Opinion
CAUSE NO. 3:19-CR-42 DRL-MGG
2021-01-28
UNITED STATES of America, Plaintiff, v. Kenneth R. HYATT, Defendant.
John M. Maciejczyk, Government Attorney, US Attorney's Office, South Bend, IN, for Plaintiff. David A. Wemhoff, Attorney at Law, South Bend, IN, Johanna M. Christiansen, Thomas William Patton, Public Defender, Federal Public Defender, Peoria, IL, for Defendant.
John M. Maciejczyk, Government Attorney, US Attorney's Office, South Bend, IN, for Plaintiff.
David A. Wemhoff, Attorney at Law, South Bend, IN, Johanna M. Christiansen, Thomas William Patton, Public Defender, Federal Public Defender, Peoria, IL, for Defendant.
SENTENCING MEMORANDUM
Damon R. Leichty, Judge
Acting on a tip from Dropbox, Inc. and the National Center for Missing and Exploited Children, law enforcement discovered the upload of 65 images of child pornography from username "Dead Knight." Dropbox later provided the other files from the account, totaling 208 images and 49 videos. Law enforcement traced the images to Kenneth Hyatt. He pleaded guilty to count two of the three-count indictment—receipt of child pornography. See 18 U.S.C. § 2252(a)(2).
SENTENCING GUIDELINES
The court must first calculate the guideline sentence correctly, then decide whether the guideline sentence is the right and reasonable sentence for this defendant. Nelson v. United States, 555 U.S. 350, 351, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009) ; United States v. Garcia , 754 F.3d 460, 483 (7th Cir. 2014). The court applies the 2018 sentencing guidelines because there are no ex post facto concerns. See Peugh v. United States , 569 U.S. 530, 531, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) ; U.S.S.G. § 1B1.11.
Neither party objected to the final presentence investigation report, so the court adopts as its own findings ¶¶ 1-133 of the presentence report, specifically including ¶¶ 101-110 concerning Mr. Hyatt's financial condition and earning ability.
Mr. Hyatt starts at offense level 22. U.S.S.G. § 2G2.2(a)(2). His offense level is increased two levels because the material involved prepubescent minors or minors under age 12, U.S.S.G. § 2G2.2(b)(2), four more levels because the material portrayed sadistic or masochistic conduct and sexual abuse of a toddler or infant, U.S.S.G. § 2G2.2(b)(4), five more levels because he possessed in excess of the equivalent of 600 images of child pornography (effectively 3,883 images), U.S.S.G. § 2G2.2(b)(7)(D) & app. n.6(B)(ii), two more levels because the offense involved the use of a computer, U.S.S.G. § 2G2.2(b)(6), and two levels for knowingly engaging in distribution (uploading 65 images to Dropbox, a file-sharing platform), U.S.S.G. § 2G2.2(b)(3)(F) & app. n.1. These enhancements bring him to level 37. Mr. Hyatt has clearly and timely accepted responsibility for his offense, so his offense level is adjusted downward three levels to level 34. U.S.S.G. §§ 3E1.1(a), (b).
At age 53, Mr. Hyatt has substantial criminal history. The sentencing guidelines assess 22 total criminal history points against him, including 20 for the following offenses:
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Two points are added—for a total of 22 points—because Mr. Hyatt committed the instant offense while on probation (habitual traffic violation). U.S.S.G. § 4A1.1(d). These 22 points place Mr. Hyatt deep into criminal history category VI. U.S.S.G. Chap. 5A.
The sentencing guidelines recommend a sentencing range of 262 to 327 months, U.S.S.G. Chap. 5A, less than the maximum sentence of forty years (480 months) that the crime of conviction carries by statute, 18 U.S.C. § 2252(b)(1).
DISCUSSION
The court decides this sentence under 18 U.S.C. § 3553(a) and United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Turning to the statutory factors, the court must arrive at a reasonable sentence: one sufficient but not greater than necessary to satisfy the statute's purposes. 18 U.S.C. § 3553(a). Although the guidelines typically provide a certain assurance of uniform and fair treatment of defendants with similar records and offense conduct, thus avoiding unwarranted sentencing disparities, see 18 U.S.C. § 3553(a)(6) ; United States v. Scott , 631 F.3d 401, 405 (7th Cir. 2011) ; United States v. Boscarino , 437 F.3d 634, 637 (7th Cir. 2006), that tends to be less true with non-production offenses, see United States Sent. Comm'n (USSC), Quick Facts: Child Pornography Offenders 1 (2019) (633 offenders convicted of trafficking child pornography received an average sentence of 133 months in 2019, with 60 percent of all 1,368 child pornography offenses receiving a variance below); USSC, Sourcebook , Table 31 (2019) (reporting that 30.2 percent of all child pornography cases were sentenced within range while 59.9 percent received a variance). The initial benchmark that is the recommended sentencing range isn't presumed reasonable. See Freeman v. United States , 564 U.S. 522, 529, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011) ; Gall v. United States , 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). That said, given the seriousness of this conduct and Mr. Hyatt's criminal history in particular, no concern exists with the recommended range here. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A).
The court has found many of Mr. Hyatt's arguments for a downward variance unpersuasive in prior cases. See United States v. Roberts , 463 F. Supp.3d 860, 862-68 (N.D. Ind. 2020) (Leichty, J.). It largely does so here too, with one caveat. The Sentencing Commission has suggested in the past that the current guideline structure should be revisited for the differing degrees of culpability for non-production child pornography offenders. See USSC, Report to Congress: Federal Child Pornography Offenses 311-31 (2012). But Congress hasn't authorized the Commission to revise the guidelines after some nine years. Indeed, one of the last congressional acts in this area was the PROTECT Act of 2003 that strengthened laws against child pornography. Pub. L. No. 108-21, 117 Stat. 650 (2003) (codified as amended at 18 U.S.C. § 3553(b)(2) ). That law was partly a response to the frequency of downward departures and a congressional viewpoint of the general inadequacy of sentences in child pornography cases. See H.R. Rep. No. 108-66, 108th Cong., 2d Sess. 58-59 (2003).
The court may impose a lower sentence than recommended based on a policy disagreement with the child pornography guidelines. See United States v. Oberg , 877 F.3d 261, 264 (7th Cir. 2017). That isn't the court's view today. That Congress has not endorsed revision of the child pornography guidelines, and in fact most recently increased the statutory sentencing schemes for these offenses, speaks to their continuing viability. Id. ("Congress created the Sentencing Commission and it was ‘their choice’ to give the commission ‘some direction.’ "); United States v. Bistline , 665 F.3d 758, 762 (6th Cir. 2012) ("Congress can marginalize the Commission all it wants: Congress created it.").
In proposing new research and recommendations in 2012, the Sentencing Commission said the current guidelines might recommend both overly severe sentences in certain cases based on "outdated and disproportionate enhancements related to their collecting behavior" and, at the same time, "unduly lenient ranges for other offenders who engaged in aggravated collecting behaviors not currently addressed in the guideline." See USSC, 2012 Report at 321. Otherwise put, each case, each defendant's sentence, should be carefully and individually assessed. Every sentencing is a unique case study, see Pepper v. United States , 562 U.S. 476, 487-88, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), and this court approaches sentencing just so, not least in cases like this one.
One area of focus has been the two-level enhancement because an offense involves the use of a computer device, U.S.S.G. § 2G2.2(b)(6) —one that Mr. Hyatt renews today. In this day and age, it nary requires a thought that child pornography would be maintained or received by way of a computer or computer service, and the 2018 sentencing guidelines offer no commentary in their publication why possession or receipt in such commonplace manner deserves a two-level enhancement. Still, to the extent that the computer enables reproduction or distribution, even the ready risk of it, the use of a computer is worthy of greater opprobrium. In fact, Congress, in enacting the Sex Crimes Against Children Prevention Act of 1995, increased punishment for use of a computer in child pornography offenses, identifying several concerns, including that wide dissemination and instantaneous transmission can be facilitated by computers and that law enforcement will face increased difficulty to investigate and prosecute such crimes. See H.R. Rep. No. 90, 104th Cong., 1st Sess. 3-4 (1995), reprinted in 1996 U.S.C.C.A.N. 759.
The court hasn't been told whether the uploaded materials could be accessed by others, though the risk remains in this era of cloud-based storage and file-sharing services. Mr. Hyatt was transporting images and videos of child exploitation via his use of a computer. He cloaked it with the username "Dead Knight," though as it turns out not very well given how easily this crime was identified. In using a computer, he knowingly distributed the material, quite aside from broadening his own access. See USSC, 2012 Report at 320 (considering how defendant "organized, maintained, and protected his collection over time, including through the use of sophisticated technology"). To the extent his use of the computer and cloud-based option made copying and distribution readily available at the push of a button, the court isn't inclined to view the two-level enhancement under U.S.S.G. § 2G2.2(b)(6) as without meaningful basis. See 18 U.S.C. §§ 3353(a)(1), (a)(2)(A); see also USSC, Report to Congress: Sex Offenses Against Children: Findings and Recommendations Regarding Federal Penalties 29 (June 1996) ("person's culpability depends on how they use a computer," noting that "[n]ot all computer use is equal") (emphasis added). The offense conduct here doesn't reflect just maintenance of a private collection via use of a computer.
That being said, and here's the caveat, his uploading of images to Dropbox triggered two enhancements (four levels)—one for using a computer device and one for knowing distribution. See U.S.S.G. §§ 2G2.2(b)(6), 2G2.2(b)(3)(F), & app. n.1 (defining distribution as "any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor"). There is nothing wrong with both enhancements applying here. See , e.g. , United States v. Tenuto , 593 F.3d 695, 697-99 (7th Cir. 2010). They often address different concerns and still do so here. In a transportation case or one equivalent to it, and particularly given the facts of this case, however, the protective and deterrent nature of these enhancements lose some footing under § 3553(a). Chiefly here, both redress much of (though not entirely) the same conduct of overarching concern and the same foundation of culpability—uploading the images for ready distribution or permitting these images to be disseminated at the push of a button. Of course, Mr. Hyatt used his computer in other respects, and there are other ways to receive or transport images that differentiate these enhancements; but the aims of deterrence and promoting respect for the law have been merged by some measure of overlapping enhancements here. That tells the court that the range is deserving of some reconsideration given the facts of this case—not as a policy difference, but in reaching a reasonable sentence. See 18 U.S.C. § 3553(a)(2).
Mr. Hyatt amassed a collection (according to the guidelines) of 3,883 images. See U.S.S.G. § 2G2.2(b)(7) and app. n.6(B)(ii). Certainly, the court has seen much larger collections, but his stash comes out well above the 600 images needed to warrant the five-level enhancement in U.S.S.G. § 2G2.2(b)(7)(D). See U.S.S.G. § 2G2.2 app. n.6(B)(ii) (video-to-image ratio). He is substantially more culpable than a similarly situated offender who only had a handful of images. See 18 U.S.C. §§ 3553(a)(1), (a)(6). Depictions of sadistic abuse of a child of kindergarten age or another young girl of 8 years, just as examples within the presentence report, likewise enhance the harm here as the court weighs not just the numbers, but the nature of his collection. Given the volume here, the nature of the images, and the scope of harm, the court finds no fault in the forceful application of the enhancement or the resulting guideline range. See 18 U.S.C. §§ 3553(a)(1), (a)(5), (a)(6) ; see also USSC, 2012 Report at 320 (recommending consideration of content of an offender's child pornography collection and the nature of his collecting behavior).
It should not be so easily presumed that a higher sentence for one more image, ten more images, or even a hundred or five hundred, or a thousand more images somehow is divorced from an empirical or sensible basis in sound sentencing principles. And this is not a defendant on the cusp of an enhancement level. Child pornography has lasting impacts on its victims. See 18 U.S.C. § 3553(a)(1). The abuse memorialized by the recordation of their vulnerability as minors may be set in time, but its crippling effects are in many ways perpetual or lifelong. Child pornography is a "permanent record" of abuse, thereafter "exacerbated by [its] circulation." New York v. Ferber , 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) ; accord USSC, 2012 Report at 112-13. The crime trades unendingly on the trauma. "[E]very viewing of child pornography is a repetition of the victim's abuse." Paroline v. United States , 572 U.S. 434, 457, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014). Then every image collected is too—as it is collected to be viewed. Every image collected that broadens the scope of the harm here has an intrinsic empirical basis, or at minimum an inherent and sound footing in federal sentencing goals. See 18 U.S.C. §§ 3553(a)(2)(A), (a)(2)(B), (a)(2)(C) (promoting deterrence, public protection, and respect for law); see also Tapia v. United States , 564 U.S. 319, 325, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011) (court should fashion sentence to achieve these goals).
Mr. Hyatt not just received child pornography but transported and thus distributed it within the meaning of the guidelines, so this offense has some additional cause for deterrence and warrants a higher sentence. See 18 U.S.C. §§ 3553(a)(2)(A), (a)(2)(B). Though undoubtably similar, the transportation of child pornography, criminalized at 12 U.S.C. § 2252A(a)(1), and receipt of child pornography, criminalized at 12 U.S.C. § 2252(a)(2)(A)-(B), are different crimes that carry with them a different measure of moral culpability. See, e.g. , Tenuto , 593 F.3d at 697-98 (discussing transportation and distribution). The transportation of child pornography requires an individual to knowingly mail, transport, or ship child pornography by any means across state lines. 12 U.S.C. § 2252A(a)(1). Compare this to 12 U.S.C. § 2252(a)(2)(A), which requires receiving child pornography using means of commerce or that "has been mailed ... shipped or transported in commerce." 12 U.S.C. § 2252(a)(2)(A). The distinction is rooted in an act that allows child pornography to be disseminated, which Congress has acknowledged is particularly egregious. See 151 Cong. Rec. 4236 (Feb. 24, 2003) (noting that a computer allows individuals to "disseminate their product ... with a few simple strokes of a keyboard"); United States v. Grober , 624 F.3d 592, 616 (3rd Cir. 2010) (Hardiman, J., dissenting) (comparing the severity of child pornography transportation offenses relative to crimes of consumption like "simple receipt"); United States v. Mohrbacher , 182 F.3d 1041, 1049 (9th Cir. 1999) (noting that the term transportation can be read to encompass the act of receiving). Though both receipt and transportation start with the same base offense level, U.S.S.G. § 2G2.2(a)(2), simple receipt can become eligible for a two-level reduction if that's all it was whereas transportation cannot, U.S.S.G. § 2G2.2(b)(1). This wasn't simply receipt. The court won't treat this as it might a possession crime or ignore the features of this offense that show Mr. Hyatt transported child pornography, and not just received it. As a point of comparison in 2019, transportation offenses received on average much higher sentences than receipt or possession crimes, and rightfully so. See USSC, Quick Facts: Child Pornography Offenders 1 (2019) (133 months on average versus 96 and 68 months respectively).
Thus speaking, the court has not disagreed with the guidelines as a policy matter but has considered the factors that the Sentencing Commission encouraged as amendments in 2012 and those under § 3553(a) to tailor a sentence for this defendant, as it would any other. See USSC, 2012 Report at 320; see also 18 U.S.C. § 3553(a)(5). The Commission's focus in 2012 was on non-production offenses under U.S.S.G. § 2G2.2, like this case. Based on its research, the Sentencing Commission also recommended consideration of a person's degree of engagement with other offenders and his history of engaging in sexually abusive or predatory conduct. See USSC 2012 Report at 320. The record here reflects no engagement with other offenders, nor that Mr. Hyatt sought pecuniary gain or exchanged money, so in these respects he has not contributed to the commercial market for child pornography. But Mr. Hyatt's history remains a noted concern.
The court has already rejected a binding plea of 180 months. Mr. Hyatt's penchants date at least back to the late 1980s, and this is not his first offense of this nature. Mr. Hyatt has a prior conviction for possessing child pornography. See 18 U.S.C. § 3553(a)(1). In fact, he committed this child pornography offense less than six months after being released for that prior conviction. See 18 U.S.C. §§ 3553(a)(2)(A), (a)(2)(B). Long before that, he was convicted of sexually abusing two females under the age of twelve. See 18 U.S.C. § 3553(a)(1) ; USSC, 2012 Report at 320 (recommending the court consider a defendant's "history of engaging in sexually abusive, exploitative, or predatory conduct" with minors). That conviction was not accounted for by the guidelines due to the conviction's age, see U.S.S.G. § 4A1.2(e), and doesn't qualify for a pattern enhancement, though the application notes indicate that an upward variance may be appropriate, see U.S.S.G. §§ 2G2.2(b)(5), 2G2.2 app. n. 9. Thus, his history is demonstrably relevant when considering a reasonable sentence for Mr. Hyatt's current offense, see 18 U.S.C. § 3553(a)(1) ; USSC, 2012 Report at 320. The Sentencing Commission was concerned with offenders who, like Mr. Hyatt, have histories of criminal sexually dangerous behavior that are not properly accounted for by statutory or guideline provisions. USSC, 2012 Report at 325 (recommending the guidelines better reflect a "more nuanced approach depending on the number and type of acts of sexually dangerous behavior in an offender's history"); see also 18 U.S.C. §§ 3553(a)(1), (a)(5). Though his prior offenses may not qualify him for any enhanced guideline range, Mr. Hyatt's criminal history shows a history of sexual offenses and that his prior convictions were not enough to prevent his recidivism. See 18 U.S.C. §§ 3553(a)(2)(A), (a)(2)(B). He admitted, as the presentence report says, that he has a problem with child pornography. No matter the current view on recidivism rates with these types of offenses, the court cannot ignore Mr. Hyatt's history and admitted problem. His history proves a counterbalancing aggravation to other mitigating factors.
Adding in Mr. Hyatt's criminal history alters the analysis of comparison too. In 2019, child pornography offenders in Mr. Hyatt's criminal history category (VI) saw a median sentence of 162 months and a mean sentence of 189 months. See USSC, Sourcebook , Table 27 (2019) (listing only 12 cases within criminal history category VI out of the total 1,367 child pornography convictions that fiscal year); cf. USSC, Sourcebook , Table 27 (2018) (14 offenders in the same category saw a median sentence of 134 months and a mean sentence of 205 months). These are modest samples to compare. The sourcebook doesn't say how many of these category VI sentences were below range, or how many had prior crimes of concern, but it does state that child pornography offenses generally see a mean downward variance of 40.5% and median variance of 38.1%. See Sourcebook , Table 40 (2019); see also USSC, Mandatory Minimum Penalties For Sex Offenses in the Federal Criminal Justice System , 52 (2019) (reporting that distribution charges in 2016 saw an average guidelines minimum of 191 months and an average sentence of 140 months—an approximate 27% variance).
However, and significantly, these statistics don't differentiate between possession and greater offenses nor do they differentiate first-time sexual offenders from those with relevant prior convictions facing mandatory minimums. See, e.g. , 18 U.S.C. § 2252(b)(1) (raising minimum sentence from 5 to 15 years if the defendant has a relevant prior conviction). To achieve criminal history category VI, a defendant must have 13 points. See U.S.S.G. Chap. 5A. Mr. Hyatt exceeds that by 9 points and has an unaccounted for prior sexual offense. In total, he has two prior offenses of real concern. The court can envision a similar defendant, one facing a 15-year minimum sentence and falling within criminal history category VI, but who has precisely 13 points or even fewer, or one who lacks two sexual crimes of concern. To sentence these two defendants precisely the same would ignore the distinctions in their criminal history. It also erases any difference between Mr. Hyatt, who received a two-point enhancement for distribution, and another similarly situated defendant who otherwise receives a two-point reduction for conduct limited to receipt or solicitation. U.S.S.G. § 2G2.2(b)(1). A sentence below the range would perpetuate the Sentencing Commission's fear that the current sentencing scheme results "in unduly lenient ranges for other offenders" whose conduct involves aggravating factors. USSC, 2012 Report at 321. See also United States v. Cosby , 746 F. Appx. 556, 560 (7th Cir. 2018) (affirming upward adjustment based on defendant's criminal history); United States v. Jackson , 547 F.3d 786, 793 (7th Cir. 2008) (same); United States v. Melgar-Galvez , 161 F.3d 1122, 1124 (7th Cir. 1998) (upholding upward departure for 18 criminal history points and citing cases doing same for 17 and 18 criminal history points); U.S.S.G. § 4A1.3(a)(1), app. n.2(B); 18 U.S.C. §§ 3553(a)(1), (a)(5).
One reason Mr. Hyatt offers to justify the statutory minimum is that his offense did not involve direct physical harm to the victims—better said, that he didn't orchestrate the sexual acts here, because the trauma of child pornography can have physical manifestations. That doesn't mean Mr. Hyatt didn't cause any harm. Child pornography has lasting impacts on victims. See 18 U.S.C. § 3553(a)(1). The ongoing trauma caused by this offense is underscored by the several victim impact statements and restitution requests the court has received.
Due to the nature of this offense, Mr. Hyatt will be subject to strict conditions of supervised release upon his release from prison, including registering as a sex offender and monitoring of his computer, which will follow him for many years and will hopefully serve as a deterrent and reduce the risk of recidivism, though Mr. Hyatt has struggled to comply with terms of release before and even committed this offense while on probation. See 18 U.S.C. §§ 3553(a)(2)(B), (a)(2)(C).
Mr. Hyatt suggests his age as a reason justifying a 180-month sentence. The government argues Mr. Hyatt's age upon release will place him in a demographic statistically less likely to recidivate. See USSC, The Effects of Aging on Recidivism Among Federal Offenders , 23 (2017). That is generally true as the rearrest rate for offenders 65 years or older is just 13.4 percent. Id. But that number significantly increases when looking at Mr. Hyatt's demographic—his criminal history category. Offenders in Mr. Hyatt's criminal history category (VI) saw a rearrest rate of 37.7 percent at age 60 or older. Id. at 25; see also USSC, 2012 Report at 310 (finding federal child pornography offenders typically have a recidivism rate of 30 percent and with generally higher rates for offenders in criminal history categories II-VI). Mr. Hyatt has already shown he is prone to commit sexual crimes, including non-production child pornography offenses, and promptly (including after his release on his prior offense); and the court doesn't believe his age at a 180-month sentence will decrease it so significantly as to warrant such a variance. See 18 U.S.C. §§ 3553(a)(2)(B), (a)(2)(C).
Mr. Hyatt's personal history reveals some mitigating factors. See 18 U.S.C. § 3553(a)(1). Mr. Hyatt doesn't look fondly on his childhood. He describes his childhood as "disciplined." He had a strained relationship with his stepfather. When he was young, Mr. Hyatt suffered sexual abuse by a neighbor. He has never sought counseling to address the trauma of this abuse. To get away from his home life, he enlisted in the United States Navy at only sixteen, but he was dishonorably discharged for desertion after he did not return to service from leave.
Mr. Hyatt is an alcoholic. See 18 U.S.C. § 3553(a)(1). He says he uses alcohol to suppress his bad memories. His addiction is intertwined with his criminal history, with multiple convictions for drunk driving and being a habitual offender. The court must then examine his criminal history in the right light. He has also dabbled in illegal drugs throughout his life and routinely smoked methamphetamine at the time of this offense. He acknowledges that he has substance abuse problems and believes it is extremely important for him to get drug treatment.
Mr. Hyatt doesn't maintain close contact with most of his remaining family members; instead, he relies on his friends for support. His relationships with adult women (two marriages) each ended after two years, so the court cannot say he has normalized companionship to deter him from his admitted problem with child pornography. See 18 U.S.C. § 3553(a)(1).
Mr. Hyatt received his GED while serving in the Navy. Later, while incarcerated, he received vocational training in business and industrial maintenance repair. When he is not incarcerated, Mr. Hyatt works as a mechanic. Most recently, he worked as a mechanic for a company owned by his friends. These friends consider Mr. Hyatt a close friend and have provided room and board in their home for his work. They are supportive of Mr. Hyatt and have attempted to assist him in battling his addictions. See 18 U.S.C. § 3553(a)(1).
The court has considered Mr. Hyatt's allocution before determining his sentence. See, e.g. , United States v. Griffin , 521 F.3d 727 (7th Cir. 2008). Mr. Hyatt apologized to his victims. He blamed much of his criminal history on his alcoholism.
Review of all factors set forth in 18 U.S.C. § 3553(a) persuades the court that a sentence of 293 months is appropriate in this case. The court is not convinced a sentence less than this would reflect the seriousness of the offense, promote respect for the law, deter future crime of this nature, or provide just punishment; yet the court remains convinced that a higher sentence would prove greater than necessary to satisfy federal sentencing goals.
As a metrical check and balance to this analysis of the § 3553(a) factors, see, e.g., United States v. Jones , 962 F.3d 956, 962 (7th Cir. 2020), a one-level reduction in Mr. Hyatt's offense level to account for where the two enhancements of concern seem partly to overlap would result in a recommended range of 253 to 293 months. From there, his case presents aggravating circumstances that would justify a 293-month sentence. As it turns out, a 293-month sentence falls near the middle of the recommended guideline range as it exists without any reduction, thus also underscoring this sentence's reasonableness.
Restitution to the victims is mandatory under 18 U.S.C. § 2259. See also U.S.S.G. § 5E1.1 ; 18 U.S.C. § 3553(a)(7). It must not be overly "severe," nor a "token or nominal amount." Paroline , 572 U.S. at 459, 134 S.Ct. 1710. The court may account for the defendant's financial resources only in setting a schedule for restitution payments. 18 U.S.C. § 3664(f)(2). The evidence, including the offense conduct, nature and number of the images, and other information submitted from the victims, supports the imposition of $5,685 for the victim called "Pia," $3,250 for the victim called "Jenny," $3,000 for the victim called "Erika," and $3,000 for the victim called "Raven." See also Paroline , 572 U.S. at 448, 134 S.Ct. 1710 (requiring defendant's offense to have proximately caused a victim's losses). The government requested restitution prior to sentencing [ECF 37] and amended the request amount at sentencing, without objection from the defendant.
The Justice for Victims of Trafficking Act, 18 U.S.C. § 3014(a), requires another mandatory assessment of $5,000 for any non-indigent person convicted of this offense. The statute does not define indigency. Congress has stated that the obligation to pay the assessment continues for twenty years after the release from imprisonment or the entry of judgment, whichever is later. 18 U.S.C. §§ 3014(g), 3613(b). The court may consider the defendant's financial circumstances now and in the future. See , e.g. , United States v. Shepherd , 922 F.3d 753, 759 (6th Cir. 2019) ; United States v. Graves , 908 F.3d 137, 141 (5th Cir. 2018) ; United States v. Kelley , 861 F.3d 790, 801 (8th Cir. 2017). Based on Mr. Hyatt's income history and his likely financial circumstances upon release, the court finds him indigent and does not impose this assessment. Mr. Hyatt is subject to an assessment up to $35,000 pursuant to the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018. See 18 U.S.C. §§ 2259A(a)(2). The amount of the assessment must take into consideration the factors set forth in 18 U.S.C. §§ 3553(a) and 3572. 18 U.S.C. § 2259A(c). The court finds that imposition of an assessment here would impair his ability to pay restitution. See 18 U.S.C. § 3572(b). Accordingly, this assessment isn't imposed. A special assessment of $100.00 is mandatory. 18 U.S.C. § 3013(a)(2)(A).
The court must impose a supervised release term of at least 10 years to life. 18 U.S.C. § 3583(k) ; see also U.S.S.G. § 5D1.2(b)(2) (same). A term of 10 years is appropriate in this case.
SENTENCE
It is the court's judgment that the defendant, Kenneth R. Hyatt, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a total term of 293 months.
The court recommends that the Bureau of Prisons designate as the place of the defendant's confinement, consistent with his security classification as determined by the Bureau of Prisons, a facility located at FCI Petersburg where he might receive vocational training and other appropriate treatment, or alternatively FCI Marianna.
Upon release from prison, the defendant will be placed on supervised release for a term of 10 years. While on supervised release, he must comply with the terms of supervision set forth in ¶¶ 134-151 of the presentence report, which paragraphs the court incorporates as part of this sentence having made an independent judgment that they should be imposed under 18 U.S.C. § 3583(d). The defendant expressly waived the reading in open court of the conditions of supervision.
The defendant must make restitution payments to the United States District Court Clerk, 102 Robert A. Grant Federal Building, 204 South Main Street, South Bend, Indiana 46601, for disbursement to the victims identified under seal (see ECF 37) in the amount of $5,685 for the victim called "Pia," $3,250 for the victim called "Jenny," $3,000 for the victim called "Erika," and $3,000 for the victim called "Raven."
Restitution is due in full immediately. Any payment that is not paid in full must be divided proportionately among the persons named. The defendant must notify the United States Attorney for this district within 30 days of any change in mailing or residence address that occurs while any portion of the restitution remains unpaid. The defendant must make restitution payments from any wages he may earn in prison in accordance with the Bureau of Prisons Financial Responsibility Program. Any portion of the restitution that is not paid in full at the time of the defendant's release from imprisonment will become a condition of supervision. While on supervision and thereafter the defendant must make restitution payments at a minimum rate of $100.00 per month commencing 60 days after placement on supervision until the total amount is paid in full. The imposed payment schedule will remain in effect until such time as the court is notified by the defendant, the victims, or government that there has been a material change in the defendant's ability to pay.
The court imposes no other fine or assessment, except that he must pay to the United States a special assessment of $100.00, which is due immediately.
The court grants the government's motion to dismiss counts 1 and 3 remaining counts of the indictment [ECF 58], motion for filing of the government's revised sentencing memorandum [ECF 56], and motion to dismiss the preliminary order of forfeiture [ECF 40]. The court DENIES AS MOOT the government's motion to dismiss counts 2 and 3 of the indictment [ECF 41].
SO ORDERED.