United States District Court, E.D. Virginia, Norfolk Division
G. Doumar, Judge
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.
FACTUAL AND PROCEDURAL HISTORY
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,
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.
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.
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).
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." 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). 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
18 U.S.C. § 3553(a) Factors
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 ...