United States v. Eash

679 F.Supp.3d 768

UNITED STATES of America, Plaintiff, v. Jeremy P. EASH, Defendant.

CAUSE NO. 3:22-CR-83 DRL

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

Signed June 27, 2023

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

SENTENCING MEMORANDUM

Damon R. Leichty, United States District Judge

For about four months in 2021 and 2022, Jeremy Eash used his elderly father's name to subscribe to a peer-to-peer file-sharing program and download 1,292 images and 424 videos of child pornography. He pleaded guilty to a one-count information—receipt of child pornography. See 18 U.S.C. § 2252(a)(2).

SENTENCING GUIDELINES

The court must first calculate the guideline range correctly, then decide what sentence is right and reasonable for this defendant. Dean v. United States, 581 U.S. 62, 67, 137 S.Ct. 1170, 197 L.Ed.2d 490 (2017); United States v. Swank, 37 F.4th 1331, 1334 (7th Cir. 2022). The 2021 guidelines apply. See Peugh v. United States, 569 U.S. 530, 537-38, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013); U.S.S.G. § 1B1.11. Without objection, the court adopts as its findings ¶¶ 1-105 of the presentence report, amending only the victims in ¶ 96.

Mr. Eash begins at level 22. U.S.S.G. § 2G2.2(a)(2). Four enhancements take him to level 35. He receives two levels because the material involved prepubescent minors under age 12, U.S.S.G. § 2G2.2(b)(2), two levels because he used a peer-to-peer file-sharing program (interactive computer service) to obtain the material, U.S.S.G. § 2G2.2(b)(6), four levels because the material portrayed sadistic conduct or infant abuse, U.S.S.G. § 2G2.2(b)(4), and five levels because the offense involved more than 600 images, U.S.S.G. § 2G2.2(b)(7)(B). He receives two deductions, including two levels because his receipt of child pornography occurred without him intending to traffic or distribute the material, U.S.S.G. § 2G2.2(b)(1), and three levels because he clearly and timely accepted responsibility for this offense, U.S.S.G. § 3E1.1. He thus ends at level 30.

The sentencing guidelines assess no criminal history points against him. He thus falls within criminal history category I where the sentencing guidelines recommend a sentencing range of 97 to 121 months, U.S.S.G. chap. 5A, narrower than the range of 60 to 240 months (5-20 years) that the crime of conviction carries by statute, 18 U.S.C. §§ 2252(a)(2), (b)(1).

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).

Though the guidelines typically offer a certain assurance of uniform and fair treatment of similarly situated defendants, thereby avoiding unwarranted sentencing disparities, see 18 U.S.C. § 3553(a)(6); United States v. Scott, 631 F.3d 401, 405 (7th Cir. 2011), that can prove less true with non-production offenses, see United States Sent. Comm'n (USSC), Quick Facts: Child Pornography Offenders 2 (2023) (55.6 percent of 1,435 child pornography offenders in FY 2022 received downward variance). One could say that adhering mechanically to the guidelines in a non-production case could create the very disparity the guidelines were in part intended to prevent. See United States v. Roberts, 463 F. Supp.3d 860, 867 (N.D. Ind. 2020).

The Sentencing Commission suggested certain revisions to the child pornography guidelines in 2012; and in June 2021 it built on its prior report to Congress. See USSC, Federal Sentencing of Child Pornography: Non-Production Offenses 68-69 (2021). But Congress never endorsed any revision and instead increased the statutory sentencing schemes for these offenses. See Roberts, 463 F. Supp.3d at 862-63; United States v. Cottrell, 579 F. Supp.3d 1051, 1054 (N.D. Ind. 2022). Of interest, even now with a quorum, the Sentencing Commission has not proposed any changes to the guidelines or enhancements that apply today—neither in 2019 nor in the latest batch in 2023. That speaks to some continuing viability.

That said, the court disfavors any mechanical approach and assesses each defendant individually. Every sentencing is a unique case study, see Pepper v. United States, 562 U.S. 476, 487-88, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), and the court approaches sentencing just so, not least in cases like this one. The court utilizes the categories of behavior identified in the 2012 report as considerations under § 3553(a), 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.

Several factors are aggravating. Mr. Eash received (not just possessed) child pornography, so this offense warrants a punishment commensurate to this greater concern than the possession cases that get lumped statistically with other non-production offenses. See 18 U.S.C. § 3553(a)(2)(A); United States v. Myers, 355 F.3d 1040, 1042-43 (7th Cir. 2004). Distinguishing mere possession, a defendant must know the material he received depicts minors engaged in sexually explicit conduct, see United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); Myers, 355 F.3d at 1042, and Mr. Eash knew. Punishing this conduct more severely serves federal sentencing goals. See Myers, 355 F.3d at 1042 (citing cases).

Mr. Eash also received a large amount of child pornography over a short time. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A), (a)(2)(C). He says he began in December 2021 (this time around). By April 2022, he had approximately 1,292 images and 424 videos. This is a serious and staggering amount:

• Consider just the pace for one. He downloaded on average ten images and three videos a day for four months. He was in the process of downloading more when law enforcement executed its search warrant.

• Consider then the sheer volume. Reducing the videos to images means he had the equivalent of over 33,000 images, see, e.g., U.S.S.G. § 2G2.2 app. n.6(B)(ii)—nearly eight times the number of images the median offender hordes, see USSC, 2021 Report at 4, and measurably more than other offenders sentenced by this court.¹

• Consider its detrimental reach. 33,000 images preys on numerous victims, and some 38 victims among many chose to write victim impact statements, totaling over 100 pages.

• Consider its egregious content. The material included toddlers (including a three-year-old), bestiality, and material categorized as "pre-teen hardcore."

Under such circumstances, the court sees no cause for variance because of the five-level enhancement for having more than 600 images—not given this scale, pace, and content.

The nature of Mr. Eash's collecting behavior is cause for added concern. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A). He says the two-level enhancement for using a computer device should be viewed as outdated. Not because of a policy difference but in an effort to decide a reasonable sentence, the court has always considered how a person uses a computer, noting that "[n]ot all computer use is equal." Roberts, 463 F. Supp.3d at 863 (quoting USSC, Report to Congress: Sex Offenses Against Children: Findings and Recommendations Regarding Federal Penalties 29 (1996)).

Mr. Eash used Shareaza—a peer-to-peer (P2P) file-sharing program. The court has spoken to this platform's contribution to the proliferation of child pornography and, in doing so, declined to vary from a computer enhancement. Roberts, 463 F. Supp.3d at 863-65. The court sees no reason to change course. Peer-to-peer software allows users to share files directly over the internet with others—one can search files in another's "shared folder" and acquire these files from that other user's device. See id.; United States v. Vadnais, 667 F.3d 1206, 1208 (11th Cir. 2012). And then on and on this vicious cycle of easy access goes. Large amounts of child pornography can be acquired "at little or no financial cost and often in an anonymous, indiscriminate manner." USSC, Report to Congress: Federal Child Pornography Offenses 312-13 (2012). This manner of computer use readily contributes to this illicit market's demand.

Due to the reciprocal nature of a peer-to-peer platform, courts have found its knowing use to warrant a different enhancement under the guidelines—i.e., distribution. See U.S.S.G. § 2G2.2(b)(3); see, e.g., United States v. Ryan, 885 F.3d 449, 453-54 (7th Cir. 2018) (use of P2P software warrants distribution enhancement when court finds the defendant "either knew, or was reckless in failing to discover, that the files he was downloading could be viewed online by other people"). The government charged Mr. Eash just so but has not proven on this record this occurred. Indeed, to the contrary and unlike other offenders, he seems to have taken what he received and only placed the files on an external hard drive. See 18 U.S.C. §§ 3553(a)(1), (a)(6). He used his father's name (and possessed a covert recording pen) but, on this record, never used any sophisticated means of cloaking his conduct. See USSC, 2012 Report at 320 (recommending consideration of sophisticated technology). Both points mitigate how he used a computer. Even so, the nature of his collecting made images accessible at the mere click of a mouse given his knowledge of this platform.² The court isn't inclined to view the computer enhancement as without some meaningful basis.

This isn't the first time Mr. Eash procured illicit images. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C). From 2002-2004 (approximately ages 18 to 20), he also downloaded child pornography.³ His substantial break from 2004-2020 might seem mitigating at first blush, but that seems a result of not having a computer or internet access during that time....