United States District Court, D. Nebraska
JOHN M. GERRARD, District Judge.
The Court has received the revised presentence investigation report (PSR) in this case. The defendant has objected to the PSR and moved for a downward variance. Filings 56 and 58.
IT IS ORDERED:
1. The Court will consult and follow the Federal Sentencing Guidelines to the extent permitted and required by United States v. Booker, 543 U.S. 220 (2005), and subsequent cases. In this regard, the Court gives notice that, unless otherwise ordered, it will:
(a) give the advisory Guidelines respectful consideration within the context of each individual case and will filter the Guidelines' advice through the 18 U.S.C. § 3553(a) factors, but will not afford the Guidelines any particular or "substantial" weight;
(b) resolve all factual disputes relevant to sentencing by the greater weight of the evidence and without the aid of a jury;
(c) impose upon the United States the burden of proof on all Guidelines enhancements;
(d) impose upon the defendant the burden of proof on all Guidelines mitigators;
(e) depart from the advisory Guidelines, if appropriate, using pre- Booker departure theory; and
(f) in cases where a departure using pre- Booker departure theory is
not warranted, deviate or vary from the Guidelines when there is a principled reason justifying a sentence different than that called for by application of the advisory Guidelines, again without affording the Guidelines any particular or "substantial" weight.
2. The defendant has objected to the PSR and moved for a downward departure or variance. Filings 56 and 58. The defendant's motion asks the Court to vary downward based upon the 18 U.S.C. § 3553(a) factors, and the Court will resolve the motion at sentencing. His motion also asks the Court to consider a policy-based, categorical variance from the child pornography sentencing guidelines. See Kimbrough v. United States, 552 U.S. 85, 109 (2007). The defendant has also objected to paragraphs 29 through 35 of the PSR on the same grounds. The Court has previously expressed its finding that U.S.S.G. § 2G2.2 fails to adequately distinguish between child pornography offenders, and set forth the revised framework and factors that it considers in such cases. See United States v. Abraham, 944 F.Supp.2d 723 (D. Neb. 2013). The Court will determine the exact nature of its variance from the Guidelines, as applied to this case, at sentencing.
The defendant has also objected to several other aspects of the PSR. First, he objects to a description of statements he supposedly made during an interview by law enforcement. According to the PSR, the defendant acknowledged he was sexually interested in and searched for child pornography depicting 8- to 16-year-old females. PSR ¶ 20. The defendant contends that he is sexually interested in women his own age and denies using the search terms listed in the PSR. Filing 56 at ¶ 1, PSR at ¶ 20 & p. 21. The Court will resolve this objection at sentencing.
The defendant also objects to the probation officer's determination that he should be held responsible for three videos of child pornography. PSR at ¶¶ 23, 35. He points to the fact that, when law enforcement executed a search warrant, they found no child pornography on his computer. The Court tentatively finds this objection to be without merit. The defendant does not dispute that law enforcement officers observed his computer offering these three videos for download on a peer-to-peer file-sharing program. PSR at ¶ 16. The defendant also admitted to downloading and viewing child pornography from the time he was 13, and that he would often do this two to three times a week. Filing 48 at 2. The reason that the three videos were not found on the defendant's computer was because the defendant was also in the habit of regularly deleting the materials he had downloaded. Filing 48 at 2. But the number-of-images enhancement is tied to the number of images "involved" in an offense. U.S.S.G. § 2G2.2(b)(7). That is not limited to ...