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United States v. Blevins

United States District Court, D. Nebraska

July 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DONALD BLEVINS, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard United States District Judge

         The Court has received the revised presentence investigation report and addendum in this case. The defendant has filed an objection (filing 36) to the presentence report and a motion for variance (filing 43).

         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 presentence report (filing 36).Specifically, the defendant

objects to the assessment of two points for distribution per [U.S.S.G. §] 2G.2(b)(3)(F). It is Defendant's position that merely exchanging passwords and access numbers does not constitute distribution. In addition, there is insufficient eviden[ce] that the exchange of information was for the purpose of viewing child pornography. Rather the "chat rooms" were for the purpose of chatting and not necessarily for the purpose of viewing child pornography.

See filing 36 (adopting objection noted in addendum to revised presentence report).

         To the extent that the defendant is arguing it is not "distribution" to provide a password or other information necessary to access a source of child pornography, the Court rejects that argument. "'Distribution' means any act . . . related to the transfer of material involving the sexual exploitation of a minor." § 2G2.2 cmt. n. 1. Sharing access to child pornography is clearly "distribution" within the meaning of § 2G2.2. SeeUnited States v. Bennett, 839 F.3d 153, 161 (2d Cir. 2016); see alsoUnited States v. Laurie, No. ...


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