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United States v. Nicoson

United States District Court, N.D. Illinois

April 9, 2014

United States, Plaintiff,
v.
Jason Nicoson, Defendant.

ORDER

FREDERICK J. KAPALA, Magistrate Judge.

Government's objection to the presentence investigation report [40] is sustained. Pursuant to Fed. R. Crim. P. 32(h), the court hereby gives notice of a possible departure from the sentencing guidelines calculated in the presentence investigation report as set forth below. Case set for status hearing on 4/11/2014 at 9:00 a.m.

STATEMENT

Currently before the court is the government's objection to the failure to include in the presentence investigation report ("PSR") a 5-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(5), which applies "[i]f the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor." The court held an evidentiary hearing during the first part of a bifurcated sentencing hearing and has considered the parties' post-hearing briefs on this issue. After careful consideration, the court sustains the government's objection and finds that the enhancement is applicable.

The application notes to § 2G2.2 define the term "pattern of activity involving the sexual abuse or exploitation of a minor" as:

any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation
(A) occurred during the course of the offense; (B) involved the same minor; or
(C) resulted in a conviction for such conduct.

U.S.S.G. § 2B2.2 cmt. n.1. The term "sexual abuse or exploitation" is further defined as:

any of the following: (A) conduct described in 18 U.S.C. § 2241, § 2242, § 2243, § 2251(a)-(c), 2251(d)(1)(B), § 2251A, § 2260(b), § 2421, § 2422, or § 2423; (B) an offense under state law, that would have been an offense under any such section if the offense had occurred within the special maritime or territorial jurisdiction of the United States; or (C) an attempt or conspiracy to commit any of the offenses under subdivisions (A) or (B). "Sexual abuse or exploitation" does not include possession, accessing with intent to view, receipt, or trafficking in material relating to the sexual abuse or exploitation of a minor.

Id.

According to the government, the defendant engaged in a pattern of soliciting, purchasing, and viewing over the internet live broadcasts of young girls engaging in sexually explicit conduct, or attempting to do the same. The government further argues that the defendant's conduct is the type of conduct that is prohibited by, and described in, 18 U.S.C. § 2251(a), and thus falls within the definition of "sexual abuse or exploitation" for purposes of § 2G2.2(b)(5). In support of this contention, the government introduced into evidence (1) a CD containing chat logs, image files, and video files obtained from the defendant's computer; (2) a copy of certain relevant portions of the defendant's chat history from a peer-to-peer file-sharing program called Gigatribe that he had installed on his computer; and (3) a printout of a portion of the defendant's stored chats from his Yahoo account. The government also presented the testimony of FBI Special Agent Shannon McDaniel, who was primarily responsible for the investigation of the defendant.

Section 2251(a) prohibits the sexual exploitation of children and provides, in relevant part, that:

Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using ...

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