Opinion
CASE NO.: 1:09-CR-122-TLS.
March 1, 2011
OPINION AND ORDER
The Defendant, Bryan J. Schlabach, pleaded guilty to one count of distributing materials involving the sexual exploitation of minors, one count of receiving materials involving the sexual exploitation of minors, both violations of 18 U.S.C. § 2252(a)(2), and one count of possessing material involving the sexual exploitation of minors, a violation of 18 U.S.C. § 2252(a)(4)(B). He is awaiting sentencing. On June 10, 2010, the United States Probation Office prepared a Presentence Investigation Report (PSR) calculating the applicable guideline range for the Defendant's offenses as 97 to 121 months of imprisonment. The Defendant makes the following arguments with respect to the sentence this Court should impose: (1) the five level increase under Guideline § 2G2.2(b)(7)(D) for the number of images he possessed is unconstitutional under the separation of powers doctrine; (2) even if § 2G2.2(b)(7)(D) is constitutional, it disproportionately punishes the Defendant; (3) the offense level enhancements for distributing material (§ 2G2.2(b)(3)(F)) and using a computer (§ 2G2.2(b)(6)) increase the Defendant's punishment because of factors that are the very essence of the offense; and (4) application of the sentencing factors under 18 U.S.C. § 3553(a) supports a variance from the advisory Guideline range. (Sentencing Mem., ECF No. 37.) In response, the Government argues that Guidelines § 2G2.2(b)(7) is constitutional generally and as applied to the Defendant, that the enhancements do not constitute impermissible double counting, and there are no factors under 18 U.S.C. § 3553(a) that warrant a sentence outside the advisory guideline range.
DISCUSSION
A. Constitutionality of § 2G2.2(b)(7)(D)
The Defendant argues that the enhancement for the number of images he possessed violates the separation of powers doctrine because it was promulgated directly by Congress, not by the Sentencing Commission. The Defendant points to United States v. Mistretta, 488 U.S. 361 (1989), as support for his position that, to be constitutional, a Guideline must be promulgated by the Sentencing Commission exercising its delegated powers, not by Congress through direct legislation. He argues that the number-of-images enhancement improperly reduced the Commission from its role as promulgator of the Guidelines to a mere distributor of Congressional edict. A similar argument was recently advanced by the defendant in United States v. Rogers, 610 F.3d 975 (7th Cir. 2010). In that case, the Seventh Circuit used the following logic to reject the defendant's argument that Mistretta forbids Congress from directly legislating sentencing guidelines:
Rodgers's argument rests on a mischaracterization of Mistretta. In Mistretta, the Supreme Court rejected a challenge to the then-mandatory guideline system based on the theory that the guidelines delegated too much legislative authority to the Sentencing Commission and violated the separation of powers by requiring federal judges to serve on the Commission. 488 U.S. at 412. In concluding that neither the nondelegation doctrine nor the separation-of-powers doctrine prohibited the legislature from seeking the advice of judges when formulating guideline ranges, the Court relied on the fact that Congress had constrained the discretion of the Commission. For example, the Court noted that Congress had mandated that the guidelines "require a term of confinement at or near the statutory maximum for certain crimes of violence and for drug offenses, particularly when committed by recidivists." Id. at 376. Thus, the starting point for the Mistretta opinion was that Congress could legitimately create sentencing guidelines, just as it creates the statutory maximum and minimum sentences. See also United States v. LaBonte, 520 U.S. 751, 757 (1997) (holding that the Sentencing Commission "must bow to the specific directives of Congress"). Indeed, the dissent in Mistretta argued that only Congress could validly promulgate guidelines. 488 U.S. at 413 (Scalia, J., dissenting). If legislators do not "cloak their work" in neutral garb of the judiciary when they ask judges to serve on a sentencing commission while substantially constraining the work of that commission, surely they do not do so when they bypass the commission altogether and legislate directly.Rodgers, 610 F.3d at 977-78 (parallel citations omitted). Based on this reasoning, the Court has no trouble concluding that Congress did not violate separation of powers when it passed the Protect Act, the legislation from which § 2G2.2(b)(7)(D) is derived. In so holding, the Court remains mindful that when evaluating the Guidelines recommendation, it may consider whether the Sentencing Commission fulfilled its "characteristic institutional role" in adopting the particular guideline, see Kimbrough v. United States, 552 U.S. 85, 109 (2007), and the court may reject any guideline on policy grounds, United States v. Pape, 601 F.3d 743, 749 (7th Cir. 2010).
B. Application of Enhancement for the Number of Images
The Defendant argues that because child pornography images are accessed through the computer, the number of images has very little to do with an appropriate punishment. He states that it would not reflect the number of times he downloaded pornography, or the number of images he viewed. He points out that increasing his offense level for the number of images will increase his Guidelines offense anywhere from 40 to 64 months, which represents nearly 50% of his Guideline sentence.
For reasons already stated above, there is no legal barrier to applying the enhancement, and the Defendant has not asserted that the number of images reported in the PSR is factually erroneous. Rather, the Defendant's argument is that an increase of 5 levels does not meet the purposes of punishment because it overstates the seriousness of the offense. This is an argument that is more appropriately made in the context of § 3553(a), where the Court will consider how much deference to give to the increase in the advisory Guideline sentence that is brought about by the specific offense characteristics, including the number of images. The Court cannot make this determination unless it has first properly calculated the applicable guideline range, which in this case, includes a 5-level increase because the offense involved more than 600 images.
Guidelines § 1B1.1 emphasizes the three basic steps in sentencing: (1) calculate the applicable guideline range; (2) consider departures under the Guidelines themselves, and (3) consider the other applicable factors under 18 U.S.C. § 3553(a). U.S.S.G. § 1B1.1(a)-(c).
C. Enhancements for Distribution and Use of a Computer
Under § 2G2.2(b)(3)(F), distribution of materials is considered a specific offense characteristic justifying a two level increase in the base offense level. If the Defendant's conduct had been limited to receipt or solicitation, he would have received a two level decrease. See U.S.S.G. § 2G2.2(b)(1). Under subsection (b)(6) of this section, two levels are added if the offense involved the use of a computer. The Defendant argues that both of these offense characteristics are present in the overwhelming majority of child pornography cases. Thus, [t]o say that, because a computer or the internet was used and that somehow makes the offense unusual of more offensive, has no logical foundation." (Sentencing Mem. 7, ECF No. 37.)
The Defendant's argument is, in essence, a claim that § 2G2.2(b)(3)(F) and (b)(6) result in double counting because "a characteristic that is shared by all instances of a crime is reflected in the base offense level for the crime and therefore is unavailable for use as an enhancement." United States v. Taylor, 620 F.3d 812, 815 (7th Cir. 2010); Rogers, 610 F.3d at 978; see also United States v. Tenuto, 593 F.3d 695, 697 (7th Cir. 2010) (stating that it is impermissible double counting to rely on conduct to enhance a guideline range where that same conduct was necessary to satisfy an element of the defendant's conviction). "[T]he use of an enhancement based on conduct that encompasses an element of the offense is double counting only if the offense itself necessarily includes the same conduct as the enhancement." United States v. Bell, 598 F.3d 366, 373 (7th Cir. 2010) (quotation marks omitted). The bar against this kind of double counting is "rooted in the fact that the conduct that satisfied an element of the underlying offense is already part of the base offense level. Thus, if that same conduct also enhances the sentence, the defendant is being punished twice for the same act." Tenuto, 593 F.3d at 697.
1. Computer Enhancement
Although a computer may be used in the majority of possession, receipt, and distribution of child pornography cases, computer use is not an element under 18 U.S.C. § 2252. Section 2252(a)(2) criminalizes receipt or distribution of child pornography by "any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate of foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails." 18 U.S.C. § 2252(a)(2). Likewise, subsection (a)(4) applies to the knowing possession of child pornography that "has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer." 18 U.S.C. § 2252(a)(4). The Defendant could have violated the statutes without using a computer. Thus, the statutes encompass more conduct than the enhancement covers. Accordingly, the use of the computer was not an element of the crime. Cf. Tenuto, 593 F.3d at 699 (holding that because the defendant's offense of transportation of interstate commerce by "any means" affecting interstate commerce did not require that he use a computer, such use was not an element of the offense but was merely one of the many ways that a defendant can satisfy the jurisdictional element); United States v. Lewis, 605 F.3d 395, 402-03 (6th Cir. 2010) (holding that application of two-level enhancement for use of a computer was not impermissible double counting for conviction under § 2252(a)(1) because the computer was only one means of transporting the depictions, not a required element of the crime). Application of § 2G2.2(b)(6), the enhancement for using a computer, does not represent double counting.
2. Distribution Enhancement
The Defendant pleaded guilty to possessing material depicting a child engaged in sexually explicit conduct, to receiving materials of such a nature, and of distributing such material. Sentencing guideline § 3D1.2(c) instructs that counts are grouped together "[w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in . . . the guideline applicable to another of the counts." Offenses covered by § 2G2.2 are to be grouped, U.S.S.G. § 3D1.2(d), to prevent double counting of offense behavior. The offense level applicable to a group is the level for the most serious of the counts comprising the group. U.S.S.G. § 3D1.3. Here, the violations of 18 U.S.C. § 2252(a)(2) for the Defendant's receipt and distribution of child pornography provide the highest base offense level, 22 points. From this base offense level, the Guidelines require either the application of an enhancement for distribution ranging from two to seven levels depending on the nature of the distribution, § 2G2.2(b)(3)(A)-(F), or a decrease of two levels for conduct limited to receipt or solicitation with no intent to distribute, § 2G2.2(b)(1).
The Defendant is challenging a resulting offense level that is expressly directed by the plain language of the Guidelines. "`Double counting is permissible unless the guidelines expressly provide otherwise or a compelling basis exists for implying such a prohibition.'" United States v. Beith, 407 F.3d 881, 888 (7th Cir. 2005) (quoting United States v. Harris, 41 F.3d 1121, 1123 (7th Cir. 1994)). According to the plain language of the Guidelines, a defendant must receive a base offense level of 22 pursuant to § 2G2.2(a)(2) unless his offense is one of four specific offenses that is set forth in subsection (a)(1) and carries a base offense level of 18. If his offense involved distribution, he must then receive one of the graduated enhancements under § 2G2.2(b)(3)(A)-(F). "Absent a clear statement by the Guidelines that such an element may not be used twice, we will apply the Guidelines as written." Beith, 407 F.3d at 888.
Additionally, application of the base offense level for § 2G2.2 does not fully account for the degree of harm caused by distribution of child pornography such that a subsequent enhancement for distribution would constitute double counting. First, according to § 2252(a)(2), it is a federal crime to knowingly receive or distribute any visual depiction that has been transported in interstate or foreign commerce when that visual depiction was produced using a minor engaging in sexually explicit conduct and depicts that conduct. The Government need only prove receipt or distribution, not both. Therefore, the offense itself does not necessarily include the same conduct as the distribution enhancement. Second, the applicable base offense level derived from § 2G2.2(a)(2) covers not only § 2252(a)(2) offenses, but numerous other exploitation of minor offenses, a number of which could be committed without any distribution. Therefore, distribution is not required to come within § 2G2.2(a)(2). See United States v. Reese, 2 F.3d 870, 895 (9th Cir. 1993) ("[T]he use of a single aspect of conduct both to determine the applicable offense guideline and to increase the base offense level mandated thereby will constitute impermissible double counting only where, absent such conduct, it is impossible to come within that guideline."). Unless the enhancement is applied, a defendant is not punished for the distribution aspect of his crime because the Sentencing Commission, in setting the base offense level for § 2G2.2(a), did not account for a defendant's distribution of child pornography. See, e.g., Beith, 407 F.3d at 888 (finding no double counting for enhancement under § 2A3.3(b)(2)(A) for the age of the victim because the Sentencing Commission in setting the base offense level for § 2A3.1 did not account for the victim's age). Cf. Tenuto, 593 F.3d at 697 n. 1 (determining that because the defendant pleaded to a charge of transporting, the distribution charge remained available for a sentencing enhancement). Because the specific harm of distribution is not already accounted for in the base offense level, and the Guidelines must be applied as a whole, Beith, 407 F.3d at 888, the application of § 2G2.2(b)(3)(F) does not result in double counting.
Here, unlike in Tenuto, one of the counts of conviction does involve distribution of the material. However, the footnote in Tenuto cannot be read to mean that the Guideline distribution enhancement is no longer available when the offense of conviction is based on distribution. See Tenuto, 593 F.3d at 697 n. 1 ("By prosecuting (and obtaining a guilty plea) for transporting child pornography, Tenuto's distribution of the material remained available for the two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F)."). This Court is cautious to read the Tenuto court's holding so expansively, especially where the court was not required to consider the structure of the Guidelines as they relate to child pornography offenses and, in particular, offenses under § 2252(a)(2). Moreover, such an extension of the Tenuto holding would lead to an absurd result: offenders who plead guilty to crimes of distribution would receive a lower offense level than those who plead guilty to non-distribution offenses but then have the distribution enhancement applied.
D. Application of Section 3553(a) Factors
When sentencing a defendant, the district court "must first calculate the Guidelines range, and then consider what sentence is appropriate for the individual defendant in light of the statutory sentencing factors, 18 U.S.C. § 3553(a)." Nelson v. United States, 129 S. Ct. 890, 891-92 (2009). In imposing a sentence, § 3553(a) requires a court to consider:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
(3) the kinds of sentences available;
(4) the advisory guideline range;
(5) any pertinent policy statements issued by the Sentencing Commission;
(6) the need to avoid unwarranted sentence disparities; and
(7) the need to provide restitution to any victims of the offense.18 U.S.C. § 3553(a). After considering these factors, a court must impose a sentence that is sufficient, but not greater than necessary, to satisfy the purposes of sentencing: just punishment, respect for the law, deterrence, protection of the public, and rehabilitation of the defendant.
In his Sentencing Memorandum, the Defendant asserts that he has been a responsible, hardworking, father with a minimal criminal history. He has sole custody of his insulin-dependent teenage son. Although his son is now being cared for by the Defendant's sister, his school performance has worsened and his emotional state has been affected by his father's incarceration. Regarding his offense, the Defendant states that for a period of time in early 2007, he downloaded child pornography to his computer. His home was searched in October 2007 and he was arrested in December 2009, with no involvement in child pornography in the intervening time from the search and his arrest. He states that he is not an aggressive person and there is no indication that he poses any risk of acting out in response to viewing child pornography. The Defendant cites to a report from Dr. Ross in an attempt to explain his involvement, but does not provide a copy of the report. The Defendant argues that he is not a danger to the community and, in support, notes that Child Protective Services returned his son to his care after conducting an investigation based upon his involvement with child pornography. The Defendant concludes that it is reasonable "to believe that a short period of incarceration followed by a period of supervised release would satisfy the needs of appropriate punishment, insuring the safety of the community, and allow [the Defendant] to reunite with his son in this critical period of his life and move forward in a positive direction without pornography as part of his life." (Sentencing Mem. 8.)
The Court will determine the sentence that is sufficient, but not greater than necessary, to comply with the purposes of punishment, after giving the Government and the Defendant an opportunity to address the Court and present evidence at the time of the sentencing hearing. To rule on these issues before the parties have been given such an opportunity to present information that has a sufficient indicia of reliability to support its probable accuracy would be premature.
CONCLUSION
To the extent that the Defendant's Sentencing Memorandum [ECF No. 37] asks the Court to find that the five level increase under Guideline § 2G2.2(b)(7)(D) is unconstitutional under the separation of powers doctrine, that the § 2G2.2(b)(7)(D) enhancement should not apply, and that the offense level enhancements for distributing material (§ 2G2(b)(3)(F)) and using a computer (§ 2G2.2(b))(6)) are double counting, these objections are OVERRULED. The Court will receive testimony and exhibits and hear argument in relation to the application of the sentencing factors under § 3553(a) at the time of sentencing.ENTERED: March 1, 2011.