United States v. Knott

638 F.Supp.3d 1310

UNITED STATES of America v. Jonathan Dale KNOTT

CRIMINAL ACTION NO. 2:21cr328-MHT

United States District Court, M.D. Alabama, Northern Division

Signed November 1, 2022

James Patrick Lamb, Assistant U.S. Attorney, Eric M. Counts, U.S. Attorney's Office, Montgomery, AL, for United States of America.

Tiernan (Terry) Wilson Luck, III, Luck Law LLC, Montgomery, AL, for Jonathan Dale Knott.

OPINION AND ORDER

Myron H. Thompson, UNITED STATES DISTRICT JUDGE

Defendant Jonathan Dale Knott pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). This cause is now before the court on Knott's motion for a downward variance. For the reasons that follow, the motion will be granted and, in lieu of 27 months of incarceration, Knott will be sentenced to 27 months of home detention as one of the conditions of seven years of supervised release.

I.

Knott is a 30-year-old man with Asperger's Syndrome, also known as Autism Spectrum Disorder (ASD) without accompanying intellectual or language impairment. (The court elaborates on the implications of this diagnosis below.) He lives at home with his parents and does not work.

In April 2019, officers from the Alabama Law Enforcement Agency's State Bureau of Investigation downloaded a torrent file containing child pornography from a then-unknown source using an online peer-to-peer file-sharing program. Through records obtained by subpoena, they linked the Internet Protocol address of the computer to Knott's address. They then obtained and executed a search warrant for his residence, recovering one laptop and three hard drives that, together, contained between 4,500 and 6,000 images of child pornography and approximately 2,000 videos of child pornography.

The government charged Knott in a felony information with one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He entered into a plea agreement under which the government agreed to seek a sentence at the bottom of the Guidelines range. He also moved for a variance under the sentencing framework laid out in United States v. Klear, 3 F. Supp. 3d 1298 (M.D. Ala. 2014) (Thompson, J.), and on the basis that his ASD puts his case outside the norm.

In June 2022, the court held a hearing on Knott's competency and motion for a variance, after which it found him competent to enter a plea. See United States v. Knott, 2022 WL 2079868 (M.D. Ala. June 9, 2022) (Thompson, J.), as amended by United States v. Knott, 2022 WL 2197012 (M.D. Ala. June 15, 2022) (Thompson, J.).

Evidence adduced at the hearing, which the court found credible, revealed that Knott first downloaded the child pornography found on his devices in late December 2017 and early February 2018. All of the child pornography that he downloaded was contained in four torrent files, which were advertised as four parts of a single pornography collection. These files also contained tens of thousands of computer-generated and cartoon pornography images--a type of pornography that he frequently viewed--featuring child-like characters.

At some point after downloading these files, Knott forgot about them. Approximately a year later, while organizing his hard drives, he discovered them again but could not remember what they contained. He tried to open them but found that they had become corrupted and could not be viewed. Curious, he searched for the file names on the internet and redownloaded them. He opened them, realized what they contained, and left them on his hard drive. Later, he backed them up. In total, since he first downloaded the torrent files in 2017, Knott opened only 11 of the child-pornography images and videos that the files contained.

The default setting on the peer-to-peer file-sharing program that Knott used to download the child pornography is such that his computer was then enlisted in sharing the files. He did not know of this setting and did not intend to share them.

II.

A.

The United States Probation Officer determined that Knott's sentencing range under the United States Sentencing Commission Guidelines Manual and applicable statutes is 78 to 97 months.

According to the Guidelines, Knott's base offense level is 18. See United States Sentencing Guidelines Manual (U.S.S.G.) § 2G2.2(a)(1) (U.S. Sent'g Comm'n 2021). He also qualifies for four special offense characteristics, leading to a 13-level increase as follows:

• Because some of the files on his computer portrayed prepubescent minors, he receives a two-level increase. See id. at § 2G2.2(b)(2).

• Because some of the files on his computer contained sadistic, masochistic, or violent images, he receives a four-level increase. See id. at § 2G2.2(b)(4).

• Because he used a computer to possess the pornography, he receives a two-level increase. See id. at § 2G2.2(b)(6).

• Because he possessed more than 600 images, he receives a five-level increase. See id. at § 2G2.2(b)(7)(D).

After a three-level downward adjustment for acceptance of responsibility, see id. at § 3E1.1(a) & (b), these enhancements result in a final offense level of 28. Because Knott has no criminal history, his criminal history category is I. A criminal history category of I and a total offense level of 28 yields a sentence range of 78 to 97 months. See id. at ch. 5, pt. A.

Neither party objected to this calculation, although, as noted above, Knott moved for a variance under the Klear framework and the government did not object to its application. The court now turns to apply that framework.

B.

In Klear, this court rejected the Guidelines framework for child pornography as unmoored from the current reality of file sharing and unreasonable under the factors laid out in 18 U.S.C. § 3553(a). The court noted that, in 2012, the Sentencing Commission issued a report on non-production child-pornography offenses. See 3 F. Supp. 3d at 1303 (citing Special Report to Congress: Federal Child Pornography Offenses, U.S. Sent'g Comm'n, (Dec. 2012)). In the report, the Commission argued that, because times have changed since the child-pornography guidelines were created--and, specifically, because the rise of the internet has transformed how child pornography is typically obtained--those guidelines are now anachronistic and do not adequately distinguish among offenders on the basis of the § 3553(a) factors.

In light of this report, and in an effort to better capture the § 3553(a) factors, the court created the following framework: (I) a base offense level of 18;¹ (II) up to nine additional levels for the content and size of the collection; (III) up to nine additional levels for engagement with other offenders; (IV) up to five additional levels for previous criminal sexual behavior with youth; and (V) two floater points if conduct in one category is particularly egregious. Factors (II) and (III) are further broken down into subcategories, as explained below.

Because of the intricate nature of the framework, the court provides the following breakdown of how each factor laid out in Klear applies to Knott:

(I) Base Offense Level: 18

(II) Content of Knott's Collection and Nature of His Collecting Behavior: + 2

(a) Representation of age of children indicative of intentional collection of child pornography.

Possible Points: 3

Actual Points: 2

Reason: Knott's pornography collection contained enough images of child pornography such that the court found that there was a substantial probability that Knott collected child pornography intentionally. At the same time, his pornography collection consisted mostly of computer-generated images that the government does not allege to have constituted child pornography. See Government's Second Sentencing Memorandum (Doc. 62) at 5 (reporting that Knott's pornography collection included over 100,000 computer-generated images); see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 256 [122 S.Ct. 1389, 152 L.Ed.2d 403] (2002) (invalidating under the First Amendment a provision of 18 U.S.C. § 2256 criminalizing the possession of sexually explicit images that appear to depict minors but were produced without using any real minors). Given the prevalence of these images, and Knott's professed interest in computer-generated pornography, see Psychological Evaluation of Dr. Babcock (Doc. 49) at 8, the court finds that, in comparison to other child-pornography cases, the evidence in this case that Knott collected child pornography intentionally is not so compelling as to warrant a three-point increase.

(b) Number of violent or sadomasochistic images of children.

Possible Points: 3

Actual Points: 0

Reason: Knott's pornography collection contained at least some violent or sadomasochistic images of children, although the precise number is unspecified. While the court has previously found that a one-point increase is warranted under this factor where the defendant possesses a small number of such images, see Westbrook, 2015 WL 470841 at *2; United States v. Piggott, 2015 WL 1894319, at *3 (M.D. Ala. Apr. 27, 2015) (Thompson, J.), intervening factual developments have led it to reconsider the application of this factor.

Disturbingly, it now appears that the vast majority of files containing child pornography available for download on the internet include images of violent or sadomasochistic abuse. See Federal Sentencing of Child Pornography Non-Production Offenses, U.S. Sent'g Comm'n, (June 2021) at 19 (reporting that, in 2019, federal courts applied the Guidelines enhancement for images depicting sadistic or masochistic conduct in 84 % of non-production cases and 78.6 % of possession cases); Child Pornography, U.S. Dep't Justice, https://www.justice.gov/criminal-ceos/child-pornography (last visited August 29, 2022) ("Unfortunately, emerging trends reveal an increase in the number of images depicting sadistic and violent child sexual abuse."). Given the near ubiquity of violent or sadomasochistic images of children among child-pornography files available for download on the

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