UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

 : 4:CR-06-0055

v. : 

:

RICHARD ALLEN HICKS : (Judge Muir)

ORDER

December 8, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

The majority of this order’s background is set forth in our

order of October 31, 2006, in which we required the parties to

file a brief addressing the issue of whether their jointly

recommended sentence of 15 years’ incarceration is reasonable in

light of the fact that it is 2 years and 6 months below the

bottom of the advisory guideline imprisonment range. We repeat

and supplement the background of that prior order to the extent

necessary to resolve that issue.

Defendant Richard Allen Hicks is to be sentenced as a result

of pleading guilty on July 31, 2006, to one count of distributing

child pornography by means of a computer in violation of 18

U.S.C. §§ 2252A(a)(2)(A) and 2256(8)(B). A 15-year mandatory

minimum term of imprisonment applies in this case because Hicks

was previously convicted of another sexual offense (which

involved repeated sexual contact with his stepdaughter beginning

when she was 8 years old and continuing until she was 17). 

In connection with Hicks’s guilty plea the parties filed a

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plea agreement which provides in relevant part that “[t]he

parties agree that [a sentence of 15 years’ imprisonment] is a

reasonable sentence under the facts and circumstances of this

case.” (Plea Agreement, p. 6, ¶13) That same paragraph of the

plea agreement further states that 

[i]f at sentencing the court fails to accept the ...

stipulations of the parties, or imposes a sentence greater

than that agreed to by the parties ..., then the defendant

has the right to withdraw from this agreement and withdraw

any guilty plea entered pursuant to this agreement.

(Id.) Paragraph 20 of the plea agreement states the following;

“The defendant understands that the Court is not a party to and

is not bound by this agreement nor any recommendation made by the

parties, ....” (Id., p. 10, ¶20) That point was further

underscored during the guilty plea colloquy, when we advised

Hicks that the “court is not obliged to accept any recommendation

or bargain reached by the parties,” and that he

might, on the basis of [his] guilty plea, receive a more

severe sentence than that which is requested or recommended

by [his] counsel, government counsel, the probation officer,

or all of them[.]

(Guilty Plea Colloquy, pp. 6, 11)

On October 26, 2006, United States Probation Officer Eric W.

Noll provided us with Hicks’s pre-sentence report and an

addendum. Probation Officer Noll determined Hicks’s advisory

guideline imprisonment range to be 17 years and 6 months to 21

years and 10 months, and no party objects to that calculation. 

Probation Officer Noll is concerned that imposing a 15-year term

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of imprisonment completely disregards Hicks’s prior serious

sexual offense. 

At the presentence conference held on October 30, 2006, we

questioned whether justifiable reasons exist in this case to

impose a sentence which is 2 years and 6 months under the low end

of the advisory guideline imprisonment range. As we noted in our

order of October 31, 2006,

[i]n the case of a plea agreement that includes a specific

sentence (Rule 11(c)(1)(C)), the court may accept the

agreement if the court is satisfied ... that ... the agreed

sentence departs from the applicable guideline range for

justifiable reasons.

(U.S.S.G. § 6B1.2(c)(2)(A)) 

When we accepted the plea agreement we were not aware that

the parties’ recommended sentence of 15 years was below the

advisory guideline imprisonment range. We were advised by the

Probation Officer at the guilty plea hearing that the tentative

advisory guideline imprisonment range was 121 months to 151

months, in the absence of the mandatory minimum 15-year sentence. 

Counsel for the government and the Defendant were of the view

that the advisory guideline imprisonment term was 15 years. 

On October 31, 2006, we issued the order requiring the

parties to file a joint brief on whether their agreed upon

sentence was reasonable. Their brief was timely filed on

November 29, 2006. In it the parties contend that their

suggested sentence of 15 years is reasonable for four reasons. 

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The first reason is that as a result of the conduct at issue

in this case, which involves Hicks’s transmission of child

pornography to a person he believed to be a 14 year old girl via

a computer when he was in Tennessee, investigators discovered

approximately 36,000 images of child pornography on Hicks’s

computer. That discovery subjects Hicks, who is 52 years of age,

to a separate prosecution for the possession of those images. 

The parties represent that “[s]hould charges be filed against

Hicks in Tennessee, he will be facing an additional mandatory

minimum sentence of 15 years.” (Joint Brief, p. 6)(Emphasis

added)

Apparently no additional charges have been filed against

Hicks. We will not base our sentence upon one possible set of

anticipated circumstances which may or may not ultimately occur. 

This factor does not weigh in favor of imposing the parties’

suggested sentence.

The second reason cited by the parties is the fact that, in

the plea agreement, Hicks has waived his right to appeal in this

case. Such a waiver is becoming less uncommon. It is beneficial

in that it conserves the government’s resources. We are fully

aware that before we could imposed a sentence greater than 15

years’ imprisonment we would be required to allow Hicks an

opportunity to revoke the plea agreement. Such revocation would

deprive the government the benefit of the waiver of Hicks’s

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appeal rights.

We are of the view that the ends of justice served by

imposing an appropriate sentence outweigh the countervailing

considerations advanced by the parties in this case. The loss of

the waiver at issue is not sufficiently significant to disregard

the multitude of factors indicating that a sentence more severe

than that recommended by the parties should probably be imposed.

The third factor cited by the parties is the Defendant’s

age. The parties contend that since Hicks is now 52 years old a

“sentence of 15 years will take him to his mid to late 60s,” even

if good time credit is considered. (Joint Brief, p. 7) We do not

view Hicks’s age as a significant factor in this case. 

The fourth and final reason advanced by the parties is that

Hicks has agreed to “a lifetime term of supervised release.”

(Id., p. 8) A lifetime term of supervised release may be imposed

even where a defendant does not agree to it.

The parties have not convinced us that justifiable reasons

exist to impose a sentence which departs from the applicable

guideline range. In light of our rejection of the parties’ joint

sentence recommendation, we will provide the Defendant an

opportunity to revoke the plea agreement. In the absence of such

revocation, the parties will proceed to sentencing clearly

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apprized that the their sentencing recommendation will in all

probability not be accepted.

NOW, THEREFORE, IT IS ORDERED THAT:

The Defendant may, within 30 days after the date of this

order, revoke the plea agreement by filing an election to that

effect.

s/Malcolm Muir 

MUIR, U.S. District Judge

MM:gja

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