Opinion
CAUSE NO. 3:19-CR-091 DRL-MGG
2022-01-12
UNITED STATES of America, Plaintiff, v. Terry COTTRELL, Defendant.
John M. Maciejczyk, Government Attorney, US Attorney's Office, South Bend, IN, for Plaintiff.
John M. Maciejczyk, Government Attorney, US Attorney's Office, South Bend, IN, for Plaintiff.
SENTENCING MEMORANDUM
Damon R. Leichty, Judge
Law enforcement discovered 9,860 images (including seven videos) of child pornography depicting prepubescent minors and infants on devices owned by Terry Cottrell. Mr. Cottrell pleaded guilty to a one-count indictment for possessing child pornography. See 18 U.S.C. § 2252(a)(4)(B).
SENTENCING GUIDELINES
The court must first calculate the guideline sentence correctly, then decide what it is the right and reasonable sentence for this defendant. Nelson v. United States , 555 U.S. 350, 351, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009) ; United States v. Garcia , 754 F.3d 460, 483 (7th Cir. 2014). The court uses the 2018 sentencing guidelines. See Peugh v. United States , 569 U.S. 530, 531, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) ; U.S.S.G. § 1B1.11. Neither side objects to the final presentence investigation report, so the court adopts ¶¶ 1-114 of the presentence report as its findings.
Mr. Cottrell starts at level 18. U.S.S.G. § 2G2.2(a)(1). His offense level is increased two levels because the material involved prepubescent minors or minors under age 12, U.S.S.G. § 2G2.2(b)(2), four more levels because the material portrayed the exploitation of an infant or toddler, U.S.S.G. § 2G2.2(b)(4)(B), five more levels because he possessed in excess of 600 images of child pornography, U.S.S.G. § 2G2.2(b)(7)(D), app. n.6(B)(ii), and two more levels because the offense involved the use of a computer device or software, U.S.S.G. § 2G2.2(b)(6). From level 31, his clear and timely acceptance of responsibility reduces his offense level to level 28. U.S.S.G. §§ 3E1.1(a), (b).
Mr. Cottrell receives six criminal history points, thereby falling within criminal history category III. U.S.S.G. Chap. 5A. There the sentencing guidelines recommend a sentencing range of 97 to 120 months, U.S.S.G. Chap. 5A, once capped by the statutory maximum sentence of 10 years, 18 U.S.C. §§ 2252(a)(4)(B), (b)(2).
DISCUSSION
The court decides this sentence under 18 U.S.C. § 3553(a) and Booker v. United States , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Turning to the statutory factors, the court must arrive at a reasonable sentence: one sufficient but not greater than necessary to satisfy the statute's purposes. 18 U.S.C. § 3553(a).
What proves particularly troubling is Mr. Cottrell's unrelenting exploitation of children. This isn't a first-time occurrence. In 2003, at age 19, he was convicted for burglary after he broke into a public library and viewed child pornography on a computer in the children's section. This prior history and his admitted cycle of ongoing engagement with child pornography (going cold turkey but then relapsing), given the need for deterrence and public protection, ground him squarely within the guideline range. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C).
In 2009, at age 25, Mr. Cottrell was charged with fifteen counts of sexual misconduct (including child molesting) occurring over more than two years with four minors under age 14. He pleaded insanity. The charges were dismissed, so the court views this arrest history circumspectly. See United States v. Drain , 740 F.3d 426, 432 (7th Cir. 2014) ("an arrest alone does not necessarily mean guilt"). The underlying record proves more likely than not reliable though—not least because he spent about seven years involuntarily committed to the Logansport State Hospital as a result of these charges, because of his admitted cycle of ongoing engagement with child pornography, because his outpatient services even after Logansport's treatment involved, as he says, his "issues with children," because his conduct, as alleged, occurred over more than two years with four minors under age 14, rather than for a brief period or with even one child, and given his diagnosis twice for pedophilia. See 18 U.S.C. § 3661 ; United States v. Mansfield , 21 F.4th 946, 955-58 (7th Cir. 2021) (permitting consideration of reliable and similar arrest history); see also United States v. Jordan , 435 F.3d 693, 697 (7th Cir. 2006) (considering pedophilia diagnosis). This added history tends to support the court's sentence, though the court reaches its sentence notwithstanding this history rather than use it to move higher. See 18 U.S.C. § 3553(a)(1), (a)(5) ; U.S.S.G. § 4A1.3(a)(3).
The risk of recidivism is real. See 18 U.S.C. §§ 3553(a)(2)(B), (a)(2)(C). Mr. Cottrell's prior commitment in 2010 provided resources to reform his conduct, and he received ongoing outpatient services beginning May 2017 to continue his recovery. While seemingly receiving these services still in 2019, he again acquired child pornography, which led to his federal conviction here. His return, despite ongoing treatment, strongly indicates the need for incapacitation and public protection. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C). The risk of recidivism for child pornography offenders may generally be lower than other frequent federal offenses, see, e.g., United States Sent. Comm'n (USSC), Federal Sentencing of Child Pornography: Non-Production Offenses 62-66 (2021); Recidivism of Federal Offenders Released in 2010 app. E (2021); USSC, Report to Congress: Federal Child Pornography Offenses 293-310 (2012), but Mr. Cottrell's history and candid assessment of his challenges counsel more caution, see also Smith v. Doe , 538 U.S. 84, 103, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (risk of recidivism posed by sex offenders is "frightening").
Life isn't easy for Mr. Cottrell. See 18 U.S.C. § 3553(a)(1). He struggles with various mental health challenges, antisocial disorders, and suicidal ideations. He becomes overwhelmed with routine tasks and responsibilities. He relies on others for his needs (most recently his brother). He disdains other people and self-isolates. Medications appear to help his mood and antisocial tendencies, but his compliance has been far from perfect. Some of his difficulties stem from a traumatic childhood. His mother's death at a young age had a lasting impact. He faced sexual and other abuse from family members and others as he grew up. He was placed in foster care at 14 only to be adopted by a man who emotionally abused him. He ran away. He was homeless. He has never had a permanent residence. It is a heartbreaking history, and the absence of stability has left him without much education (seventh grade) or employment that might otherwise productively preoccupy him. A heavy-handed sentence for those with significant mental health challenges will often have less deterrent effect, see United States v. Dyer , 216 F.3d 568, 570 (7th Cir. 2000), but at bottom Mr. Cottrell recognizes right from wrong, and he persists despite treatment and thus remains a threat, see United States v. Miranda , 505 F.3d 785, 793 (7th Cir. 2007). Protecting the public thus counterbalances his unfortunate personal circumstances and proves the greater goal than just deterrence.
The tragic circumstances of Mr. Cottrell's life don't ameliorate the crippling and lifelong impact that child pornography has on victims—and here many victims based on scores of impact statements and thirteen restitution requests, an unusually higher than not number. See 18 U.S.C. § 3553(a)(2). Child pornography is a "permanent record" of abuse, thereafter "exacerbated by [its] circulation." New York v. Ferber , 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) ; accord USSC, 2012 Report at 112-13. General deterrence is critical in this context, see United States v. Goldberg , 491 F.3d 668, 672 (7th Cir. 2007) ; United States v. Schrank , 975 F.3d 534, 536 (6th Cir. 2020), with specific deterrence obligated based on Mr. Cottrell's history.
The Sentencing Commission has suggested a need to reassess the guidelines for certain child pornography cases. In June 2021, the Sentencing Commission built on its previous 2012 report to Congress. See USSC, Federal Sentencing of Child Pornography: Non-Production Offenses 68-69 (2021). The 2021 report echoed many conclusions from the 2012 report. The court has used the considerations advocated by the Sentencing Commission in weighing the § 3553(a) factors, including the content of an offender's child pornography collection, the nature of the collecting behavior, the degree of engagement with other offenders, and the history of engaging in sexually abusive or predatory conduct. See 18 U.S.C. § 3553(a)(5) ; see, e.g., United States v. Roberts , 463 F. Supp.3d 860 (N.D. Ind. 2020).
Mr. Cottrell's collection forensically included nearly 10,000 images, though deleted. In his words, he would download the images and then shamefully delete them. His collecting behavior thus differs from many offenders who horde such images, or otherwise transport or distribute them. Its content included infants, bondage, and bestiality, so horrific in both scope and subject matter. He seems not to have engaged with other offenders, but his history with child pornography enhances concern. Overall, these features underscore this offense's seriousness and aggravate this offense. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A).
Mr. Cottrell argues that the computer enhancement and image number enhancement take his sentencing range too high. He says he did not use technologically sophisticated measures to build and protect his collection. "In this day and age, it nary requires a thought that child pornography would be maintained by way of a computer or computer service, and the 2018 sentencing guidelines offer no commentary in their publication why possession in such commonplace manner is deserving of a two-level enhancement." Roberts , 463 F. Supp.3d at 863. "This is not the 1980s or even 1990s when such possession would be more avant garde. " Id. Accordingly, the court has always considered how a person uses a computer, noting that "[n]ot all computer use is equal." Id. (quoting USSC, Report to Congress: Sex Offenses Against Children: Findings and Recommendations Regarding Federal Penalties 29 (June 1996)). To be clear, this isn't because of a policy difference. The court does this to decide a reasonable sentence—fostering as best it can a qualitative and not just mechanical analysis that treats "every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue." Pepper v. United States , 562 U.S. 476, 487, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (citation omitted).
Mr. Cottrell used a common search engine (Bing) to upload child pornography that led to his capture this time. Historically his computer usage displayed some sophistication. During his first interview with investigators, for instance, Mr. Cottrell spoke descriptively of his computer activity—activity that outstretched a mere Bing search. Mr. Cottrell was familiar with the dark web. He identified the topic links used to search for images, the specific "onion site" he used (a dark web domain name reachable only through a Tor browser), the differences between an onion site and a regular website accessible through a regular web browser, and techniques to further anonymize searching. His use of a computer was more sophisticated than the average user, even if a simpler reverse image search was the catalyst for identifying this present offense.
Mr. Cottrell spread his storage across three devices—labeled at times with chilling titles that demonstrated his awareness that his conduct was terribly wrong, but which eluded any real sophistication in cloaking his conduct. He admitted to law enforcement that he once had child pornography, but no longer did. He provided law enforcement access. He cooperated. He never engaged in distribution or sales to others, nor via a computer device. He never used image-sharing software. To the contrary, he seemed to delete his images, thus reducing the risk that his possession facilitated ready distribution at a mere keystroke. Though the two-level enhancement applies under U.S.S.G. § 2G2.2(b)(6), and rightfully so, it carries less force today as compared to some offenders. See 18 U.S.C. §§ 3553(a)(1), (a)(6).
Over time, Mr. Cottrell acquired nearly 10,000 images—far more than the 600 images needed to warrant the five-level enhancement. Given the volume here, the nature of the images, and the scope of harm, the court finds no fault in the forceful application of the image number enhancement. See 18 U.S.C. §§ 3553(a)(1), (a)(5), (a)(6) ; see also USSC, 2012 Report at 320. It should not be easily presumed that a higher sentence for one more image, ten more images, or even a hundred or five hundred, or a thousand more images somehow is divorced from an empirical or sensible basis in sound sentencing principles. "[E]very viewing of child pornography is a repetition of the victim's abuse." Paroline v. United States , 572 U.S. 434, 457, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014). Every image that broadens the scope of the harm thus has an intrinsic empirical basis, or at minimum an inherent and sound footing in federal sentencing goals of deterrence and public protection. See 18 U.S.C. §§ 3553(a)(2)(B), (a)(2)(C) ; Goldberg , 491 F.3d at 672 ("The greater the customer demand for child pornography, the more that will be produced. Sentences influence behavior[.]") (citations omitted).
The guidelines provide a certain assurance of uniformity and fairness among defendants with similar records and offense conduct, thereby avoiding unwarranted sentencing disparities, though that tends to be less true with this particular offense. Indeed, one might argue persuasively that adhering mechanically to the guidelines in a possession case like this could create the very unwanted disparity the sentencing guidelines were in part intended to help prevent, given the extent of variances nationally. See 18 U.S.C. §§ 3553(a)(1), (a)(6) ; United States v. Boscarino , 437 F.3d 634, 637 (7th Cir. 2006). The circumstances today suggest otherwise, however. Already sitting atop criminal history category III (thereby trending higher in the recommended range), Mr. Cottrell's history and persistent proclivity aggravate today's assessment, cf. Roberts , 463 F. Supp.3d at 868 ; United States v. Phillips , No. 1:20cr1, ECF 70, 6-7 (N.D. Ind. July 26, 2021), save for his modestly mitigating computer use and truly tragic personal history.
Consideration of all factors set forth in 18 U.S.C. § 3553(a) persuades the court that a sentence of 97 months is appropriate. This sentence is sufficient but not greater than necessary to satisfy federal sentencing goals. Additional public protection will come in the form of a supervised release term of 10 years to follow, given his unique circumstances. See 18 U.S.C. § 3583(k) (5 years to life); U.S.S.G. § 5D1.2(b)(2) (same) ; see also USSC, Federal Sentencing of Child Pornography: Non-Production Offenses 64 (2021) (noting that possession, receipt, and distribution cases have a median term of 10 years).
Restitution to the victims is mandatory under 18 U.S.C. § 2259. See also U.S.S.G. § 5E1.1 ; 18 U.S.C. § 3553(a)(7). The court has received restitution requests from thirteen victims for $3,000 each, totaling $39,000. See 18 U.S.C. §§ 2259, 2259A(a)(1).
The Justice for Victims of Trafficking Act, 18 U.S.C. § 3014(a), requires a mandatory assessment of $5,000 for any non-indigent person convicted of this offense. The statute does not define indigency. Congress has stated that the obligation to pay the assessment continues for twenty years after the release from imprisonment or the entry of judgment, whichever is later. 18 U.S.C. §§ 3014(g), 3613(b). The court may consider the defendant's financial circumstances now and in the future. See , e.g. , United States v. Shepherd , 922 F.3d 753, 759 (6th Cir. 2019) ; United States v. Graves , 908 F.3d 137, 141 (5th Cir. 2018) ; United States v. Kelley , 861 F.3d 790, 801 (8th Cir. 2017). In light of Mr. Cottrell's income history and his likely financial circumstances upon release, the court finds him indigent and does not impose this assessment.
An additional assessment is required under the Amy, Vicky, and Andy Child Pornography Victim Assistance Act. 18 U.S.C. § 2259A(a)(1). For possession offenses, the assessment is not more than $17,000. Id. The amount of the assessment must take into consideration the factors set forth in 18 U.S.C. §§ 3553(a) and 3572. 18 U.S.C. § 2259A(c). The court finds that imposition of an assessment here would impair the defendant's ability to pay restitution. See 18 U.S.C. § 3572(b). Accordingly, this assessment isn't imposed.
Because of his other financial obligations, specifically his restitution obligations, Mr. Cottrell can't pay the fines recommended by the guidelines even if afforded the most generous of installment payment schedules, so the court imposes no fine. A special assessment of $100.00 is mandatory. 18 U.S.C. § 3013(a)(2)(A).
SENTENCE
Accordingly, it is the court's judgment that the defendant, Terry Cottrell, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a total term of 97 months.
The court recommends that the Bureau of Prisons designate as the place of the defendant's confinement, consistent with his security classification as determined by the Bureau of Prisons, a facility where he may be housed with similarly situated offenders and receive appropriate treatment.
Upon release from prison, the defendant will be placed on supervised release for a term of 10 years. While on supervised release, he must comply with the terms of supervision set forth in ¶¶ 115-132 of the presentence report, which paragraphs the court incorporates as part of this sentence having made an independent judgment that they should be imposed under 18 U.S.C. § 3583(d). The defendant expressly waived reading of these supervisory conditions in open court.
The defendant must make restitution payments to the United States District Court Clerk, 102 Robert A. Grant Federal Building, 204 South Main Street, South Bend, Indiana 46601, for disbursement to the victims identified under seal [ECF 68, 74]—coded "Pia," "Mya," "Jenny," "Jane," "Erika," "Amy," "Patty," "PD11," "Sarah," "Anna," "Tara," "John Doe III," and "John Doe IV"—in the amount of $3,000.00 each.
Restitution is due in full immediately. Any payment that is not paid in full must be divided proportionately among the persons named. The defendant must notify the United States Attorney for this district within 30 days of any change in mailing or residence address that occurs while any portion of the restitution remains unpaid. The defendant must make restitution payments from any wages he may earn in prison in accordance with the Bureau of Prisons Financial Responsibility Program. Any portion of the restitution that is not paid in full at the time of the defendant's release from imprisonment will become a condition of supervision. While on supervision and thereafter the defendant must make restitution payments at a minimum rate of $50.00 per month commencing 60 days after placement on supervision until the total amount is paid in full. The imposed payment schedule will remain in effect until such time as the court is notified by the defendant, the victims, or government that there has been a material change in the defendant's ability to pay.
The court imposes no other fine or assessment, except that he must pay to the United States a special assessment of $100.00, which is due immediately.
The court grants Mr. Cottrell's motion to seal [ECF 72]. The court dismisses the forfeiture allegation of the indictment.
SO ORDERED.