UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

-vsD-1 MATTHEW MERCER-KINSER,

Defendant.

____________________________/

HON. ROBERT H. CLELAND

NO. 09-20001

OFFENSE: 18 U.S.C. §2252A(a)(1) -

transportation of child pornography

MANDATORY MINIMUM PENALTY: 5 years

MAXIMUM PENALTY: 20 years

MANDATORY MINIMUM SUPERVISED

RELEASE: 5 years (18 U.S.C. §3583(k))

MAXIMUM SUPERVISED RELEASE: life

MAXIMUM FINE: $250,000

GOVERNMENT’S SENTENCING MEMORANDUM AND RESPONSE 

TO MOTION FOR DEPARTURE OR VARIANCE FROM U.S.S.G. RANGE

The United States of America, by its attorneys, Terrence Berg, United States

Attorney, and Erin S. Shaw, Assistant United States Attorney, respectfully submits this

Sentencing Memorandum regarding defendant Matthew Mercer-Kinser, who is scheduled

to be sentenced on June 16, 2009 at 2:00 p.m. For the reasons provided below, the United

States recommends a sentence of 136 months. 

I. BACKGROUND

A. Defendant Collects Thousands of Images of Child Pornography

From June 2006 to May 2008, defendant was enlisted in the United States Army.

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 1 Initially, the forensic reviewer provided a conservative estimate of 400 known

images. See PSR at ¶15. The National Center for Missing and Exploited Children has

since determined that there were 1798 known images of child pornography in defendant’s

collection, and that 101 known series with child victims have been identified. 

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See PSR at ¶55. In early 2008, he was stationed at Fort Benning, Georgia. See

id. at ¶13. While stationed at Fort Benning, defendant collected child pornography

via the Internet, which he stored on his laptop and external hard drives.

Defendant’s child pornography collection was prolific in terms of both volume

and content. Defendant‘s collection contained thousands of images of child

pornography, including approximately 1800 known images of at least 101 known

victims.1

 Victim-impact statements from several of these victims are included as

Exhibit 1 and will be filed separately with the Court under seal. Defendant’s

collection included images that depict violent rape and sexual exploitation of babies

and small children, including but not limited to the following: adult male penetrating

infant female with his penis, adult male inserting penis into mouth of infant, infant

female being penetrated with pliers, infant female being penetrated with marker,

infant female bound with ropes and penetrated with unidentified foreign object,

naked prepubescent girls bound and gagged with their genitals exposed, child

performing fellatio on an animal (appears to be a goat). See PSR at ¶15.

In late April 2008, defendant departed the military base at Fort Benning,

Georgia for his home of record in Oxford, Michigan because he was in the process

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of being discharged from the Army. See id. at ¶13. When defendant moved from

Georgia to Michigan, he brought his computers with him, thus transporting his child

pornography collection in interstate commerce. See id. at ¶17. 

B. Defendant’s Unfruitful Attempt at Cooperation

The FBI learned of defendant through a referral from the Australian Federal Police,

who provided evidence that defendant sent child pornography images to an undercover

officer through his Google Hello photo sharing account while he was stationed at Fort

Benning. See id. at ¶11. A search warrant for defendant’s Oxford, Michigan home was

executed on May 22, 2008. He was arrested on a complaint and attempted to cooperate

with law enforcement by providing access to the various accounts and passwords that he

used to amass his child pornography collection. Although federal agents initially hoped to

assume defendant’s online identity to engage and identify additional targets and suppliers

of these images, Google shut down the Hello photo sharing program, making this

impossible. 

C. Negotiation of the Plea Agreement

The parties negotiated a plea agreement, in which defendant would plead guilty to

an Information charging one count of transportation of child pornography, in violation of 18

U.S.C. §2252A(a)(1), based on defendant’s move from Georgia to Michigan. As part of the

plea agreement, the United States Attorney’s Office for the Middle District of Georgia

agreed not to prosecute defendant for distribution of child pornography to the undercover

Australian officer. See Rule 11 Agreement at ¶9. 

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D. Defendant’s Alleged Conduct While on Bond

Defendant’s pleaded guilty before this Court on February 12, 2009. At the

conclusion of that hearing, defendant asked to be detained. 

Weeks later, a Lapeer County Assistant Prosecuting Attorney informed counsel for

the United States for the first time that a complaint was filed with the Lapeer County

Sheriff’s Department on January 28, 2009, alleging that defendant committed Criminal

Sexual Conduct Third Degree on a minor relative. See PSR at ¶¶38-41. The victim alleged

that when she and defendant were alone in his apartment and his 3 year-old son had gone

to bed, defendant served her tequila, vodka and amaretto until she became intoxicated, and

badgered her to perform oral sex on him as he watched a pornographic movie. The victim

reported that she agreed after being badgered for 10-15 minutes, and that he ejaculated

in her mouth. See id. at ¶ 39.

Defendant was questioned about the incident by law enforcement on February 3 –

just days before his February 12 appearance in this Court when he curiously asked to be

detained. See id. at ¶40. The state prosecutor ultimately declined to seek charges against

defendant “in the interest of judicial and prosecutorial economy” due to the instant case.

The prosecutor has expressly noted that “while we frequently make decisions not to

prosecute certain matters because of insufficient evidence, this is not one of those cases.

If Mr. Mercer-Kinser were not facing such serious punishment for a sex offense in federal

court, we would be seeking charges in this case for what he allegedly did to you. In the

event that something happens to change the status of his federal conviction or anticipated

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sentence, then we would certainly reconsider this decision at that time.” See id. at ¶41.

II. DEFENDANT’S GUIDELINES OBJECTION

Defendant objects to the Probation Department’s inclusion of two points for

distribution in the calculation of his total offense level. The United States does not dispute

that the decision to charge defendant with transportation rather than distribution, and to

omit distribution enhancements from the agreed guidelines, was negotiated by the parties.

The United States agreed to these guidelines because it took a narrow view of the case

charged and of any relevant conduct, with the view that the exchanges between defendant

and the Australian under cover officer constitute a separate case. For this reason,

defendant’s claim that a 2-level distribution enhancement somehow constitutes “double

counting” is illogical. 

The government’s decision not to include the 2 levels does not mean that the

Probation Department is incorrect in including them. There is ample evidence, sufficient

to meet the preponderance standard applicable at sentencing, that defendant distributed

child pornography to the Australian undercover officer, as detailed in the PSR at ¶¶11-14.

To be sure, defendant makes reference to this very issue in claiming that he was the victim

of “aggressive reverse-marketing” by the agent. See Def. Mem. at 8-9. The bottom line

is that the government viewed the case narrowly and limited the enhancements to those

directly applicable to the charged offense in plea negotiations, in part to account for

defendant’s attempts to cooperate (which did not come anywhere close to substantial

assistance). The Probation Department took a broader view of defendant’s conduct and

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included the distribution to Australia. It is for the Court to decide which view is most

appropriate in this case. 

III. DEFENDANT’S MOTION FOR DOWNWARD DEPARTURE

Motions for downward departure in child crimes and sexual offenses are governed

by 18 U.S.C. §3553(b)(2)(A)(ii) and USSG §5K2.0(b). Defendant baldly moves this Court

for a downward departure without acknowledging either of these provisions, much less

establishing how their rigorous standards have been met. Because defendant has not –

and cannot – identify a mitigating circumstance sufficient to form the basis for a downward

departure, the United States respectfully requests that his motion be denied.

IV. GUIDELINE CALCULATIONS AND RELEVANT §3553(a) FACTORS

Congress has provided, through 18 U.S.C. §3553(a), the relevant objectives and

factors to be considered by sentencing courts in imposing 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) 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 are evaluated

below, beginning with the fourth objective: the Sentencing Guidelines. 

A. §3553(a)(4): Advisory Guideline Range 

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In Rita v. United States, 127 S. Ct. 2456 (2007), the Supreme Court restated that

the goals of the United States Sentencing Commission in formulating the Sentencing

Guidelines are to carry out the objectives of 18 U.S.C. §3553(a). Despite being advisory,

rather than mandatory, the Guidelines remain an important factor in fashioning a just

sentence. As the Supreme Court stated, "[i]t is fair to assume that the Guidelines, insofar

as practicable, reflect a rough approximation of sentences that might achieve §3553(a)'s

objectives." Id. at 2464-65. 

As discussed above, the parties anticipated a guideline range of 121 to 151 months,

whereas Probation Department calculated the guideline range at 151 to 188 months, due

to inclusion of a 2-level increase for distribution of child pornography. Regardless of which

range the Court determines is applicable, defendant attacks the guidelines generally

because he claims that they are not empirically supported. See Def. Mem. at 2. 

The guidelines as anticipated by the parties in this case are 121 to 151 months, or

roughly 10 to 121⁄2 years. The mandatory minimum sentence in a transportation case,

appropriate for the lowest offender, is 5 years. The maximum penalty, appropriate for the

worst offender, is 20 years. The midpoint of the range, appropriate for a middle-of-the-road

offender, is 121⁄2 years (i.e., top of the guideline range). Thus, this review of the minimum

and maximum penalties set by Congress provides a simple and effective cross check of

the guidelines, easily demonstrating why this Court should decline defendant’s invitation

to “disregard” them in this case. 

Finally, in the Rule 11 Agreement, the United States made a non-binding

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recommendation of a sentence at the midpoint of the 121 to 151 guideline range (i.e., 136

months) based on the information known to it at the time of defendant’s guilty plea. These

facts did not include the allegations by defendant’s minor relative of defendant’s alleged

criminal sexual conduct, as detailed in the PSR at ¶¶38-41. The United States stands by

its recommendation but asks this Court to consider all of the information regarding

defendant now available in fashioning its sentence. 

B. §3553(a)(1): Nature of the Offense and History and Characteristics of

the Defendant

The nature of the offense and some telling features about defendant’s character are

described in detail above. During his final weeks in the Army, defendant had lots of time

on his hands in the barracks, which he spent viewing and downloading a massive collection

of child pornography. These images depicted brutal rape, bondage, sexual activity

between young children and animals, and violation of infants with household objects like

pliers and markers. Defendant is someone who believes that “a person can engage in any

type of sexual activity as long as there is mutual consent” and that “sexual activity with a

child would be okay if there is mutual consent.” See Def. Ex. dated June 4, 2008 at 3. He

has also confessed to being a pedophile. See id.

Defendant’s beliefs apparently extend to his own family members. When chatting

online with the Australian undercover officer, defendant bragged that he was molesting his

21⁄2 year old son with the child’s mother and was engaging in sexual relations with other

family members. See PSR at ¶11. (Later, he told law enforcement that this was just “role

play.” See id. at ¶16.) As of June 2008, defendant reported that he and the child’s mother

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were living together though they had recently ended their relationship, and were “not dating

each other.” See Def. Ex. dated June 4, 2008 at 3. He also indicated that he is “not fond

of children,” and that he “would rather hang out with friends than be a parent,” concluding

that he “was not made to be a parent.” Id. Despite these telling admissions and with the

instant charges looming, defendant married this woman just months later and she is

expecting their second child. See PSR at ¶49. Given the way he spent his free time in the

Army and the negative comments he made about his now-wife and toddler son, defendant

is not deserving of a“tribute” because he “joined the service and has married and

commenced raising his own family.” Def. Mem. at 7. 

Finally, defendant points to a tragic upbringing filled with abuse. See id.

Defendant’s position cannot be that the proper reaction to abuse is to victimize someone

else. To the contrary, he more than anyone should understand the terrible pain inflicted

upon children by their physical and sexual abusers. Moreover, defendant was provided

with mental health treatment as a 13 year old and while serving in the military. See PSR

at ¶¶52-53. It was unable to prevent him from committing the instant offense.

C. §3553(a)(2)(A): Seriousness of the Offense, Promoting Respect for

Law, and Providing Just Punishment

Child exploitation offenses are undeniably serious:

It should be beyond dispute that child pornography is a very serious offense.

There are very real and serious harms resulting from child pornography. The

necessity of strong condemnation of such behavior is also indisputable.

General deterrence is a compelling factor in such cases. Child pornography

is behavior that takes place in the privacy of one's home or business, as in

this case. That makes it very hard to detect and because of this inherent

difficulty also makes it very difficult to deter. No one can make light of the

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seriousness of the crime. Both Congress and the Sentencing Commission

have reached this determination. An appropriate sentence must reflect the

seriousness of child pornography.

United States v. McElheney, 524 F. Supp. 2d 983, 1003 (E. D. Tenn. 2007); see also

United States v. Goff, 501 F.3d 250, 259-60 (3d Cir. 2007) (“Children are exploited,

molested and raped for the prurient pleasure of [defendants] and others who support

suppliers of child pornography . . . . Their injuries and the taking of their innocence are all

too real.") 

Defendant’s conduct demonstrates that he does not respect the law. When

speaking with law enforcement at the time of his arrest, he acknowledged that he knew that

viewing and distributing child pornography was illegal, but did not think that he would be

caught. 

Finally, providing just punishment is equally important. As the mother of one victim

writes:

My daughter is a real person. She was horribly victimized to provide

this source of "entertainment." She is exploited anew each and every

time an image of her suffering is copied, traded or sold. While the

crime is clearly conscienceless, it is hardly "victim-less."

I asked my daughter what she most wanted to ask of the judge. Her

request: "Please, don't let them pretend no-one's getting hurt!"

She had some words for the defendant as well: "don't you know no one

should do that to a little girl! Don't you know it hurts!"

As the mother of a child victimized by this crime, I would ask that the

court take into consideration the damage done by this heartless crime

to my daughter and others like her (including those children who still

wait for someone to rescue them from their exploitation, and have

no-one here today to speak for them) and impose a sentence that

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takes into account the full impact of the crime on the victims.

Ex. 1-p.

Another victim writes:

Each person who has found enjoyment in these sick images needs to

be brought to justice and kept away from other people because there

is something seriously wrong with them. They are dangerous and even

though I don't know them, they are hurting me still. They have exploited

me in the most horrible way. Please bring them to some real justice.

Ex. 1-d. 

D. §3553(a)(2)(B) & (C): Deterrence and Protecting the Public

Deterrence is a particularly relevant consideration in child pornography cases, where

most cases take place in private, making them easy to commit and difficult to detect.

Under such circumstances, deterrence is important to combat the normalization that occurs

when offenders “may think that because they are on the Internet in their home that they are

doing something that is innocent.” United States v. Kirchhof, 505 F.3d 409, 415 (6th Cir.

2007). Anyone who seeks to exploit children should be deterred by the continued

imposition of significant sentences for such conduct.

In addition to general deterrence, this is a case where defendant must also be

deterred and the public protected from his further crimes. Defendant attempts to “dispel

the oft proffered theory that ‘lookers become touchers’” by claiming that he is a low-risk for

reoffending due to allegedly “exceptional rehabilitation efforts” through his required

sessions with Dr. Sommerschield. Def. Mem. at 2, 7. 

Dr. Sommerschield’s reports do not support defendant’s position. First, Dr.

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Sommerschield notes as an initial matter that “as is customary, no background information

was received in regard to this evaluation.” In other words, all of the information that Dr.

Sommerschield received was self-reported by defendant. Second, Dr. Sommerschield

administered tests relating to personality characteristics and intelligence, such as the

Minnesota Multiphasic Personality Inventory, the Rorschach test, and a “Dot Counting” test

that do not even purport to address recidivism in sex offenders. Finally, Dr.

Sommerschield’s final report states only that defendant’s “realization of the necessity of

conforming behavior to the dictates of society and his realization of the consequences for

re-offending will reduce the likelihood of reoffending.” Dr. Sommerschield does not opine

that defendant is a low-risk for recidivism. 

Under these circumstances, defendant’s statement that “sexual activity with a child

would be okay if there is mutual consent” and his admitted “age of attraction” as “zero to

14 years old” (see PSR at ¶16), coupled with his alleged criminal sexual activity with a

minor relative while on bond in this case, provide a better indication of whether he is likely

to reoffend.

E. §3553(a)(2)(D): Defendant’s Need for Treatment

Defendant's sentence should provide the most appropriate forms of counseling and

correctional treatment. While incarcerated, defendant will have the opportunity to

participate in continued mental health and sex offender therapy, as well as treatment for

alcohol abuse. See PSR at ¶¶52-54.

F. §3553(a)(6): Avoiding Unwarranted Sentencing Disparities

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Finally, the sheer volume of images and their abhorrent content involving rape of

infants, bondage and bestiality distinguish defendant from other individuals who appear

before this Court in child pornography cases. When comparing his case to others "who

have been found guilty of similar conduct," he stands out. A sentence of 136 months

appropriately accounts for this disparity. 

V. DEFENDANT’S MOTION FOR A VARIANCE

As the foregoing discussion demonstrates, defendant’s request for a variance below

the guideline range is unsupported by the §3553(a) factors. Moreover, the mandatory

minimum sentence of 5 years is reserved for the lowest offenders. Defendant simply is not

in that category. 

VI. GOVERNMENT’S RECOMMENDATION AND CONCLUSION

For all of the foregoing reasons, the United States respectfully requests that

defendant be sentenced to the custody of the Bureau of Prisons for a term of 136 months,

followed by a term of 5 years supervised release.

Respectfully submitted,

TERRENCE BERG

United States Attorney

s/ Erin S. Shaw

ERIN S. SHAW

Assistant United States Attorney

211 West Fort Street

Detroit, MI 48226

(313) 226-9182

erin.shaw@usdoj.gov

Dated: June 9, 2009

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CERTIFICATE OF SERVICE

I hereby certify that on June 9, 2009, 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:

Randall C. Roberts, Esq.

s/ Erin S. Shaw

ERIN S. SHAW

Assistant United States Attorney

211 West Fort Street

Detroit, MI 48226

(313) 226-9182

erin.shaw@usdoj.gov

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