Opinion
07 Cr. 247 (RWS).
June 2, 2008
SENTENCING OPINION
On November 8, 2007, Ransom Taylor ("Taylor" or "Defendant") pleaded guilty to one count of receiving and distributing materials containing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(B), (b)(1).
For the reasons set forth below, Taylor will be sentenced to: 1) a term of imprisonment of 60 months; and 2) a term of three years' supervised release. Given Taylor's financial condition, no fine will be imposed, however, he is ordered to pay a mandatory special assessment of $100, which shall be due to the United States immediately.
Prior Proceedings
Taylor was arrested on February 2, 2007. He was released on bond that same day. On March 30, 2007, the Government filed an information in this district charging Taylor with one count of receiving and distributing child pornography in violation of 18 U.S.C. §§ 2252(a)(2)(B) and (b)(1). Taylor pleaded not guilty that same day before the Honorable Gabriel W. Gorenstein. On November 8, 2007, Taylor changed his plea to guilty before the Honorable James C. Francis IV. On November 16, 2007, this Court accepted his plea. On March 14, 2008, Taylor was remanded to custody after he was found to be in violation of the conditions of his pretrial release.
The Defendant
The following is drawn from the Presentence Investigation Report ("PSR") prepared by the U.S. Probation Office. The Court adopts the specific facts regarding to Taylor's personal and family history as set forth in that report, and as supplemented by defense counsel's submission.
Taylor, now twenty-eight years old, was born in New Jersey on May 21, 1980. Prior to his incarceration, he was living with his mother in Yonkers, New York, and attending Bronx Community College, studying liberal arts and working towards his associate's degree. Taylor's mother, originally from Ghana, is employed by a bank, and is a deacon in an Episcopal Church. Taylor's parents are not married and he was raised by his mother. Taylor reports that he has no contact with his father or four paternal half-brothers. Taylor's mother reports that she remarried in 2007, but her husband, who was recently diagnosed with cancer, resides in Maryland, and they are currently working on plans to reside together.
As a child, Taylor excelled academically, and was accepted to the prestigious Bronx High School of Science, which he attended from 1994 until his graduation in 1998. According to the PSR, Taylor reports that his childhood was somewhat difficult, as he was "teased a lot" because of his good grades, the way he dressed, and the braces he wore on his teeth.
According to the PSR, "[t]he defendant's mother described Taylor to this officer as loving and sensitive. She remarked that he was very conscious of her finances while she was raising him as a single mother, and that he rarely asked her for anything. . . . According to [her], the defendant is shy and does not have many friends. She related that he has always been quiet and subdued; she said he hardly talks, and it is difficult for him to have a long conversation." Furthermore, Taylor's mother "lamented that she did not `know enough' to realize that her son had a social problem that could have been helped through therapy. She related that when he was in high school, she discouraged him from relying on medication. Through tears, she said she now regretted this." In a letter to the Court, also noted in the PSR, the Defendant's mother stated that the Defendant "is low-keyed an non-aggressive. Despite the crime he's charged with I can assure you that he is not a danger to himself or to society."
Taylor attended American University in Washington, D.C., on a scholarship, from the fall of 1998 until the spring of 2000. According to his counsel, in 1998, Taylor began to battle mental illness, and, although he sought psychiatric help at the university's counseling center, his academic performance suffered. As a result of his poor grades, Taylor lost his scholarship and voluntarily withdrew from the university in May 2000.
Taylor served in the United States Navy from February 5, 2001 until October 14, 2005, when he was honorably discharged after more than three years and nine months at sea. During his service, Taylor was awarded numerous commendations, including the National Defender Service Medal, the Armed Forces Expeditionary Medal, two Sea Service Deployment Ribbons, the Navy Good Conduct Medal, the Global War on Terrorism Service Medal, the Global War on Terrorism Expeditionary Medal, and two Navy Unit Commendations. After leaving the Navy, Taylor enrolled in Bronx Community College, where he made the Dean's List after his first semester. Prior to his incarceration, Taylor expected to graduate in May 2008.
Defense counsel has provided the Court with documentation from American University indicating that during the 1998-1999 academic year, Taylor sought and received psychological treatment approximately six times. The documentation further indicates that Taylor's condition worsened during his second academic year at American University, leading the university counseling center to recommend to him that he pursue psychiatric services from an outpatient provider in the D.C. area. According to Taylor, he became suicidal while at American University, and was eventually admitted for three days of inpatient treatment at a hospital in Bethesda, Maryland. Taylor reports that he was diagnosed with clinical depression and placed on antidepressant medication, and thereafter pursued treatment outside of the University.
In September 2006, Taylor began treatment at the Yonkers Veterans Affairs Clinic in Yonkers, New York. He reports that, prior to his incarceration, he had appointments with Vanessa Mejias-Hiraldo, M.D. once a week and a social worker every week or two. Dr. Mejuas-Hiraldo reported to the Probation Office that she prescribed medication for Taylor and that he was "compliant with weekly therapy sessions." She further reported that Taylor has "demonstrated an introverted and loner type personality with social immaturity and significant low self-esteem from his childhood" and that, based on clinical observations, Taylor did not appear to pose a risk to the community. According to the PSR, she recommended ongoing medication for depression, as well as continued therapy.
Taylor was referred by the Pretrial Services Agency to a sex-offender-specific mental health evaluation. The evaluation was performed by Thomas Hopkins, Ph.D., who met with Taylor on February 27, March 6, and March 13, 2007. In his report, Dr. Hopkins stated that Taylor "presents as a socially withdrawn and depressed individual." He stated that Taylor "acknowledges that he is very socially immature for a 26 year old." Dr. Hopkins diagnosed Taylor with depression and social anxiety and avoidant personality disorder. He concluded:
The data from his report reveal a troubled young man who has endorsed items of suicidal ideation. Prior and current history support the view of an individual who is not successful in his social interactions with age appropriate peers.
There is no evidence that Ransom Taylor is a high risk to endanger minors. In point of fact, there is more evidence that he could be self destructive by pursuing his interest in child pornography. This would validate his view that he is a "bad person".
Taylor continued to see Dr. Hopkins once a week prior to his being remanded. In a letter to the Probation Office dated March 24, 2008, Dr. Hopkins stated:
Ransom Taylor attends his psychotherapy sessions faithfully and is very involved. He lives a lonely, isolated life, mainly playing video games. Sometimes his sessions are emotional. Tears are evoked by discussions of his impending incarceration; how much he has disappointed his mother and his family in Ghana; and his conviction that even after incarceration his life will not improve. . . .
In my opinion he has arrested psychosexual development which has been exacerbated by a severe social anxiety. This individual in spite of his positive assets suffers from low self esteem; a long-term depression; and a self-defeating script in which he is unable to relate to his peer group.
Mr. Taylor has made several allusions to suicide as the response to the failure of his life. In addition, his adjustment to incarceration may not go well. It is important that supervising authorities be informed of his risk potential.
In my opinion there is no evidence that Mr. Taylor has a primary interest in prepuberty children. He is not a pedophile. Mr. Taylor would be considered a low risk to offend with underage minors.
Mr. Taylor's ability to relate to his peer group has not substantially improved. . . . This is not a choice. He has interest in meeting and relating to age-appropriate females e.g. at college. His severe social phobia; inadequate social skills; and low self esteem have crippled this impulse.
At the request of Taylor's counsel, Taylor was subsequently evaluated by Marc Janoson, Ph.D., who met with Taylor on May 10, May 18, and May 31, 2007. According to Dr. Janoson's report, Taylor speculated that his behavior "stems in part from growing up without a father and getting little attention from female peers as an adolescent/young adult." According to Dr. Janoson, "Objective tests indicate unequivocally that [Taylor] is not psychopathic. He has excellent academic, career, and personal goals. He is genuinely remorseful and takes responsibility for what he has done." Moreover, "[H]e hopes to change. He takes responsibility for what he did." According to the PSR, Taylor reported to Dr. Janoson no incidents of involvement with "actual children."
Dr. Janoson administered numerous psychological tests, and reported that all of the objective evidence collected indicated that Taylor is not a psychopathic personality. According to Dr. Janoson, "Mr. Taylor should be regarded as being at low risk of enacting inappropriate sexual impulses." Dr. Janoson reported that Taylor: "1) has never acted out a fantasy relating to children; 2) never intended to involve children in his fantasies; 3) is not psychopathic but it, in fact, guilt-ridden; 4) takes responsibility for his actions; 5) wants to change his fantasy life; 6) realizes that children are exploited in these videos; 7) knows he needs intensive, long-term therapy; 8) hopes to learn to socialize with people and to emerge from his isolated and introverted life style; 8) [his] distress is accompanied by good behavioral and emotional controls."
"In addition to low self-esteem," wrote Dr. Janoson, "Mr. Taylor is socially isolated and feels alienated from his peers. He is an introvert with a history of severe depression. . . . He is genuinely remorseful and takes responsibility for what he has done." Dr. Janoson concluded that Taylor is experiencing a high level of distress, has intact behavioral control, has a below-average level of predatory aggression, has "a cluster of personality characteristics" that are favorable for persistence and change in psychotherapy, and is "in dire need" of both long-term psychotherapy and appropriate adult heterosexual relationships. Dr. Janoson stated, "There is no need to protect the community from Mr. Taylor. He should be allowed to resume his life. Mr. Taylor needs a therapeutic environment and jail/prison is not a therapeutic environment. In fact, incarceration might lead to psychological and developmental stagnation and/or to psychological decompensation on his part."
The Offense Conduct
The following is drawn from the PSR.
On January 18, 2006, a postal inspector with the U.S. Postal Inspection Service, located outside New York State and acting in an undercover capacity (the "UC"), posted an advertisement on the Internet in an area which had been identified by past criminal investigations as a place to exchange information associated with child pornography. The advertisement read:
I wanted to create a private group where those of us with unique interests can discuss and share our experiences and collections of adventures without fear of persecution from those who do not understand us. I'd like to see and talk about what you out there are doing. I have pics that I have taken and vids that I've collected. I'm willing to trade or sell for yours. I am over 18 you and I can honestly say I am not in law enforcement.
On June 24, 2006, a person later identified as Taylor responded to the advertisement, stating, "Also have pics and vids to trade." On July 10, 2006, the UC sent Taylor a list of five videos, all of which described some form of child pornography. On July 11, 2006, Taylor sent an email response to the UC in which he stated, "I will send you 20 vids and $50 for #3, #4, and #5. . . . I will email you the vids starting with this one." Attached to Taylor's email was a video file entitled "vicky_10_yr_old_orgasm.mpeg."
In a series of additional emails sent to the UC's email account, Taylor reported having sent payment to the post office box provided by the UC, and he arranged for the delivery of the aforementioned videos containing child pornography. The UC received a letter via U.S. mail containing a $50 U.S. Postal Service money order. The money order contained a note on the subject line which read "DVDs #3, 4, and #5."
On September 8, 2006, after the issuance of a search warrant, postal inspectors conducted a controlled delivery of the videos to Taylor's residence, and after Taylor took possession of the videos, law enforcement agents executed the search warrant. As part of the search, agents seized a computer hard drive and computer media. During the execution of the warrant, Taylor admitted to both ordering and receiving videos containing child pornography and having sent the images attached to his emails. He also identified a computer as the one that he used and stated that it would contain movie files of child pornography. Law enforcement agents performed a search of the content of the computer hard drive and media seized and found approximately seven still images and more than 40 videos of child pornography (according to the PSR, the case agent stopped counting at 40). Defense counsel asserts that "pursuant to both Mr. Taylor's email to the UC, and a later hand-written statement, the actual amount was less, between 20 and 30 videos."
As a condition of his pretrial release, Taylor was prohibited from accessing the Internet. On March 6, 2008, this Court approved the issuance of a bench warrant, and on March 14, 2008, Taylor was remanded to custody for violating that prohibition, as his supervising Pretrial Services Officer reported that in January 2008, he had access websites with sexually explicit content, some of which focused on children.
The Relevant Statutory Provisions
The minimum term of imprisonment for Count I is 5 years, with a maximum term of twenty years, pursuant to 18 U.S.C. §§ 2252(a)(2)(B) and (b)(1). The maximum term of supervised release is life, pursuant to 18 U.S.C. § 3583(k). The maximum fine is $250,000, pursuant to 18 U.S.C. § 3571(b)(3). Taylor is not eligible for probation, pursuant to 18 U.S.C. § 3561(a)(2), as probation has been precluded by statute.
This reflects the version of the statute in effect when the instant offense was committed.
Pursuant to 18 U.S.C. § 3013, a special assessment of $100 per count is mandatory.
The Guidelines
The November 1, 2007, edition of the United States Sentencing Commission Guidelines Manual (as updated by the May 1, 2007 Supplement) (the "U.S.S.G." or the "Guidelines") has been used in this case for calculation purposes, pursuant to U.S.S.G. § 1B1.11.
The sentencing guideline applicable to the offenses charged in the indictment is U.S.S.G. § 2G2.2.
According to the Probation Office, pursuant to U.S.S.G. § 2G2.2(a)(2), Taylor's base offense level is 22. To the base offense level, the PSR adds:
a) two (2) levels, pursuant to U.S.S.G. § 2G2.2(b)(2), on the basis that the offense involved a prepubescent minor or a minor who had not attained the age of twelve years;
b) five (5) levels, pursuant to U.S.S.G. § 2G2.2(b)(3)(B) and Application Note 1, on the basis that the offense involved distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain;
c) four (4) levels, pursuant to U.S.S.G. § 2G2.2(b)(4), on the basis that the offense involves material that portrays sadistic or masochistic conduct or other depictions of violence.
d) two (2) levels, pursuant to U.S.S.G. § 2G2.2(b)(6), on the basis that the offense involved the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the material; and
e) five (5) levels, pursuant to U.S.S.G. § 2G2.2(b)(7)(D) and Application Note 4(B)(ii), on the basis that the total number of images possessed by the Defendant was more than 600.
After arriving at an adjusted offense level of 40, the PSR recommended a three (3) level reduction, pursuant to U.S.S.G. § 3E1.1(a) and (b), for the Defendant's acceptance of responsibility, based on his plea allocution, and for his timely notification of his intent to plead guilty.
The PSR therefore recommends an adjusted offense level of 37, which carries a sentencing range of 210 to 240 months' imprisonment.
The Government concurs in the Probation Office's offense level calculation, despite its earlier notification to the Defendant, in the Government's Pimentel letter, that it believed the appropriate offense level to be 34, which yields a sentencing range of 151-188 months' imprisonment. In its Pimentel letter, the Government, rather than adding five levels for distribution for receipt of a thing of value, pursuant to U.S.S.G. § 2G2.2(b)(3)(B), added two levels for distribution of child pornography, pursuant to U.S.S.G. § 2G2.2(b)(3)(F). The Government has not explained its decision to endorse the Probation Office's higher adjusted offense level calculation, other than to say that the Pimentel letter included a statement that "the Government's estimate was not binding and was subject to change" and that the Government "does not object to the PSR's higher, and more accurate, guidelines calculation." Govt.'s Sent. Mem. at 6. Moreover, to the extent that Taylor disputes the enhancements for the age of the minors and the number of images, the Government seeks to deny him the three level reduction for acceptance of responsibility, resulting in an offense level of 40 and a Guidelines range of 292-365 months' imprisonment, albeit subject, the Government notes, to the statutory maximum of 240 months' imprisonment. Id.
Defense counsel objects to the Government's guidelines enhancements based on the presence of prepubescent minors in the videos, pursuant to U.S.S.G. § 2G2.2(b)(2), the distribution for receipt of a thing of value, pursuant to U.S.S.G. § 2G2.2(b)(3)(B), and the possession of more than 600 images, pursuant to U.S.S.G. § 2G2.2(b)(7)(D). More specifically, counsel asserts that as there has been no discovery, there is no basis to conclude that the descriptions of the videos at issue accurately describe the age of the children therein; that the evidence does not support the Government's assertion that the offense involved more than 600 images; and that the enhancement for distribution for receipt of a thing of value is improper given that a Report of Investigation prepared by the Department of Homeland Security, Immigration and Customs Enforcement, indicates that Taylor received this video for free, and pursuant to an interview conduct by law enforcement following the execution of the search warrant, Taylor advised that any other child pornography in his possession had been received for free.
"The government must prove and the district court must find a fact relevant to sentencing by a preponderance of the evidence." United States v. Proshin, 438 F.3d 235, 238 (2d Cir. 2006) (per curiam) (citation omitted). With regard to the § 2G2.2(b)(2) enhancement based upon the age of the minors in the images at issue, the Court does not believe that the Government has met its burden. The plea allocution did not include any mention of the age of the children in the images, and, beyond offering the images to the Court for its review, the Government has not provided any evidence of the age of the children.
With regard to the enhancements for the number of images, the Court finds that the Government has not met its burden and will therefore impose a three level enhancement for conduct involving at least 300, but less than 600, images, pursuant to U.S.S.G. § 2G2.2(b)(7)(C). Even accepting the Government's assertions that agents discovered at least 40 videos on Defendant's computer media, each considered to contain 75 images, pursuant to U.S.S.G. § 2G2.2, Application Note 4(B)(ii), the Government has thus demonstrated that Taylor possessed more than 600 images, but has not offered any evidence of when or how Taylor received, or if he distributed, those images. Given the Government's decision to charge Taylor with receipt and distribution, rather than possession, the Court finds that the only images that can be counted as "involved" in the instant offense are those exchanged with the UC, which, given the evidence before the Court, total no more than 300.
With regard to the enhancement for distribution for the receipt of a thing of value, the enhancement is appropriate. The offense conduct, as described above and as outlined in the PSR, as well as in the Defendant's sentencing memorandum, indicates that Taylor intended to send the video in exchange for the UC's videos. U.S.S.G. § 2G2.2, Application Note 1, makes clear that this enhancement was intended to apply to situations involving "bartering" of child pornography such as that which took place in the instant case.
In accordance with the above, the applicable Guidelines offense level is 34.
Based upon the information available to the Government, the Defendant has no criminal history points. Accordingly, the Defendant is in Criminal History Category I.
Based upon the calculations set forth above, the Defendant's guidelines sentencing range is 151-188 months' imprisonment.
Under the Guidelines, Taylor is not eligible for probation, pursuant to U.S.S.G. § 5B1.1(b)(2). The applicable fine range is $17,500 to $175,000, pursuant to U.S.S.G. § 5E1.2(c)(3).
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553(a), including the now-advisory Guidelines established by the United States Sentencing Commission. As the Supreme Court explained in Gall v. United States, 128 S. Ct. 586, 596 (2007):
[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. See [Rita v. United States, 551 U.S., at, 127 S. Ct. 2456 at 2480 (2007)]. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume that the Guidelines range is reasonable. He must make an individualized assessment based on the facts presented.Id. (internal citation and footnote omitted).
Thus, in addition to the above analysis of the Guidelines, the sentence to be imposed here is the result of a consideration of:
(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 kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.18 U.S.C. § 3553(a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not. See Crosby, 397 F.3d at 111.
In light of the Court's statutory responsibility "to `impose a sentence sufficient, but not greater than necessary' to accomplish the goals of sentencing," Kimbrough v. United States, 128 S. Ct 558, 571 (2007), and having considered the Guidelines and all of the factors set forth in § 3553(a), it is determined that a non-Guidelines sentence is warranted in the instant case.
In Kimbrough, the Supreme Court stated that although the Sentencing Commission "has the capacity courts lack to `base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise,'" id., 128 S. Ct. at 574 (quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007) (McConnell, J., concurring), the crack cocaine guidelines did "not exemplify the Commission's exercise of its characteristic institutional role" as "[i]n formulating Guidelines ranges for crack cocaine offenses . . . the Commission looked to the mandatory minimum sentences" set by Congress "and did not take account of `empirical data and national experience.'" Id. Similarly, the Sentencing Commission's setting of offense levels for sex offenses has been driven by "frequent mandatory minimum legislation and specific directives to the Commission." United States Sentencing Commission, Fifteen Years of Guidelines Sentencing at 72-73 (Nov. 2004) (cited in United States v. Bennett, No. 07 Cr. 235, slip op. at 7 (D. Neb. May 30, 2008) (Batallion, C.J.). Thus, "the Guideline ranges of imprisonment for those crimes are a less reliable appraisal of a fair sentence," and therefore, "[i]n cases involving application of Guidelines that do not exemplify the Commission's exercise of its characteristic institutional role . . . it is not an abuse of discretion for a district court to conclude when sentencing a particular defendant that application of a guideline will yield a sentence `greater than necessary' to achieve the purposes set out in § 3553(a)." Bennett, slip op. at 7-8.
Given the nature and circumstances of the offense and the history and characteristics of the Defendant, as set forth above, a sentence within the Guidelines range is draconian. Taylor is a young man with no criminal record and, as explained above, a documented history of depression, which he is clearly committed to addressing, as he has evidenced through his documented attempts to receive treatment and compliance with his most recent treatment plan. Moreover, both psychiatrists whose evaluations have been submitted to the Court have made clear that Taylor poses no threat to minors or to the community at large. Dr. Janoson has asserted, and the Court agrees, that incarceration will, in fact, be more detrimental to Taylor than it will be rehabilitative, and that if offered the appropriate therapeutic environment, Taylor could flourish. Given all of the evidence before me, I am convinced that a lengthy period of incarceration is both unnecessary and unwise.
However, in imposing a sentence, I am bound by the judgment of Congress that the offense conduct charged ought to, in all circumstances and regardless of the personal history of the Defendant, warrant a mandatory minimum sentence of at least five years' incarceration. I am also restrained as a result of the charging decision made in this by the Government which, despite its assertions that it is sympathetic to the Defendant's mental state, persists in its advocacy for a sentence of 18 to 20 years, irrespective of the Probation Office's statement that a sentence within the 210 to 240 months range would be "somewhat draconian for this defendant," and its recommendation of a term of imprisonment of 144 months.
A review of relevant cases has been undertaken in connection with this sentencing, and it appears that other Defendants accused of similar conduct have been charged with only possession, which does not carry a mandatory minimum period of incarceration. Unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct can result from charging decisions. For example, in one of the cases cited by the Government in support of a Guidelines sentence, U.S. v. Vuotto, 05 Cr. 1179 (Swain, J.), the Government initially filed an indictment charging the Defendant with receipt and distribution, but later filed a superceding indictment reducing the charge to possession, liberating the defendant from the five-year mandatory minimum. In sentencing the defendant in that case, a 59-year old male defendant, to 70 months' imprisonment, the court noted that the defendant had engaged in "explicit dialogue with the undercover regarding desire for sex with children and supposed encounter with a child," which, although the court accepted as mere fantasies, was an indicator of behavior beyond that which is "merely voyeuristic," an indicator which is absent in the instant case. Sent. Tr. at 24-25.
In United States v. Walker, No. 06 Cr. 732 (Preska, J.), a 49-year-old defendant who was charged with receipt and who admitted to collecting child pornography over a period of years pled to possession and received a sentence of one year and one day.
In a case cited by the Defendant, U.S. v. Saloy, No. 06 Cr. 766 (JFB), the defendant, a 46-year-old former priest who the court found had engaged in "sexual online chats" with minors and whose offense conduct "took place over a period of one and one half years," which the court found to be a "substantial period of time," was sentenced to 41 months' imprisonment.
The nature of the defendants' offense conduct and personal histories in the cases cited by the Government further indicate that a sentence within the Guidelines range would be unnecessarily harsh in this case. For example, in United States v. Sullivan, No. 06 Cr. 255 (Castel, J.), a 59-year-old defendant with a history of sexually abusing his niece was sentenced to 97 months' imprisonment. In United States v. Cuevas, No. 05 Cr. 894 (Chin, J.), a defendant with a Guidelines range of 151-181 months' imprisonment who had possessed over 2000 images of child pornography, and who the court found had induced minors to visit his apartment, was sentenced to 96 months' imprisonment.
The mandatory minimum sentence of five years is, in my view, under the circumstances, greater than necessary, to comply with the purposes set forth in 18 U.S.C. § 3553, but it is nonetheless, by definition, mandatory. The exploitation of children is a heinous and acute problem, and regardless of the fact that the Defendant did not produce any of the videos in his possession, the distribution of child pornography is not a victimless crime. In this case, five years' incarceration, followed by three years' supervised release, as well as the various post-incarceration restrictions, including registration requirements, that are statutorily imposed upon Defendants convicted of such offense conduct, is required, and is sufficient to comply with the purposes set out in 18 U.S.C. § 3553, including the need to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, and to protect the public from future crimes of the Defendant.
The Sentence
For the reasons set forth above, Taylor will be sentenced to: 1) a term of imprisonment of 60 months; and 2) a term of three years' supervised release. In consideration of the factors set forth in 18 U.S.C. § 3572(a), no fine will be imposed. A special assessment of $100 is mandatory and shall be due to the United States immediately.
As mandatory conditions of his supervised release, Taylor shall:
(1) not commit another federal, state or local crime;
(2) not illegally possess a controlled substance;
(3) not possess a firearm or destructive device;
(4) cooperate in the collection of DNA as directed by the probation officer.
(5) register with the state sex offender registration agency in any state in which the Defendant resides, is employed, carries on a vocation, or is a student, as directed by the probation officer. The Defendant shall adhere to the registration and notification procedures of the state in which the Defendant resides.
The Defendant will comply with the standard conditions of supervision, along with the following special conditions:
The Defendant shall undergo a sex-offense-specific evaluation and participate in a sex offender treatment and/or mental health treatment program approved by the probation officer. The Defendant shall abide by all rules, requirements, and conditions of the sex offender treatment program(s), including submission to polygraph testing. The Defendant will be required to contribute to the costs of services rendered in an amount approved by the probation officer, based on ability to pay or availability of third-party payment.
The Defendant shall not have deliberate contact with any child under 17 years of age, unless approved by the probation officer. The Defendant shall not loiter within 10 feet of schoolyards, playgrounds, arcades, or other places primarily used by children under the age of 17.
The Defendant is not to use a computer, Internet-capable device, or similar electronic device to access child pornography or to communicate with any individual or group for the purpose of promoting sexual relations with children. The Defendant shall consent to the use and/or installation of a computer program which shall monitor suspect computer use on any computer owned or controlled by the Defendant. The program(s) used will be designed to identify, for the probation office, only the viewing, downloading, uploading, transmitting, or otherwise using of any images or content of a sexual nature, defined as Suspect Computer Use. Suspect Computer Use shall be identified by the installed program(s) and or the probation officer through the screening of the Defendant's computer usage for certain key words, phrases, and images.
Taylor will report to the nearest Probation Office within 72 hours of release from custody. It is recommended that the Defendant be supervised by the district of his residence.
The terms of this sentence are subject to modification at the sentencing hearing set for June 3, 2008.
It is so ordered.