United States v. Russell Freed

566 F. App'x 162
Court of Appeals for the Third Circuit·Decided May 6, 2014·No. 12-3951·Unpublished·Cited by 1 cases

Opinion

OPINION OF THE COURT

VANASKIE, Circuit Judge.

Russell Freed pled guilty to multiple offenses involving the possession and distribution of child pornography. He was sentenced to a prison term of 20 years, well below the life imprisonment sentence recommended by application of the United States Sentencing Guidelines (the “Guidelines”). Freed appeals his sentence, arguing that the District Court committed procedural error by not considering all the pertinent sentencing factors and by failing to explain why the mandatory minimum prison term of 15 years that applied in this case was inadequate. He also asserts that the 20 year-prison term is substantively unreasonable. Following a comprehensive review of the record, we conclude that the District Court did indeed consider all the pertinent sentencing factors, that it gave more than an adequate explanation for its sentencing decision, and that the 20 year-prison term is not substantively unreasonable given the horrendous nature of Freed’s conduct. Accordingly, we will affirm the judgment of conviction and sentence.

I.

We write primarily for the parties, who are familiar with the facts and procedural history of this case. Accordingly, we set forth only those facts necessary to our analysis.

Some time in 2010, Freed found a cell phone belonging to his then 15 or 16 year old stepdaughter and containing sexually explicit pictures of her and her teenage friends. After obtaining the cell phone images, Freed opened a Facebook account and a fake email address in his stepdaughter’s name. He also set up email addresses in the names of nonexistent individuals and purchased a prepaid cell phone that he used to pose as fictional persons. Freed maintained control over the prepaid ■ cell phone as well as the fake Facebook account and email addresses. He contacted the girls in the photos contained on his stepdaughter’s cell phone using the phony forms of communication in order to obtain more sexually explicit pictures of them by posing as one of their peers or by pretending to be his stepdaughter.

Once a girl had sent him photos, Freed would extort, or attempt to extort, the production of more images by threatening to publish images already in his possession. When one victim denied Freed’s request for additional photos, Freed distributed explicit pictures of the girl to her family and classmates.

Freed even targeted and tormented his stepdaughter, who lived with Freed for over 10 years. Not knowing that Freed was the person extorting her for sexually explicit pictures, the stepdaughter confided in Freed about the “person” who was threatening her and told him that she was contemplating suicide as a result. Freed advised his stepdaughter to comply with the “person’s” demands. He then continued extorting her for more sexually explicit images.

Freed’s conduct eventually became the subject of a law enforcement investigation. On May 25, 2011, the Pennsylvania State Police conducted a planned traffic stop of *164 Freed. Inside his vehicle, police found the prepaid cell phone used to solicit, extort and receive sexually explicit photos of Freed’s stepdaughter and her peers. The phone contained about 700 such images. Law enforcement officials found similar photos on Faeebook and email accounts that Freed had created. On July 21, 2011, a grand jury sitting in the Western District of Pennsylvania returned a seven-count indictment against Freed, charging him with two counts of Production of Child Pornography, in violation of 18 U.S.C. § 2251(a) and (e), two counts of Attempted Production of Child Pornography, in violation of 18 U.S.C. § 2251(a) and (e), two counts of Distribution and Receipt of Child Pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of Possession of Child Pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Freed pled guilty to all seven counts on March 1, 2012.

Following Freed’s guilty plea, the U.S. Probation Office prepared a Presentence Investigation Report (“PSR”). Applying the Guidelines, the PSR calculated Freed’s base offense level of 42. The PSR then applied a three-level decrease for acceptance of responsibility, under U.S.S.G. § 3El.l(a) and (b), as well as a five-level increase because Freed had “engaged in a pattern of activity involving prohibited sexual conduct.” U.S.S.G. § 4B1.5(b)(l). Freed’s total offense level was 44, and combined with a criminal history category of I, his advisory Guidelines range was life imprisonment.

Freed filed a sentencing memorandum requesting that the District Court sentence him to the mandatory minimum of 15 years’ imprisonment. He argued for this substantial downward variance from his advisory Guidelines range based on the anonymous nature of the offense as well as his personal background and family situation. Freed asserted that this case is not one “where young children are forced to submit to unimaginable sexual exploitation .... ” (App. 82.) Rather, Freed argued, “[t]his is a sexting case,” for which a 15 year sentence is reasonable. (Id.) Freed also filed a report from Dr. Allen Pass, a psychologist who treated Freed as part of a “Structured Sexual Offender Treatment Program,” indicating that Freed presented a medium to low risk of reoffending.

Despite Freed’s Guidelines range, the government did not ask the District Court to impose a life sentence. The government did, however, request “a sentence substantially above the statutory minimum.” (App. 147.) In its own sentencing memorandum, the government argued that all of the relevant sentencing factors set forth in 18 U.S.C. § 3553(a) supported a sentence well in excess of the 15 year mandatory minimum. The government also criticized the speculative nature of reports prepared by experts such as Dr. Pass, which attempt to predict whether a sexual offender will commit similar crimes in the future. Although the government had not yet had a chance to review Dr. Pass’s report, because it was filed under seal, the government argued that “[t]o the extent that recidivism predictions are relevant ... [they] are too speculative to engender much confidence,” regardless of the expertise of the person making the prediction. (App. 144.)

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United States v. Russell Freed, 566 F. App'x 162 (3d Cir. 2014).

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