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United States v. Darby

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

December 16, 2016

UNITED STATES OF AMERICA
v.
GERALD ANDREW DARBY, Defendant.

          OPINION

          Robert G. Doumar, Judge

         On December 15, 2016, this Court sentenced Gerald Andrew Darby ("Defendant") to a term of imprisonment of 60 months. This judgment represents a downward variance from the United States Sentencing Guidelines. This opinion elaborates on the Court's reasons for this variance and is to be filed simultaneously with the sentencing judgment order.

         I. FACTUAL AND PROCEDURAL HISTORY

         On March 10, 2016, Defendant was named in an eight-count Indictment. ECF No. 1. Counts One through Five charged Defendant with Receipt of Images of Minors Engaging in Sexually Explicit Conduct, in violation of 18 U.S.C. §§ 2252(a)(2) and 2256(1) and (2). Counts Six through Eight charged Defendant with Possession of Images of Minors Engaging in Sexually Explicit Conduct, in violation of 18 U.S.C. §§ 2252A(a)(4)(B) and 2256(1) and (2). Id. On September 8, 2016, Defendant appeared before Magistrate Judge Douglas Miller and entered a conditional plea of guilty, pursuant to Fed. R. Crim. P. 11(a)(2), to Count One based on a written plea agreement with the Government. ECF Nos. 52, 53, 54. The plea agreement is subject to appeal of Defendant's First and Second Motions to Suppress, ECF Nos. 15, 18, and Motion to Compel, ECF No. 30, all of which this Court previously denied, ECF Nos. 31, 49.

         The Presentence Report ("PSR") prepared by the Probation Office determined that Defendant's total offense level was 30. ECF No. 60, at 14-15. This offense level incorporates four enhancements that substantially raised the offense level above the base offense level of 22. Defendant received enhancements for: (1) material involving a prepubescent minor, (pursuant to U.S.S.G. § 2G2.2(b)(2)); (2) material that portrays sadistic or masochistic conduct or other depictions of violence, (pursuant to U.S.S.G. § 2G2.2(b)(4)); (3) the use of a computer, (pursuant to U.S.S.G. § 2G2.2(b)(6)); and (4) having more than 600 images, (pursuant to U.S.S.G. § 2G2.2(b)(7)(D)). W. at 14. For purposes of Guidelines calculations, each video in the possession of Defendant is counted as 75 images. U.S.S.G. § 2G2.2, Application Note 4(B)(ii). The PSR determined that Defendant had 23, 958 images in his possession. Id. at 14.

         Because Defendant had a criminal history score of zero, his criminal history category was determined to be I. Id. With a total offense level of 30 and a criminal history category of I, the Guidelines recommended a sentence of 97 to 121 months. Id. at 15. A sentencing hearing was held on December 15, 2016. ECF No. 65.

         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).

         A. The Sentencing Guidelines

         The Sentencing Guidelines covering the non-production of child pornography seem to solely be concerned with the seriousness of the offense and the need for deterrence. However, this appears to be at the expense of differentiating between prototypical non-production child pornography offenses and more egregious offenses involving the production of child pornography. Section 2G2.2 of the Guidelines requires this Court to significantly increase Defendant's base offense level of 18 because of several enhancements-many tied to the technology used in the offense-that now apply in the vast majority of cases of possession, receipt, or distribution of child pornography. This is especially so now that "non-production child pornography offenses have become almost exclusively Internet-enabled crimes."[1] U.S. Sentencing Commission, Report to the Congress: Federal Child Pornography Offenses: Executive Summary ii (2012) ("2012 Report to Congress"). According to another study carried out by the Sentencing Commission using data from 2011, 97 percent of non-production child pornography cases involved a computer; 95 percent involved a victim under 12 years; 79 percent involved violent images; and 70 percent involved at least 600 images. See United States Sentencing Commission, Use of Guidelines and Specific Offense Characteristics, Fiscal Year 2011 41-42 (2011).[2] See also 2012 Report to Congress, at xi (citing similar numbers for the fiscal year 2010: 96.2 percent for use of a computer; 96.1 percent for a victim under 12; 74.2 percent for sado-masochistic images; and 96.9 percent for the calculation of image quantity). Defendant received all of these enhancements. Yet, because these enhancements apply in the vast majority of cases, these enhancements, however justifiable in the abstract, do little to differentiate Defendant's conduct from other non-production cases.[3]

         B. The 18 U.S.C. § 3553(a) Factors

         18 U.S.C. § 3553(a) requires this Court to consider factors in addition to the need for deterrence in order to arrive at a sentence "sufficient, but not greater than necessary" to comply with the purposes of §3553(a)(2). Section 3553(a) provides in the relevant subsections that The court, in determining the particular sentence to be imposed, shall consider-

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

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