United States v. Timothy Myers

442 F. App'x 220
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 13, 2011
Docket10-3797
StatusUnpublished
Cited by2 cases

This text of 442 F. App'x 220 (United States v. Timothy Myers) 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. Timothy Myers, 442 F. App'x 220 (6th Cir. 2011).

Opinion

OPINION

ALAN E. NORRIS, Circuit Judge.

Defendant Timothy Myers pleaded guilty to both counts of an information that charged him with possession of child pornography, 18 U.S.C. § 2252(a)(4)(B), and criminal forfeiture, 18 U.S.C. § 2253(a)(1), (3). The parties agreed that the advisory guidelines range was between 51 and 63 months of incarceration. However, the pre-sentence report (“PSR”) recommended a sentence of 30 months’ based upon defendant’s lack of a prior criminal record and twenty years of military service. The district court declined this recommendation and imposed a 60-month sentence. Defendant now appeals on the grounds that the sentence was proeedurally and substantively unreasonable.

I.

This prosecution had its genesis in an investigation conducted by the European Law Enforcement Organization (“Euro-pol”), which identified an Italian national who was operating a website that trafficked in child pornography. Europol forwarded the email addresses of the website’s customers located in this country to the United States Postal Service. One address belonged to defendant. Postal inspectors then posed as the Italian website and offered to sell defendant sexually explicit videos of children. He ultimately ordered three. A controlled delivery was made to defendant’s home in Gahanna, Ohio. A search warrant of the home was executed shortly thereafter and a computer containing more than 600 images and 74 videos of child pornography was seized.

A two-count information charged defendant with possession of child pornography and sought forfeiture of his computer equipment. Defendant entered into an *222 agreement with the government in which he pleaded guilty to both counts.

The government filed a sentencing memorandum which stressed the societal harms associated with possession of child pornography. It noted, however, that defendant was 63 years old, had an exemplary work record, had no criminal history, served in the military for twenty years, and was the sole care giver to his 97 year-old father.

Defense counsel likewise filed a sentencing memorandum. It acknowledged the seriousness of the offense but focused on defendant’s otherwise solid character. The memorandum requested the district court to sentence defendant to six months of imprisonment and seven years of supervised release.

The parties reiterated their arguments at the sentencing hearing. After hearing from the attorneys, the district court gave its view of the sentencing considerations:

The threshold consideration is to impose a sentence that both reflects the seriousness of the offense and considers the history and characteristics of the defendant. In this case, it is clear that Mr. Myers has led a pretty exemplary life. He served our country. He does not have a criminal record; I believe a minor traffic violation or something of that sort, but he doesn’t have a criminal record. It appears that beginning in 2005, at least that’s when it was first documented, that he began engaging in child pornography which this Court and I think everyone else considers to be quite serious an offense, if not indeed a heinous offense. This Court certainly considers it to be a heinous crime.
There seems to have been some duality in Mr. Myers’ circumstances because on the one hand he was [a] law-abiding citizen, and on the other hand he was simultaneously committing one of the most heinous offenses that one could commit. Because when you engage in the crime of child pornography, as the Court said, you really open up the floodgates to a myriad of offenses that would be perpetrated against kids, but the most significant of which the Court considers to be robbing them of their youth. Because once you deprive a child of his or her innocence by these types of crimes, I don’t think — and I think that the science also informs that their youth can never be recaptured. So you deprive them of perhaps the most valuable thing that they have short of their lives — and often this leads to that — but their innocence.

The court went on to consider the sentencing factors listed in 18 U.S.C. § 3553(a), emphasizing the importance of deterrence and protection of the public. It also singled out the need to avoid sentencing discrepancies among similarly situated defendants.

Thereafter, the district court pronounced the sentence: 60 months of incarceration, five years of supervised release, as well as other restrictions and duties, such as registering in a sex offender treatment program.

II.

We review a district court’s sentencing determination under a deferential “abuse-of-discretion standard” for reasonableness, which has both a procedural and a substantive component. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This court must first ensure that the district court committed no procedural error. Id. A district court necessarily abuses its sentencing discretion if it “commit[s] [a] significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandato *223 ry, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Id.

If the district court’s sentencing decision was procedurally sound, we will “then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard[,] ... tak[ing] into account the totality of the circumstances. ...” Id. This court also applies a rebuttable presumption of reasonableness for sentences within the Guidelines range. United States v. Heriot, 496 F.3d 601, 608 (6th Cir.2007); see also Gall, 552 U.S. at 51, 128 S.Ct. 586(“If the sentence is -within the Guidelines range, the appellate court may ... apply a presumption of reasonableness.”) (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)).

Procedural Reasonableness

Defendant does not contend that the district court erred in calculating the advisory guidelines range. Nor does he allege that the district court labored under the impression that it must sentence defendant within that range. Rather, the thrust of his argument is that the district court failed to consider adequately the various sentencing factors set forth in 18 U.S.C. § 3553(a) and to explain why it balanced those factors in the way that it did.

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Cite This Page — Counsel Stack

Bluebook (online)
442 F. App'x 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-timothy-myers-ca6-2011.