United States v. Knight

116 F.Supp.3d 439

UNITED STATES of America

v.Zachary Adam KNIGHT, Defendant.

Criminal No. 1:14–CR–140.

United States District Court, M.D. Pennsylvania.

Signed June 30, 2015.

James T. Clancy, U.S. Attorney's Office, Harrisburg, PA, for United States of America.

Daniel M. Myshin, Harrisburg, PA, for Defendant.

ORDER

CHRISTOPHER C. CONNER, Chief Judge.

AND NOW, this 30th day of June, 2015, upon consideration of the sentencing memoranda submitted by defendant Zachary Adam Knight ("Knight") and counsel for the government, and for the reasons stated in the accompanying memorandum, and on the record during Knight's sentencing on June 29, 2015, it is ORDERED that Knight's objection to paragraph 26 of the presentence report, which recommends application of a four-level enhancement to Knight's offense level pursuant to U.S.S.G. § 2A3.1(b)(1), is OVERRULED.

MEMORANDUM

On April 1, 2015, defendant Zachary Adam Knight (Knight?) appeared before the undersigned and pled guilty to one count of aggravated sexual abuse of a child under the age of twelve in violation of 18 U.S.C. § 2241(c) and one count of sexual exploitation of a child in violation of 18 U.S.C. § 2251(a). Presently before the court are memoranda submitted by the parties in aid of sentencing. In addition to addressing the salient 18 U.S.C. § 3553(a) factors, Knight objects to the application of a four-level enhancement to his offense level pursuant to U.S.S.G. § 2A3.1(b)(1). Knight argues that his offense conduct did not involve the type or degree of force contemplated by the Sentencing Guideline. The parties have fully briefed the issue, and during a presentence telephonic conference on June 25, 2015, both sides agreed that the dispute is ripe for disposition. As the court observes infra, there is a dearth of decisional law addressing the intersection of U.S.S.G. § 2A3.1(b)(1) and 18 U.S.C. § 2241(c).

I. Background¹

During the course of a March 2014 investigation into distribution of child pornography, law enforcement officers discovered suspected child pornography being downloaded and shared over a peer-to-peer network. Further investigation revealed that the videos did contain child pornography and were downloaded to a residence on base at the United States Army War College in Carlisle, Pennsylvania. On May 9, 2014, law enforcement officers obtained and executed a search warrant at the residence and discovered that Knight was the offender. Agents located Knight at a nearby place of employment, and Knight agreed to accompany agents for questioning. Agents also seized and searched Knight's cell phone, discovering four videos of Knight engaging in odious sexual acts with K.R., a nineteen-month old child who resided with her parents on base, and whom Knight was trusted to babysit.

Agents immediately filed a criminal complaint against Knight, charging him with possession of child pornography and abusive sexual contact with a child under twelve years of age. (See Doc. 1). On June 11, 2014, a federal grand jury returned an indictment (Doc. 14) charging Knight with four counts, as follows: in Count I, aggravated sexual assault of a person under twelve years of age, in violation of 18 U.S.C. § 2241(c) ; in Count II, sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a) ; in Count III, receipt and distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2) ; and in Count IV, possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). Knight appeared before the court and pled guilty to Counts I and II of the indictment on April 1, 2015. (See Doc. 59). During the change of plea hearing, the court advised Knight that both Count I and Count II carry mandatory minimum terms of imprisonment of thirty years and fifteen years, respectively. In Knight's plea agreement, the government agreed to recommend that the mandatory minimum sentences be served concurrently and that the sentence imposed should not exceed thirty years. (See Doc. 53).

The probation officer issued a presentence report which describes the content of the videos in detail. As noted supra at footnote 1, the undersigned personally reviewed each of the four videos. Two videos are particularly relevant to Knight's objection. The first, created on February 4, 2014, and lasting half of a minute, depicts the first documented sexual assault of K.R. During the contact,² Knight maneuvers the victim by lifting her up and also uses his left hand to push down on K.R.'s stomach, restricting her movement. Throughout the video, K.R. cries in distress and, at times, it appears that K.R. attempts to squirm away from and escape Knight. In the second video, created on March 26, 2014, Knight presses his hand on K.R.'s lower back to restrict her movement.

Based on Knight's actions in pressing his hand on K.R.'s stomach and placing his hand on her back to restrict her movement, the presentence report recommends that the court apply a four-level enhancement to Knight's offense level pursuant to U.S.S.G. § 2A3.1(b)(1), pertaining to use of force. Application of the four-level enhancement, in addition to an undisputed base offense level of 38, an enhancement of two-levels because the victim was in Knight's care and custody, and a reduction of three levels for acceptance of responsibility, results in a total offense level of 41.

Knight has two criminal history points, establishing a Criminal History Category II, and resulting in a Guidelines sentencing range of 360 months to life imprisonment.

II. Legal Standard

In sentencing, a court must engage in a three-step process pursuant to Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). First, it must calculate the advisory Guidelines range. United States v. Wright, 642 F.3d 148, 152 (3d Cir.2011). Second, it must formally rule on any motions for departure and state the impact, if any, of such ruling on the Guidelines calculation. Id. Third, the court is required to exercise its discretion and consider the sentencing factors set forth in 18 U.S.C. § 3553(a), which may vary from the advisory Guidelines range. Id. The government generally bears the burden of proving any facts that may warrant a Guidelines enhancement by a preponderance of the evidence. See United States v. Ali, 508 F.3d 136, 143 (3d Cir.2007). During the presentence telephone conference convened on June 25, 2015, the parties agreed that the facts underlying the defense objection are not in dispute and that the inquiry before the court is purely one of law.

III. Discussion

In a sentencing memorandum filed with the court, Knight does not dispute the factual accuracy of the presentence report's narrative; in fact, he describes the probation officer's characterization of the subject videos as "not necessarily unfair." (See Doc. 70 at 6). Rather, Knight asserts that his undisputed actions do not rise to the level of "force" contemplated by U.S.S.G. § 2A3.1(b)(1) and its incorporation of conduct described in 18 U.S.C. § 2241(a). Knight specifically contends that he did not brandish a weapon, did not threaten the child to obtain compliance, and did not use alcohol or intoxicants to overcome her will. (Doc. 70 at 6–8). Knight urges the court to find that he did not use force in sexually abusing K.R. The practical effect of rejecting the enhancement is a substantial reduction in the Guideline sentencing range, from a range of 360 months to life imprisonment to a sentencing point of 360 months.

U.S.S.G. § 2A3.1(a)(1) provides for a base offense level of 38 if a defendant is convicted under 18 U.S.C. 2241(c), and a base offense level of 30 in all other cases of criminal sexual abuse. From there, the Sentencing Guideline also contains various enhancements based upon special offense characteristics. See U.S.S.G. § 2A3.1(b). In particular, U.S.S.G. § 2A3.1(b)(1) directs that when "the offense involved conduct described in 18 U.S.C. § 2241(a) or (b), increase by 4 levels." U.S.S.G. § 2A3.1(b)(1). In turn, 18 U.S.C. § 2241(a) prohibits aggravated sexual abuse by force or threat, and pertains specifically to defendants who "cause[ ] another person to engage in a sexual act ... by using force against that other person." 18 U.S.C. § 2241(a). The Guidelines endeavor to expound upon the meaning of "conduct described in 18 U.S.C. § 2241(a) or (b)," explaining that such conduct

... is engaging in, or causing another person to engage in, a sexual act with another person by: (A) using force against the victim; (B) threatening or placing the victim in fear that any person will be subject to death, serious bodily injury, or kidnapping; (C) rendering the victim unconscious; or (D) administering by force or threat of force, or without the knowledge or permission of the victim, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of the victim to appraise or control conduct. This provision would apply, for example, if any dangerous weapon was brandished, or in a case in which the ability of the victim to appraise or control conduct was substantially impaired by drugs or alcohol.

U.S.S.G. § 2A3.1 cmt. 2(A). Both Section 2241(a) and the Guidelines are otherwise silent as to the intended meaning of the term "force," and neither the Third Circuit nor the Supreme Court of the United States has provided a definition for the term in this context.

As a threshold matter, the court must address Knight's assertion that Application Note 2(B) to U.S.S.G. § 2A3.1 precludes application of the use of force enhancement outright. Note 2(B) states: "If the conduct that forms the basis for a conviction under 18 U.S.C. § 2241(c) is that the defendant engaged in conduct described in 18 U.S.C. § 2241(a) or (b), do not apply subsection (b)(1)." U.S.S.G. § 2A3.1 cmt. 2(B) (emphasis added). The court's research has revealed no decisional law addressing the application of Note 2(B) since its enactment. However, as the probation officer correctly observes in both addenda to the presentence...