United States District Court, E.D. Virginia, Norfolk Division
March 21, 2017, this Court sentenced Gerald Andrew Darby
("Defendant") to a term of imprisonment of 60
months. This judgment represents a sentence outside the
United States Sentencing Guidelines range. This opinion
elaborates on the Court's reasons for this sentence and
is to be filed simultaneously with the sentencing judgment
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 was
subject to appeal of Defendant's First and Second Motions
to Suppress, ECF Nos. 15, 18, and Motion to Compel Discovery,
ECF No. 30, all of which this Court previously denied, ECF
Nos. 31, 49.
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)). Id. 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, at which time the Court sentenced Defendant to 60
months of imprisonment, the mandatory minimum term of
imprisonment. ECF Nos. 65, 67, 68, 69.
Defendant's appeal to the Fourth Circuit Court of
Appeals, the Government filed an unopposed motion to vacate
Defendant's guilty plea and the resulting judgment
because the conditional plea preserved for appeal a non-case
dispositive issue-that is, the denial of the Motion to Compel
Discovery, ECF Nos. 30, 49. The Fourth Circuit granted the
Motion, and the matter was remanded to this Court. See ECF
Nos. 77, 78, 85.
March 21, 2017, Defendant pled guilty pursuant to a
conditional plea agreement with the Government that preserved
his right to appeal the denial of the First and Second
Motions to Suppress, ECF Nos. 15, 18, 31. See ECF No. 87. The
Court accepted Defendant's conditional plea of guilty.
ECF No. 86.
guilty plea hearing, the Court also considered
Defendant's Motion to Waive the Presentence Report and
for Immediate Sentencing. ECF No. 85. In the Motion, the
Defendant advised that the Court would be able to sentence
Defendant without a presentence report if the Court found
"that the information in the record enables it to
meaningfully exercise its sentencing authority under 18
U.S.C. § 3553, and the court explains its findings on
the record." Fed. R. Crim. P. 32(c)(1)(A)(ii). See
also ECF No. 85, at 3. In support of the Motion,
Defendant advised that the record already contained
information that would provide the Court with "ample
evidence to meaningfully exercise its sentencing authority
under 18 U.S.C. § 3553, " including the presentence
report prepared for the sentencing that occurred in December
2016. ECF No. 85, at 4. In addition to waiving any
requirements for a presentence report, the Defendant also
requested that the Court "sentence [Defendant] at his
guilty plea hearing to 60 months, followed by 15 years of
supervised release." Id. at 5.
hearing, Government presented no objection to Defendant's
Motion. In addition, the conditional plea agreement
stipulated that, "pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(B), the government agrees that a sentence
of 60 months' imprisonment is appropriate. The parties
acknowledge that this recommendation does not bind the Court
or the U.S. Probation Office." ECF No. 87 ¶ 5.
after finding that the information already on the record
enabled the Court to meaningfully exercise its sentencing
authority under 18 U.S.C. § 3553, the Court granted
Defendant's Motion to Waive the Presentence Report and
for Immediate Sentencing. ECF No. 85. At the sentencing
hearing, following argument from counsel and consideration of
information already on the record, the Court sentenced
Defendant to 60 months of imprisonment. ECF No. 86. This
Opinion elaborates the Court's reasons for this sentence.
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 ...