United States District Court, D. Nebraska
For Michael L. Abraham, Defendant: John S. Berry, Jr., BERRY, KELLEY LAW FIRM, Lincoln, NE.
For USA, Plaintiff: Donald J. Kleine, U.S. ATTORNEY'S OFFICE - OMAHA, Omaha, NE.
John M. Gerrard, United States District Judge.
The matter before the Court is the sentencing of defendant Michael Abraham. A two-count indictment charged Abraham with receipt and distribution of child pornography, and possession of child pornography, in violation of 18 U.S.C. § § 2252A(a)(2) and 2252(a)(4)(B). Filing 1. Pursuant to a plea agreement, Abraham pleaded guilty to count one (receipt and distribution). Filings 21, 22, and 23. The Court accepted the parties' plea agreement at the sentencing hearing. Filing 32.
The advisory Guidelines sentencing range for Abraham is not in dispute. However, Abraham filed a motion for variance, requesting the Court to vary downward on the basis of the factors set forth in 18 U.S.C. § 3553(a). Filing 26. Additionally, as the parties have previously been advised (filing 32), the Court has considered whether to vary based on its own policy disagreement with the relevant sentencing guideline, U.S.S.G. § 2G2.2.
Receipt, possession, and distribution of child pornography are obviously very serious crimes, and an offender convicted of these offenses deserves a significant prison sentence. But some offenders are worse than others. For instance, some offenders do more to propagate child pornography than others. Some images are more depraved than others. Some offenders are more of a present danger to the community than others. And the sentences imposed for these offenses should represent that. The problem is not that the Sentencing Guidelines are invariably too harsh. They aren't. In fact, in some instances, the Guidelines might be too lenient. The problem is that the Guideline for nonproduction cases does not help the Court distinguish between run-of-the-mill offenders and the worst of the worst. And the Court has a duty to make such distinctions at every sentencing.
The Court has considered the parties' briefs, the revised presentence investigation report (" RPSR" ) prepared by the United States Probation Office, and the arguments adduced at the sentencing hearing held on May 13, 2013. See filings 28, 34, 37, and 39. For the reasons discussed below, the Court finds that Abraham's motion for variance should be granted in part, and the Court will impose a sentence of 6 years' imprisonment, followed by 7 years of tightly structured supervised release. This variance reflects the Court's evaluation of this particular defendant and the Court's finding that § 2G2.2 fails to adequately distinguish between offenders based on their culpability and dangerousness.
From at least 2009 to September 2012, Abraham used various peer-to-peer (" P2P" ) file-sharing networks to download and share child pornography. RPSR at ¶ ¶ 15-31. In April 2012, law enforcement officials monitoring these networks observed that a user with an IP address associated with Abraham's computer had child pornography files available for downloading. RPSR at ¶ 15. These included videos showing prepubescent minors, ages 9-11, being sexually assaulted by adult men. At least one video involved bestiality with a dog. RPSR at ¶ 15.
In September 2012, law enforcement executed a search warrant at Abraham's
residence. RPSR at ¶ 16. Abraham cooperated with authorities and provided a written statement, admitting to having downloaded and shared child pornography. RPSR at ¶ 19-23. The search recovered various computers and electronic media, which were found to contain 105 videos of child pornography and over 50,000 images of child pornography and " child erotica."  RPSR at ¶ ¶ 17, 25-31. A substantial portion of these images and videos depicted prepubescent females in various states of undress or who were being subjected to digital, oral, vaginal, and anal penetration by adult men. RPSR at ¶ ¶ 29, 40.
This offense stands in stark contrast to Abraham's personal history. Abraham, who is 47 years old, has three adult children from a previous marriage that lasted from 1991 to 2000. RPSR at ¶ 62. He married again in 2001 and remains married to his second wife. RPSR at ¶ 63. His only prior criminal conviction was from 1989, for reckless driving and attempting to elude a police vehicle, for which he received 10 days' jail and a small fine. RPSR at ¶ 52. There is no evidence that he has ever had inappropriate contact of any kind with children. Since 1999, Abraham has been steadily employed as a welder. RPSR at ¶ ¶ 72-73. Abraham served in the Army from 1991 until 1997, when he received an honorable discharge, and in the National Guard from 2001 until his arrest. His service was exemplary, and involved multiple deployments to combat zones during times of war. RPSR at ¶ ¶ 74-75; Sentencing Recommendation at 2. With 18½ years of service, Abraham was 1½ years from retirement when he was arrested.
In March 2013, Abraham was evaluated by Kirk Newring, Ph.D., a psychologist specializing in forensic behavioral health. During the evaluation, Abraham disclosed that, since a very young age, he has dealt with an addiction to pornography. RPSR at ¶ 65. Over time, he reportedly became habituated to adult pornography and began to seek out more shocking material. RPSR at ¶ 65. Abraham denied any sexual interest in prepubescent children, claiming that he was more interested in images of peripubescent and pubescent children. RPSR at ¶ 66. He further claimed that the P2P program he used did not allow for much filtering of searches, so some of the large batches of files he downloaded included images of prepubescent children. RPSR at ¶ 66. However, forensic examination of his computers showed that he was, in fact, actively seeking pornography focused on prepubescent children, as shown by search terms he used such as " 9 y.o." and " 11 y.o." Sentencing Recommendation at 2. Moreover, as noted above, a substantial portion of the child pornography found in his possession involved such material. RPSR at ¶ 29. Nonetheless, based on his evaluation and several risk assessments, Newring found that Abraham presented a low risk of committing future acts of sexual misbehavior or violence. RPSR at ¶ 69.
The Court follows the sentencing framework set forth in Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The first step is to calculate the defendant's advisory Guidelines sentencing range, which provides " the starting point and the initial benchmark" for
any sentence. Gall, 552 U.S. at 49. Next, the Court determines whether any traditional Guidelines departures are warranted. United States v. VandeBrake, 679 F.3d 1030, 1039 n.7 (8th Cir. 2012). Finally, the Court considers whether to vary from the advisory Guidelines range based on the factors set forth in 18 U.S.C. § 3553(a). Gall, 552 U.S. at 49-50; VandeBrake, 679 F.3d at 1039 n.7.
I. Abraham's Advisory Guidelines Sentencing Range
The Court begins by calculating the advisory Guidelines sentencing range. As noted above, the applicable Guideline in this case is found at U.S.S.G. § 2G2.2.  Because Abraham pleaded guilty to receipt and distribution, as opposed to possession, his base offense level is 22. § 2G2.2(a)(2). His total offense level under the Guidelines includes a 3-level reduction for acceptance of responsibility (§ 3E1.1) and reflects the following enhancements: 2 levels because the material at issue included depictions of prepubescent minors or minors under the age of 12, § 2G2.2(b)(2); 5 levels because the offense involved the distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain, § 2G2.2(b)(3)(B); 4 levels because the materials included images and videos portraying sadistic or masochistic conduct or other depictions of violence, § 2G2.2(b)(4); 2 levels for the use of a computer or an interactive computer service, § 2G2.2(b)(6); and 5 levels because the offense involved the possession of 600 or more images, § 2G2.2(b)(7)(D). Thus, Abraham's total Guidelines offense level is 37. And his criminal history category of I results in a Guidelines range of imprisonment between 210 and 240 months (which is the statutory maximum). § 2252A(b)(1). Neither Abraham nor the government have moved for a departure, so the Court next evaluates whether a variance is warranted.
A sentence within the Guidelines range is not presumed to be reasonable; rather, the Court makes an individualized assessment based on the facts of each case. Gall, 552 U.S. at 50. If the Court determines that a variance is appropriate, it must consider the extent of the deviation and ensure that there is a correspondingly compelling justification. Id. at 50. Ultimately, the Court must impose a sentence that is " sufficient, but not greater than necessary, to comply with the purposes" of § 3553(a)(2).
In many cases, the Guidelines sentencing range will roughly approximate a sentence that would achieve the objectives of § 3553(a). Kimbrough v. United States, 552 U.S. 85, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). These ranges are typically the product of the Sentencing Commission's careful study, and are " based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions." Gall, 552 U.S. at 46. But not all Guidelines possess this pedigree. And where a Guideline does not reflect the careful study of the Commission, it is likely not " a reliable indicator of the Sentencing Commission's perspective on a fair sentence." United States v. Shipley, 560 F.Supp.2d 739, 744 (S.D. Iowa 2008). In those circumstances, the Court may vary up or down on a case-by-case basis, after making an individualized determination that the Guidelines would yield an excessive (or unduly lenient) sentence. Spears v. United States, 555 U.S. 261, 265, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (per curiam). But the
Court may go further, and categorically reject a Guideline based upon policy grounds--in other words, when the Court finds that the Guideline consistently yields sentences greater than necessary to achieve the purposes of § 3553(a). Id. ; VandeBrake, 679 F.3d at 1039-40 (affirming categorical rejection of Guideline for antitrust offenses); see also, United States v. Henderson, 649 F.3d 955, 960 (9th Cir. 2011); United States v. Grober, 624 F.3d 592, 599-600 (3d Cir. 2010); United States v. Corner, 598 F.3d 411, 415 (7th Cir. 2010) (en banc); United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc); United States v. Rodriguez, 527 F.3d 221, 227 (1st Cir. 2008).
As numerous courts and commentators have explained, the child pornography Guidelines are by and large not the result of the Commission's expertise, nor based on careful study and empirical data. Henderson, 649 F.3d at 960-63; United States v. Dorvee, 616 F.3d 174, 184-86 (2d Cir. 2010). Instead, § 2G2.2 is the result of 2 decades' worth of Congressional directives--at times actively opposed by the Commission--that have continually ratcheted up penalties and piled on enhancements. Henderson, 649 F.3d at 960-63; Dorvee, 616 F.3d at 184-86; see also, generally, Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (2009), available at: http://www.fd.org/docs/Select-Topics__ sentencing/child-porn-july-revision.pdf (last accessed May 13, 2013). Of course, Congress' active role in shaping § 2G2.2 is not in and of itself reason to question the Guideline's wisdom or efficacy. 
The real problem, as courts across the country have recognized, is that § 2G2.2 simply does not work. Grober, 624 F.3d at 607-10; Henderson, 649 F.3d at 960-63; Dorvee, 616 F.3d at 184-86; United States v. Diaz, 720 F.Supp.2d 1039, 1041-42 (E.D. Wis. 2010) (collecting cases). Rather than carefully differentiating between offenders based on their culpability and dangerousness, § 2G2.2 consists of a hodgepodge of outdated enhancements that apply in nearly every case. Dorvee, 616 F.3d at 186. As a result, this Guideline routinely results in sentencing ranges near or exceeding the statutory maximum, even in run-of-the-mill cases involving first-time offenders. Id.
This has not escaped the Sentencing Commission's attention. Following several years of research, the Commission has issued a comprehensive report on § 2G2.2.
United States Sentencing Commission, Report to Congress: Federal Child Pornography Offenses (Dec. 2012), available at: http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Sex_Offense_Topics/201212_Federal_Child_Pornography_Offenses/ (last accessed May 13, 2013) (hereinafter, " Comm'n Rep." ). The Commission concluded that " the current sentencing scheme results in overly severe guideline ranges for some offenders based on outdated and disproportionate enhancements related to their collecting behavior." Comm'n Rep. ...