1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA STATESVILLE DIVISION UNITED STATES OF AMERICA, ) CRIMINAL NO. 5:07-CR-4 ) Plaintiff, ) JUDGE RICHARD L. VOORHEES ) -vs- ) ) JOSHUA PETER THOMAS SHIELDS, ) POSITION OF THE DEFENDANT ) WITH RESPECT TO SENTENCING Defendant. ) FACTORS ) On October 6, 2008, the Defendant, Joshua Shields, will come before this Honorable Court for sentencing in connection with a guilty plea to one (1) count of Possession of Child Pornography in violation of Title 18 United States Code Section 2252(a)(4)(b). The purpose of the instant memorandum in support of sentencing is to bring to light additional information pertaining to Mr. Shields. Herein, Mr. Shields submits that a sentence below the calculated Guidelines range is clearly warranted. As the Guidelines are but one factor that this Honorable Court must consider when imposing a sentence pursuant to 18 U.S.C. §3553, the information contained herein, coupled with that to be presented at the sentencing hearing, justifies a sentence of probation. Undersigned counsel recognizes that upon first impression, said request may seem sizeable. The facts of this case and the characteristics of Mr. Shileds however, justify this request. Support for this request is set forth herein. Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 1 of 30 2 I. BACKGROUND A. Personal History The investigation of Mr. Shields began in January of 2005 when Mr. Shields was just seventeen (17) years old and living at home with his mother. Approximately one (1) week after Mr. Shields graduated from high school, members of the State Bureau of Investigation, the United States Postal Inspection Service, and the Boone Police Department executed a search warrant at Mr. Shields’ home. While law enforcement officers executed the warrant, Mr. Shields voluntarily provided a statement acknowledging that he viewed images of child pornography on the Internet. PSI ¶15. Not long after his encounter with law enforcement officials, Mr. Shields voluntarily entered a two (2) month intensive inpatient counseling program designed to treat sexual compulsion. Following his completion of the program, Mr. Shields continued to seek out psychological treatment. Since April of 2006, Mr. Shields has regularly met with a psychologist for mental health counseling. The goals of his treatment have been to improve his overall well-being, while also ensuring that he does not reoffend. Mr. Shields’ rehabilitative efforts are discussed in greater detail herein. Despite the turmoil and anxiety Mr. Shields has experienced as result of the pending prosecution, he has worked diligently to live a productive and law-abiding life over the course of the past two (2) years. He attends Appalachian State University where he is completing his sophomore year of study. In addition to Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 2 of 30 3 attending college, Mr. Shields holds part-time employment working approximately fifteen (15) hours per week. By means of his family support and his own fortitude, Mr. Shields has accomplished a considerable amount in the past three (3) years, despite being the subject of a criminal prosecution. B. Procedural History Following execution of the search warrant at Mr. Shields’ home in June of 2005, he was charged in North Carolina state court with offenses relating to the contraband contained on his computer. Eventually, the state prosecution was transferred for federal prosecution, and on February 13, 2007, Mr. Shields voluntarily entered a guilty plea by information. Throughout the pendency of the state and federal prosecution, Mr. Shields has been forthright and cooperative with law enforcement officials. II. AT THE TIME OF SENTENCING, IT WILL BE THIS HONORABLE COURT’S DUTY TO IMPOSE A SENTENCE SUFFICIENT, BUT NOT GREATER THAN NECESSARY TO COMPLY WITH THE PURPOSES OF FEDERAL SENTENCING. At the time of sentencing, it is respectfully submitted that it will be this Honorable Court’s duty to impose a sentence sufficient, but not greater than necessary, to comport with the purposes of sentencing as set forth in 18 U.S.C. §3553(a)(2)(A)-(D). In light of United States v. Booker , 543 U.S. 220 (2005), this Honorable Court shall engage in a multi-step analytical process at sentencing. First, this Court must correctly determine, after making appropriate findings of fact, the applicable Guidelines range. United States v. Moreland , 437 F.3d 424, 432 (4th Cir. Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 3 of 30 4 2006). After making appropriate findings of fact, this Honorable Court must make an individualized determination as to whether a sentence within that range serves the factors set forth in §3553(a). Id., see also United States v. Salazar, 2007 WL 2004520 (4th Cir. 2007). Finally, this Court must consider said factors and articulate the reasons for the sentence imposed in light of the factors set forth in §3553(a). Id. A. The United States Supreme Court has directed sentencing courts to afford respectful consideration to the Guidelines, but not to presume that a Guidelines sentence is an appropriate sentence. In Rita v. United States, the United States Supreme Court clarified that although an appellate court may apply a presumption of reasonableness to a district court sentence imposed within a properly calculated Guidelines range, such a presumption does not apply in the district court. 127 S.Ct. 2456, 2465 (2007). Specifically, the Supreme Court held that “[i]n determining the merits of these arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.” Id Rita tells us that a sentencing court is expressly barred from entertaining the non-binding “presumption” that an appellate court “may” enjoy. Further, a district court need not say it is applying a presumption in order to be reversed. It may not say, for example, that it does not see “any reason why the Guidelines sentence isn’t appropriate” in a particular case, or that it cannot sentence below the Guidelines range unless a defendant has “presented some kind of good reason.” See United States v. Ross , 501 F.3d 851, 852 (7th Cir. 2007)(reversing based on those statements). Rita further instructs that an appellate court may no longer give greater deference to the Sentencing Commission’s supposed fact-finding (i.e., certain Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 4 of 30 5 circumstances are “not ordinarily relevant”), than to a district court’s real findings of fact based on a judge’s experience and discretion regarding relevancy. Rita , 127 S.Ct. at 2463. Put another way, a district court’s below-Guidelines sentence cannot be trumped by any deference to “fact-finding” by the Sentencing Commission in the Guidelines. The application of—and departure from—the advisory Guidelines has recently been further clarified by the United States Supreme Court in Gall v. United States , 128 S.Ct. 586 (2007). In Gall , the Court held that when reviewing the reasonableness of a sentence outside of the advisory Guidelines range, an appellate court may consider the degree of the variance from the Guidelines, but no rule requires “extraordinary” circumstances to justify a sentence outside the Guidelines range, nor shall a court engage in any sort of proportionality analysis. Id at 595. Furthermore, in reviewing a sentence that departs from the recommended Guidelines range, the extent of the difference between a particular sentence and the recommended Guidelines range is relevant, but the appellate court must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under an abuse of discretion standard. Id at 597. Essentially, Gall supports the proposition that “the sentencing process involves an exercise in judgment, not a mathematical proof.” United States v. Grossman, 513 F.3d 592, 596 (6th Cir. 2008). In practical terms, the Supreme Court in Gall explained that after an appellate court reviews a sentence, the appellate court may, but is not required to, apply a presumption of reasonableness to a sentence within the Guidelines. Similarly, the appellate court may not necessarily apply a presumption of unreasonableness to a Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 5 of 30 6 sentence outside the Guidelines range. Id In both Rita and Gall, the United States Supreme Court reiterated that a sentencing court must give respectful consideration of the Guidelines in determining a sufficient sentence, but if may not presume that the Guidelines sentence is the correct one or place “any thumb on the scale favoring a Guideline[s] sentence.” United States v. Hanson, 2008 WL 2486336, *2 (E.D. Wis. 2008), citing Gall, 128 S.Ct. at 594; Rita, 127 S.Ct. at 2465. On the whole, case law has established that the range of available options to a sentencing court has been significantly broadened. Gall, 128 S.Ct. at 602 (finding a sentencing outside the Guidelines range to be reasonable); Kimbrough v. United States, 128 S.Ct. 558, 570 (2007) (noting that courts may vary from Guidelines ranges based solely on policy considerations, including disagreements with the Guidelines); Rita, 127 S.Ct. at 2465 (holding that a district court may consider arguments that “the Guidelines sentence itself fails properly to reflect §3553(a) considerations”); Cunningham v. California, 127 S.Ct. 856, 867 (2007) (stating that judges are no longer tied to the sentencing range indicated in the Guidelines but are obliged to “take account of” that range along with the sentencing goals Congress enumerated in §3553(a)); United States v. Mohamed, 459 F.3f 979, 986 (9th Cir. 2006) (noting that “the better view is to treat the scheme of downward and upward “departures” as essentially replaced by the requirement that judges impose a “reasonable” sentence.”). In fact, a sentencing court may conclude that a Guidelines range fails to properly take into consideration the §3553 factors in cases where the Guidelines “do not exemplify the [Sentencing] Commission’s exercise of its characteristic institutional role.” Kimbrough, 128 S.Ct. at 575. Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 6 of 30 7 B. Examination of the factors set forth in 18 U.S.C. §3553(a) indicates that a sentence of probation for Mr. Shields is a reasonable and appropriate sentence. 1. Nature and circumstances of the offense and the history and characteristics of the Defendant. a. Nature and circumstances of the offense In January 2005, Special Agent Lori Shank began an investigation of Mr. Shields’ potential involvement in “Operation Peerless,” an undercover Internet operation designed to investigate and/or prosecute individuals engaging in the possession and distribution of child pornography. Specifically, an IP address later established to have shared illegal material was identified as registered to Ms. Debbie Shields of Boone, North Carolina. PSR ¶ 10. Thereafter, an undercover telephone call was placed to the Shields’ residence by United States Postal Inspector Lisa Holman, another government official participating in said investigation. PSR ¶11. Mr. Shields answered the phone and advised Ms. Holman that he was eighteen (18) years of age and that the residence associated with the aforementioned IP address did contain multiple computer systems, to wit: two (2) “desktop” computer systems and one (1) “laptop” system. PSR ¶12. On or about June 8, 2005, Agent Shank obtained a search warrant for the Shields’ residence. PSR ¶13. The “probable cause” for the search provided therein detailed that on two (2) previous occasions, certain files containing illegal depictions of minors were shared by the IP address associated with the Shields’ residence. These dates were December 29, 2004, and December 30, 2004. Importantly, Mr. Shields was seventeen (17) years old when this investigation began. PSR ¶13. Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 7 of 30 8 Presumably, the conduct had initially occurred prior to that time. As such, Mr. Shields respectfully submits that he is less culpable than an individual who has, at the very least, reached the age of maturity by cultural and legal standards. At least one United States district court has noted that “[p]ossession of pornography is the least serious of the crimes on the continuum of conduct – from possession to distribution to production to predatory abuse – that exploit children.” United States v. Sudyka, 2008 WL 1766765, *7 (Dist. Neb. 2008). In this regard, the court in Sudyka noted that individuals who possess child pornography are considerably less culpable than those who produce or distribute the materials—an individual who possesses child pornography is a “marginal player” in the overall child exploitative regime. Id. b. The history and characteristics of Mr. Joshua Shields Mr. Shields is a twenty-one (21) year-old man with strong ties to his family and the community. His parents are Douglas Shields and Debra Triplin Shields. His parents divorced when he was six (6) years old. Although his parents share joint custody, he has lived with his mother in Boone, North Carolina for the previous ten (10) years. PSR ¶39. Mr. Shields graduated from Watauga High School on June 3, 2005. While attending Watauga, he maintained a 3.516 grade point average. Jane B. Rogers, a counselor at Watauga, noted that Mr. Shields “was a good and reliable student.” PSR ¶49. After graduating from Watauga, Mr. Shields enrolled in courses at Appalachian State University. He is pursuing a Bachelor’s Degree in English and contemplating a career in journalism. Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 8 of 30 9 In addition to furthering his academic career, Mr. Shields is employed at “Smokes ‘N More,” a tobacco shop located in Boone, North Carolina. PSR ¶52. To date, he has demonstrated responsibility in maintaining this employment while also balancing the rigors of collegiate education. His responsible nature is also reflected in the absence of any prior criminal history. He presently participates in extensive individual and group sex-offender counseling. Moreover, upon information and belief, he has complied with the stringent conditions of pretrial release, including restrictions on travel, contact with minors, and use of the Internet, all of which have been increasingly complicated by Mr. Shields’ current enrollment in college. Importantly, it is respectfully submitted that Mr. Shields has not been determined to be a pedophile, sexual predator or child abuser. He has been examined by a mental health professional, who found that he is at low risk to reoffend. He has demonstrated sincere remorse for his conduct and has made substantial strides toward rehabilitation in this matter. Finally, Mr. Shields has already suffered serious consequences as a result of his actions. A conviction for the instant offense carries considerable stigma, especially given Mr. Shields’ present age and current situation. Additionally, Mr. Shields has voluntarily resigned from his former employment at EB Games. 1 He will have a felony conviction on his record and he will have to register as a sex offender for a substantial period of time following the disposition of this matter. With respect to mental health and rehabilitative measures, Mr. Shields’ has 1 As noted in defense counsel’s objections to the PSR, Mr. Shields contends that he decided to seek new employment because he felt that it was in his best interest to remove himself from an environment directly related to technology and electronics Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 9 of 30 10 taken extraordinary steps to avoid the risk of reoffending. Over the course of the past three (3) years, Mr. Shields has consistently participated in various forms of psychological counseling. The medical professionals involved in Mr. Shields’ treatment have all noted his commitment to treatment and his marked rehabilitation. Following his arrest, Mr. Shields enrolled in a residential treatment program at the KeyStone Center Extended Care Unit for Sexual Compulsivity and Trauma [hereinafter KeyStone] in Keystone, Pennsylvania. He participated in intensive inpatient treatment at KeyStone from December 28, 2005 through February 8, 2006 in order to address his sexual compulsivity. (See letter from Travis D. Flower, JD, Psy.D. filed separately under seal with psychological treatment records.) While at KeyStone, Mr. Shields attended group therapy sessions for approximately thirty- eight (38) hours per week. Id. These group therapy sessions examined sexual and emotional trauma, addiction, offending behaviors, grief and loss, and relapse prevention. Additionally, Mr. Shields engaged in weekly individual therapy sessions and support group meetings. Id. His treatment at KeyStone included extensive focus on his offending behaviors. The purpose of this examination was to assist in reducing any denial, to identify components of his offender cycle, to address any potential distorted thinking, and to develop victim empathy. Id. Upon completion of the program at KeyStone, Dr. Flower concluded as follows: “It is our professional opinion, however, that Mr. Shields is a good candidate for rehabilitation if he continues with long-term treatment. This was evidenced by his commitment to his therapy at KeyStone, adherence to recommendations by the treatment team and his reported willingness to continue in treatment.” Id. at 3; See also KeyStone Center Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 10 of 30 11 Extended Care Unit Discharge Summary filed separately under seal. Following his stay at KeyStone, Mr. Shields began counseling with Ron. R. Hood, Ph.D. Starting in April of 2006, Mr. Shields has regularly attended therapy sessions with Dr. Hood approximately every other week for one (1) hour. In April of 2008, Dr. Hood noted the following regarding Mr. Shields’ progress: Josh has shown improvement and understanding of his past sexual compulsivity and addictive behavior and has also displayed his recovery through attending college studies, developing a major, and maintaining part time employment. He has complied with the recommendations of Keystone Center, and is a low risk of reoffending; Josh has developed close ties with the community, his family, and improved his social network. (April 3, 2008 treatment summary filed separately under seal with psychological treatment records; See also December 20, 2007 and October 9, 2006 treatment summaries filed separately under seal.) In addition to his treatment with Dr. Hood, Mr. Shields has regularly participated in pastoral counseling with John L. Padgett, M.A.; AACC of Living Water Christian Fellowship. Recognizing a need for guidance, Mr. Shields’ voluntarily sought pastoral counseling from Mr. Padgett almost a year prior to the execution of the search warrant at his home in June of 2005. During weeks when Mr. Shields does not meet with Dr. Hood, he meets with Mr. Padgett. In September of 2006, Mr. Padgett made the following remarks about Mr. Shields: “Josh has come to see that his behaviors, leading to his arrest and subsequent legal charges were offensive and defiant. . . . His ability to be forthright about his past behavioral patterns and his own sexual history are good signs from him preventing relapse. He has made a Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 11 of 30 12 significant emotional investment in his therapy.” (Please see correspondence from John L. Padgett filed separately under seal with psychological documents). 2. Need for sentence imposed – to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; and to protect the public from further crimes of the defendant. At the time of sentencing, it is respectfully submitted that it will be this Honorable Court’s duty to impose a sentence sufficient, but not greater than necessary, to comport with the purposes of sentencing as set forth in 18 U.S.C. §3553(a)(2)(A)-(D). Such purposes of sentencing include promoting respect for the law, which incorporates providing just punishment in light of the seriousness of the offense; affording adequate deterrence; protecting the public from further crimes by the Mr. Shields; and providing Mr. Shields with any needed rehabilitation and treatment. When applying the above-referenced factors to the matter sub judice , it is apparent that a sentence of probation is sufficient to achieve the sentencing goals outlined in 18 U.S.C. §3553(a). First, this Honorable Court is required to impose a sentence that reflects the seriousness of the offense, promotes respect for the law, and provides just punishment for the offense. Mr. Shields has entered a plea to one (1) count of Possession of Material which Contains Visual Depictions of Minors Engaging in Sexually Explicit Conduct. The statutory range of zero (0) to ten (10) years takes into account the fact that the present offense represents his first conviction. See 18 U.S.C. § 2252(b)(2)(stating that a person who has a prior conviction for a violation of this statute is subject to a term of incarceration between Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 12 of 30 13 ten and twenty years). Furthermore, the inevitable negative ramifications for his conduct – a felony conviction on his record, registration as a sex-offender, and the stigma associated with this offense – will adequately accomplish the purposes of sentencing while adequately deterring both Mr. Shields and the general public from committing similar offenses. Additionally, a sentence of probation will adequately protect the public from any possible future crimes by Mr. Shields. At the time of his guilty plea, Mr. Shields was subject to detention pursuant to 18 U.S.C. §3143(2). However, this Honorable Court determined that releasing Mr. Shields would not pose a substantial danger to the community. Importantly, the government did not oppose said release. Since his guilty plea, Mr. Shields has not committed any additional offenses. He has complied with all of the stringent conditions of release. He has maintained an intensive treatment regiment consisting of individual and group counseling. The psychosexual evaluations conducted in this matter, discussed supra, establish that Mr. Shields presents a low risk of recidivism. In total, these factors support the contention that Mr. Shields does not present a danger to the community and, should this Honorable Court grant the privilege of probation, it is unlikely that he will engage in unlawful conduct in the future. 3. The kinds of sentences available under the Guidelines As set forth in Rita and Gall, supra, a district court has discretion to impose a sentence below the Guidelines range so long as it considers the sentencing factors delineated in §3553(a). Rita, 127 S. Ct. at 2465. In United States v. Polito, 215 Fed.Appx. 354 (5th Cir. 2007), the Fifth Circuit Court of Appeals upheld the district Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 13 of 30 14 court’s sentence of probation for a defendant convicted of one (1) count of possession of child pornography. The district court’s explained that it imposed a sentence outside of the “prescribed Guideline range” because of the following: the defendant was only eighteen years old and very immature at the time of the offense and his age and mental condition prohibited him from acting rationally ; there was no evidence that the defendant would be a threat to the community or young children in the area or that the defendant ever intended to conduct predatory sexual activities with children; the defendant had never been arrested for or convicted of any other offense; since the offense, the defendant had conducted himself in a very positive way, receiving mental health treatment, maintaining employment, and avoiding any problem with the law, which made him atypical of many convicted of [possessing child pornography]; a term of imprisonment would interrupt the defendant’s mental health treatment; and the sentence would serve as a deterrent to others similarly situated. (Emphasis added). Id. at 356 – 57. The case at bar presents circumstances similar to those in Polito that the court relied upon when imposing a sentence of probation. Again, Mr. Shields was only seventeen (17) years old at the time of the offense. See PSR ¶13(noting that the conduct supporting probable cause for the search warrant occurred on December 29, 2005 and December 30, 2005). Furthermore, as previously discussed, Mr. Shields is not a threat to the community, nor is there any allegation that he ever contemplated any sort of physical contact with children. Mr. Shields has no prior criminal history and, subsequent to his plea, he has avoided any negative contact with law enforcement officers – a circumstance the Polito Court noted was “atypical of many convicted of possessing child pornography.” Polito, 215 Fed. Appx. at 357. On his own volition, Mr. Shields sought mental health treatment for his Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 14 of 30 15 condition. He has maintained a rigorous treatment regiment consisting of individual and group counseling. In terms of the types of sentences available, the United States Supreme Court recognizes that custodial sentences are qualitatively more severe than probationary sentences of equivalent terms. See Gall, 128 S. Ct. at 595. Notwithstanding this disparity, offenders on probation remain subject to numerous and significant restrictions on their liberty, including: provisions mandating home confinement, stringent notification requirements, abstaining from associating with other convicted felons, refraining from drinking, and submitting to drug testing. Id. A sentence of probation rather than incarceration can therefore work to promote the sentencing objective of respect for the law by illustrating a rejection of the view that the law is merely a means to dispense harsh punishment without taking into account the particular circumstances present in the matter. Id. at 599. If a defendant violated the terms of the probation, they should then expect imposition of a more severe sanction including prison. 4. The applicable advisory Guidelines range The applicable term of incarceration for a violation of 18 U.S.C. § 2252 (a)(4)(B) is between zero (0) and ten (10) years. The applicable Guidelines calculation spans one hundred and thirty-five (135) to one hundred and sixty-eight (168) months of imprisonment. PSR ¶58. The maximum punishment permitted under the statute, however, is one hundred and twenty (120) months. In this case, Mr. Shields is subject to an adjusted offense level of thirty-three (33) with a criminal Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 15 of 30 16 history category of one (1). Id. The Pre-Sentence Investigation Report calculated Mr. Shields’ offense level as follows: Base offense level pursuant to §2G2.2(a)(2) 18 Material involving a prepubescent minor +2 Use of a Peer to Peer network +5 Material portraying sadistic or masochistic conduct +4 Offense involved use of a computer +2 Offense involved 600 or more images +5 Acceptance of responsibility -3 Total Offense Level 33 Case law clearly supports departing downward from the calculated Guidelines range. For example, in United States v.Wachowiak, 496 F.3d 744 (7th Cir. 2007), the Seventh Circuit Court of Appeals upheld the trial court’s departure from the sentencing guideline range – specifically, the imposition of a seventy (70) month sentence despite the fact that the applicable Guidelines range was between one hundred and twenty-one (121) and one hundred and fifty-one (151) months. In affirming the district court’s sentence, the Seventh Circuit Court of Appeals listed several factors pertinent to the reduced sentence. Although not determinative, the Court noted the importance of considering the defendant’s strong social support system committed to assisting with the defendant’s rehabilitation and reintegration into the community. Specifically, the Seventh Circuit noted that “[w]here the Court has found strong social support from family, friends, and others the Court has Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 16 of 30 17 deemed a lower sentence appropriate.” Id. at 747-48. Similarly, the court in United States v. Sudyka, 2008 WL 1766765 (D. Neb 2008), considered the defendant's history and characteristics in imposing a sentence below both the Guidelines and the plea agreement. Although the Guidelines called for a sentence of one-hundred and twenty (120) months and the plea agreement proposed a sentencing range of sixty-three (63) to seventy-eight (78) months of incarceration, the district court imposed a sentence of twenty-four (24) months. Id. at 10. The court noted the defendant’s lack of significant criminal history as well as the efforts that he made toward rehabilitation, efforts that included counseling and therapy. Id. at *7. Furthermore, the court considered the defendant’s compliance with the stringent conditions of pretrial release, including restrictions on travel, contact with minors, and use of the Internet. Id. The court also noted the defendant’s stable employment history, and the integral role that he played within his family. 2 Additionally, the sentencing court found that the defendant was not a pedophile, sexual predator or child abuser. There was no dispute that he did not intend to share or distribute child pornography. The court further relied upon the numerous letters of support for the defendant which, coupled with his remorse, provided strong evidence that recidivism was highly unlikely. Id. Regarding punishment, the court noted that the defendant has already suffered serious consequences as a result of his actions. A conviction for 2 The defendant was responsible for the care of his elderly mother and, in the court’s opinion, a lengthy period of incarceration would work an inordinate hardship on his mother, who would likely lose her ability to live independently. Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 17 of 30 18 possession of child pornography carries considerable stigma. The defendant had lost his job, would have a felony conviction on his record, and will have to register as a sex offender for a substantial period of time. Id. The court also referenced the purposes of the child pornography statutes under which the defendant was found guilty. The court noted that “[p]ossession of child pornography was criminalized in part because of concerns that the Internet facilitated access to and enticement of minors for sexual exploitation, as well as concerns that pedophiles use the materials to desensitize and entice victims.” Id. at *9. Assessing the defendant’s case, the court found that the facts and circumstances of his case did not involve either of the aforementioned scenarios. The court thus concluded that the defendant’s crime fell at the low end of the culpability spectrum and imposed a sentence of twenty-four (24) months of incarceration. Id. at *10. In United States v. Smith, 2008 WL 1816564 (4th Cir. 2008), the Fourth Circuit Court of Appeals affirmed, as reasonable, the district court’s imposition of a twenty-four (24) month sentence for possession of child pornography even though the Guidelines range was seventy-eight (78) to ninety-seven (97) months. In this regard, the district court began with the “truism that the actual Sentencing Guidelines that are appropriate in [the] case is that of a total offense level of 28 and a criminal history category of I.” Id. at 186. The court noted that the starting point for the sentence was the Guidelines range of seventy-eight (78) to ninety-seven (97) months, but that the court was also required to rely on the factors set forth in 18 U.S.C. § 3553(a) in imposing a sentence. Id. These considerations included the Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 18 of 30 19 absence of any accusation that the defendant molested any person under the age of eighteen (18), the defendant’s mental stability, the low rate of potential recidivism, and the strong ties that the defendant maintained with his family. Id. Mr. Shields respectfully submits that many of the reasons that justified a sentence below the Guidelines range in Wachowiak, Sudyka and Smith are present in the matter sub judice First, Mr. Shields has a strong support system that is committed to ensuring that he receives the necessary treatment for his affliction(s). Additionally, Mr. Shields has a criminal history category of one (1), signifying that he has no prior involvement with the criminal justice system. PSR ¶ 37. As discussed supra, he has received counseling throughout the pendency of this case. Furthermore, he has complied with the stringent provisions of presentence release. Importantly, Mr. Shields has not been formally recognized as a pedophile, a sexual predator or a child abuser. Moreover, he has already suffered serious consequences as a result of his actions. The stigma attached to this conviction will remain with him for the remainder of his life. He will have a felony conviction on his record, and he will be subjected to sex offender registration for a substantial amount of time. Furthermore, his family and friends will continue suffer severe consequences as a result of his conduct in this matter. 5. Pertinent Policy Statements Congress established the Sentencing Commission for the purpose of formulating and constantly refining the national sentencing standards. Kimbrough v. United States, 128 S.Ct. 558, 570 (2007). In fulfillment of its role, the Sentencing Commission “has the capacity courts lack to base its determinations on empirical Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 19 of 30 20 data and national experience, guided by a professional staff with appropriate expertise.” Id. at 574. The Guidelines function to advance sentencing reform objectives such as reducing sentencing disparity, assuring certainty and severity of punishment, and increasing the rationality and transparence of punishment. See United States Sentencing Commission, Fifteen Years of Guidelines Sentencing at 11-12 (Nov. 2004) (“Assessment”). The Sentencing Commission collected, studied and ultimately utilized data on past practices and recidivism rates in formulating the Guidelines. Id. at 14 (noting that the Guidelines are based in part on statistical analyses of pre- Guidelines sentencing practices); United States Sentencing Guidelines § 1A.1, introductory comments ¶3. The Sentencing Commission relied upon this data in formulating offense levels for each crime, with said offense levels corresponding to a particular recommended sentencing range. As such, the Guidelines typically represent a reasonable estimation of a fair sentencing range. Public policy and statutory mandatory minimum sentences have caused the Sentencing Commission to depart from precedent practices in setting offense levels for such crimes as fraud, drug trafficking, and child crimes and sexual offenses. Kimbrough, 128 S.Ct. at 567. The recent case of United States v. Hanson, 2008 WL 2486336 (E.D. Wis. 2008) provides a detailed examination of Guideline §2G2.2— governing possession of material involving the exploitation of a minor—and highlights how Guideline §2G2.2 is not representative of the Commission’s typical role of relying on evidence and empirical study to develop sound sentencing practices. Citing Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer Case 5:07-cr-00004-RLV-CH Document 25 Filed 09/29/08 Page 20 of 30