United States v. Christman

509 F.3d 299, 2007 U.S. App. LEXIS 26795, 2007 WL 4105053
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 20, 2007
Docket06-3266
StatusPublished
Cited by27 cases

This text of 509 F.3d 299 (United States v. Christman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Christman, 509 F.3d 299, 2007 U.S. App. LEXIS 26795, 2007 WL 4105053 (6th Cir. 2007).

Opinions

GRIFFIN, J., delivered the opinion of the court, in which BATCHELDER, J., joined. BOGGS, J. (p. 312-13), delivered a separate dissenting opinion.

OPINION

GRIFFIN, Circuit Judge.

Defendant-appellant Richard Christman pleaded guilty to two counts of a superseding indictment, charging him with the possession of materials constituting child pornography in violation of 18 U.S.C. §§ 2252, 2252A, and 2256. The district court sentenced defendant to 57 months of imprisonment, 3 years of supervised release, a $1,000 fine, and a $200 special assessment. Defendant now timely appeals, claiming that in determining his sentence, the district court improperly relied upon extraneous information obtained from ex parte communications with a probation officer and a pretrial services officer that contradicted record evidence and information contained in the presentence investigation report.

For the reasons set forth below, we hold that defendant’s sentence was imposed in violation of Federal Rule of Criminal Procedure 32 (“Rule 32”), which requires that at sentencing, the court “must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence,” and further states that the court “must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter at sentencing....” Fed.R.Grim.P. 32(i)(1)(C), (i)(3)(B) (2002). Here, the dis[301]*301trict court’s admitted reliance upon the ex parte communications, consisting of the probation and pretrial services officers’ subjective impressions that defendant had acted on his pedophilia and in fact had molested children, not only deprived defendant of his right to be sentenced on the basis of accurate and reliable information, U.S.S.G. § 6A1.3, but also foreclosed any opportunity for defendant to comment on and respond to the information, contrary to Rule 32(i).

Because the district court acknowledged three months after the sentencing hearing that were it not for the information not disclosed to defendant, it would have imposed a lower sentence, the error was prejudicial. We therefore vacate defendant’s sentence and remand for resentenc-ing.

I.

On May 13, 2004, an undercover special agent of the Federal Bureau of Investigation in Little Rock, Arkansas, used an internet-connected computer to initiate a “Kazaa” search, a software program that allows peer-to-peer digital file sharing between internet users. The agent initiated the search using keywords associated with child sexual abuse imagery. As a result, the agent was able to download, from another computer identified by a specific internet protocol (“IP”) address, child sexual abuse images that showed minors engaging in various sex acts. The images and still pictures included some that involved sadistic and masochistic acts, as well as other acts of sexual violence between minors and children under the age of 12. The agent also downloaded movies from this other computer, including some showing adult males engaging in various sex acts with children.

The agent was able to determine that the IP address, from which the images and movies were downloaded, belonged to defendant Christman. Other FBI agents, operating independently in Oklahoma, also downloaded child pornography from Christman’s computer using Kazaa-en-abled searches. After independent investigation by the Cincinnati FBI Field Office confirmed the information that had been forwarded to them from the Little Rock and Oklahoma City FBI offices, agents sought and received a search warrant for defendant’s residence.

The warrant was executed on August 5, 2004. FBI agents recovered computer-printed child sexual abuse images, as well as computers and computer media. The seized items contained more than 600 images of child pornography. Agents concluded that defendant was involved in file sharing of child pornography on an international scale; defendant had obtained images from all over the world, including Brazil and England, and had transported these images via computer files to other individuals all over the world. The investigation indicated that defendant did not sell or advertise child pornography, but possessed and transported or shared images internationally strictly for his personal use.

On October 20, 2004, a grand jury for the Southern District of Ohio returned a two-count indictment against defendant, charging him with distribution of child pornography. A six-count superseding indictment filed on November 17, 2004, charged defendant with four counts of transporting child pornography using his computer and two counts of possession of child pornography. A forfeiture allegation was also included in the superseding indictment pursuant to 18 U.S.C. § 2253.

On January 7, 2005, defendant pleaded guilty, pursuant to a plea agreement, to Counts Five and Six, possession of materials constituting child pornography, in vio[302]*302lation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2), 18 U.S.C. §§ 2252A(a)(4)(B) and (b)(2), and 18 U.S.C. § 2256(8)(A).

A final presentence investigation report (“PSR”) was prepared and transmitted to the district court on May 3', 2005. The PSR identified the base level offense as 15 and added four enhancements — 2 points because the material involved a minor under 12 years of age; 2 points because a computer was involved; 4 points because the offense involved material portraying sadistic or masochistic acts; and 5 points because more than 600 images were involved. Three points were subtracted for acceptance of responsibility, resulting in a total offense level of 25. In evaluating defendant’s acceptance of responsibility, the PSR noted that defendant “acknowledged possessing child pornography, but stated he does not stalk children and would never harm them.” Another portion of the PSR reiterated that defendant “told agents that he was not addicted to child pornography and was different from individuals who molested children.” The resultant total offense level of 25, combined with defendant’s criminal history category I, indicated an advisory Guidelines sentencing range of 57-71 months.

At the sentencing hearing held on October 28, 2005, defendant and his counsel advanced several arguments in support of mitigation of sentence, including defendant’s chronic back pain and depression and the fact that he acted as caretaker for his elderly ill mother.

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Bluebook (online)
509 F.3d 299, 2007 U.S. App. LEXIS 26795, 2007 WL 4105053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-christman-ca6-2007.