The opinion of the court was delivered by: Judge Joan B. Gottschall
SENTENCING MEMORANDUM AND ORDER
On March 24, 2006, defendant Jeremy Goldberg ("Goldberg") pled guilty to a single count of possessing images constituting child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and was sentenced to one day in prison, time served, and ten years of supervised release. On June 27, 2007, the Seventh Circuit reversed the sentence and remanded the case to this court for resentencing. U.S. v. Goldberg, 491 F.3d 668, 674 (7th Cir. 2007). For the reasons set forth below, the court sentences Goldberg to 48 months imprisonment and recommends FMC Devens as the place of incarceration, where he may be eligible to enter the Sex Offender Treatment Program. Additionally, the court sentences Goldberg to ten years of post-release supervision.
In its opinion remanding the case to this court for resentencing, the Seventh Circuit held that the court's prior sentence of no imprisonment and ten years of close supervision for this offense was unreasonable. Goldberg, 491 F.3d at 673. However, since the Seventh Circuit's decision, the U.S. Supreme Court has held that district courts have more discretion, and that courts of appeals are required to give deference to their decisions. See Gall v. U.S., 128 S.Ct. 586 (2007); Kimbrough v. U.S., 128 S.Ct. 558 (2007). Still, post-Gall and post-Kimbrough, the Seventh Circuit has reaffirmed its conclusion in this case. See US v McIlrath, 512 F.3d 421, 426 (7th Cir. 2008). Hence, the court is compelled to conclude that, despite Gall and Kimbrough, the result on appeal would be the same in this case were the original sentence to be re-imposed.
The explanation given for that sentence was the best that this court could do, and, in this court's understanding, a fair reading of that explanation is not consistent with the Seventh Circuit's assessment of it. Regardless, the court believes that the court of appeals opinion quarrels not only with the way the sentence was justified, but quarrels with the sentence itself. Thus, the Seventh Circuit states:
A prison sentence of one day for a crime that Congress and the American public consider grave, in circumstances that enhance the gravity (we refer to the character of some of the images), committed by a convicted drug offender, does not give due weight to the "nature and circumstances of the offense," "promote respect for the law," or "provide just punishment for the offense." It does not "afford adequate deterrence to criminal conduct." And it creates an unwarranted sentence disparity, since similarly situated defendants are punished with substantial prison sentences.
Goldberg, 491 F.3d at 671-72.*fn1
In short, the Seventh Circuit's view is that even after Gall and Kimbrough, its decision in this case would be the same. The sentence of this court must accordingly give more weight to the punitive factors listed in § 3553 and less weight to the likelihood that the crime was not the result of sexual deviance, that the defendant likely does not pose a danger to society, and that the defendant is more likely to be rehabilitated with a program of lengthy and intense supervision than with a term of protracted incarceration.
The court turns, therefore, to an analysis of the factors underlying the sentence to be imposed. As an initial matter, the Government insists that the guideline range in this case should be calculated under the 2006 Guidelines. When using the 2006 Guidelines, the offense level is 31, which, with a criminal history category I, yields a sentencing range of 108-135 months, limited by the statutory maximum of 120 months. The law is clear, however, that although the court is permitted to consider imposing sentence under the 2006 Guidelines, it is not constrained to do so, and may impose sentence under the 2003 Guidelines, which both the Government and the Probation Office agreed applied to this case at the time of the initial sentencing. See U.S. v. Monti, 477 F. Supp. 2d 943, 945 (N.D. Ill. 2007) (citing U.S. v. Hauptman, 111 F.3d 48, 51 (7th Cir. 2007)). Under the 2003 Guidelines, the original offense level was 26 and the corresponding sentencing range was 63-78 months. However, the Seventh Circuit stated that the court must add a 4-point enhancement for the sadomasochistic nature of some of the images, resulting in a final offense level of 30 and a range of 97-121 months.
The court has also considered the sentences imposed in comparable cases in its sister courts. The court recognizes, of course, that no two cases are identical and reported cases may not describe all salient facts. However, it is struck by the inconsistency in the way apparently similar cases are charged and sentenced. In its analysis, the court first considered district court cases that were not appealed, subsequent to Gall and Kimbrough, involving defendants in Criminal History Category I. For example, in the District of Utah, a 120-month sentence was given for an offence with a calculated guideline range of 135-168 months, (5,129 images). See Kirkham v. U.S., No. 2:07-CV-414 TC, 2008 WL 1758518, at *3 (D. Utah, 2008). The District of Nebraska gave a 24-month sentence in a 3000-image case with a guideline range of 63-78 months; in that case, the defendant indicated that he possessed the images but did not intend to share them. U.S. v. Sudyka, No. 8:07CR383, 2008 WL 1766765, at *10 (D. Neb. 2008). In another district of Nebraska case, involving 800 images, with an advisory guideline range of 46-57 months, a sentence of 24 months was also given. U.S. v. Baird, No. 8:07CR204, 2008 WL 151258, at *7 (D.Neb. 2008). In the Eastern District of Tennessee, 135 months was given to a defendant who had knowingly received child pornography via computer (guideline range of 135 to168 months). U.S. v. McElheney, 524 F.Supp.2d 983, 1007 (E.D. Tenn. 2007). Finally, in a 200-image case in which the defendant was charged with both possession and distribution, Judge Manning of this district gave an 84 month sentence; the guideline range was 168 to 210 months with a statutory minimum of 60 months. U.S. v. Thomas, No. 06 CR 535 2008, WL 597594, at *5 (N.D.Ill. 2008).
In cases that went to the courts of appeal, a similar disparity is seen. A sentence of 57 months was affirmed by the Fifth Circuit in a case in which thousands of images were found stored on 4000 compact discs. U.S. v. Perez, 484 F.3d 735, 745 (5th Cir. 2007). In a 2007 Sixth Circuit case, where there were 992 images involved and the psychological profile indicated that the defendant was not a pedophile or sexual predator, a sentence of 180 months was affirmed; the guideline range was 210-262 months. U.S. v. Kirchhof, 505 F.3d 409, 410 (6th Cir. 2007). In US v. Grinbergs, a sentence of 12 months and a day was reversed by the Eighth Circuit. 470 F.3d 758, 761-62 (8th Cir. 2006). The Eighth Circuit's decision in that case, which featured a number of images similar to this one, and in which the guidelines were 46-57 months, was vacated by the Supreme Court after Gall, and remanded to the district court for resentencing. Grinbergs v. U.S., 128 S.Ct. 859, 850 (2008), remanded to district court for resentencing, No. 06-2369, 2008 WL 1723473, at *1 (8th Cir. 2008). In another Eighth Circuit case, in which the defendant operated a child pornography file server (as in the instant case), and in which the defendant was found to possess 45-50 images, some sadomasochistic, together with psychiatric testimony that defendant was not a pedophile, a sentence of 151 months, at the low end of the guideline range, was affirmed. U.S. v. Kerr, 472 F.3d 517, 519 (8th Cir. 2006). A sentence of 180 months (the statutory mandatory minimum) was affirmed by the Ninth Circuit in a multi-count case involving 10,000-12000 (including some sadomasochistic) images. U.S. v. Meiners, 485 F.3d 1211, 1212 (9th Cir. 2007). A sentence of 84 months (guideline range of 151-188 months) was affirmed by the Eleventh Circuit in a 981-image case where the defendant had been previously convicted of lewd acts on a child and diagnosed as a pedophile. U.S. v. McBride, 511 F.3d 1293, 1295 (11th Cir. 2007).
Finally, in U.S. v. Polito, an unpublished Fifth Circuit case, the court of appeals affirmed a sentence of 5 years probation in a case involving a file server set up by the defendant, a college student, who possessed hundreds of images. 215 Fed. Appx. 354, 355 (5th Cir. 2007). The record included psychiatric evidence and a professional opinion, as in this case, that the defendant was not a pedophile, but had a problem with poor judgment and impulsivity. Polito, 215 Fed. Appx. at 355-56. The district court found it important, and the Fifth Circuit, unlike the Seventh Circuit, found it significant, that there was no threat that the defendant would conduct predatory activities on children.
Id. at 356-57. The court was also influenced by the district court's stated consideration of the fact that the defendant had no prior criminal record*fn2 and that the defendant had proceeded with his education and obtained gainful employment. Id.
With specific reference to cases in the Seventh Circuit, the court discovered that the court of appeals affirmed sentences of 144 months in a 6500-image case and 330 months in a case with advisory guidelines of 292 to 365 months. U.S. v. Lowe, 516 F.3d 580, 583 (7th Cir. 2008); U.S. v. Shrake, 515 F.3d 743, 748-49 (7th Cir. 2008). In a case involving 300 images and no evidence of actual child molestation, but correspondence which indicated that the defendant was moving that way, the court of appeals affirmed a sentence of 87 months incarceration. U.S. v. Baker, 445 F.3d 987, 988 (7th Cir. 2006). A sentence of 76 months incarceration was affirmed in a case where the defendant was convicted of possession of 8178 images (some sadomasochistic), 3083 text files and 80 video files. U.S. v. Barevich, 445 F.3d 956, 959 (7th Cir. 2006). The court of appeals affirmed a 55-month sentence (high end of the guideline range) involving 20000 images of child pornography, some sadistic. A guideline sentence of 37 months was reversed in US v. Grigg, on the grounds that it wasn't clear that the district court knew it had authority to deviate from the guidelines. 442 F.3d 560, 561-62 (7th Cir. 2006).
Finally, the court takes notice of United States v. Wachowiak, a 2007 Seventh Circuit case affirming a 70-month sentence given by Judge Adelman in a case with an advisory guideline range of 121-151 months (approximately one half of the middle of the guideline range). 496 F.3d 744 (7th Cir. 2007). Wachowiak was slightly older than Goldberg when he engaged in the subject prohibited activity. Wachowiak, 496 F.3d at 745. Wachowiak had hundreds of images, including some sadomasochistic depictions, and there was a statutory minimum sentence of five years. Id. Judge Adelman found it significant, and the panel of the Seventh Circuit reviewing his decision did not indicate that his reasoning was flawed, that expert opinion indicated that Wachowiak was unlikely to engage in improper conduct with children. Id. at 747. Among the other factors Judge Adelman found important was the significant, lifelong collateral ...