United States v. Hewelt

295 F. App'x 69
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 26, 2008
DocketNo. 07-2827
StatusPublished

This text of 295 F. App'x 69 (United States v. Hewelt) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. Hewelt, 295 F. App'x 69 (7th Cir. 2008).

Opinion

ORDER

David Hewelt pleaded guilty to distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). The district court sentenced Hewelt to 151 months’ imprisonment (the low end of the advisory guideline range of 151 -188 months), rejecting Hewelt’s request for a below-guideline sentence of sixty months’ imprisonment (the mandatory minimum). Hewelt appeals, arguing that the district court’s sentence was unreasonable. We affirm.

I.

On December 13, 2005, the government indicted David Hewelt in a two-count indictment. Count I charged Hewelt with distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), and Count II charged him with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Hewelt entered into a written plea agreement under which he pleaded guilty to Count I and Count II was dismissed. The case was then set for sentencing.

The Presentence Report (“PSR”) prepared for sentencing detailed Hewelt’s offense conduct as having posted a movie depicting child pornography on an Internet newsgroup. Specifically, the PSR stated that on October 26, 2005, Hewelt split a video file named “baby_j_standin_up.mpg” into six parts and posted the six parts to the newsgroup, knowing that any Internet user could take possession of the video by downloading a copy of it from the Internet. The PSR also stated that Hewelt had a collection of child pornography estimated to include thousands of images, including images of prepubescent minors and sadomasochistic and violent conduct of a sexual nature directed towards children. Further, the PSR specified that during a [71]*71search of Hewelt’s home “numerous printed images of child pornography, several framed images of child pornography, numerous hand drawings simulating child pornography and violence/torture, and numerous items utilized for self-mutilation and/or torture” were recovered.

Based on the above information, the PSR established a base offense level of 22. The base offense level was increased two levels because the pornographic material involved a prepubescent minor or a minor under the age of twelve, and an additional two levels because the offense involved distribution to others. The PSR further raised the offense level four levels because the material portrayed sadistic or masochistic conduct or other depictions of violence, two levels because a computer was used for the distribution of the material, and five levels because the offense involved 600 or more images. Following a three-level reduction for acceptance of responsibility, the offense level totaled 34. The PSR also determined that Hewelt had a criminal history of zero, placing him in the criminal history category of I and resulting in an advisory guideline range of 151-188 months’ imprisonment.

The PSR also summarized Hewelt’s mental and emotional health based on a l’eport and supplemental report prepared by Alliance Counseling Services and oral statements made to the probation officer by Brian Smith (one of the authors of the reports). Because of the significance of the Alliance Reports to the issues on appeal, we excerpt from those at length below.

In its initial report, dated November 27, 2006, Alliance diagnosed Hewelt, based on the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition) criteria, with “Pedophilia, Sexually Attracted to Males and Females, NonExclusive Type.” The Alliance Report then explained what it meant to be diagnosed as a pedophile, i.e., a paraphiliac focus on “sexual activity with a prepubescent child (generally age 13 years or younger).” The Alliance Report also explained that “[s]ome individual prefer males, others females, and some are aroused by both males and females.” The report continued: “Some individuals with Pedophilia are sexually attracted only to children (Exclusive Type), whereas others are sometimes attracted to adults (Nonexclusive Type).” The report further explained: “The course [of pedophilia] is usually chronic, especially in those attracted to males. The recidivism rate for individuals with Pedophilia involving a preference for males is roughly twice that for those who prefer females.”

The report applied these general principles to Hewelt. It stated that Hewelt met the diagnosis for “Pedophilia, Sexually Attracted to Males and Females, Non-Exclusive Type” because of 35 years of “recurrent, intense sexually arousing fantasies, sexual urges, and behaviors involving sexual activity with a prepubescent child or children.” The “Clinical Summary and Recommendations” section of the Alliance Report provided the following additional summary:

Hewelt presents with a significant, if not primary pedophiliac attraction for prepubescent boys and girls. Further, it would appear that Mr. Hewelt has reinforced these sexual attractions and urges through years worth of engagement in fantasy, pornography, and masturbation. Finally, there is an intense compulsive quality to his sexual behaviors through which Mr. Hewelt appeared to seek increasingly risky and intense sexual experience....

The report then summarized the results of three actuarial risk assessments, noting that on “[t]he Rapid Risk Assessment for [72]*72Sexual Offense Recidivism (RRASOR), Mr. Hewelt’s estimated recidivism rate was 7.6% within five years, and 11.2% within ten years.” According to the report, “[t]he second assessment, the Static-99 yielded a risk category of low given Mr. Hewelt’[s] history.” And “[f]inally, Mr. Hewelt was assessed as low risk on the VASOR.” Nonetheless, the report concluded that:

Mr. Hewelt is viewed as a poor candidate for outpatient specialized sexual offender treatment services and management in the community via the containment approach. Mr. Hewelt’s prognosis for significant changes in thoughts, attitudes and behaviors through specialized outpatient sexual offender treatment is viewed as poor. As was noted above from the DSM-IV diagnostic criteria, the course for individuals diagnosed with pedophilia is usually chronic, especially in those attracted to males. The recidivism rate for individuals with Pedophilia involving a preference for males is roughly twice that for those who prefer females. No further treatment services are recommended for Mr. Hewelt. There is no known community based intervention suitable to address the needs presented by Mr. Hewelt or to further reduce the risk which he poses.

On February 7, 2007, Alliance provided a Supplemental Report. The Supplemental Report was needed because, while multiple requests were made to Hewelt’s attorney to obtain records concerning the allegations of the offense, no information was provided to Alliance and thus the initial report was “based upon what was presented by Mr. Hewelt.” The Supplemental Report provided additional conclusions, following Alliance’s review of 150 pages of discovery material, including police reports and criminal history information. The Supplemental Report noted that “the records served to further support [the original] diagnosis which was ... Pedophilia, Sexually Attracted To Males and Females, Non-Exclusive Type.”

The Supplemental Report then expanded on the earlier report, stating:

Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Williams v. United States
503 U.S. 193 (Supreme Court, 1992)
Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
United States v. Ernest Walker
98 F.3d 944 (Seventh Circuit, 1996)
United States v. Rebecca S. Demaree
459 F.3d 791 (Seventh Circuit, 2006)
United States v. Santiago
495 F.3d 820 (Seventh Circuit, 2007)
United States v. Otero
495 F.3d 393 (Seventh Circuit, 2007)
United States v. Allday
542 F.3d 571 (Seventh Circuit, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
295 F. App'x 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hewelt-ca7-2008.