Case 3:13-cr-00021-NKM Document 48 Filed 07/10/14 Page 1 of 34 Pageid#: 311

IN THE
UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

UNITED STATES OF AMERICA

v.
MICHAEL G. MORRIS
a/k/a Funshooter2006

)
)
) Criminal No. 3:13CR00021-001
)
)
)

GOVERNMENT'S MEMORANDUM IN SUPPORT OF SENTENCING

The United States hereby submits this memorandum in support of its position on
sentencing and to respond preliminarily to the defendants sentencing memorandum.
Defendant, Michael G. Morris, faces sentencing after pleading guilty before this
Court on April 21, 2014, without a written plea agreement, to two counts of distribution
of child pornography, in violation of 18 U.S.C. 2252(a)(2) and 2252(b)(1), and one
count of possession of child pornography, in violation of 18 U.S.C. 2252(a)(4)(B) and
2252(b)(1). He faces a statutory mandatory minimum of 5 years of imprisonment and a
maximum of 20 years imprisonment for each of the distribution counts and a maximum
of 10 years for the possession count. In total, the defendant faces a statutory minimum of
5 years and a potential maximum sentence of 50 years, to be followed by a period of
supervised release between five years and life.1

According to the Presentence

The Guidelines recommend lifetime supervision for sex offense convictions. See U.S.S.G. '
5D1.2(b)(2)(Policy Statement). See also 18 U.S.C. ' 3583(k) (for any offense under section 2252A, the authorized
term of supervised release is any term of years not less than 5, or life.).

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Investigation Report, the defendants Sentencing Guidelines calculations result in an

advisory guidelines imprisonment range of 151 to 188 months. He also faces a potential
fine, restitution, and forfeiture.
In light of facts that demonstrate the defendant was an eager and persistent
consumer of child pornography who engaged in activity well beyond the possession and
observation of images depicting the sexual abuse of children, the United States
respectfully requests that this Court sentence the defendant to a sentence between the low
end and middle of the Guidelines range as set forth more fully below.
FACTUAL BACKGROUND
Beginning in or about November of 2007 and continuing through November of
2013 the defendant was a user of Gigatribe, a publicly available peer-to-peer file sharing
network that establishes private network connections between users. Gigatribe provides
users with a password protected account and a profile page. A user [of Gigatribe] is not
able to see or access another users files unless: 1) one user has invited the other and the
other has accepted the invitation; and 2) the other user maintains a shared folder,
accessible to friends, that is populated with files. United States v. McManus, 734 F.3d
315 (4th Cir. 2013). Ultimately, Gigatribe allows users to securely download and share
files, as well as chat, through an encrypted network. There are different types of accounts
Gigatribe users can create based on the type of services they are interesting in utilizing.
The standard account type is free of charge. The defendant, however, paid for an
ultimate account which allows a user to add more friends than the standard account and
also provides password protection for folders. The defendant had numerous Gigatribe
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friends.
The investigation began on January 6, 2012, when an undercover agent of the
Federal Bureau of Investigation (FBI), logged onto Gigatribe and connected with the
defendant, who was using the account name Funshooter2006. The defendant then
initiated a chat conversation with the undercover.

During this conversation, the

defendant asked if the undercover shared the passwords to his locked folders and the
undercover answered generally . . . usually with an exchange of vids. The defendant
then replied I have a full folder of vids . . . what are you into? The undercover said
girls, teen stuff mostly and the defendant responded, cool . . . same here. Let me
move you into my other group if you wanna share . . . can I check yours out too?
The undercover initially noted that the defendant had one main folder titled
Shared which contained 261 subfolders. The Shared folder included titles associated
with pornography, but there was no clear indication of the presence of child pornography
based on the titles. After the defendant moved the undercover into the other group that
the defendant referenced during the chat, the undercover noted the existence of two
previously unseen folders entitled Share-2 and videos.

The videos folder

contained over 3,000 files of pictures and videos with titles commonly associated with
child pornography, such as 14yo deep throat, ptsc (pre-teen soft core) and pthc
(pre-teen hard core). A search of the folder for pthc returned 31 matching files. At that
time, the undercover downloaded six (6) videos from the defendants files that constitute
child pornography under the statutory definition. Five (5) of these videos depicted
images of minor girls, who appeared to be between the ages of 10 and 17, engaging in
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sexual activity with adults.

Again, on March 19, 2013, the FBI undercover agent logged onto Gigatribe. At
that time, the defendant was sharing a folder that included more than 4,000 files. Many
of the video files within that folder had names commonly associated with child
pornography, and the undercover downloaded several files consisting of hard core
material that met the definition of child pornography. One such video file that the
undercover downloaded and viewed was named !NEW! (pthc) Nata-Cumshot.avi. This
video depicts a prepubescent girl, approximately 10 years of age, performing oral sex on
an adult male.
On November 6, 2013, federal agents executed a search warrant at the defendants
residence in Crozet, Virginia, and arrested the defendant. The defendant was the sole
person in the residence. Federal agents seized multiple laptop computers and digital
storage devices. A forensic examination of the computers and storage devices showed
that the defendant had downloaded and stored hundreds of videos images depicting
minors engaged in sexually explicit conduct.
The defendant was interviewed, post-Miranda by investigators. In part, he
admitted using Gigatribe a couple of times per week, that his account name was
Funshooter2006, that he chatted on Gigatribe, and that he had separate Gigatribe
groups for sharing and not sharing. He further admitted having child pornography on his
computers. The defendant also acknowledged that he had viewed images of children
from approximately ages 3 to 5 years old on the network probably having sex.
Although he claimed to often be disgusted by child pornography images and claimed that
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he deleted certain terrible material, the defendant admitted that he masturbated to child
pornography a couple of times per month.
The defendant agreed to undergo a polygraph examination and was Mirandized
again and interviewed before and after the examination. Prior to the examination, the
defendant denied engaging in sexual contact with a minor as an adult but made certain
admissions. He stated that he began viewing pornography that contained images of
minors approximately 15 years prior and stated that his age preference, when viewing the
images for sexual purposes, was around 14 or 15 years old, up to persons in their 40s.
After the polygraph examination, the defendant made further admissions. He stated that
he would often fantasize about having sex with adolescent girls and masturbated to
thoughts of having sex with them and stated further that he desired to have sex with them;
he claimed that these fantasies typically occurred when he had been viewing
pornographic images of minors.

More significantly, he admitted that beginning

approximately five years prior, he had interacted with minors on various websites, He
admitted that during online video chat sessions with persons he believed to be minors,
likely as young as 14 or 15 year old, he and the other person typically directed each other
to undress and to masturbate. The defendant stated that he engaged in these online video
chat sessions approximately once a month with females from ages fourteen to fifteen
years old. He further admitted that during online communications with others, where no
video function was employed, that he would engage in dirty talk with others and would
often pretend to be a 16- or 17-year old girl or minor boy.

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During his subsequent transportation to the Federal Building in Roanoke for his
initial appearance, the defendant reiterated to investigators some of the information that
he had shared with the polygrapher, admitting that he had enticed minor females to
masturbate for him on webcam.

The defendant further admitted downloading and

sharing with others during chat sessions videos of 16 to 17 year old girls masturbating.
The defendant stated that his age preference was fourteen to sixteen year old girls
but that he had seen and downloaded child pornography files depicting younger children.
A forensic review of his collection indicated a tendency toward older minors but it also
included a significant number of images of prepubescent minors being penetrated by
adult males and sadistic and masochistic images, including depictions of bondage and the
threat of physical violence. In addition, the forensic review revealed numerous chat
sessions with like-minded individuals.
PRESENTENCE REPORT
The Presentence Investigation Report (PSR) prepared by the Probation Office
calculates the offense level at 37. Because the defendants conduct involved distributing
the material involving the sexual exploitation of a minor, the base offense level is
correctly set at 22, pursuant to U.S.S.G. 2G2.2(a)(1). The material possessed and
distributed by the defendant included images of prepubescent minors or minors under the
age of 12, which requires that two levels be added pursuant to U.S.S.G. 2G2.2(b)(2).
Although the defendant did not distribute the material for pecuniary gain, he distributed
images depicting the sexual abuse of minors through the use of a peer-to-peer file sharing

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network on which he knowingly allowed others to download from his shared folder.2 This
conduct requires the base offense level be increased by at least two levels, pursuant to
U.S.S.G. 2G2.2(b)(3)(F). The Defendant also possessed and distributed material that
portrayed sadistic or masochistic conduct or other depictions of violence, which requires
a four-level increase pursuant to U.S.S.G. 2G2.2(b)(4).

In addition, the offense

involved the use of a computer or an interactive computer service for the possession and
distribution of child pornography and must be increased by two levels pursuant to
U.S.S.G. 2G2.2(b)(6). Finally, because the offense involved well over 600, the offense
level must be increased by five levels pursuant to U.S.S.G. 2G2.2(b)(7)(D). After a
three-level decrease for acceptance of responsibility, U.S. Probation Officer Michael
Sheffield calculated the defendants total offense level as 34. Because the defendant had
no criminal history, and was properly placed in Criminal History Category I, the PSR sets
forth a guidelines range of imprisonment of 151 188 months.
Potential Additional Enhancements
Five- vs. two-point distribution enhancement
As set forth in objections to the PSR that were submitted by the United States, the
defendants conduct may justify a five-point increase, pursuant to U.S.S.G.
2

Two subdivisions of U.S.S.G. '2G2.2(b) are frequently applied in cases involving the use of peer-to-peer
software: a five-point distribution for distribution for the receipt or expectation of receipt of a thing of value (but not
for pecuniary gain) under 2G2.2(b)(3)(B); see, e.g., United States v. Strieper, 666 F.3d 288 (4th Cir. 2012); United
States v. McVey, 476 F.Supp.2d 560 (E.D.Va. 2007); United States v. Geiner, 498 F.3d 1104, 1108-12 (10th Cir.
2007); and a two-point distribution under Section 2G2.2(b)(3)(F); see, e.g., United States v. Layton, 564 F.3d 330,
334-335 (4th Cir.), cert. denied, 130 S.Ct. 290 (2009); cf. United States v. Shaffer, 472 F.3d 1219 (10th Cir.
2007)(defendant distributed child pornography by allowing access to files on a file-sharing program; court
analogized to self-service gas station; distribution under 18 U.S.C. ' 2252A(a)(2) has no element of intent to
distribute). In a recent case, United States v. McManus, 734 F.3d 315 (4th Cir. 2013), the Fourth Circuit found that
use of Gigatribe did not per se merit a five-point distribution enhancement.

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2G2.2(b)(3)(B), which applies to distribution for the receipt, or expectation of receipt,

of a thing of value, but not for pecuniary gain. Although the Fourth Circuit has recently
held that simply using Gigatribe is insufficient conduct to trigger the enhancement under
2G2.2(b)(3)(B), the Court suggested that some additional indication of a defendants
intent may be sufficient. See United States v. McManus, 734 F.3d 315, 319-20 (4th Cir.
2013).

The Fourth Circuit therein stated that in order to merit the five-point

enhancement, the government must prove that the defendant distributed pornography
with the specific purpose of securing some kind of benefit in exchange [and] show
that the defendant conditioned his decision to distribute his files on his belief that he
would receive something of value in return.

Id. at 319.

In other words, the

Government must show that the defendant: 1) knowingly made child pornography in his
possession available to others by some means, and 2) made his pornographic materials
available for the specific purpose of obtaining something of valuable consideration, such
as more pornography, whether or not he actually succeeded in obtaining the desired thing
of value. Id. The Court suggested that the government could show the requisite mental
state via a defendants communications with other users but noted that such evidence had
not been presented in that case. See id. at 322, 317.
Unlike the apparent lack of evidence in the McManus case, as set forth above,
during the first interaction between the undercover agent and the defendant, the defendant
stated that he would transfer the undercover into his other group if the undercover
wanted to share and asked to checkout the undercovers alleged files. The logical
interpretation of this exchange is that the defendant distributed child pornography with
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the expectation of receiving more child pornography. The Sentencing Guidelines make
clear that a thing of value may be anything of valuable consideration, including child
pornography. See U.S.S.G. 2G2.2, Application Note 1. Additionally, during his postMiranda statements to investigators, the defendant admitted he had separate Gigatribe
groups for sharing and not sharing (and was further in a Gigatribe group called Teen Vid
Trade, which he characterized as the group having the worst stuff and stating that
members of this group had child pornography videos depicting young children).
Pattern of Abuse
Additionally, as also set forth in objections to the PSR that were submitted by the
United States, the defendants conduct may justify a further five-point enhancement for
pattern of abuse or exploitation pursuant to U.S.S.G. 2G2.2(b)(5). As set forth more
fully above, the defendant admitted to enticing minor females to masturbate during online
video chats. The guidelines define sexual abuse or exploitation by reference to statutes,
including to 18 U.S.C. 2251(a), which defines sexual exploitation as enticing any minor
to engage in sexually explicit conduct for the purpose of producing or transmitting a live
visual depiction of such conduct. 18 U.S.C. 2251(a). Under the statutory definition,
the defendant admitted to conduct meeting the standard for this enhancement.
UNITED STATES= SENTENCING POSITION
As presently calculated by the U.S. Probation Office, the defendant=s advisory
sentencing guidelines range is 151 to 188 months. The defendant pled guilty in this court
but did not enter into a plea agreement. Contrary to the defendants unsubstantiated
assertion that this is a mine run offense and less serious than the offenses Congress
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had in mind, see, e.g., Defendants Sentencing Memorandum, pp. 13, 14, 19, the
defendants offenses (and relevant conduct), as set forth above, establish that he was not
only a rather active participant in a significant child pornography trading network, but
also acted on his deviant interests in other ways, including by communicating with and
enticing minors to engage in sexual conduct online. At the very least, the defendants
behavior appears to fall in the heartland of child pornography trafficking cases.
Consequently, considering all of the defendant=s behavior and the goals of 18 U.S.C. '
3553(a), the United States believes the defendant has earned a sentence within the
guidelines range and that such a sentence would be appropriate.
Nature and Circumstances of the Offense and
the History and Characteristics of the Defendant
Between approximately February 2009 and February 2010, the National Drug
Intelligence Center (NDIC) prepared a threat assessment to evaluate the current and
developing extent and forms of child exploitation. NDIC interviewed over a hundred
prosecutors, investigators, and other experts in the field; conducted interviews to collect
information; reviewed thousands of pages of documents from investigations, cases, and
relevant research; and analyzed data from the National Center for Missing & Exploited
Children. The United States Department of Justice and the Library of Congress have also
gathered and reviewed an extensive amount of studies and research relevant to the field
of child exploitation.
See The National Strategy for Child Exploitation Prevention and Interdiction: A Report
to Congress, United States Department of Justice, August 2010.

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http://www.justice.gov/sites/default/files/psc/docs/natstrategyreport.pdf.
The threat assessment research indicates that the threat to our nations children of
becoming a victim of child exploitation is a very serious one. For example, investigators
and prosecutors report dramatic increases in the number and violent character of the
sexually abusive images of children being trafficked through the Internet. They also
report the disturbing trend of younger children depicted in these images, even including
toddlers and infants. Further, offenders have become proficient at enticing children to
engage in risky behavior, like agreeing to meet for sexual activity, or even to display
themselves engaging in sexual activity through images or webcams. In addition, the
offenders have been able to master Internet technologies to better mask their identities.
The United States Sentencing Commission conducted a hearing on the child
pornography sentencing guidelines on February 15, 2012. Department of Justice (DOJ)
employees James Fottrell and Steve DeBrota, and former DOJ employee Francey Hakes
provided the following testimony regarding child pornography offenses:
In the last ten years, we have seen a sharp increase in the severity and
depravity of child pornography offenses, fueled in large part by swiftly
advancing technological changes which permit offenders to easily store
large numbers of images of child sexual abuse, to create safe havens online
where they can communicate and bond with other individuals who
encourage and promote the sexual exploitation of children, and to utilize
sophisticated methods to evade detection by law enforcement. This increase
is reflected in the changes in the content of the images over time, as infants
and toddlers are now regularly victimized by child pornography offenders
and the victims are forced into more brutal and degrading sexual activity.
Additionally, the technological changes that continue to make it easier for
offenders to commit these crimes are reflected in the number of defendants
prosecuted in federal court for child pornography offenses, which has
increased every year for over ten years.
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See

http://www.justice.gov/criminal/ceos/CT/downloads/Testimony-Sentencing-

Commission-Fottrell.pdf.
As set forth above, the defendant has demonstrated that he has had a long-standing
interest in the sexual exploitation of minors. His actions to obtain and use these images
to satisfy his own sexual cravings persisted over a period of many years. And, while he
claims in his own memorandum that he is not a pedophile, he admitted to masturbating to
such images.

Moreover, he had amassed a comprehensive collection of child

pornography and was clearly interested in, and collected, many of the types of material
described in the threat assessment research and Justice Department testimony.
Specifically, a forensic examination of the defendants devices revealed that he had
viewed downloaded files in July of 2012 that depict minors engaged in sexually explicit
conduct. A sample of some of these file names include: (1) Dad fucks his 2 teen
daughters- preteen kiddy kiddie incest rape porn porno sex (1m).lnk; (2) Daughter
Fucking.lnk; and (3) pthc young boy fucks little girl on bed good!!!!(james).lnk.
Additionally, while he apparently preferred depictions of older minors, the defendant had
within his collection images depicting the anal penetration of an infant girl, a
prepubescent minor girl engaged in oral copulation on an adult while held at knifepoint, a
prepubescent minor girl bound, gagged, and locked in a dog cage, and a prepubescent girl
and boy engaged in vaginal intercourse.
Throughout this history of exploitative behavior, the defendant was well aware of
the illegal nature of his actions. The nature of the images the defendant viewed and
admitted a preference for becomes even more disturbing with the context that the
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defendant is the father of two teenage girls and had a position of authority over young
women as a dean at the University of Virginia.
The United States does not dispute that the defendant has done many good things
in connection with his work and his military service; however, as this Court is well
aware, many child sexual offenders come before this Court with spotless records and
impressive credentials before they were discovered to have been involved in these types
of offenses.
The Need for the Sentence to Reflect the Seriousness of the Offense,
to Promote Respect for the Law, and to Provide Just Punishment
The seriousness of this offense is difficult to overstate.

Traders of child

pornography are members of a community of deviant individuals who revel in watching

the sexual abuse of young and vulnerable children. For those with a sexual interest in
children, the Internet provides a tailor-made medium for acquiring the latest and most
hardcore of child pornography images and may set those with such an interest on a path
toward physical sexual abuse of children. It also functions as a normalizing force for
those interested in the sexual abuse of children. The fact that the children suffer the
sexual abuse in the first place is a horrible reality, but add to that the continued
exploitation of such children by persons like the defendant for his own disturbing
gratification and it becomes a never-ending tragedy.
The defendant=s conduct was extremely serious and his canned remarks attacking
the validity of the child pornography trafficking guidelines do not justify a variance.
Distribution, receipt and consumption of child pornography have enduring and profound

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effects on the victims. In the landmark decision, New York v. Ferber, 458 U.S. 747
(1982), the Supreme Court acknowledged the harm suffered by children as a result of the
production and trafficking of child pornography stating:
[P]ornography poses an even greater threat to the child victim than does
sexual abuse or prostitution. Because the child=s actions are reduced to a
recording, the pornography may haunt him in future years, long after the
original misdeed took place. A child who has posed for a camera must go
through life knowing that the recording is circulating within the mass
distribution system for child pornography.
458 U.S. 758, n.9.
The Fourth Circuit has instructed courts Ato give respectful attention to
Congress=[s] view that [child pornography crimes] are serious offenses deserving serious
sanctions.@ United States v. Morace, 594 F.3d 340, 347 (4th Cir. 2010) (second alteration
in original) (quoting United States v. Hecht, 470 F.3d 177, 182 (4th Cir. 2006)).
Accordingly, the sentence must reflect the seriousness of the offense and its long-lasting
effects. A downward variance would promote a lack of respect for the law and fail to
provide justice for the victims of sexual exploitation through the production and
continued dissemination of child pornography. A mother of one of the defendant=s
victims (of the AJan Feb series@) perhaps said it best in her victim impact statement:
My daughter was exploited, not only by an individual, but also by an
industry that consumes and destroys innocent children.
Producer,
distributor, and consumerBeveryone who participates in this evil exchange
helps create a market, casting a vote for the next abuse. Regardless or [sic]
whether they directly abused children themselves, reveled in the images of
suffering, or persuaded others to abuse children on their behalf (to provide
images of the abuse) each participant has a responsibility for the effects.

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The defendant participated in and fueled this exploitative industry for a substantial
period of time; indeed by his own admission, he had viewed sexually exploitive material
depicting minors beginning approximately 15 years prior to his arrest. The videos and
images defendant obtained, consumed, and distributed perpetrated severe harm on the
children depicted therein each and every time he viewed or trafficked those images. As
the mother of the AJan Feb series@ victim stated, AEach person who callously passes on
those sickening pictures is exposing my daughter to further shame and humiliation. As
long as this continues, the pictures will always be out there.@
As further stated by a victim depicted in another well-known series (whose images
were among the defendants collection) writes in part:
Every day of my life I live in constant fear that someone will see my
pictures and recognize me and that I will be humiliated all over again. It
hurts me to know someone is looking at themat mewhen I was just a
little girl being abused for the camera. I did not choose to be there, but now
I am there forever in pictures that people are using to do sick things. I want
it all erased. I want it all stopped. But I am powerless to stop it just like I
was powerless to stop my [abuser].
. . . The truth is, I am being exploited and used every day and every night
somewhere in the world by someone. How can I ever get over this when the
crime that is happening to me will never end? How can I get over this when
the shameful abuse I suffered is out there forever and being enjoyed by sick
people?
The Need to Afford Adequate Deterrence to Criminal Conduct and
Protect the Public from Further Crimes of the Defendant
The sentence in this case must constitute a loud message to other offenders that
serious consequences will result for such callous disregard of minor victims. Although
he has no criminal history (like the majority of child pornography defendants who have

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previously come before this Court) and no study can predict the likelihood of recidivism
of a particular defendant, the defendant may well pose a future danger to his young
victims, as demonstrated by his professed interest in engaging in sexual acts with minors
and his repeated and varied illegal acts that exploited the most vulnerable segment of our
societies. His sentence should address both the seriousness of his offenses and his future
dangerousness. A sentence within the guidelines range followed by a lengthy period of
supervised release will help to prevent future harm by the defendant.
Defendants reliance on a psychological report prepared by Jeffrey Fracher is
misplaced. Fracher used the risk assessment tool known as the STATIC-99R despite
his admission that this instrument is not valid for child pornography offenses. See
Fracher report, p. 8 (attached to Defendants Sentencing Memorandum). The STATIC99R relies in large part on prior criminal events. Reliance on the Abel Assessment of
Sexual Interest-3 (AASI) is also unsupportable.
The Abel Assessment for Sexual Interest is a test that studies visual
reaction time ("VRT"). A test subject is asked to view slides of clothed
persons of varying age and sex for the purpose of rating sexual
attractiveness on a paper-and-pencil questionnaire. The subject is supposed
to think that the paper-and-pencil test is the actual test, but the critical
portion of the test calculates how long the subject gazes at the slide. It is
this measure of VRT that is used to determine the subject's sexual interest
in the various categories of adults and children shown in the slides. Both
the questionnaire results and the VRT results are emailed or faxed by the
test administrator to Dr. Abel's for-profit company, Abel Screening, Inc., in
Atlanta, Georgia. After analyzing the data according to his proprietary
formula, Dr. Abel then faxes back to the test administrator a summary (bar
graphs, etc.) of the test results.
United States v. Birdsbill, 243 F. Supp.2d 1128, 1131 n.3 (D. Mont. 2003), aff'd, 97 Fed.
Appx. 721 (9th Cir. 2004).
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Federal courts in both the Eighth and Ninth Circuits have rejected use of the Abel
Assessment as inadmissible. In United States v. White Horse, 177 F. Supp.2d 973
(D.S.D. 2001), aff'd,

316 F.3d 769 (8th Cir. 2003), the Court held that the Abel

Assessment failed to meet Daubert3 admissibility standards (1) because Part One of the
Assessment carries a high rate of error4 and has failed to achieve widespread acceptance
within the scientific community, 177 F. Supp.2d at 975-76; and (2) because Part Two of
the Assessment has been neither subjected to peer review nor widely accepted within the
scientific community. Id. at 976-77. The White Horse court concluded that Athere are
significant problems with the Abel Assessment that extend past the Daubert analysis.@ Id.
at 976. In particular, the court noted, portions of the Abel Assessment may be even less
reliable than inadmissible polygraphs. Id.
In the course of a thorough and careful analysis, the Birdsbill court held that the
Abel Assessment was irrelevant to the question of whether a defendant had sexually
abused children, because the Assessment is a psychiatric instrument designed to be used
only for treatment, not for diagnostic purposes, and not to detect whether a person has
sexually abused children. 243 F. Supp.2d at 1131. "'There has never been a claim that
The Abel Assessment could be used to screen pedophiles from normals.'" Id., quoting
Ready v. Massachusetts, 2002 WL 1255800 (Mass. Super. Ct. May 17, 2002, quoting Dr.
3

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

The district court noted that "Dr. Abel's own study of the Abel Assessment concludes
that almost one quarter of admitted pedophiles were inaccurately classified as non-pedophiles."
White Horse, 177 F. Supp. 2d at 975 (citing Gene Abel et al., Screening Tests for Pedophilia, 21
Crim. Just. & Behavior 115-31 (1994)).
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Gene G. Abel, Letter to the Editor, Sexual Abuse: A Journal of Research & Treatment,
aff'd, 824 N.E.2d 474 (Mass. App. Ct. Mar. 24, 2005)).
Finally, relying upon Ready and the numerous scholarly sources cited therein,
Birdsbill held that the formula underlying the Abel Assessment "remains merely an
untested and unproven theory," 243 F. Supp.2d at 1134, because "[e]ssentially, there have
been no independent studies conducted for the purpose of verifying the theory underlying
the [Abel Assessment]."

Id. at 1135.

In addition, Birdsbill held that the Abel

Assessment's "error rate makes it a highly unreliable instrument, particularly in the hands
of a moderately intelligent subject bent upon manipulating the test results," and that the
Assessment does not enjoy general acceptance within the scientific community. Id. at
1136.
Finally, it is important to note that there is no mention of the defendants webcam
enticement of minors nor any mention concerning the defendants admission that he
masturbated to child pornography images. It is further unknown to what extent Fracher
relied on self-report to make many of his conclusions.
The sentence in this case also needs to afford adequate general deterrence.
Congress, the Supreme Court, and the Sentencing Commission believe general deterrence
is a very important factor when considering an appropriate sentence. See, e.g., United
States v. Irey, 612 F.3d 1160, 1211 (11th Cir. 2010) (quoting United States v. Ferber, 458
U.S. 747, 760 (1982)) (AThe most expeditious if not the only practical method of law
enforcement may be to dry up the market for [child pornography] by imposing severe

18

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criminal penalties on persons selling, advertising, or otherwise promoting the product@);5

See also Osborne v. Ohio, 495 U.S. 103, 109-10 (1990) (AIt is also surely reasonable for
the State to conclude that it will decrease the production of child pornography if it
penalizes those who possess and view the product, thereby decreasing demand.@); United
States v. Goff, 501 F.3d 250, 261 (3d Cir. 2007) (A[D]eterring the production of child
pornography and protecting the children who are victimized by it are factors that should
have been given significant weight at sentencing[.]@); United States v. Barevich, 445 F.3d
956, 959 (7th Cir. 2006) (ATransporting and receiving child pornography increases
market demand. The greater concern under the Guidelines is for the welfare of these
exploited children. The avenue Congress has chosen to weaken the child pornography
industry is to punish those who traffic in it.@). In United States v. Goldberg, 491 F.3d
668, 672 (7th Cir. 2007), the Seventh Circuit opined that:
Young children were raped in order to enable the production of the
pornography that the defendant both downloaded and uploaded B both
consumed himself and disseminated to others. The greater the customer
demand for child pornography, the more that will be produced. Sentences
influence behavior, or so at least Congress thought when in 18 U.S.C. '
3553(a) it made deterrence a statutory sentencing factor. The logic of
deterrence suggests that the lighter the punishment for downloading and
uploading child pornography, the greater the customer demand for it and so
the more will be produced.
The Sixth Circuit in part reversed a district court when the district court failed to
see any importance in general deterrence. See United States v. Bistline, 665 F.3d 758,

The Irey court noted that "[c]hild sex crimes are among the most egregious and despicable of societal and
criminal offenses.@ 612 F.3d at 1206 (quoting United States v. Sarras, 575 F.3d 1191, 1220 (11th Cir. 2009).

19

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767 (6th Cir. 2012).6 The district court had stated Ageneral deterrence ... will have little
[if] anything to do with this particular case.@ Id. The Sixth Circuit found the district
courts statement Ainexplicable, and in any event conflicts with our statement that
>general deterrence is crucial in the child pornography context[.]=@ Id. (quoting United
States v. Camiscione, 591 F.3d 823, 834 (6th Cir. 2010)).
The Need to Avoid Unwarranted Disparities and the Governments Response
to the Defendants Attack on Child Pornography Sentences
As will be further set forth below, many child pornography defendants have
received Guidelines and/or lengthy sentences that have been affirmed on appeal. A
sentence between the low end and middle of the advisory Guidelines range would be a
reasonable sentence and would reflect the seriousness of the defendant=s offenses,
promote respect for the law, deter future conduct, and provide the public with protection
from future crimes. Such a sentence would be sufficient but not greater than necessary to
punish the defendant for his conduct, promote respect for the law, address the seriousness
of his offenses and would accurately reflect all other sentencing factors.
The Fourth Circuit upheld as substantively reasonable a 420 month-long prison
sentence, in part for receipt of child pornography, in United States v. Strieper, 666 F.3d
288 (4th Cir. 2012), noting that Aa lengthy sentence was necessary because of the
seriousness of [defendant=s] offenses;@ see also United States v. Guerra, 535 Fed.Appx.
214 (4th Cir. 2013) (affirming 120-month sentence for possession of child pornography).
The Sixth Circuit upheld as substantively reasonable a 97-month sentence for receipt of
6

While Bistline reversed an extremely short sentence, the opinion is a strongly worded opinion about the
Guidelines and the seriousness of child pornography offenses.

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child pornography in United States v. Widmer, 2013 WL 150133 (6th Cir. 2013), noting
that the district court had properly determined that the sentence Awas necessary to send a
signal to would-be offenders that receipt of child pornography carries significant
consequences.@ Id. at *5. In addition, the Widmer court also noted that the district court
had Aproperly determined that [defendant=s] risk of recidivism and his offense=s willful
and lengthy nature necessitated specific deterrence.@ The Widmer court found disturbing,
in particular, that Widmer had downloaded images of minor children engaging in sexual
activity with adult males. These are all factors that are present in defendant=s case before
the court today. See also United States v. Pugh, 515 F.3d 1179, 1202 (11th Cir. 2008)
("[W]e have typically treated child sex offenses as serious crimes, upholding severe
sentences in these cases"); United States v. Mejia-Molina, 496 Fed.Appx. 683 (8th Cir.
2013) (upholding a sentence of 151-months of imprisonment for receipt of child
pornography); United States v. Hagerman, 2012 WL 6621311 (2d Cir. 2012) (upholding
as substantively reasonable a 97-month term of imprisonment for receipt and possession
of child pornography).
While each case has unique aggravating and mitigating factors, this defendant's
offenses are aggravated by his long term exploitive behavior, the graphic content of at
least part of his collection, and his admitted repeated sexual exploitation of minors via
webcam. It is difficult to quantify, much less fathom, the harm and tragedy perpetrated
on the defendant=s child victims (and their families) by the defendant, and it is impossible
to predict its long-term effects on the child victims. It bears noting that even if he had not
engaged in contact offenses with a minor, the defendant=s child pornography activities
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demonstrate a danger to children. As explained by a district court upon sentencing a

defendant to 220 months= imprisonment for transportation of child pornography:
...we have numerous victims in a case like this, not one victim. Every
image of a child, every image of a non-adult engaged in any type of sexual
activity or any type of pose without clothing or any type of exploitation
constitutes an additional case of victimizing a child. Without a demand for
that type of information and that type of viewing from persons like this
defendant, we don=t know how many child abuse cases we could prevent.
And as long as there is a demand to purchase images of child pornography,
there is going to be an unending stream of child abuse of . . . children who
are forced into these roles.
...every image has a child who has been exploited and abused, and that is
the concern I have. It is the concern that I have when people are engaged in
serially doing this, the effect it has on children throughout the world and the
effect it has on their future lives.
See United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011) (quoting the district court),
cert. denied, 132 S.Ct. 2773 (2012) (rejecting an attack on the child pornography
sentencing guidelines7 and highlighting the grave harm caused to the victims depicted in
child pornography images and the evidence that traffickers and possessors of child
pornography are the impetus for the creation of more sexual abuse of minors).
In finding the district courts observations sound and relevant, the Fifth Circuit
7

This Court is undoubtedly aware that U.S.S.G. ' 2G2.2, the Guideline used for most non-production
offenses has been a recent favorite target of the defense bar. However, it is important to note that the Fourth Circuit
has not adopted - and has indeed rejected - the view that the child pornography guidelines are not worthy of a
presumption of reasonableness because they were developed pursuant to congressional dictates. Indeed, in fairly
recently affirming a Guidelines sentence, the Fourth Circuit stated:
Strieper first contends that a presumption of reasonableness should not apply to sentences for child
pornography offenses because the relevant Guideline was developed pursuant to congressional
dictates rather than the Sentencing Commission=s expertise. We have previously rejected this
view, however, and instructed courts Ato give respectful attention to Congress=[s] view that [child
pornography crimes] are serious offenses deserving serious sanctions.@
Strieper, 666 F.3d at 295-96 (4th Cir. 2012) (citing and quoting from Morace, 594 F.3d at 347 (4th Cir.) (internal
brackets in original).

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stated:
The district court in this case was cognizant of the undeniable fact that real
children are actually being abused and violated when pornographic images
are made. Without a market for such images, and without a strong appetite
for more and more images exhibited by Miller and similarly situated
defendants, there would be far fewer children who are injured and
criminally assaulted in this way. If a handful of pornographic images taken
twenty years ago were sufficient to satisfy the perverse desires of those who
possess and traffic in child pornography, we would not have the huge
industry that exists internationally today. No other child would be raped or
sodomized or otherwise violated to produce pornographic images.
Tragically, the reality is that there is a huge demand for Afresh@ faces and
images.
Id. at 123.
The defendant argues continually, throughout his memorandum, about the
unfairness of the guidelines, about whether the guidelines are valid, about how the
enhancements apply in almost every child pornography case, and about how the
Sentencing Commissions recent recommendation to Congress should dictate a lower
sentence. He also suggests that arguments in favor of a guidelines sentence is contrary to
the recent Smart on Crime initiative. These arguments are unsupportable.
As the Fifth Circuit has stated:
Empirically based or not, the Guidelines remain the Guidelines. It is for the
Commission to alter or amend them. The Supreme Court made clear in
Kimbrough v. United States that a >district judge must include the
Guidelines range in the array of factors warranting consideration,= even if
the Commission did not use an empirical approach in developing the
sentences for the particular offense. Accordingly we will not reject a
Guidelines provision as >unreasonable= or >irrational= simply because it is
not based on empirical data and even if it leads to some disparities at
sentencing. The advisory Guidelines sentencing range remains a factor for
district courts to consider in arriving upon a sentence.
Miller, 665 F.3d at 121; see also Morace, supra.
23

As the Miller court also noted,

Case 3:13-cr-00021-NKM Document 48 Filed 07/10/14 Page 24 of 34 Pageid#: 334

appellate courts are not tasked with applying statistical analyses to assess the
reasonableness of a particular sentence in a particular case. Nor are district courts.
While sentences imposed by other courts may be a consideration for a district court, such
information does not set a median, floor or ceiling. Id. at 122.
The defendant also seeks to validate his arguments by pointing to the Sentencing
Commissions December 2012 report to Congress, in which the Guideline at issue here is
discussed extensively. The Commission has sought permission from Congress to amend
U.S.S.G. 2G2.2 (the report can be found at:
http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Re
ports/Sex_Offense_Topics/201212_Federal_Child_Pornography_Offenses/index.cfm).
The Department of Justice responded to the report in February 2013.

This

exchange is nothing more than a starting point for a possible reevaluation and amendment
of 2G2.2.

The Report does not suggest that courts should discard or ignore the

guidelines in their present form. Moreover, Congress has not provided any indication of
whether it accepts or rejects any of the recommendations in the Report, and may well
disagree with any or all of them. It may have further additions or modifications of its
own. Those changes, if they occur, could as potentially increase the defendants advisory
sentencing range.
The most recent input from Congress suggests that, consistent with recent history,
its interest is in increasing punishment for child pornography offenses: indeed, the Child
Protection Act of 2012 doubled the maximum penalty available for possessors of child
sex abuse images depicting pre-pubescent minors effective December 7, 2012. It is
24

Case 3:13-cr-00021-NKM Document 48 Filed 07/10/14 Page 25 of 34 Pageid#: 335

noteworthy that Congress saw fit to increase punishment on the basis of one of the very
sentencing factors the defendant references. In any event, there is no logic to be found in
the argument that because a given guideline may at some point be revised even
improved that the guideline in its existing form should be ignored.

Neither is

speculating about what a new Guideline might look like productive.

Moreover, the defendant fails to mention that the Commission may actually find
the defendants conduct more dangerous than the average child pornography offender.
For example, the Commission discusses at great length what it calls Criminally Sexually
Dangerous Behavior (CSDB). (Sent. Comm. Report, p. 174.) CSDB is defined as
contact sex offenses, non-contact offenses (illegal sexual abusive, exploitative, or
predatory conduct not involving actual or attempted physical contact between the
offender and a victim occurring before or concomitantly with the offenders commission
of a non-production child pornography offense); and prior non-production child
pornography offenses.

(Sent. Comm. Report, p. 174.)

The CSDB also included

production of child pornography which did not involve contact with a victim, and used
the example of an offender who solicited self-produced sexual images of a minor via the
internet or cell phone but did not engage in sex with the minor. (Sent. Comm. Report, p.
176.)

The Commission explains that these offenders who have committed CSDB

engaged in two types of victimization:

they victimized the victims in the child

pornography and also victimized the real-time victims of their CSDB. (Sent. Comm.
Report, pp.174-175.)

CSDB is an important consideration, as the report explains,

because [a]lthough there is a lack of consensus among social scientists and others about
25

Case 3:13-cr-00021-NKM Document 48 Filed 07/10/14 Page 26 of 34 Pageid#: 336

the historical prevalence rate of CSDB among child pornography offenders convicted of a
non-production offense, there appears to be general agreement that offenders who in the
past or concomitantly with their non-production offenses also engaged in CSDB are
qualitatively different from child pornography offenders who never engaged in CSDB.
(Sent. Comm. Report, p. 170.) First, non-production offenders with histories of CSDB
pose a greater risk of sexual recidivism than non-production offenders without any
history of CSDB. (Sent. Comm. Report, p. 170.) Second, non-production offenders with
a known history of at least one act of CSDB are more likely to have engaged in other, as
yet undetected acts of CSDB in the past. (Sent. Comm. Report, p. 170.) Third, offenders
with histories of CSDB are more culpable for having engaged in CSDB in addition to
having committed their instant non-production offenses. (Sent. Comm. Report, pp. 170171). The defendants non-charged conduct, both apparently preceding and concomitant
with his charged offenses would appear to qualify as CSDB.
Significantly, the Sentencing Commission Report also noted the flaw in the studies
that suggest that online offenders may have a relatively low risk of recidivism. The
studies tend to base their findings on arrest reports or convictions. As the Commission
accurately reported, they necessarily underreport offenders actual rate of recidivism.
(Sent.Comm. Report, p. 294) And in particular, sex offenses are underreported because
it is widely accepted among researchers that sex offenses against children often go
unreported or undetected (Sent.Comm. Report, p. 295).
Notably, the only comment by Congress relating to child pornography sentencing
since the Report was published may be that of Senator Charles Grassley, who made the
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Case 3:13-cr-00021-NKM Document 48 Filed 07/10/14 Page 27 of 34 Pageid#: 337

following comment in his statement at the Senate Hearings on REEVALUATING THE

EFFECTIVENESS OF MANDATORY MINIMUM SENTENCES in the Senate
Judiciary Committee on Sept. 18, 2013:
But there are two areas in which we ought to consider adding new
mandatory minimum sentences because federal judges are departing
downward from the guidelines excessively. These are financial crimes and
child pornography possession. We should consider imposing mandatory
minimum sentences for these offenses, both to reduce racial disparities and
to give prosecutors additional tools to combat these serious crimes.8
In any event, people who download and view images of the sexual exploitation of
minors are not just harmless, lost souls hiding in homes and basements.

Indeed,

researchers have found that collectors of child pornography were 2.8 times more likely to
be pedophiles than other offenders against children. Seto, Cantor, & Blanchard, Child
Pornography Offenses Are a Valid Diagnostic Indicator of Pedophilia Journal of
Abnormal Psychology, 2006, Vol. 115, No. 3, pp. 610615. They wrote:
Our results indicate that child pornography offending is a valid diagnostic
indicator of pedophilia. Child pornography offenders were significantly
more likely to show a pedophilic pattern of sexual arousal during
phallometric testing than were comparison groups of offenders against
adults or general sexology patients. In fact, child pornography offenders,
regardless of whether they had a history of sexual offenses against child
victims, were more likely to show a pedophilic pattern of sexual arousal
than were a combined group of offenders against children.

Id. at 613. This research merely confirms the commonsense notion that someone who
collects pictures and videos of children engaged in sexual activity is likely to be sexually
aroused by such images.
8 Sen. Charles Grassley opening statement at 2 (Sept. 18, 2013), retrieved from
http://www.judiciary.senate.gov/imo/media/doc/9-18-13GrassleyStatement.pdf

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Further, possession of child pornography may be a gateway offense to even more

serious crimes. While it is not uncommon for those convicted of possession of child
pornography to have little or no criminal history, this should not detract from the
seriousness of the offense, in fact, it should raise even more concern. Seto, Hanson &
Babchishin authored a study, Contact Sexual Offending by Men With Online Sexual
Offenses, Sexual Abuse: A Journal of Research and Treatment 23(1), 124-145,
December 2010, in which they conducted a meta-analysis of 24 other studies of online
sexual offenders. They found that if the only indicator one relied upon was arrests or
convictions, the number of these men who were involved in contact offenses with
children was low, generally less than 20%. But when studies used polygraph testing or
some other means to insure honest self-reporting (such as anonymity or immunity from
prosecution as part of a treatment program), the numbers were radically different. The
studies with these types of validation determined that fifty-five percent of the men
(whose only charged offense was the receipt and possession of child pornography)
admitted to contact offenses against children. The Seto study was based upon many
studies, but its results have been confirmed by other, independent studies, as well. For
example, in Buschman, Wilcox, Krapohl, Oelrich, & Hacketts, Cybersex Offender Risk
Assessment. An Explorative Study, Journal of Sexual Aggression, July 2010, Vol. 16,
No.2, pp. 197-209, a study was done on those whose only offense was possession of child
pornography. Fifty-five percent of the subjects in that study, when polygraphed, also
admitted to contact offenses with children. This means that over half of offenders
convicted of possessing child pornography have already acted on their urges and
28

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committed a contact offense against a minor.

The fact that a substantial number of

mere possessors are also contact offenders highlights the seriousness of the crime and
supports the imposition of a guidelines sentence.
The defendants claim that [t]he Governments pursuit of a harsh calculation and
application of Sentencing guidelines is contrary to the policies announced in the Smart
on Crime initiative is quite simply, baseless. This initiative is devoid of any suggestion
that it encompasses people who trade images that depict the sexual abuse and exploitation
of minors; rather, as stated on page 3 of the defendants first attachment to his sentencing
memorandum: As a start, the Attorney General is announcing a change in Department
of Justice charging policies so that certain people who have committed low-level,
nonviolent drug offenses will no longer be charged with offenses that impose draconian
mandatory minimum sentences (emphasis added). Besides specifying drug offenses, the
relevant language is aimed at non-violent offenders. See id. The other crimes referenced
as being considered in future actions are non-violent property crimes. See id. at 4.
Notably, child pornography offenses are never mentioned; moreover, such crimes are
specifically designated in the bond statutes as crimes of violence. See 18 U.S.C.
3156(a)(4)(C).
Finally, to the extent the defendant argues that the child pornography Guidelines
are not worthy of application and that many courts have varied from the Guidelines,
many cases have involved the imposition of sentences within the applicable range:
See e.g. United States v. Clogston, 662 F.3d 588 (1st Cir. 2011); United States v.
Poupart, 2014 WL 1876138 (2d Cir. May 12, 2014) (unpubl); United States v.
Harris, 548 F. Appx 679 (2d Cir. 2013); United States v. Kornhauser, 519 F.
29

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Appx 41 (2d Cir. 2013); U.S. v. Hagerman, 506 F. Appx 14 (2d Cir. 2012);
United States v. Shay, 478 F. Appx 713 (2d Cir. 2012); United States v. Cossey,
476 F. Appx 931 (2d Cir. 2012); United States v. Magner, 455 F. Appx 131 (2d
Cir. 2012); United States v. Aumais, 656 F.3d 147 (2d Cir. 2011); United States v.
Rosenberg, 423 F. Appx 54 (2d Cir. 2011); United States v. Davis, 402 F. Appx
607 (2d Cir. 2010); United States v. Swackhammer, 400 F. Appx. 615 (2d Cir.
2010); United States v. Reap, 391 F. Appx 99 (2d Cir. 2010); United States v.
Pilch, 541 F. Appx 172 (3d Cir. 2013); United States v. Sheridan, 503 F. Appx
101 (3d Cir. 2012); United States v. Noyes, 501 F. Appx 168 (3d Cir. 2012);
United States v. Dafferener, 489 F. Appx 532 (3d Cir. 2012); United States v.
Greene, 468 F. Appx 173 (3d Cir. 2012); United States v. Hardy, 454 F. Appx
132 (3d Cir. 2011); United States v. Elston, 423 F. Appx 190 (3d Cir. 2011);
United States v. Stabile, 633 F.3d 219 (3d Cir. 2011); United States v. McMickens,
373 F. Appx 226 (3d Cir. 2010); United States v. Humanik, 415 F. Appx 404 (3d
Cir. 2011); United States v. Blakeslee, 423 F. Appx 136 (3d Cir. 2011); United
States v. Leitenberger, 420 F. Appx 188 (3d Cir. 2011); United States v. Tanzola,
416 F. Appx 197 (3d Cir. 2011); United States v. Rudow, 373 F. Appx 298 (3d
Cir. 2010); United States v. Boczkowski, 378 F. Appx 126 (3d Cir. 2010); United
States v. Eyster, 386 F. Appx 180 (3d Cir. 2010); United States v. Bryner, 392 F.
Appx 68 (3d Cir. 2010); United States v. Myers, 364 F. Appx 769 (3d Cir. 2010);
United States v. Buczkowski, 505 F. Appx 236 (4th Cir., 2013); United States v.
Smallwood, 525 F. Appx 239 (4th Cir. 2013); United States v. Silcox, 474 F.
Appx 1000 (4th Cir. 2012); United States v. Strieper, 666 F.3d 288 (4th Cir.
2012); United States v. Vanderwerff, 459 F. Appx 254 (4th Cir. 2011); United
States v. Burdette, 458 F. Appx 250 (4th Cir. 2011); United States v. Garcia, 402
F. Appx 768 (4th Cir. 2010); United States v. Hall, 377 F. Appx 300 (4th Cir.
2010); United States v. Sonnier, 2014 WL 2523305 (5th Cir. Jun 5, 2014)
(unpubl); United States v. Shelton, 2014 WL 1469307 (5th Cir. Apr. 16, 2014)
(unpubl); United States v. McGinn, 551 F. Appx 115 (5th Cir. 2013); United
States v. Vega, 539 F. Appx 441 (5th Cir. 2013); United States v. Stamper, 539 F.
Appx 408 (5th Cir. 2013); United States v. Richardson, 713 F.3d 232 (5th Cir.
2013); United States v. Jenkins, 712 F.3d 209 (5th Cir. 2013); United States v.
Alvarado, 691 F.3d 592 (5th Cir. 2012) (vacated on other grounds); United States
v. Rios, 477 F. Appx 209 (5th Cir. 2012); United States v. Beeman, 470 F. Appx
392 (5th Cir. 2012); United States v. Goluba, 672 F.3d 304 (5th Cir. 2012); United
States v. Hendricks, 424 F. Appx 281 (5th Cir. 2011); United States v. Sadowski,
422 F. Appx 379 (5th Cir. 2011); United States v. Young, 408 F. Appx 838 (5th
Cir. 2011); United States v. Abbate, 435 F. Appx 326 (5th Cir. 2011) (upward
variance upheld in possession case); United States v. Foristel, 2014 WL 2595654
(6th Cir. Jun 10, 2014) (unpubl); United States v. Johnson, 715 F.3d 179 (6th Cir.
2013); United States v. Clingman, 521 F. Appx 386 (6th Cir. 2013); United States
v. Conner, 521 F. Appx 493 (6th Cir. 2013); United States v. Gamble, 709 F. 3d
541 (6th Cir. 2013); United States v. Widmer, 511 F. Appx 506 (6th Cir. 2013);
30

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United States v. Mauck, 469 F. Appx 424 (6th Cir. 2012); United States v.
Schimley, 467 F. Appx 482 (6th Cir. 2012); United States v. Cunningham, 669
F.3d 723 (6th Cir. 2012); United States v. Evers, 669 F.3d 645 (6th Cir. 2012);
United States v. Bolton, 669 F.3d 780 (6th Cir. 2012); United States v. Hill, 462 F.
Appx 586 (6th Cir. 2012); United States v. Reilly, 662 F.3d 754 (6th Cir. 2011);
United States v. Overmyer, 663 F.3d 862 (6th Cir. 2011); United States v. Brooks,
628 F.3d 791 (6th Cir. 2011); United States v. Myers, 442 F. Appx 220 (6th Cir.
2011); United States v. Gilley, 433 F. Appx 447 (6th Cir. 2011); United States v.
Lamb, 431 F. Appx 421 (6th Cir. 2011); United States v. Staten, 435 F. Appx
422 (6th Cir. 2011); United States v. Dattiilio, 442 F. Appx 187 (6th Cir. 2011);
United States v. Dudeck, 657 F.3d 424 (6th Cir. 2011); United States v. Bailey,
420 F. Appx 559 (6th Cir. 2011); United States v. McNerney, 636 F.3d 772 (6th
Cir. 2011); United States v. Warner, 399 F. Appx 88 (6th Cir. 2010); United
States v. Konczak, 683 F.3d 348 (6th Cir. 2012); United States v. Stinefast, 724
F.3d 925 (7th Cir. 2013) (above guidelines sentence); United States v. Glass, 519
F. Appx 632 (7th Cir. 2013); United States v. McCoy, 493 F. Appx 767 (7th Cir.
2012); United States v. Garthus, 652 F.3d 715 (7th Cir. 2011); United States v.
Armes, 415 F. Appx 729 (7th Cir. 2011); United States v. Mantanes, 632 F.3d 372
(7th Cir. 2011); United States v. Brown, 634 F.3d 954 (7th Cir. 2011); United
States v. Snodgrass, 635 F.3d 324 (7th Cir. 2011); United States v. Allen, 413 F.
Appx 893 (7th Cir. 2011); United States v. Coopman, 602 F.3d 814 (7th Cir.
2010); United States v. Maulding, 627 F.3d 285 (7th Cir. 2010); United States v.
Rodgers, 610 F.3d 975 (7th Cir. 2010); United States v. Conrad, 2014 WL
2609716 (8th Cir. Jun 12, 2014) (unpubl); United States v. Conklin, 2014 WL
2441981 (8th Cir. Jun 2, 2014) (unpubl); United States v. Adkins, 557 F. Appx
637 (8th Cir. 2014); United States v. Hyer, 498 F. Appx 658 (8th Cir. 2013);
United States v. Glassgow, 682 F.3d 1107 (8th Cir. 2012); United States v. Luckey,
485 F. Appx 159 (8th Cir. 2012); United States v. Hutchinson, 470 F. Appx 536
(8th Cir. 2012); United States v. Meirick, 674 F.3d 802 (8th Cir. 2012); United
States v. Morais, 670 F.3d 889 (8th Cir. 2012); United States v. Munjak, 669 F.3d
906 (8th Cir. 2012); United States v. Nissen, 666 F.3d 486 (8th Cir. 2012); United
States v. Burman, 666 F.3d 1113 (8th Cir. 2012); United States v. Dolehide, 663
F.3d 343 (8th Cir. 2011); United States v. Hubbard, 414 F. Appx 893 (8th Cir.
2011); United States v. Koch, 625 F.3d 470 (8th Cir. 2010); United States v.
Bauer, 626 F.3d 1004 (8th Cir. 2010); United States v. Acosta, 619 F.3d 956 (8th
Cir. 2010); United States v. Sampson, 606 F.3d 505 (8th Cir. 2010); United States
v. Estey, 595 F.3d 836 (8th Cir. 2010); United States v. Shuler, 598 F.3d 444 (8th
Cir. 2010); United States v. Sanders, 2014 WL 768449 (9th Cir. Feb. 27, 2014)
(unpubl); United States v. Rice, 540 F. Appx 782 (9th Cir. 2013); United States v.
Mills, 518 F. Appx 540 (9th Cir. 2013); United States v. Maggio, 499 F. Appx
696 (9th Cir. 2012); United States v. Frantz, 485 F. Appx 890 (9th Cir. 2012);
United States v. Grigsby, 469 F. Appx 589 (9th Cir. 2012); United States v.
Shigley, 451 F. Appx 705 (9th Cir. 2011); United States v. Maier, 639 F.3d 927
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(9th Cir. 2011); United States v. Aguirre, 448 F. Appx 670 (9th Cir. 2011);
United States v. Alfaro, 446 F. Appx 840 (9th Cir. 2011); United States v. Psick,
434 F. Appx 646 (9th Cir. 2011); United States v. Aglony, 421 F. Appx 756 (9th
Cir. 2011); United States v. Anthony, 421 F. Appx 674 (9th Cir. 2011); United
States v. Richards, 414 F. Appx 911 (9th Cir. 2011); United States v. Carlson,
395 F. Appx 413 (9th Cir. 2010); United States v. Blinkinsop, 606 F.3d 1110 (9th
Cir. 2010); United States v. Escobar, 2014 WL 1244731 (10th Cir. Mar. 27, 2014)
(upward variance reasonable) (unpubl); United States v. Jackman, 512 F. Appx
750 (10th Cir. 2013); United States v. Herget, 499 F. Appx 743 (10th Cir. 2012);
United States v. Croucher, 456 F. Appx 767 (10th Cir. 2012); United States v.
Nghiem, 432 F. Appx 753 (10th Cir. 2011); United States v. Ilgen, 417 F. Appx
728 (10th Cir. 2011); United States v. Regan, 627 F.3d 1348 (10th Cir. 2010);
United States v. Cubero, 2014 WL 2595781 (11th Cir. Jun. 11, 2014); United
States v. Readman, 2014 WL 2724219 (11th Cir. Jun 17, 2014) (unpubl); United
States v. Adams, 2014 WL 1910338 (11th Cir. May 14, 2014) (unpubl); United
States v. Runyan, 549 F. Appx 906 (11th Cir. 2013) (upward variance); United
States v. Bokerman, 543 F. Appx 974 (11th Cir. 2013); United States v. Cole, 520
F. Appx 920 (11th Cir. 2013); United States v. Richardson, 518 F. Appx 708
(11th Cir. 2013); United States v. Atias, 518 F. Appx 843 (11th Cir. 2013); United
States v. Martinez, 514 F. Appx 833 (11th Cir. 2013); United States v. Hayden,
511 F. Appx 870 (11th Cir. 2013); United States v. Sindoni, 510 F. Appx 906
(11th Cir. 2013); United States v. Rodriguez, 503 F. Appx 841 (11th Cir. 2013);
United States v. Sorrell, 502 F. Appx 844 (11th Cir. 2012); United States v.
Boykin, 497 F. Appx 867 (11th Cir. 2012); United States v. Gillette, 485 F. Appx
416 (11th Cir. 2012); United States v. Scott, 476 F. Appx 845(11th Cir. 2012);
United States v. Rubinstein, 466 F. Appx 848 (11th Cir. 2012); United States v.
Huntt, 461 F. Appx 892 (11th Cir. 2012); United States v. Geenen, 458 F. Appx
863 (11th Cir. 2012); United States v. Norton, 455 F. Appx 932 (11th Cir. 2012);
United States v. McGarrity, 669 F.3d 1218 (11th Cir. 2012); United States v.
Reaid, 455 F. Appx 926 (11th Cir. 2012); United States v. Nelson, 442 F. Appx
496 (11th Cir. 2011); United States v. Flowers, 438 F. Appx 831(11th Cir. 2011);
United States v. McDaniel, 631 F.3d 1204 (11th Cir. 2011); United States v.
Stearman, 397 F. Appx 533 (M.D. Fla. 2010); United States v. Wayerski, 624
F.3d 1342 (11th Cir. 2010); United States v. Turner, 626 F.3d 566 (11th Cir.
2010); and United States v. Alfaro-Moncada, 607 F.3d 720 (11th Cir. 2010).

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For the reasons set forth above, the United States= position is that a Guidelines
sentence in this case should be imposed based on the seriousness of the defendant=s
offenses.

Respectfully submitted,

TIMOTHY J. HEAPHY
United States Attorney

s/ Nancy S. Healey
Nancy S. Healey
Assistant United States Attorney
Virginia Bar No. 39447
nancy.healey@usdoj.gov

s/ Herbrina D. Sanders
Herbrina D. Sanders
Trial Attorney
Child Exploitation and
Obscenity Section
United States Department of Justice
herbrina.sanders@usdoj.gov

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CERTIFICATE
I hereby certify that on July 10, 2014, I electronically filed the forgoing memorandum
with the Clerk of the Court using CM/ECF system which will send notification of such filing to
David Heilberg, Esquire, counsel for the defendant.

s/ Nancy S. Healey
Nancy S. Healey
Assistant United States Attorney

34