United States v. Gotti

UNITED STATES, Plaintiff, v. LUQMAN GOTTI, Defendant.

No. 3:18-cr-335 (VAB)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

September 18, 2020

MEMORANDUM OF DECISION RE: THE SENTENCE

In 2000, Luqman Gotti ("Defendant"), then known as Timothy Pennington, at the age of eighteen, entered an Alford Plea to the sexual assault of a fourteen-year-old minor under Conn. Gen. Stat. § 53a-71(a)(1).

In 2017, Mr. Gotti knowingly contacted a minor through the Kik text message application and engaged in a sexually explicitly conversation with the minor. After the minor confirmed his age, Mr. Gotti both requested and sent graphic, sexual photographs.

On December 20, 2018, Mr. Gotti pled guilty to Accessing with Intent to View Child Pornography, 18 U.S.C. § 2252A(a)(5)(B).

The Court must now decide whether Mr. Gotti's previous state law conviction constitutes a predicate offense under 18 U.S.C. § 2252A(b)(2), requiring the imposition of a mandatory minimum term of imprisonment, and otherwise determine the appropriate sentence for him.

For the reasons discussed below, the Court determines that Mr. Gotti's previous state law conviction is not a predicate offense under 18 U.S.C. § 2252A(b)(2), and therefore does not require the imposition of a mandatory minimum term of imprisonment. The Court further determines that, after considering and weighing all of the relevant factors under 18 U.S.C. § 3553(a), including but not limited to determining the appropriateness of a departure from or variance with the Sentence Guidelines, based on the parties' mutual understanding at the time of Mr. Gotti's plea agreement, a deduction of four points from his Sentencing Guidelines calculations to avoid an unwarranted sentencing disparity, a Non-Guidelines sentence with an upward variance to a term of imprisonment of eighty (80) months for Mr. Gotti's criminal conduct is necessary to ensure that there are no unwarranted disparities in his sentence.¹

I. BACKGROUND

Arrested on April 25, 2018, Mr. Gotti appeared before a United States Magistrate Judge, the Honorable Robert A. Richardson, later that day. Judge Richardson ordered Mr. Gotti detained to ensure the safety of the community and because there was probable cause to believe that he committed an offense involving a minor.

On December 20, 2018, Mr. Gotti pled guilty to 18 U.S.C. § 225A(a)(5)(B), the elements of which include: (1) knowingly accessing with an intent to view material that contained an image of child pornography; (2) the child pornography had been transported through interstate commerce by any means including a computer, and (3) the defendant knew the material contained child pornography. Plea Agreement, ECF No. 28 (Dec. 20, 2018).

In the parties' plea agreement, there is an agreement that Mr. Gotti's base offense level under the United States Sentencing Guidelines ("U.S.S.G.") § 2G2.2(a)(2) is 18. Id. at 5. The parties also agree that, because Mr. Gotti did not intend to traffic in or distribute child pornography, the base offense level is decreased by two levels under U.S.S.G. § 2G2.2(b)(1). Id. The parties further agree that the base offense level is increased by four levels under U.S.S.G.§ 2G2.2(b)(4) because the offense involved material that portrays sadistic or masochistic conduct, in that it depicts a young boy being anally penetrated by a foreign object. Id.

The parties stipulated to a two-level increase of the base offense level because the offense involved the use of a computer or an interactive computer service, the Kik smartphone application, under U.S.S.G. § 2G2.2(b)(6). Id. They also stipulated to a two-level increase to the base offense level under U.S.S.G. § 2G2.2(b)(7)(A), because the offense involved one image and one video resulting in the equivalent of at least 10 images. Id. Under U.S.S.G. § 2G2.2, comment n.6(b)(ii), each video shall be considered to have 75 images.

As agreed by the parties, Mr. Gotti's resulting adjusted offense level is 24. Id. Because the parties also agreed to a three-level reduction of the adjusted offense level for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b), Mr. Gotti's resulting total offense level is 21. Id. The parties calculated that Mr. Gotti falls within Criminal History Category V. Id. A total offense level of 21 with a Criminal History Category V results in a Sentencing Guideline range of 70 to 87 months, and a fine range of $15,000 to $150,000.

In the view of the United States Probation Office ("Probation"), however, a two-level reduction under U.S.S.G. §2G2.2(b)(1) should not have been included in the parties' calculations, because the base offense level is governed by U.S.S.G. §2G2.2(a)(1). Probation thus calculates a total offense level of 23, rather than 21, and that total offense level with a Criminal History Category V results in a Sentencing Guideline range of 84 to 105 months, and a fine range of $20,000 to $200,000. Pre-Sentence Investigation Report, ECF No. 47 at 9-10 (Aug. 23, 2019).

In any event, the Government argues that, because of Mr. Gotti's prior conviction, he faces a mandatory minimum term of imprisonment of 120 months. Government's SentencingMem., ECF No. 53 at 1, 6-11 (Dec. 9, 2019). Mr. Gotti, in turn, argues that a mandatory minimum sentence does not apply here.² To the extent that the Court concludes that the ten-year mandatory minimum is not applicable, both parties agree that a departure under the Second Circuit's decision in United States v. Fernandez, 877 F.2d 1138 (2d Cir. 1989) is appropriate. Id. at 1145 ("[I]t is not startling that a district court presently may depart from a Guidelines sentence in order to give effect to a plea bargain if such a departure is warranted.").

The Court held a sentencing hearing on December 13, 2019 and continued that hearing until September 18, 2020, for a variety of reasons, including the challenges posed by an in-person sentencing during the coronavirus pandemic.

II. STANDARD OF REVIEW

18 U.S.C. § 2252A(a)(5) criminalizes the knowing possession with the intent to view child pornography. Violation of § 2252A(a)(5) typically carries no mandatory minimum sentence, unless the child pornography involves a prepubescent minor or a minor under the age of 12. Certain prior convictions, however, can trigger a ten-year mandatory minimum sentence. This includes a prior conviction "under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." 18 U.S.C. § 2252A(b)(2).

Two approaches are available to the Court to determine "whether a state offense qualifies as a predicate offense for a federal mandatory minimum sentence," United States v. Barker, 723F.3d 315, 319 (2d Cir. 2013) (citation omitted): a categorical approach or a modified categorical approach.

"Under a categorical approach, courts compare the statute forming the basis of the defendant's prior conviction with the applicable generic offense in the federal sentencing statute." Id. (citing United States v. Beardsley, 691 F.3d 252, 259 (2d Cir. 2012)). The generic crime constitutes "the offense as commonly understood" and becomes a predicate conviction "only if the statute's elements are the same as, or narrower than, those of the generic offense." Descamps v. United States, 570 U.S. 254, 257 (2013). "The state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law." Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015).

Courts "presume that the state conviction 'rested upon ... the least of th[e] acts' criminalized by the statute, and then [courts] determine whether that conduct would fall within the federal definition of the crime." Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017) (first alteration in original) (quoting Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)). In ascertaining the minimum criminal conduct of a state statute, "there must be a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime." Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (internal quotation marks and citation omitted).

The modified categorical approach allows courts to "consider facts underlying the prior conviction[] to determine which alternative element in a divisible statute formed the basis of the defendant's conviction." United States v. Moreno, 821 F.3d 223, 227 (2d Cir. 2016) (citations and internal quotation marks omitted); see also Beardsley, 691 F.3d at 258 ("[T]he modified categorical approach is appropriate only where a statute is divisible into qualifying and non-qualifying offenses, and not where the statute is merely worded so broadly to encompass conduct that might fall within the definition of the federal predicate offense . . . ." (emphasis in original)).

It requires a court to (1) "determine if the statute is divisible, such that some categories of proscribed conduct render an [enhancement appropriate] and some do not" and (2) "consult the record of conviction to ascertain the category of conduct of which the [defendant] was convicted." Beardsley, 691 F.3d at 258 (quoting Lanferman v. Bd. of Immigration Appeals, 576 F.3d 84, 88-89 (2d Cir. 2009)); see also Hoodho v. Holder, 558 F.3d 184, 189 (2d Cir. 2009) (finding the modified categorical approach applies "if a violation of a criminal statute can arise from 'diverse classes of criminal acts[,] some of which would categorically be grounds for removal and others which would not.'" (quoting James v. Mukasey, 522 F.3d 250, 254 (2d Cir. 2008))). How to determine a statute's divisibility remains an open question "when [a statute] encompasses both removable and non-removable offenses, but does not describe the removable offenses only in distinct subsections or elements of a disjunctive list." Beardsley, 691 F.3d at 264. In practice, the United States Court of Appeals for the Second...