United States v. C.R.

296 F.R.D. 131, 2013 WL 6562176
District Court, E.D. New York·Decided December 12, 2013·No. No. 09-CR-155·Published·Cited by 2 cases

Opinion

AMENDED MEMORANDUM AND ORDER

JACK B. WEINSTEIN, Senior District Judge:

Defendant, C.R., pled guilty to “distribution” of child pornography he obtained using a computer. See 18 U.S.C. § 2252(a)(2). Based on his allocution, C.R. was subject to a statutory minimum prison sentence of five years. Id. This court determined the statutory minimum five-year sentence of imprisonment was unconstitutional as applied to this defendant and this case. See United States v. C.R., 792 F.Supp.2d 343 (E.D.N.Y. 2011). A thirty-month sentence for intensive medical treatment in prison was imposed, to be followed by long term post-prison curative therapy and strict control for many years under supervised release by the court’s probation service. Id.

The Court of Appeals for the Second Circuit ordered that defendant’s prison term be increased to conform with the statutory minimum. See United States v. Reingold, 731 F.3d 204 (2d Cir.2013) (order reversing in part as to sentencing and remanding); United States v. Reingold, 731 F.3d 204 (2d Cir. 2013) (opinion of the court remanding for resentencing); cf. United States v. C.R., — F.Supp.2d-, 2013 WL 5366961 (E.D.N.Y. 2013) (response to Court of Appeals). The minimum sentence required by statute is sixty months. 18 U.S.C. § 2252(b)(1).

Probation calculated defendant’s Guideline offense level at 35 with a criminal history category of I, yielding a sentence range of 168-210 months. See PSR at ¶¶ 28-39. The government agreed with this determination. The calculation included a two-point enhancement because some of the viewed images involved minors under the age of twelve, a two-point increase because defendant distributed the material in the peer-to-peer Giga-tribe network, a five-point addition for engaging in a pattern of sexual abuse, a two-point increase because the defendant used a computer to possess the child pornography, and a five-point addition for possessing more than six hundred images. Id. A three-point deduction was assessed for defendant’s timely acceptance of responsibility. Id.

C.R. objected to the five point enhancement for engaging in a pattern of sexual abuse under 2G2.2(b)(5) on the ground that only one of the three admitted interactions with his half-sister was a qualifying episode of sexual abuse under 18 U.S.C. § 2246 and a pattern requires at least two qualifying incidents. The question of whether or not the two disputed incidents with defendant’s half-sister amount to sexual abuse need not be reached. Two additional admitted episodes with minors other than defendant’s half-sister qualify as incidents of sexual abuse. The five point enhancement is appropriate.

Respectful consideration was given to the sentencing Guidelines, the Sentencing Commission’s policy statements and all other factors listed under 18 U.S.C. § 3553(a) to ensure that the sentence was “sufficient, but not greater than necessary, to comply with the , purposes” of sentencing. 18 U.S.C. § 3553(a).

[133]*133Incorporated into this order are the decisions relied upon by the court in the original sentence. See United States v. C.R., 792 F.Supp.2d 343 (E.D.N.Y.2011); see also Emily Weissler, Head Versus Heart: Applying Empirical Evidence About the Connection Between Child Pornography and Child Molestation to Probable Cause Analysis, 82 Fordham L. Rev. 1487 (2013). The court weighed the nature and circumstances of the offense, the history and characteristics of the defendant, the need to reflect the seriousness of the offense and to promote respect for the law and just punishment, a need to afford general and specific deterrence, a need to protect the public from further crimes of the defendant, a need to avoid unwarranted sentence disparities, and a need to provide the defendant with appropriate educational and vocational training, medical care and correctional treatment. Id.; 18 U.S.C. § 3553(a).

The thirty-month sentence already imposed was sufficient for full treatment and deterrence. Further general or specific deterrence is not required. Defendant presents a low risk for future violation of sex crime laws, whether passive or active. C.R.’s rule violations within prison show immaturity, but no proclivity or risk of future criminal violations. His full participation in a treatment program and his efforts to obtain work and continue his education while in prison and beyond suggest that C.R. is likely to overcome the serious obstacles to reentry into society imposed by registration and limitations on employment and residency. See 42 U.S.C. §§ 16911, 16915(a)(1); § 16915(b); NY. Corr. Law § 168-h(1) (twenty years for lowest risk offender).

Imposed is a sixty-month sentence to be followed by five-years of supervised release. Based upon the controls that will be required by state and federal authorities after defendant completes his term of incarceration, the following special conditions of supervised release shall apply:

1. Defendant shall comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.). He shall keep his registration current in New York and in each jurisdiction in which he resides, as directed by his probation officer, the Bureau of Prisons, or any state sex offender registration agency in a state in which he resides, works, or is a student. Defendant’s attorneys and probation officer shall inform him of his registration obligations in detail.
2. Defendant shall not unlawfully possess a controlled substance. Defendant shall refrain from any unlawful use of a controlled substance, including marijuana. Defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, unless probation changes this drug treatment schedule.
3. Defendant shall not possess or access any pornography that depicts sexually explicit conduct, whether of adults or children.
4. Probation shall supervise and authorize use by defendant of devices with internet access, but shall not unduly limit defendant’s ability to obtain formal or informal education or work.
5. Defendant shall not use a computer, internet capable device, or similar electronic device to access pornography of any kind. This includes, but is not limited to, accessing pornographic websites, including websites depicting images of nude minors.

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United States v. C.R., 296 F.R.D. 131, 2013 WL 6562176 (E.D.N.Y. 2013).

296 F.R.D. 131 (United States v. C.R.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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