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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, CASE NO. 14-20814

HON. VICTORIA A. ROBERTS

v.

STEVEN DUANE SMITH,

Defendant.

/

GOVERNMENT’S SENTENCING MEMORANDUM

The United States of America, by and through its attorneys, United States

Attorney Barbara L. McQuade and Assistant United States Attorney Sara D.

Woodward, respectfully submits this sentencing memorandum. For the reasons

stated below, the government recommends a sentence of 151 months’

imprisonment.

I. PROCEDURAL HISTORY

On August 11, 2015, Defendant entered a guilty plea to Count One of the

Indictment, which charged distribution of child pornography, in violation of 18

U.S.C. § 2252A(a)(2). In the Rule 11 Plea Agreement, the parties anticipated a

sentencing guideline range of 151 to 188 months, based on a total offense level of

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34 and a criminal history category I. The Probation Department has calculated the

same guideline range. (PSR ¶ 60.)

II. STATEMENT OF FACTS

A. Ares Peer to Peer Investigation1

On three occasions in February and May 2014, an undercover Homeland

Security agent observed that Defendant was sharing child pornography with others

online. (PSR ¶ 9.) Defendant’s username on Ares, a peer-to-peer program, was

“the Punisher.” The IP address Defendant used to access the internet was traced to

his home in Wolverine Lake. (PSR ¶ 10.)

B. Search Warrant

On October 16, 2014, a federal search warrant for Defendant’s home was

executed. (PSR ¶¶ 10-11.) Defendant, his wife, his minor son and his adult son,

Steven Deven-Michael Smith (Michael), were present during the execution of the

warrant. The Ares peer-to-peer program was running on the family desktop

computer at the time of the search. (PSR ¶ 11.)

 1 Peer-to-peer networks are software programs, generally available for download from the

internet, that allow other computer users to connect to one another via the internet and share

media files. Data contained in the media files is exchanged directly between the Peer to Peer user

as if they were directly attached. The data is not routed through a centralized server. When a P2P

program is installed, the individual operating the program chooses what media files (music,

images, videos, etc.) they want to share with other P2P users. P2P users may conduct a search for

particular files related to their interests by typing in a keyword or phrase specific to the type of

file they are looking for. The P2P program will search other connected P2P computers for those

particular files and will make them available to the user for downloading.

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Agents interviewed both father and adult son. PSR ¶¶ 12, 13. Defendant’s

son, Michael, told agents that he had been viewing child pornography for

approximately ten years. Michael stated that he first viewed child pornography on

Defendant’s computer.2 (PSR ¶ 12.)

Defendant also admitted that he had been downloading and viewing child

pornography for many years. Originally Defendant said he had been viewing child

pornography for ten years, but during a subsequent interview he admitted that he

had been downloading child pornography for fifteen years. (PSR ¶¶ 14-15.)

Defendant admitted that he was distributing child pornography through Ares, and

that his username on Ares was “The Punisher.” (PSR ¶ 14.) Defendant further

stated that he had downloaded and deleted “a lot” of child pornography over the

years. (PSR ¶ 14.) He estimated that he had downloaded approximately 5,000

videos of child pornography. (PSR ¶ 15.)

A desktop computer, two laptop computers and several external hard drives

were seized from the home.

C. Forensic Results

 2 As the Court is aware, Steven Deven-Michael Smith was indicted for child pornography 

offenses and pled guilty to receipt of child pornography on June 4, 2015. (See Case No. 15-

20815 (VAR), ECF No. 16.) On December 15, 2015, Steven Deven-Michael Smith was 

sentenced to 110 months and five years’ supervised release.

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A forensic examination of the electronic items seized from Defendant’s

home revealed over 1,150 images and 400 videos of child pornography. Both of

the computers and two of the hard drives have large amounts of child pornography

saved under Defendant’s user name. The two remaining hard drives contain child

pornography but do not contain user names. Based on the forensic examination,

Defendant is responsible for downloading at least 678 images and 348 videos

depicting child pornography. Some of these files Defendant downloaded date back

to 2004. 

Defendant’s collection of child pornography mainly depicts sex acts between

young, pre-pubescent children and adult males, including images of children being

blindfolded while they are sexually abused, and a series of images of a toddler

being anally penetrated by an adult. Many of the videos were several minutes in

length and contained sound.

III. SENTENCING FACTORS, TITLE 18 U.S.C. §3553

18 U.S.C. § 3553(a) provides the relevant objectives and factors to be 

considered by sentencing courts when determining a “sentence sufficient, but not 

greater than necessary.” Those objectives are: (1) the nature and circumstances of 

the offense, and the history and characteristics of the defendant; (2) the need for a 

sentence to reflect the basic aims of sentencing (including retribution, deterrence, 

incapacitation and rehabilitation); (3) the kinds of sentences legally available; (4) 

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the Sentencing Guidelines; (5) Sentencing Commission policy statements; (6) the 

need to avoid unwarranted sentencing disparities among defendants with similar 

records who have been found guilty of similar conduct; and (7) the need for 

restitution. The most relevant factors to Defendant’s case are evaluated below.

A. The Advisory Guideline Range

Despite being advisory, the Guidelines remain an important factor under

section 3553(a) in fashioning an appropriate sentence. The Supreme Court has

noted that, in formulating the Sentencing Guidelines, the U.S. Sentencing

Commission’s goal is to carry out the objectives of 18 U.S.C. § 3553(a). United

States v. Rita, 551 U.S. 338, 345 (2007). The Presentence Report’s offense level

computation included a base offense of 22 for distribution of child pornography.

PSR ¶ 24. Enhancements were applied for: prepubescent minors, id. ¶ 23;

distribution through a peer-to-peer file sharing program; id. ¶ 24; sadistic material,

id. ¶ 25; computer use, id. ¶ 26; and number of images, id. ¶ 30. Defendant has a

Criminal History score of I. Id. ¶ 37. With acceptance of responsibility, his total

offense level was 34, with a corresponding guideline range of 151-188. PSR ¶ 60.

This is the starting point when fashioning a sentence for Defendant. 

B. Nature and Circumstances of the Offense, and the History and 

Characteristics of the Offender

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An offender’s pornography and erotica collection is the single best indicator

of what he wants to do. KENNETH V. LANNING, OFFICE OF JUVENILE JUSTICE AND

DELINQUENCY PREVENTION, CHILD MOLESTERS: A BEHAVIORAL ANALYSISBFOR

PROFESSIONALS INVESTIGATING THE SEXUAL EXPLOITATION OF CHILDREN, 107 (5TH

ED. 2010). Defendant has been collecting child pornography for at least the past

fifteen years. The videos and images Defendant collected are horrific. They are

crime scene photos that memorialize the rape and assault of society’s most

innocent and vulnerable population. But this is what Defendant sought out and

collected. This is the material that Defendant used to satisfy his sexual interests.

This is what he, by his own admission, distributed into the larger stream of

commerce for more than a decade. PSR ¶ 15.

Defendant’s activities normalize the sexual exploitation of children and fuel

a market, thereby leading to further production of images. The growing and

thriving market for child pornography images is responsible for fresh child sexual

abuse because the high demand for child pornography drives some individuals to

sexually abuse children and some to “commission” the abuse for profit or status. In

this way, child pornography collectors and distributors, like Defendant, are

inextricably linked to child pornography producers. They are part of the same

circle.

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Not only did Defendant collect these images and use them for his own

gratification but he sent them to others and encouraged those users to further

peddle these vile images. As both a consumer and a distributor, Defendant

unquestionably contributed to the child pornography market. The victims depicted

in Defendant’s collection are real children. Not only must these children deal with

the physical, psychological, and emotional repercussions of their abuse, but they—

unlike those children whose victimization was not memorialized on film—know

that thousands of people watch, download, and trade in their suffering. The victim

depicted in the “Lighthouse” child pornography series describes the fear she

experiences knowing that pictures of her rape are being downloaded and pored

over by strangers:

I know that my image is being downloaded and watched

by these kiddy porn perverts all across the country. I

worry that they know who I am. I worry that they will

come and look for me. I worry that they will come and

hurt my family. I’m terrified that someone is stalking me.

I have changed my appearance so they can’t find me, but

I still have panic attacks when I think someone is looking

at me because they recognize me from the internet. I have

difficulty working or being in public because of anxiety

and want to hide somewhere safe.

Victim Impact Statement, “Lighthouse” Victim, previously provided to the Court, 

defense counsel, and the Probation Department. There is no question that the

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images found on Defendant’s computer— images showing the rape and sodomy of

little boys and girls—depict young children suffering. 

Defendant’s impact on the market for child pornography, however, is not 

merely theoretical. Defendant’s child pornography collection directly influenced 

his son to download child pornography. Not only is this concrete evidence of 

Defendant’s influence on the market for child pornography, but Defendant has also 

contributed to the criminal behavior of his son. Defendant bears some 

responsibility for the fact that his son is serving a lengthy custodial sentence. 

C. Seriousness of the Offense, Promotion of Respect for the Law and Just

Punishment for the Offense

As stated above, receiving and collecting child pornography is a serious

offense. It is not simply a “consumer crime” without victims. The victims depicted

in Defendant’s collection are real children. Not only must these children deal with

the physical, psychological, and emotional repercussions of their abuse, but they—

unlike those children whose victimization was not memorialized on film—know

that thousands of people watch, download, and trade in their suffering. Through his

long-term collecting and P2P distribution of child pornography, Defendant not

only sent these images into the stream of commerce to remain in perpetuity, he

enabled and encouraged the sexual desires of unknown individuals who may be

more dangerous than him.

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Without question, the sharing of child pornography images and videos, even

through P2P networks, reduces inhibitions and affirms the beliefs of some

individuals that their sexual interest in children is normal. When child pornography

materials are in the hands of someone with a sexual interest in children the

potential for danger cannot be understated.

D. Adequate Deterrence and Protection of the Public

The Sixth Circuit recognizes that “deterring future criminal behavior and

protecting the public as sentencing factors in a child pornography case should be

focused upon the market for such activities.” United States v. Robinson, 669 F.3d

767, 777 (6th Cir. 2012). The Robinson court explained:

Young children were raped in order to enable the production of the

pornography that the Defendant both downloaded and uploaded . . .

. The greater the customer demand for child pornography, the more

that will be produced. Sentences influence behavior, or so at least

Congress thought when in 18 U.S.C. § 3553(a) it made deterrence a

statutory sentencing factor. The logic of deterrence suggests that the

lighter the punishment for downloading . . . child pornography, the

greater the customer demand for it and so the more will be produced.

Id. (citing United States v. Goldberg, 491 F.3d 668 (7th Cir. 2007)).

Defendant’s conduct unquestionably contributed to the demand for child

pornography images worldwide. Within the black market that Defendant

collected and distributed images, the commodity is the children themselves.

Even though Defendant didn’t pay money for the images he collected, or charge

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for images that he distributed over Ares, he unquestionably contributed to the

market for these images.

A sentence at the low-end of the guideline range will serve as an adequate

deterrent to others who engage in long-term trading and acquisition of child

pornography. A significant sentence, five years of supervision and sex offender

registration are reasonable steps in protecting the public from future crimes of

this defendant.

E. Avoiding Unwarranted Sentencing Disparities

The Court has an obligation to ensure minimal sentence disparities among 

defendants with similar records that have been found guilty of similar conduct. 

As this Court is no doubt aware, it is not uncommon for defendants convicted of 

crimes related to child pornography to have little or no prior criminal history. It 

is also not uncommon for such defendants to have strong employment histories. 

However, the number of images and videos, Defendant’s influence on his son, 

and the length of time that Defendant engaged in this illegal activity require a 

substantial prison term well beyond the mandatory minimum of 60 months. 

F. Restitution

“The Mandatory Restitution for Sexual Exploitation of Children Act, 18 

U.S.C. § 2259, was enacted for the purpose of compensating the victims of 

offenses involving the sexual exploitation of children.” United States v. Evers, 669 

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F.3d 645, 657 (6th Cir. 2012). The statute makes restitution mandatory for such 

crimes and “direct[s] the defendant to pay the victim ... the full amount of the 

victim’s losses as determined by the court.” 18 U.S.C. § 2259(b)(1), (b)(4). The 

term “victim” is defined by the Act as an “individual harmed as a result of a 

commission of a [Chapter 110 offense.]” 18 U.S.C. § 2259(c). The Act further 

defines “the full amount of the victim’s losses” as “any costs incurred by the 

victim” for a variety of expenses, including psychiatric or psychological care, lost 

income, attorneys’ fees, and “any other losses suffered by the victim as a 

proximate result of the offense.” 18 U.S.C. § 2259(b)(3)(A)(F). “An order of 

restitution under this section shall be issued and enforced in accordance with 

section 3664 in the same manner as an order under section 3663A.” 18 U.S.C. § 

2259(b)(2). The Court is required to issue a restitution order. 18 U.S.C. § 

2259(b)(4). Neither the economic circumstances of the defendant, nor the fact that 

a victim is entitled to receive compensation from another source, allow a court to 

decline to issue a restitution order. 18 U.S.C. § 2259(b)(4)(B).

The statute requires that restitution must be ordered to compensate victims 

for the harms caused “as a result” of a defendant’s offense. 18 U.S.C. § 2259(c); 

Evers, 669 F.3d at 657. In United States v. Paroline, the Supreme Court agreed 

with the Sixth Circuit and the majority of other circuits and held that “[r]estitution 

is therefore proper under §2259 only to the extent the defendant’s offense 

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proximately caused a victim’s losses.” United States v. Paroline, 134 S. Ct. 1710, 

1722 (2014); United States v. Gamble, 709 F.3d 541, 546-547 (6th Cir. 2013); 

United States v. Evers, 669 F.3d at 659; United States v. Hargrove, 714 F.3d 371, 

373 (6th Cir. 2013); United States v. Kearney, 672 F.3d 81, 95-96 (1st Cir. 2012); 

United States v. Aumais, 656 F.3d 445, 455-58 (4th Cir. 2012); United States v. 

Laraneta, 700 F.3d 983, 989-990 (7th Cir. 2012); United States v. Fast, 709 F.3d 

712, 720-722 (8th Cir. 2013); United States v. Kennedy, 643 F.3d 1251, 1260-1261 

(9th Cir. 2011). 

The government received restitution requests from two victims depicted in 

the images and videos of child pornography possessed by Defendant. The materials 

supporting their requests have been provided to the Court. The government 

submits that a restitution award of $8,000 for Cindy, and $23,500 for the victim of 

the Lighthouse series, is appropriate. 

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IV. CONCLUSION

For the past fifteen years, Defendant collected and distributed child

pornography. Defendant used the Ares Peer to Peer (P2P) file-sharing network to

trade and distribute child pornography to other like-minded users all over the

world. Defendant left his child pornography collection open to his adult son, who 

found the material and began to download child pornography. For the reasons 

stated above, a 151-month sentence is the appropriate sentence for Defendant.

Respectfully submitted,

BARBARA L. McQUADE

UNITED STATES ATTORNEY

/s Sara D. Woodward

SARA D. WOODWARD

Assistant United States Attorney

211 W. Fort Street, Suite 2001

Detroit, MI 48226

Phone: 313-226-9180

E-Mail: sara.woodward@usdoj.gov

Dated: December 31, 2015

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CERTIFICATE OF SERVICE

I hereby certify that on December 31, 2015, I electronically filed the 

foregoing document with the Clerk of the Court using the ECF system which will 

send notification of such filing to the following: Mitchell Nelson.

I further certify that I emailed a copy of the foregoing document to Steve 

Ely, U.S. Probation Officer.

s/Sara D. Woodward

SARA D. WOODWARD

Assistant United States Attorney

211 West Fort Street, Suite 2001

Detroit, Michigan 48226-3211

(313) 226-9810

sara.woodward@usdoj.gov

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