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United States v. Midgett

United States District Court, E.D. Virginia, Norfolk Division

February 9, 2016

UNITED STATES OF AMERICA,
v.
RICHARD MIDGETT, Defendant.

          OPINION

          ROBERT G. DOUMAR SENIOR UNITED STATES DISTRICT JUDGE

         On December 14, 2015, this Court sentenced Richard Midgett ("Defendant'') to a term of imprisonment of ninety-nine (99) months. ECF No 28. As this judgment grants a downward variance from the Sentencing Guidelines, this opinion elaborates on the Court's reasons for this downward variance and is to be filed simultaneously with the sentencing judgment order.

         I. BACKGROUND

         On May 11. 2015, Defendant was named in a seven count indictment charging him with: (1) one count of Distribution of Child Pornography in violation of 18 U.S.C. § 2252(a)(2); (2) three counts of Receipt of Child Pornography in violation of 18 U.S.C. § 2252(a)(2) (Counts Two-Four) and (2) three counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (Counts Five-Seven). ECF No. 1. On November 3, 2015, Defendant pled guilty Count One of the Indictment: Possession of Child Pornography. ECF No. 18

         There were several objections to the Presentence Report ("PSR") prepared by the Probation Office. ECF No. 24 at 17. The Court ruled in the Defendant's favor on several of these objections, and the PSR was amended to reflect these changes. The PSR determined that

         (Matter Not Available)

         Defendant's total offense level was thirty-four (34), which represents an adjusted offense level of thirty-seven (37) minus three (3) points for acceptance of responsibility.[1] Id. at 9-10. This offense level incorporates several enhancements that substantially raised the offense level above the base offense level of twenty-two (22). Defendant received enhancements for (1) material involving a prepubescent minor, ; (2) distribution, ; (3) material that portrays sadistic or masochistic conduct or other depictions of violence, ; (4) the use of a computer, ; and (5) having more than 600 images, . Id. at 8. For purposes of guideline calculations, each video in the possession of Defendant is counted as 75 images. USSG § 2G2.2, Application Note 4(B)(ii). The PSR determined that Defendant had 166, 275 images in his possession: 30, 000 images and 1, 817 videos (55 x 75 = 136, 275). ECF No. 24 at 9.

         Because Defendant has no prior criminal history, his criminal history category is I. Id. at 15. With a total offense level of 34 and a criminal history category of I, the guidelines recommend a sentence of 151 to 188 months. Id. at 14. A sentencing hearing was held on February 8, 2016. ECF No. 28.

         II. DISCUSSION

         To determine an appropriate sentence this 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), explaining any variance from the former with reference to the latter." Nelson v. United States. 555 U.S. 350, 351 (2009). Section 3553(a) provides in the relevant subsections that

The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider--
[...]
(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 ...

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