deterrent effect, see United States v. Dyer , 216 F.3d 568, 570 (7th Cir. 2000), but at bottom Mr. Cottrell recognizes right from wrong, and he persists despite treatment and thus remains a threat, see United States v. Miranda , 505 F.3d 785, 793 (7th Cir. 2007). Protecting the public thus counterbalances his unfortunate personal circumstances and proves the greater goal than just deterrence.

The tragic circumstances of Mr. Cottrell's life don't ameliorate the crippling and lifelong impact that child pornography has on victims—and here many victims based on scores of impact statements and thirteen restitution requests, an unusually higher than not number. See 18 U.S.C. § 3553(a)(2). Child pornography is a "permanent record" of abuse, thereafter "exacerbated by [its] circulation." New York v. Ferber , 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) ; accord USSC, 2012 Report at 112-13. General deterrence is critical in this context, see United States v. Goldberg , 491 F.3d 668, 672 (7th Cir. 2007) ; United States v. Schrank , 975 F.3d 534, 536 (6th Cir. 2020), with specific deterrence obligated based on Mr. Cottrell's history.

The Sentencing Commission has suggested a need to reassess the guidelines for certain child pornography cases. In June 2021, the Sentencing Commission built on its previous 2012 report to Congress. See USSC, Federal Sentencing of Child Pornography: Non-Production Offenses 68-69 (2021). The 2021 report echoed many conclusions from the 2012 report. The court has used the considerations advocated by the Sentencing Commission in weighing the § 3553(a) factors, including the content of an offender's child pornography collection, the nature of the collecting behavior, the degree of engagement with other offenders, and the history of engaging in sexually abusive or predatory conduct. See 18 U.S.C. § 3553(a)(5) ; see, e.g., United States v. Roberts , 463 F. Supp.3d 860 (N.D. Ind. 2020).

Mr. Cottrell's collection forensically included nearly 10,000 images, though deleted. In his words, he would download the images and then shamefully delete them. His collecting behavior thus differs from many offenders who horde such images, or otherwise transport or distribute them. Its content included infants, bondage, and bestiality, so horrific in both scope and subject matter. He seems not to have engaged with other offenders, but his history with child pornography enhances concern. Overall, these features underscore this offense's seriousness and aggravate this offense. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A).

Mr. Cottrell argues that the computer enhancement and image number enhancement take his sentencing range too high. He says he did not use technologically sophisticated measures to build and protect his collection. "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." Roberts , 463 F. Supp.3d at 863. "This is not the 1980s or even 1990s when such possession would be more ...