UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

)

v. ) CAUSE NO.: 1:13-CR-50-TLS

)

PHILLIP BIDDLE )

OPINION AND ORDER

The Defendant, Phillip Biddle, pleaded guilty to one count of possession of materials

depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C.

§ 2252(a)(4)(B). He is awaiting sentencing. This matter is before the Court on the Defendant’s

request for a sentence below the applicable advisory Sentencing Guidelines range based on the

statutory factors provided for such variances in 18 U.S.C. § 3553(a). On August 25, 2014, the

Defendant filed a Sealed Sentencing Memorandum [ECF No. 39] arguing that the guideline

sentence is greater than necessary to comply with the purposes of punishment under § 3553(a).

The Government filed a Sealed Sentencing Memorandum [ECF No. 42] arguing that the advisory

guideline range is reasonable and that the government leaves the appropriate sentence to be

imposed upon the consideration of § 3553(a) facts to the sound discretion of the Court. This

Opinion and Order addresses the parties’ arguments regarding the appropriate sentence pursuant

to § 3553(a) as well as the Defendant’s outstanding objections to the Presentence Investigation

Report (PSR), as noted in the addendum to the PSR [ECF No. 45], filed on August 29, 2014. For

the reasons provided below the Court will sentence the Defendant to a term of imprisonment of

54 months.
BACKGROUND

The Defendant pleaded guilty to possession of approximately 23 still images and 81

videos of child pornography. In December 2011, the Federal Bureau of Investigation (FBI)

investigated communications involving the Defendant that included the transmission of child

pornography. In June 2012, law enforcement executed a search warrant of the Defendant’s

residence and recovered a HP computer tower, a Compaq mini-pic C120, and 199 CDs/DVDs.

The FBI found approximately 23 still images and 81 videos of child pornography on nearly all of

the media recovered from the residence. An FBI review of the images indicated that the images

included depictions of sadomasochism and of prepubescent minors or minors under the age of

12.

On April 24, 2014, the Defendant and the Government entered a written Plea Agreement

in which the Defendant pleaded guilty to the Indictment in return for the Government’s

recommendations that he receive a reduction for acceptance of responsibility and a sentence

equal to the minimum of the applicable guideline range. On May 15, 2014, the Court conducted a

change of plea hearing and accepted the Defendant’s plea of guilty to the Indictment. The Court

referred the matter to Probation and Pretrial Services for the preparation of a presentence

investigation report (PSR).

The PSR sets a base offense level of 18 under U.S.S.G. § 2G2.2(a). It applies an

enhancement of two levels because the offense involved depictions of prepubescent minors who

had not attained the age of 12 years, § 2G2.2(b)(2); an enhancement of two levels because the

material was distributed by the Defendant, § 2G2.2(b)(3)(F); an enhancement of four levels

because the offense involved material portraying sadistic conduct or other depictions of violence,

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§ 2G2.2(b)(4); an enhancement of two levels for use of a computer, § 2G2.2(b)(6); and an

enhancement of five levels based on the number of images possessed, § 2G2.2(b)(7)(D). The

PSR recommended a three-level reduction for acceptance of responsibility under § 3E1.1(a) and

(b) because the Defendant entered a timely guilty plea. This yielded a total offense level of 30.

Coupled with the Defendant’s criminal history category of II, the advisory guideline range of

imprisonment is reported in the PSR as 108 to 120 months.1

The Defendant is a 37-year-old male with a limited criminal history, including

convictions for domestic battery, impersonation of a public servant, and criminal recklessness.

The Defendant objects to the inclusion of the victim statements in the PSR, to the enhancements

applied under the specific offense characteristics in the PSR, and to the probation officer’s

conclusion in the PSR that he did not identify any factors that would warrant a departure from the

applicable sentencing guideline range. The Defendant also argues that the advisory guideline

range results in a sentence that is greater than necessary to comply with the purposes of

punishment. The Defendant asks for a sentence of 15 months of imprisonment based on the

history and characteristics of the Defendant, including various health issues and past experiences

of the Defendant, and the nature and characteristics of the offense, as argued in the Defendant’s

Sealed Sentencing Memorandum.

Although the PSR states the high end of the guideline range is 120 months, the Court notes that 1

this offense involved a visual depiction of a prepubescent minor or a minor who had not attained 12 years

of age. Pursuant to 18 U.S.C. § 2252(b)(2), the statutory maximum for § 2252(a)(4) offenses is 10 years

unless the offense involved visual depiction of a prepubescent minor or a minor who had not attained 12

years of age, in which case the statutory maximum is 20 years. Thus, the Court finds that the statutory

maximum of 10 years, or 120 months, is inapplicable in this case, and that the advisory guideline range

should be 108 to 135 months.

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ANALYSIS

A. Defendant’s Objections to PSR

The Defendant’s first objection concerns the inclusion of the victim letters in the PSR. He

argues that the disclaimers included in these letters indicate that it cannot be determined if any of

the victims who wrote the letters are actually depicted in the images that were found on his

computer. The Defendant argues that the letters should not be included because they came from

victims that may not be relevant to this case and, therefore, serve no purpose as to the child

pornography found on his computer.

In response, the Government argues that the Defendant possessed images of child

pornography from several identified series and that the Government possesses victim impact

statements from three series, identified as Series 1, Series 2, and Series 3. The Government

advises that it was able to identify three individuals (Victim 1, Victim 2, and Victim 3) from

Series 1, a multiple victim series, as well as the victims from Series 2 and Series 3, both single

victim series, from the videos in the Defendant’s possession. 

Upon review of the record, the Court finds that the victim impact statements attached to

the PSR are proper because the Government, with the assistance of the FBI, was able to identify

the victims contained in Series 1, 2, and 3 in the videos found to be in the Defendant’s

possession. As such, the Defendant’s first objection is overruled.

The Defendant makes the following objections to the enhancements contained in the PSR

for the specific offense characteristics: (1) that the two-level enhancement for use of a computer

is inappropriate and a poor gauge of relative fault between offenders because nearly every child

pornography case involves use of a computer and the Internet; (2) that the five-level

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enhancement because the offense involved 600 or more images is inappropriate because the

unfortunate ease with which large numbers of images can be accessed and stored does not

provide a distinction between large-scale and small-scale child pornography purveyors; (3) that

the two-level enhancement for material involving a prepubescent minor, or a minor under the age

of twelve, is inappropriate because the very nature of child pornography involves children and

such an enhancement is a poor gauge of the relative level of fault between offenders; (4) that the

two-level enhancement for distribution other than distribution described in subdivision (A)

through (E) pursuant to U.S.S.G. §2G2.2(b)(3)(F) is inappropriate because the nature of peer-topeer file sharing programs, with automatic reciprocal sharing, causes mere possession to evolve

into unintended distribution; and (5) that the four-level enhancement for possession of material

portraying sadistic or masochistic conduct is inappropriate because it is not a valid indicator of

culpability, could be applied in most cases, and that, at most, the Defendant only possessed one

image that may have been categorized as sadomasochism. The Defendant contends that the

enhancements do not accurately reflect the Defendant’s culpability for the offense and are a poor

gauge by which to make a distinction between the relative level of fault between offenders. 

In response, the Government argues that the advisory guideline range is reasonable, that

there are no factual disputes as to the enhancements in the PSR, and that the Defendant’s

arguments that a guideline sentence would be greater than necessary to comply with the purposes

of punishment is a consideration under 18 U.S.C. § 3553(a) and not the sentencing guidelines.

The Court finds that the Defendant’s objections to the enhancements are more properly

made as arguments under the § 3553(a) sentencing factors rather than by objection to the

calculation of the sentencing guidelines in the PSR. Indeed, the Defendant’s Sealed Sentencing

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Memorandum makes those arguments. Applicability of the enhancements in formulating the

offense level for the sentencing guideline calculation is based on the facts of the case. It is then

within the Court’s discretion to deviate from the sentencing guidelines, based on § 3553(a)

factors, if appropriate in fashioning a sentence for the Defendant. The Defendant does not

challenge the underlying facts of the offense by which the enhancements have been applied to the

offense level computation for the sentencing guidelines. He instead argues that the result of such

an application produces a guideline sentence that is greater than necessary. This argument is

well-made as a § 3553(a) argument for the appropriate sentence, but not as an objection to the

PSR. As such, the Defendant’s objections are overruled.

The Defendant’s final objection to the PSR is that he believes he should receive a twolevel variance due to his health issues, as raised in his Sealed Sentencing Memorandum. Pursuant

to U.S.S.G. §5k2.22(2), a variance may be made for extraordinary physical impairments where

the Defendant’s physical condition or appearance is present to an unusual degree and

distinguishes his case from typical cases covered by the guidelines. The Government argues that

the Defendant does not fit within this provision. Although the Government acknowledges the

Defendant’s conditions, the Government argues that these characteristics have not prevented the

Defendant from doing all the other things, legal and illegal, that other people without those

conditions can do and that his conditions cannot now be used to mitigate the punishment for his

actions.

The Court notes that this objection concerns the paragraph in the PSR regarding whether

the probation officer has identified any factors that would warrant a variance from the sentencing

guidelines. As such, the Defendant’s arguments that factors supporting a variance do exist are

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proper under § 3553(a), but not as an objection to the guideline calculations. Therefore, the

Defendant’s final objection is overruled, but the Court will consider those arguments pursuant to

§ 3553(a).

B. § 3553(a) Factors

When sentencing a defendant, the district court “must first calculate the Guidelines range,

and then consider what sentence is appropriate for the individual defendant in light of the

statutory sentencing factors, 18 U.S.C. § 3553(a).” Nelson v. United States, 555 U.S. 350, 351

(2009); see also United States v. Panice, 598 F.3d 426, 441 (7th Cir. 2010) (setting forth the twostep process that a sentencing court must engage in to determine a defendant’s sentence); United

States v. Bush, 523 F.3d 727, 729 (7th Cir. 2008) (same). Here, the primary issue involves the

second step, the application of the criteria set forth in § 3553(a) to the facts and circumstances of

the Defendant’s particular case. In imposing a sentence, § 3553(a) requires a court to consider:

(1) the nature and circumstances of the offense and the history and characteristics of

the defendant; 

(2) the need for the sentence imposed— 

(A) to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct; 

(C) to protect the public from further crimes of the defendant; and 

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(D) to provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the most

effective manner.

(3) the kinds of sentences available;

(4) the advisory guideline range;

(5) any pertinent policy statements issued by the Sentencing Commission;

(6) the need to avoid unwarranted sentence disparities; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a). 

After considering these factors, a court must impose a sentence that is sufficient, but not

greater than necessary, to satisfy the following purposes of sentencing: just punishment, respect

for the law, deterrence, protection of the public, and rehabilitation of the defendant. In making

this determination, a district court may not presume that the guideline sentence is the correct one.

Nelson, 555 U.S. at 352; Rita v. United States, 551 U.S. 338, 351 (2007). When evaluating the

Guidelines recommendation, a court may consider whether the Sentencing Commission fulfilled

its “characteristic institutional role” in adopting the particular guideline, see Kimbrough v. United

States, 552 U.S. 85, 109 (2007), and the court may reject any guideline on policy grounds, United

States v. Pape, 601 F.3d 743, 749 (7th Cir. 2010). Ultimately, a court must make an independent

determination, taking into account the types of sentences available, the other relevant § 3553(a)

factors, and the arguments of the parties. See Gall v. United States, 552 U.S. 38, 49–50 (2007).

The Defendant argues that the enhancements applied in his case (the computer

enhancement, the number of images enhancement, the enhancement for images of prepubescent

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minors, the enhancement for distribution other than distribution described in subdivisions (A)

through (E) pursuant to U.S.S.G. §2G2.2(b)(3)(F), and the enhancement for sadistic or

masochistic images) should not be considered because they would apply in nearly every case and,

as such, are a poor indicator of the relative level of fault between offenders. The Government

argues that the advisory guidelines, including the enhancements, are reasonable, and that the

Defendant’s arguments that a guideline sentence with the enhancements would make the

sentence greater than necessary to comply with the purposes of sentencing are within the sound

discretion of the Court under consideration of the § 3553(a) factors.

The Defendant has pleaded guilty to possession of materials depicting minors engaging in

sexually explicit conduct, a violation of 18 U.S.C. § 2252(a)(4)(B). Therefore, the Defendant is

not subject to the traditional mandatory minimum of five years of imprisonment associated with

child pornography convictions. Cf. 18 U.S.C. §§ 2252(a)(1)–(3) and (b). Rather, § 2252(a)(4) has

no statutory minimum term of imprisonment and a maximum term of imprisonment of twenty

years when the offense involves a visual depiction of a prepubescent minor or a minor who has

not attained twelve years of age. See § 2252(b)(2). With a total offense level of 30 and a criminal

history category of II, the Defendant’s guideline sentencing range is 108–135 months of

imprisonment and supervised release of 5 years to life. The Court is aware that the Commission

and many other individuals and groups scrutinizing federal sentencing have suggested a need to

reassess the Guidelines with respect to child exploitation crimes and consider reforms. In

December 2012, the Commission submitted a report to Congress in which the Commission

examined and critiqued federal sentencing policy in child pornography cases. United States

Sentencing Commission, Report to Congress: Federal Child Pornography Offenses (2012),

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available at www.ussc.gov/ Legislative_ and_ Public_ Affairs/Congressional_ Testimony_ and_

Reports/ Sex_ Offense_ Topics/ 201212_ Federal_ Child_ Pornography_ Offenses/index.cfm.

The Report focused primarily on non-production related offenses under U.S.S.G. § 2G2.2 and

expanded on the Commission’s 2009 report, The History of the Child Pornography Guidelines.

Based on its extensive research, the Commission concluded that “the current sentencing scheme

results in overly severe guideline ranges for some offenders based on outdated and

disproportionate enhancements related to their collecting behavior.” Report to Congress: Federal

Child Pornography Offenses at 321. Significantly, the Department of Justice agreed with the

Commission’s general conclusions:

[T]he Department agrees with the Commission’s conclusion that advancements in

technologies and the evolution of the child pornography “market” have led to a

significantly changed landscape—one that is no longer adequately represented by the

existing sentencing guidelines. Specifically, we agree with the Report’s conclusion

that the existing Specific Offense Characteristics (“SOCs”) in USSG § 2G2.2 may

not accurately reflect the seriousness of an offender’s conduct, nor fairly account for

differing degrees of offender dangerousness. The current guidelines can at times

under-represent and at times over-represent the seriousness of an offender’s conduct

and the danger an offender possesses.

United States Department of Justice, Letter to the Honorable Patti B. Saris, Chair of the United

States Sentencing Commission, 1 (March 5, 2013), available at http://sentencing.typepad.com/

files/doj-letter-to-ussc-on-cp-report.pdf (last visited Aug. 7, 2013) (hereinafter “DOJ Letter”). To

comport with changes in technology and the means by which child pornography is produced and

distributed, the DOJ recommends that advisory sentencing ranges should be calculated based on:

how an offender obtains child pornography; the volume and type of child

pornography an offender collects; how long an offender has been collecting child

pornography; the attention and care an offender gives to his collection; how an

offenders uses his collection once obtained; how an offender protects himself and his

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collection from detection; and whether an offender creates, facilitates, or participates

in a community centered on child exploitation.

Id. at 2.

The Commission’s Report and the DOJ’s response further strengthen this Court’s belief

that the child pornography guidelines do not deserve the same weight inherent in other guidelines

because they did not result from careful study based in empirical analysis and national

experience, but are the result of congressional mandates. See, e.g., United States v. Huffstatler,

571 F.3d 620, 622–23 (7th Cir. 2009) (collecting district court cases relying on this rationale);

see also United States Sentencing Commission, The History of the Child Pornography

Guidelines (2009), available at

http://www.ussc.gov/Research_and_Statistics/Research_Projects/Sex_Offenses/20091030_Histo

ry_Child_Pornography_Guidelines.pdf.

According to the United States Sentencing Commission, in 2010, in cases in which

U.S.S.G. § 2G2.2 enhancements were applicable, the enhancements for possessing materials

depicting prepubescent minors (§ 2G2.2(b)(2)), use of a computer (§ 2G2.2(b)(6)), and number

of images (§ 2G2.2(b)(7)) applied in over 95% of cases. Report to Congress: Federal Child

Pornography Offenses at 209. The enhancement for possession of material portraying violence or

sadomasochistic conduct (§ 2G2.2(b)(4)) applied in 74% of all § 2G2.2 cases. Id.2

The frequency of the application of these enhancements does not necessarily render them flawed 2

and unworthy of this Court’s consideration, but a consequence of such frequent application of the

enhancements is that even ordinary first-time offenders often qualify for guideline sentences that

approach the statutory maximum based solely on sentencing enhancements that are inherent in the crime

of conviction. This, in turn, can lead to less of a distinction between the sentences of first-time offenders

and those who are more dangerous offenders, who, for example, distribute pornography for pecuniary

gain. This undercuts the directive in § 3553(a) to consider the nature and circumstances of the offense

and the history and characteristics of the defendant. 

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The five enhancements in this case (the computer enhancement, the number of images

enhancement, the enhancement for images of prepubescent minors, the enhancement for

distribution other than distribution described in subdivisions (A) through (E) pursuant to

U.S.S.G. §2G2.2(b)(3)(F), and the enhancement for sadistic or masochistic images) lead to an

inaccurate indication of the severity of the Defendant’s offense and do not serve to promote the

goals of punishment in this case.3

Innovations in digital cameras and videography as well as in computers and

Internet-related technology, such as peer-to-peer (“P2P”) file-sharing programs have

been used by offenders in the production, mass distribution (both commercial and

non-commercial distribution), and acquisition of child pornography. These

technological changes have resulted in exponential increases in the volume and ready

accessibility of child pornography, including many graphic sexual images involving

veryyoung victims, a genre that previouslywas not as widely circulated as it is today.

As a result of such changes, entry-level offenders now easily can acquire and

distribute large quantities of child pornography at little or no financial cost and often

in an anonymous, indiscriminate manner.

Several provisions in the current sentencing guidelines for non-production

offenses—in particular, the existing enhancements for the nature and volume of the

images possessed, an offender’s use of a computer, and distribution of

images—originally were promulgated in an earlier technological era. Indeed, most

of the enhancements, in their current or antecedent versions, were promulgated when

offenders typically received and distributed child pornography in printed form using

the United States mail. As a result, enhancements that were intended to apply to only

certain offenders who committed aggravated child pornography offenses are now

being applied routinely to most offenders. 

Id. at 312–313 (footnotes omitted).

The Sentencing Commission has previously criticized the two-level computer

enhancement, finding that the enhancement did not distinguish between serious commercial

Accounting for the Defendant’s base offense level of 18, see U.S.S.G. § 2G2.2(a)(1), three level 3

credit for acceptance of responsibility, and criminal history category II, these five enhancements result in

an advisory guideline range of 108 to 135 months imprisonment as opposed to a range of 21 to 27 months

of imprisonment.

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distributors of online pornography and run-of-the-mill users. See United States Sentencing

Commission, Report to Congress: Sex Offenses Against Children Findings and

Recommendations Regarding Federal Penalties, 25–30 (1996), available at

http://www.ussc.gov/Legislative_and_Public_Affairs/

Congressional_Testimony_and_Reports/Sex_Offense_Topics/199606_RtC_Sex_Crimes_Agains

t_Children/199606_RtC_SCAC.PDF. The Commission has reiterated this same concern in its

most recent report. See Report to Congress: Federal Child Pornography Offenses at 323–24

(“the 2-level enhancement for use of a computer . . . applies in virtually every case and, thus, fails

to differentiate among offenders with respect to their involvement in [online child pornography]

communities”). “Because the vast majority of child pornography offenses now involve the use of

a computer,” the DOJ recommends that the computer enhancement “be eliminated and replaced

by others, . . . which better distinguish between different classes of offenders.” DOJ Letter at 4.

Although a computer can provide an effective means to transport material quickly in interstate

commerce, it is distributors, traffickers, and those desiring to entice children to engage in sexual

activity who most exploit the technology and increase the market for child pornography. 

For this Defendant, the computer enhancement does not correspond to an elevated

seriousness of his offense or to any of the purposes of sentencing. There is no indication that he

intended to sell or distribute images to others for profit or otherwise, and empirical data does not

show that using a computer as a means to possess and view pornography is a more serious or

culpable offense than viewing the same images if they had been received by another medium,

such as through the mail. Cf. United States v. Hanson, 561 F. Supp. 2d 1004, 1010–11 (E.D.

Wis. 2008) (stating that this enhancement is logically flawed because on-line pornography

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generally comes from the same pool of images found in other formats). Accordingly, a two-level

enhancement to the Defendant’s base offense level for the use of a computer yields a sentence

that is greater than necessary to achieve § 3553(a)’s purposes.

Likewise, the enhancement for the number of images does not further the purposes of

sentencing in this Defendant’s case. While the DOJ maintains that the number of images

enhancement should continue to be applied, it recognizes that “in light of the technologyfacilitated ease of obtaining larger child pornography collections, the numeric thresholds should

be substantially increased for each offense level, so as to better distinguish between occasional

and habitual collectors of child pornography.” DOJ Letter at 4. See also United States v. Diaz,

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720 F. Supp. 2d 1039, 1042 (E.D. Wis. 2010) (“offenders readily obtain the necessary number of

images with minimal effort”); United States v. Burns, No. 07 CR 556, 2009 WL 3617448, at *7

(N.D. Ill. Oct. 27, 2009) (“the number and type of images received is frequently accidental”).

Although the Guidelines provide for a five-level enhancement for more than 600 images, a fourlevel enhancement for 300 to 600 images, a three-level enhancement for 150 to 300 images, or a

two-level enhancement for 10 to 150 images, these distinctions are not linked to any empirical

data pertaining to sentencing and the purposes of punishment, and in this case they do not

provide an accurate indication of culpability. Under the Guidelines, each video corresponds to 75

images for purposes of applying the enhancement—resulting in a finding that the Defendant

possessed more than 6,075 images. This additional five-point enhancement increases the

magnitude of the Defendant’s offense without a showing of corresponding culpability.

 The maximum five-level enhancement under § 2G2.2(b)(7)(D) for possessing 600 or more 4

images applied to 67.6% of cases in 2010. Report to Congress: Federal Child Pornography Offenses at

209.

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Accordingly, a five-level enhancement to the Defendant’s base offense level for the number of

images yields a sentence that is greater than necessary to achieve § 3553(a)’s purposes.

Under the facts of this case, the Court also finds the enhancement for possession of an

image of a prepubescent minor or minor who had not reached the age of twelve does not further

the purposes of punishment. In 2010 non-production cases, 96.3% of offenders possessed child

pornography depicting prepubescent minors or minors under the age of 12. Report to Congress:

Federal Child Pornography Offenses at 140–41. As other courts have noted, images of very

young children are sadly “typical of this crime,” and do not indicate increased culpability for

those receiving such images. Hanson, 561 F. Supp. 2d at 1009; Burns, 2009 WL 3617448, at

*13. There is no evidence that the Defendant specifically sought out prepubescent minors.

Consequently, the Court finds that applying this enhancement would not appropriately measure

the Defendant’s culpability under the facts of this case.

The enhancement for possession of sado-masochistic images also yields a sentence that is

greater than necessary to achieve § 3553(a)’s purposes. In 2010, U.S.S.G. § 2G2.2(b)(4) applied

in 74.2% of all cases. Report to Congress: Federal Child Pornography Offenses at 316.

Although originally intended to provide additional proportional punishment for aggravating

conduct, this enhancement now routinely applies to the vast majority of offenders. Moreover,

there is no evidence that the Defendant sought out sadomasochistic images. Accordingly, a fourlevel enhancement to the Defendant’s base offense level for possessing sadomasochistic images

yields a sentence that is greater than necessary to achieve § 3553(a)’s purposes.

The Court also finds that the enhancement for distribution other than distribution

described in subdivisions (A) through (E) pursuant to U.S.S.G. §2G2.2(b)(3)(F) does not further

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the purposes of punishment. Subdivisions (A) through (E) describe distribution for pecuniary

gain; for the receipt, or expectation of receipt, of a thing of value; for distribution to a minor; and

for distribution to a minor that was intended to persuade, induce, entice, or coerce the minor to

engage in prohibited sexual conduct or other illegal activity. Subdivision (F), applied in this case,

is a catch-all provision covering any other distribution not previously covered. The Defendant

argues that this enhancement makes simple possession evolve into distribution, regardless of the

intent of the Defendant, due to the nature of peer-to-peer file sharing programs. Further, the

Defendant argues that there is no evidence showing that he willingly shared child pornography

with anyone or that he conditioned any such sharing on a promise to receive additional child

pornography in return. However, the Defendant argues that there is evidence showing that the

vast majority of child pornography he downloaded was either deleted or saved on his hard drive

or his external hard drive and was removed from his shared folder. The Defendant argues that

only two files found on his computer linked to Limewire or Frostwire, that the rest of the files did

not link to peer-to-peer file sharing programs, and that there is no evidence that anyone, other

than Detective Vogely, downloaded files from the Defendant. The Defendant is correct. There is

no evidence in the record that the Defendant made arrangements to share or transfer files with

others or that he would share files in a quid pro quo exchange. Accordingly, the two-level

enhancement for distribution other than distribution described in subdivisions (A) through (E)

pursuant to U.S.S.G. §2G2.2(b)(3)(F) yields a sentence that is greater than necessary to achieve §

3553(a)’s purposes.

For these reasons, the Court will not give deference to the increase in the advisory

guideline sentence that is brought about by these specific offense characteristics.

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The Defendant has asked the Court to sentence him below the advisory guideline range of

108 to 135 months, and instead impose a sentence of 15 months. As argued in his Sealed

Sentencing Memorandum, the Defendant contends that the nature and characteristics of the

offense and the history and characteristics of the Defendant, including various health issues and

past experiences, justify a variance from the sentencing guideline range. The Government argues

that the advisory guideline range is reasonable and that the government leaves the appropriate

sentence to be imposed upon the consideration of § 3553(a) facts to the sound discretion of the

Court.

In consideration of the nature and circumstances of the offense, the Court finds that the

Defendant did not seek pecuniary gain or exchange money in his acquisition of images; thus, he

did not contribute to any commercial market for child pornography. Nor was the Defendant

motivated to distribute images, but instead collected them for his personal use. In addition, the

Defendant was not involved in the production of child pornography but rather was a run-of-themill user who viewed the images privately.

In consideration of the history and characteristics of the Defendant, the Court finds that

the Defendant has never had improper contact with children. Without diminishing the

seriousness of his offense conduct, the Court notes that the Defendant has never been involved in

the creation or production of child pornography, nor has he attempted to persuade, induce, entice,

or coerce a minor to engage in prohibited sexual conduct or any other illegal activity. Although

he possessed child pornography, he appears to have a sexual interest in adult women as

demonstrated by the fact that he was once married, has had multiple girlfriends, and is presently

in a relationship with an adult. There is evidence that the Defendant had viewed and possessed

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child pornography, but not that he is a pedophile or predator. There are no reported problems of

inappropriate sexual conduct between the Defendant and his children, and the Defendant has

complied with the conditions of his pretrial release. However, the Court is unpersuaded that the

health issues raised by the Defendant would necessarily place him at high risk in a prison setting.

Due to the nature of his offense, he will have many conditions as part of his supervised release,

including registering as a sex offender and monitoring of his computer, which will follow him for

many years, further reducing the risk of recidivism. 

The Court finds that the enhancements do not fully distinguish the relative level of

culpability between the Defendant and others who engage in more serious conduct, such as the

production and commercial distribution of child pornography. Notwithstanding the amount of

pornography in this case, which is quickly and easily acquired with only a few keystrokes and

drives the guideline range in this case, the Defendant’s offense conduct appears to be limited to

mere viewership without any intent to share or distribute the images. Prison is a great

disincentive for illegal conduct, and a sentence of 54 months is not insignificant.

The receipt, distribution, and possession of child pornography is a form of sexual

exploitation of the most vulnerable members of our society, and thus is a serious offense. Fiftyfour months of imprisonment is also a serious sentence, and it is sufficient to promote respect for

the law and to provide just punishment, deterrence, protection for the public, and rehabilitation.

A term of 108 months of imprisonment would no better serve these goals. The Court finds that

54 months of imprisonment, combined with supervised release, is sufficient time for the

Defendant to address those issues that caused him to disregard the well being of those who have

been harmed by his actions. The term of supervised release will provide additional time to

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monitor the Defendant’s actions with respect to the possession of pornographic matter. Finally,

this Court’s review of similar cases across the country and in this Circuit suggests that a term of

54 months would not create unwarranted sentencing disparities among defendants.

CONCLUSION

For the foregoing reasons, the Defendant’s objections to the PSR are OVERRULED. The

Court finds that a sentence of 54 months is sufficient to meet the purposes of sentencing in this

case and is consistent with the statute. The Sentencing set for October 14, 2014, is

CONFIRMED.

SO ORDERED on October 9, 2014.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

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