Opinion
CAUSE NO. 3:22-CR-83 DRL
2023-06-27
UNITED STATES of America, Plaintiff, v. Jeremy P. EASH, Defendant.
John M. Maciejczyk, Government Attorney, U.S. Attorney's Office, South Bend, IN, for Plaintiff.
John M. Maciejczyk, Government Attorney, U.S. Attorney's Office, South Bend, IN, for Plaintiff.
SENTENCING MEMORANDUM
Damon R. Leichty, United States District Judge
For about four months in 2021 and 2022, Jeremy Eash used his elderly father's name to subscribe to a peer-to-peer file-sharing program and download 1,292 images and 424 videos of child pornography. He pleaded guilty to a one-count information—receipt of child pornography. See 18 U.S.C. § 2252(a)(2).
SENTENCING GUIDELINES
The court must first calculate the guideline range correctly, then decide what sentence is right and reasonable for this defendant. Dean v. United States, 581 U.S. 62, 67, 137 S.Ct. 1170, 197 L.Ed.2d 490 (2017); United States v. Swank, 37 F.4th 1331, 1334 (7th Cir. 2022). The 2021 guidelines apply. See Peugh v. United States, 569 U.S. 530, 537-38, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013); U.S.S.G. § 1B1.11. Without objection, the court adopts as its findings ¶¶ 1-105 of the presentence report, amending only the victims in ¶ 96.
Mr. Eash begins at level 22. U.S.S.G. § 2G2.2(a)(2). Four enhancements take him to level 35. He receives two levels because the material involved prepubescent minors under age 12, U.S.S.G. § 2G2.2(b)(2), two levels because he used a peer-to-peer file-sharing program (interactive computer service) to obtain the material, U.S.S.G. § 2G2.2(b)(6), four levels because the material portrayed sadistic conduct or infant abuse, U.S.S.G. § 2G2.2(b)(4), and five levels because the offense involved more than 600 images, U.S.S.G. § 2G2.2(b)(7)(B). He receives two deductions, including two levels because his receipt of child pornography occurred without him intending to traffic or distribute the material, U.S.S.G. § 2G2.2(b)(1), and three levels because he clearly and timely accepted responsibility for this offense, U.S.S.G. § 3E1.1. He thus ends at level 30.
The sentencing guidelines assess no criminal history points against him. He thus falls within criminal history category I where the sentencing guidelines recommend a sentencing range of 97 to 121 months, U.S.S.G. chap. 5A, narrower than the range of 60 to 240 months (5-20 years) that the crime of conviction carries by statute, 18 U.S.C. §§ 2252(a)(2), (b)(1).
DISCUSSION
The court decides this sentence under 18 U.S.C. § 3553(a) and United States v. Booker, 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).
Though the guidelines typically offer a certain assurance of uniform and fair treatment of similarly situated defendants, thereby avoiding unwarranted sentencing disparities, see 18 U.S.C. § 3553(a)(6); United States v. Scott, 631 F.3d 401, 405 (7th Cir. 2011), that can prove less true with non-production offenses, see United States Sent. Comm'n (USSC), Quick Facts: Child Pornography Offenders 2 (2023) (55.6 percent of 1,435 child pornography offenders in FY 2022 received downward variance). One could say that adhering mechanically to the guidelines in a non-production case could create the very disparity the guidelines were in part intended to prevent. See United States v. Roberts, 463 F. Supp.3d 860, 867 (N.D. Ind. 2020).
The Sentencing Commission suggested certain revisions to the child pornography guidelines in 2012; and in June 2021 it built on its prior report to Congress. See USSC, Federal Sentencing of Child Pornography: Non-Production Offenses 68-69 (2021). But Congress never endorsed any revision and instead increased the statutory sentencing schemes for these offenses. See Roberts, 463 F. Supp.3d at 862-63; United States v. Cottrell, 579 F. Supp.3d 1051, 1054 (N.D. Ind. 2022). Of interest, even now with a quorum, the Sentencing Commission has not proposed any changes to the guidelines or enhancements that apply today—neither in 2019 nor in the latest batch in 2023. That speaks to some continuing viability.
That said, the court disfavors any mechanical approach and assesses each defendant individually. Every sentencing is a unique case study, see Pepper v. United States, 562 U.S. 476, 487-88, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), and the court approaches sentencing just so, not least in cases like this one. The court utilizes the categories of behavior identified in the 2012 report as considerations under § 3553(a), 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.
Several factors are aggravating. Mr. Eash received (not just possessed) child pornography, so this offense warrants a punishment commensurate to this greater concern than the possession cases that get lumped statistically with other non-production offenses. See 18 U.S.C. § 3553(a)(2)(A); United States v. Myers, 355 F.3d 1040, 1042-43 (7th Cir. 2004). Distinguishing mere possession, a defendant must know the material he received depicts minors engaged in sexually explicit conduct, see United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); Myers, 355 F.3d at 1042, and Mr. Eash knew. Punishing this conduct more severely serves federal sentencing goals. See Myers, 355 F.3d at 1042 (citing cases).
Mr. Eash also received a large amount of child pornography over a short time. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A), (a)(2)(C). He says he began in December 2021 (this time around). By April 2022, he had approximately 1,292 images and 424 videos. This is a serious and staggering amount:
• Consider just the pace for one. He downloaded on average ten images and three videos a day for four months. He was in the process of downloading more when law enforcement executed its search warrant.Under such circumstances, the court sees no cause for variance because of the five-level enhancement for having more than 600 images—not given this scale, pace, and content.
• Consider then the sheer volume. Reducing the videos to images means he had the equivalent of over 33,000 images, see, e.g., U.S.S.G. § 2G2.2 app. n.6(B)(ii)—nearly eight times the number of images the median offender hordes, see USSC, 2021 Report at 4, and measurably more than other offenders sentenced by this court.
• Consider its detrimental reach. 33,000 images preys on numerous victims, and some 38 victims among many chose to write victim impact statements, totaling over 100 pages.
• Consider its egregious content. The material included toddlers (including a three-year-old), bestiality, and material categorized as "pre-teen hardcore."
See, e.g., United States v. Sarber, No. 3:21cr101, ECF 49 (N.D. Ind. Aug. 31, 2022) (receiving 342 total images); United States v. Hyatt, No. 3:19cr42, ECF 96 (N.D. Ind. Aug. 30, 2022) (receiving 3,883 images); United States v. Humphries, No. 3:21cr105, ECF 31 (N.D. Ind. July 22, 2022) (receiving almost 1,100 photographs and videos); United States v. Baesler, 3:20cr18, ECF 50 (Jan. 19, 2021) (receiving 3,556 total images, including 33 videos); United States v. Wood, No. 3:19cr38, ECF 68 (N.D. Ind. Oct. 13, 2020) (receiving 4,569 total images, including 32 videos); see also United States v. Cottrell, No. 3:19cr91, ECF 77 (N.D. Ind. Jan. 11, 2022) (possessing nearly 10,000 images); United States v. Phillips, No. 1:20cr1, ECF 70 (N.D. Ind. July 26, 2021) (possessing 11,550 total images).
The nature of Mr. Eash's collecting behavior is cause for added concern. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A). He says the two-level enhancement for using a computer device should be viewed as outdated. Not because of a policy difference but in an effort to decide a reasonable sentence, the court has always considered how a person uses a computer, noting that "[n]ot all computer use is equal." Roberts, 463 F. Supp.3d at 863 (quoting USSC, Report to Congress: Sex Offenses Against Children: Findings and Recommendations Regarding Federal Penalties 29 (1996)).
Mr. Eash used Shareaza—a peer-to-peer (P2P) file-sharing program. The court has spoken to this platform's contribution to the proliferation of child pornography and, in doing so, declined to vary from a computer enhancement. Roberts, 463 F. Supp.3d at 863-65. The court sees no reason to change course. Peer-to-peer software allows users to share files directly over the internet with others—one can search files in another's "shared folder" and acquire these files from that other user's device. See id.; United States v. Vadnais, 667 F.3d 1206, 1208 (11th Cir. 2012). And then on and on this vicious cycle of easy access goes. Large amounts of child pornography can be acquired "at little or no financial cost and often in an anonymous, indiscriminate manner." USSC, Report to Congress: Federal Child Pornography Offenses 312-13 (2012). This manner of computer use readily contributes to this illicit market's demand.
Due to the reciprocal nature of a peer-to-peer platform, courts have found its knowing use to warrant a different enhancement under the guidelines—i.e., distribution. See U.S.S.G. § 2G2.2(b)(3); see, e.g., United States v. Ryan, 885 F.3d 449, 453-54 (7th Cir. 2018) (use of P2P software warrants distribution enhancement when court finds the defendant "either knew, or was reckless in failing to discover, that the files he was downloading could be viewed online by other people"). The government charged Mr. Eash just so but has not proven on this record this occurred. Indeed, to the contrary and unlike other offenders, he seems to have taken what he received and only placed the files on an external hard drive. See 18 U.S.C. §§ 3553(a)(1), (a)(6). He used his father's name (and possessed a covert recording pen) but, on this record, never used any sophisticated means of cloaking his conduct. See USSC, 2012 Report at 320 (recommending consideration of sophisticated technology). Both points mitigate how he used a computer. Even so, the nature of his collecting made images accessible at the mere click of a mouse given his knowledge of this platform. The court isn't inclined to view the computer enhancement as without some meaningful basis.
Law enforcement's downloading of child pornography from Mr. Eash's IP address three times over ten days illustrates the power of a computer, though this should not be taken to mean that Mr. Eash placed any files in a "shared folder" within the P2P platform.
This isn't the first time Mr. Eash procured illicit images. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C). From 2002-2004 (approximately ages 18 to 20), he also downloaded child pornography. His substantial break from 2004-2020 might seem mitigating at first blush, but that seems a result of not having a computer or internet access during that time. Hence the computer enhancement makes even more sense in this case than most—when he has a computer, his self-recognized problem rears its ugly head; when he doesn't have one, it doesn't. And don't forget that had Mr. Eash been convicted of possessing child pornography from his admitted conduct in 2002-2004, his mandatory minimum here would be fifteen years, not five. See 18 U.S.C. § 2252(b)(1). That too contextualizes today's sentence.
The presentence report says in ¶ 14 that Mr. Eash told law enforcement that he had a problem with child pornography and admitted that he had downloaded child pornography "since he was a teenager." Mr. Eash explains that there was a gap in time from his downloading in 2002-2004 and his conduct here, so "since" should not be construed as continuous. That nuance has no effect on today's sentence, and the court only accounts for his admitted history. See also Fed. R. Crim. P. 32(i)(3)(B).
Mr. Eash is quite right that two enhancements—that for prepubescent minors (two levels) and that for sadistic material or infant abuse (four levels)—apply in most cases. See USSC, Federal Sentencing of Child Pornography: Non-Production Offenses 4, 31 (2021) (non-production offenders receive enhancements for prepubescent minors in 99.4 percent of cases and for sadistic or masochistic conduct or infant abuse 84 percent of the time). Just because most everyone is doing it is little reason to excuse this behavior, and again this is why the court always looks at the rationale behind these enhancements.
Mr. Eash never had any inappropriate relationship with a minor. That said, he recognized he had a problem with child pornography. He was active. He searched specifically for child pornography, including toddlers, bestiality, and pre-teen hardcore. The court won't ignore the full range of his collecting behavior in differentiating him from others. See 18 U.S.C. §§ 3553(a)(1), (a)(6); United States v. Miller, 665 F.3d 114, 123 (5th Cir. 2011) ("reject the view that because there are many defendants who view images of children under the age of 12 being raped and sodomized . . . the terms of imprisonment should be reduced for all who receive or transport child pornography, regardless of the content"). His demand contributed to the market, even if not commercially. See United States v. Goldberg, 491 F.3d 668, 672 (7th Cir. 2007) ("The greater the customer demand for child pornography, the more that will be produced."); United States v. Barevich, 445 F.3d 956, 959 (7th Cir. 2006) ("receiving child pornography increases the market demand").
And it has lasting impacts on victims. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(C). Its crippling effects are lifelong. It creates a "permanent record" of the 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. The crime trades unendingly on the trauma, and "every 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). In over 100 pages, numerous victims cry out. One talks of torture. One talks of the perpetual scarlet letter that is this abuse. One talks of the nightmares of being raped by all the offenders who watch the videos. One teenager talks of suffering twice, three times, four times, and then upwards of 22,000 times. One child strategically places broken toys on the floor to hurt the feet of bad men if they sneak into the house. These are real people struggling with real harm. To date, at age 39, notwithstanding a recognition of a problem, and unlike others, Mr. Eash has never sought counseling over two decades, though his allocution shows the starts of some growth as he is one of few who has read victim statements. See 18 U.S.C. §§ 3553(a)(1), (a)(6).
Mr. Eash has no previous criminal convictions—a not unusual fact. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(6); USSC, Quick Facts: Child Pornography Offenders 1 (2023) (71 percent of all child pornography offenders in FY 2022 were in CHC I); USSC, Federal Sentencing of Child Pornography: Non-Production Offenses 64-65 (2021) (86 percent of non-production child pornography offenders were in CHC I). No matter the generally lower recidivism rates for certain child pornography offenders as compared to other federal offenders, see, e.g., USSC, Federal Sentencing of Child Pornography: Non-Production Offenses 62-66 (2021); USSC, Recidivism of Federal Offenders Released in 2010 app. E (2021), Mr. Eash has a specific and recurring problem. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B). Today's sentence likewise promotes general deterrence. See Goldberg, 491 F.3d at 672.
Mr. Eash has not had improper contact with children and has not enticed a minor to engage in prohibited sexual conduct. See 18 U.S.C. § 3553(a)(1). He comes from a strong family. He experienced no abuse growing up. He lived and still lives with his parents (biologically his grandparents) and helps them around the house given their advancing age. He engaged in prosocial activities as a young boy. He has a high school diploma and some employment history, albeit at times spotty. Medications help control his health condition. He used marijuana daily before his arrest. His honesty—early and consistent—is mitigating. And collateral consequences of concerted supervision, registration, and restitution will be deterrents and rehabilitative.
Review of all § 3553(a) factors persuades the court that, given the need for the sentence to reflect the seriousness of the offense, to provide just punishment and to promote respect for the law, to deter such crimes, to protect the public and not least our children, and given the range recommended by the guidelines and this defendant's particular characteristics and history, a sentence of 94 months is sufficient but not greater than necessary to satisfy federal sentencing goals.
The court must impose a term of supervised release of 5 years to life. 18 U.S.C. § 3583(k); see U.S.S.G. § 5D1.2(b)(2). A 5-year term is appropriate.
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), and Mr. Eash agreed to pay restitution for those victims who seek it. The court accordingly orders restitution to twenty victims for a total of $72,500. 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. 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. Eash's income history and likely financial circumstances on release, the court finds him indigent and imposes no assessment.
Mr. Eash is subject to a discretionary assessment up to $50,000 pursuant to the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018. See 18 U.S.C. § 2259A(a)(2). The amount of the fine must take into account the factors set forth in 18 U.S.C. §§ 3553(a) and 3572. 18 U.S.C. § 2259A(c). Mr. Eash is paying restitution, see 18 U.S.C. § 3572(a)(4), and he doesn't have an income or earning capability that would support imposition of an additional assessment, see 18 U.S.C. § 3572(a)(1). Accordingly, this assessment likewise isn't imposed.
Because of his other financial obligations, specifically his restitution obligations, Mr. Eash cannot 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, Jeremy Eash, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a total term of 94 months.
Pursuant to 18 U.S.C. § 3585, the court leaves it to the Bureau of Prisons to determine the appropriate amount of time served to be credited toward the defendant's sentence. The court grants the defendant's request for a recommendation concerning placement [ECF 17] and 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, FCI Elkton or a facility near FCI Elkton that may afford him appropriate mental health or counseling specific to his condition.
Upon release from prison, the defendant will be placed on supervised release for a term of 5 years. While on supervised release, he must comply with the terms of supervision set forth in ¶¶ 106-122 of the presentence report, as amended here for ¶ 122, 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. The court directs the probation officer to provide the defendant with a written statement of all conditions.
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 twenty victims in accordance with ECF 25: "Angela" in the amount of $5,000, "April" in the amount of $5,000, "Chelsea" in the amount of $5,000, "Fiona" in the amount of $3,500, "Jane" in the amount of $3,500, "Jen" in the amount of $5,000, "Jenny" in the amount of $3,500, "Jessy" in the amount of $3,000, "Maria" in the amount of $3,000, "Maureen" in the amount of $3,000, "Mya" in the amount of $3,000, "PD11" in the amount of $3,000, "Pia" in the amount of $4,000, "Raven" in the amount of $3,500, "Sierra" in the amount of $3,000, "Tori" in the amount of $3,500, "Lily" in the amount of $3,000, "Violet" in the amount of $4,000, "Tara" in the amount of $3,000, and "Patty" in the amount of $3,000, for a total of $72,500.
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 the government's motion to dismiss the indictment in 3:22-cr-46 [ECF 21] and the forfeiture allegations in this case, which otherwise has been handled administratively.
SO ORDERED.