Opinion
CAUSE NO. 3:19-CR-82 DRL-MGG
03-11-2020
UNITED STATES of America, Plaintiff, v. Jonathan E. ROBERTS, Defendant.
John M. Maciejczyk, US Attorney's Office, South Bend, IN, for Plaintiff.
John M. Maciejczyk, US Attorney's Office, South Bend, IN, for Plaintiff.
SENTENCING MEMORANDUM
Damon R. Leichty, Judge
Following peer-to-peer lead information obtained by undercover software, law enforcement executed a search warrant on Jonathan E. Roberts and his home that discovered approximately 151 videos and 347 images of child pornography. Certain images depicted children under age twelve, including toddlers and sadistic behavior. Mr. Roberts pleaded guilty to possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2).
SENTENCING GUIDELINES
The court must first compute 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 manual of the 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 ¶¶ 1-87 of the presentence report, specifically including ¶¶ 62-69 concerning Mr. Roberts’ financial condition and earning ability. Both sides advised the court they had no objections to the proposed conditions of supervision, as amended (ECF 35), and the court has reviewed them and independently found them appropriate for this case. 18 U.S.C. § 3583(d).
Mr. Roberts’ base offense level is 18. U.S.S.G. § 2G2.2(a)(1). 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 or other depictions of violence, 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, U.S.S.G. § 2G2.2(b)(7) and app. n.6(B)(ii), and two more levels because the offense involved the use of a computer device or software for possessing or accessing with the intent to view the material, U.S.S.G. § 2G2.2(b)(6). These enhancements bring his offense level to level 31.
Mr. Roberts has demonstrated acceptance of responsibility for his offense. He entered into a plea agreement, pleaded guilty to a one-count information, provided the court with a synopsis of his offense, and assisted authorities in the investigation and prosecution of his offense, so his offense level is adjusted downward three levels (supported by the government's oral motion at the hearing) to level 28. U.S.S.G. §§ 3E1.1(a), (b).
Mr. Roberts has no criminal history, so the sentencing guidelines place him in criminal history category I. U.S.S.G. Chap. 5A. The sentencing guidelines recommend a sentencing range of 78 to 97 months, U.S.S.G. Chap. 5A, less than the maximum sentence of twenty years (240 months) that the crime of conviction carries by statute. 18 U.S.C. §§ 2252(a)(4)(B), (b)(2).
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).
The Sentencing Commission has suggested a need to reassess the sentencing guidelines for child pornography cases. In December 2012, the Sentencing Commission submitted a report to Congress in which it critiqued federal sentencing policy in such cases. See United States Sentencing Commission, Report to Congress: Federal Child Pornography Offenses , 311-331 (2012). The Commission's focus then was on non-production offenses under U.S.S.G. § 2G2.2, like the case before the court. Based on its research, the Sentencing Commission recommended several categories of offender behavior that should be considered in imposing sentences in U.S.S.G. § 2G2.2 cases, including the content of an offender's child pornography collection, the nature of his collecting behavior, his degree of engagement with other offenders, and his history of engaging in sexually abusive or predatory conduct. See id. at 320. The Sentencing Commission viewed these factors as serving the federal sentencing goals of retribution, incapacitation, and deterrence. See id. at 321; see also Tapia v. United States , 564 U.S. 319, 325, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011) (district court should fashion sentence to achieve these goals).
In proposing this new research and recommendations, the Sentencing Commission observed that 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 U.S.S.C. 2012 Report at 321.
The United States Department of Justice agreed with the Commission's 2012 viewpoint: "[A]dvancements in technologies and the evolution of the child pornography ‘market’ have led to a significantly changed landscape—one that is no longer adequately represented by the existing sentencing guidelines.... [T]he existing Specific Offense Characteristics (‘SOCs’) in U.S.S.G. § 2G2.2 may not accurately reflect the seriousness of an offender's conduct, nor fairly account for differing degrees of offender dangerousness." U.S. Dept. of Justice, Letter to The Honorable Paul B. Saris, Chair, United States Sentencing Commission at 1 (Mar. 5, 2013). The Department of Justice concluded that the guidelines "can at times under-represent and at times over-represent the seriousness of an offender's conduct and the danger an offender possesses." Id.
The Sentencing Commission sought legislation from Congress that would authorize a full panoply of amendments to the sentencing guidelines in child pornography cases, see U.S.S.C. 2012 Report at 322, but that seems not to have come. 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 Department of Justice in 2012 thus recommended targeted adjustments to the guidelines while maintaining a "robust and strict sentencing scheme" to address trafficking and distribution. See 2013 DOJ Letter at 2. The Department of Justice also challenged the Sentencing Commission's views that recidivism rates were overstated and that rehabilitation rates were efficacious. See id. at 4-5.
One area of focus has been the two-level enhancement assessed because an offense involves the use of a computer device. U.S.S.G. § 2G2.2(b)(6). In this day and age, it nary requires a thought that child pornography would be maintained by way of a computer or computer service, and the 2018 sentencing guidelines offer no commentary in their publication why possession in such commonplace manner is deserving of a two-level enhancement. Mr. Roberts offered statistics whereby a computer device today is used in more than 90 percent of cases. This is not the 1980s or even 1990s when such possession would be more avant garde. Certainly, to the extent such possession facilitates distribution or perhaps merely serves as a prelude to or risk of ready distribution, such possession on a computer is worthy of greater opprobrium. In fact, Congress, in enacting the Sex Crimes Against Children Prevention Act of 1995 (SCACPA), increased punishment for use of a computer in child pornography offenses, identifying four concerns: (a) wide dissemination and instantaneous transmission that can be facilitated by computers; (b) the increased difficulty of investigation and prosecution by law enforcement; (c) the increased likelihood that child pornography will be viewed by children to their detriment; and (d) the potential for pedophiles to lure children into sexual relationships. See H.R. Rep. No. 90, 104th Cong., 1st Sess. 3-4 (1995) reprinted in 1996 U.S.C.C.A.N. 759. Building on this, the Sentencing Commission, back in 1996, observed that "[f]ederal cases to date typically do not involve the type of computer use that would result in either wide dissemination or a likelihood that the material will be viewed by children." United States Sentencing Commission, Report to Congress: Sex Offenses Against Children: Findings and Recommendations Regarding Federal Penalties 25-29 (June 1996). The Sentencing Commission observed that "a person's culpability depends on how they use a computer," noting that "[n]ot all computer use is equal." Id. at 29.
That said, as written, the two-level enhancement under U.S.S.G. § 2G2.2(b)(6) applies whether the computer was used for possession or distribution; and the absence of a stated differential in culpability and harm to victims and public from distribution suggests a more mechanical, thus less thoughtful, imposition of two more levels for possession, however wrongful that conduct and however worthy of a strong sentence. See U.S.S.C. 2012 Report at 323-24 (reiterating this concern). That could prove problematic in certain cases and lend argument to an emerging chorus that the sentencing guidelines at times are disproportionately severe. See , e.g. , United States v. Huffstatler , 571 F.3d 620, 622-23 (7th Cir. 2009) (collecting district court cases disagreeing with harshness of child pornography guidelines); United States v. Biddle , No. 1:13-CR-50-TLS, 2014 WL 5089187, 4-7, 2014 U.S. Dist. LEXIS 143733, 11-21 (N.D. Ind. Oct. 9, 2014) (varying downward); see generally Kimbrough v. United States , 552 U.S. 85, 109-10, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (affording sentencing court discretion to vary from guidelines when they do not reflect "empirical data and national experience").
That is not the court's view today. The court is not of the mind that the sentencing guidelines, and particularly the enhancements that have been applied in this case, should be disregarded because of policy differences or because of the perception held by some that they may lack, in certain cases, an empirical or other appropriate basis grounded in sound sentencing principles.
Indeed, the sentencing enhancement is not troublesome in application to this case. Aggravating this offense is law enforcement's ability, through peer-to-peer software and over less than a month's time, to trace the download of images and videos of child exploitation on sixteen separate occasions. Mr. Roberts was using a peer-to-peer file sharing software (commonly called "P2P") on his Samsung phone. Peer-to-peer software allows users to share files directly over the internet with other software users. United States v. Vadnais , 667 F.3d 1206, 1208 (11th Cir. 2012). Generally, peer-to-peer software allows users to search files located in the "shared folder" that is created by the software on the user's device; and when found through search terms, a peer-to-peer user can download the file directly from another computer (i.e. , directly from the peer's computer). Id. The copied file is then placed in the requesting user's own shared folder, and is available for download from other users, thus perpetuating the file's availability. Id.
Peer-to-peer file sharing is "widely used to download child pornography." 2012 U.S.S.C. Report at 51. Two recent law enforcement initiatives "identified over 20 million unique IP [Internet Protocol] addresses offering child pornography over P2P networks from 2006 to August 2010." Id. at 51-52. The ease with which child pornography can then be downloaded creates "an expanding market for child pornography [that] fuels greater demand for perverse sexual depictions of children, making it more difficult for authorities to prevent their sexual exploitation and abuse." United States v. Reingold , 731 F.3d 204, 217 (2d Cir. 2013). Peer-to-peer file-sharing programs have "resulted in exponential increase in the volume and ready accessibility of child pornography, including many graphic sexual images involving very young victims, a genre that previously was not as widely circulated as it is today." U.S.S.C. 2012 Report at 312-13. As a result, offenders can acquire large quantities of child pornography "at little or no financial cost and often in an anonymous, indiscriminate manner." Id.
Due to the reciprocal nature of peer-to-peer software, courts have found that the knowing use of the peer-to-peer sharing network warrants a different enhancement under the guidelines—i.e. , distribution. U.S.S.G. § 2G2.2(b)(3). See, e.g., United States v. Ryan , 885 F.3d 449, 453-54 (7th Cir. 2018) (quoting United States v. Robinson , 714 F.3d 466, 468 (7th Cir. 2013) ) (use of peer-to-peer software warrants a distribution enhancement when the court finds the defendant "either knew, or was reckless in failing to discover, that the files he was downloading could be viewed online by other people"); United States v. Abbring , 788 F.3d 565, 567-68 (6th Cir. 2015) (knowingly sharing files via peer-to-peer software is enough to warrant a distribution enhancement); United States v. Beasley , 562 F. Appx. 745, 752 (11th Cir. 2014) (quoting United States v. Spriggs , 666 F.3d 1284, 1287 (11th Cir. 2012) ) ("When the user knowingly makes the files accessible to others [via peer-to-peer software], the distribution is complete."); United States v. Durham , 618 F.3d 921, 928 (8th Cir. 2010) (distribution enhancement applies if the government can prove the defendant knowingly made child pornography files available to be searched and downloaded by other file-sharing users). The court does not mention these cases to suggest that a distribution enhancement is warranted here—indeed it is not—but merely to illustrate how the very nature of peer-to-peer technology abets the availability of child pornography and contributes generally to the growth of this illegal market. Here, the peer-to-peer software was not preserved to provide any additional information about Mr. Roberts’ knowledge.
Although the government might not have been able to charge distribution or prove beyond a reasonable doubt whether Mr. Roberts knew he was permitting downloads from his files, the nature of his possession on a computer device in the manner he did made the images accessible to others, even if passively, or at least presented a material risk of that. Law enforcement's trace of material sixteen times in a short window also illustrates the power of a computer to acquire child pornography facilely—and precisely because of the P2P software. The court is not inclined under such circumstances to view the two-level enhancement under U.S.S.G. § 2G2.2(b)(6) as without meaningful basis. See also 2012 U.S.S.C. Report at 323 (recommending consideration of the "degree of an offender's engagement with other offenders").
The guidelines also impose a five-level enhancement for Mr. Roberts’ possession of over 600 images. The guidelines assume videos contain 75 images each, so Mr. Roberts’ collection according to the guidelines totals around 11,672 images. The calculation assumes that each video is less than five minutes in length. See U.S.S.G. § 2G2.2(b)(7) and app. n.6(B)(ii). The guidelines otherwise recommend that this enhancement may well understate the offense's seriousness. Id. Though one video was approximately two hours in length, the average duration of the 151 videos here was just under five minutes, thus matching the presumptive guideline length. Id. Other courts have viewed this calculation as too perfunctory. See, e.g., Biddle , 2014 WL 5089187 at 7-8, 2014 U.S. Dist. LEXIS 143733 at 21-22 (collecting cases criticizing the image enhancement); see also U.S.S.C. 2012 Report at 323 (recommending the current enhancement does not adequately distinguish among most offenders regarding their culpability for their collecting behaviors). Given the overall volume here, the short time in which this collection was developed, the nature of the images, and the relative length of videos, see also U.S.S.C. 2012 Report at 320, the court finds no fault in its forceful application here.
Child pornography has lasting impacts on victims. See 18 U.S.C. § 3553(a)(1). Victims live in constant fear that their images will surface and be viewed by their family or people they know. See , e.g. , Gertirtz-Meyden et al. , The Complex Experience of Child Pornography Survivors , 80 Child Abuse & Neglect 238 (2014). They feel guilt and shame the images have been circulated, compounded by the belief that people might think that they were willing participants. See id. So, though the abuse memorialized by the recordation of their vulnerability as minors may be set in time, its crippling effects are in many ways perpetual or lifelong. Child pornography is a "permanent record" of that 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 U.S.S.C. 2012 Report at 112-13. Child pornography causes fear, shame, anxiety, sadness, depression, physical ailments, nightmares, torment, trauma, debilitated or dissociative relationships, suicidal thoughts, substance abuse, and more—and while this happens most powerfully to the children, their family members are not immune as they try to help them cope. The crime trades unendingly on that pain and 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). Offenders view the plot for their aberrant entertainment, forgetting or callously ignoring that these are real children being subjected to real and horrific abuse. The court has received numerous victim impact statements and restitution requests that echo these very concerns and the quite serious nature of this offense and its harm to the victims. The submissions exceed 560 pages—a resounding testament to that harm.
The court believes that Mr. Roberts understands these concerns. Listening to his allocution, see , e.g. , United States v. Griffin , 521 F.3d 727 (7th Cir. 2008), he was contrite and sincere, apologizing to the victims and his family. More than this, his statement evinced his recognition, aided by his voluntary treatment and counseling, that the victims were and are real people to whom he has caused real harm. He said rather emphatically that he will never do something like this again.
The court must also consider Mr. Roberts’ history and characteristics. 18 U.S.C. § 3553(a)(1). Mr. Roberts (age 34) grew up in Northern Indiana to hardworking parents who cared for him a great deal. It seems he experienced some stressful mental abuse and at times stern discipline physically by his father, though no violence and no alcohol or drug abuse in the home. Indeed, Mr. Roberts has strong family support. His mother speaks to his work ethic, honesty, and generosity, remarking how much she loves him and how important he is to the family business. His father speaks to their "close knit family," recalling that Mr. Roberts worked hard, attended church, and remained active in 4-H for ten years. He regrets that, as parents, they were not able to guide their son better in matters of computer usage.
All family members speak to Mr. Roberts’ kindness and willingness to help others. His sister says she has always known him to be a "kind hearted person" and "[a]lways willing to help people." Another sister calls him "hard working" with a "great work ethic," and someone her two minor children adore. His sister-in-law calls him "very hardworking, kind, always willing to lend a hand and not just willing to but actually helping others." She works for an organization dedicated to the rehabilitation of teenage male sex offenders and suggests that family support is often a decisive factor in their rehabilitation. Mr. Roberts’ younger brothers echo how much of a helpful mentor he has been and his value to the family and family business. His brother-in-law also speaks to Mr. Roberts’ helpfulness.
Mr. Roberts grew up on a farm where he had many responsibilities for farm animals and crops that went to market. He also worked in the family's transportation business in Peru, Indiana (Lake City Transport) from age seventeen, so was under demands. The business services Goodwill Industries. It appears that business may face jeopardy of going out of business without Mr. Roberts working at its helm as president and principal employee if he is incarcerated. His incarceration for a significant term is appropriately inevitable here, so the family will need to make alternative hiring decisions, which they can do for the company's benefit. Mr. Roberts currently owns a home where he resides with a girlfriend of six years. She has been supportive of Mr. Roberts. She, and many other family members, appeared at the sentencing hearing in solidarity. That measure of family support is essential to Mr. Roberts and does not go unnoticed by the court in determining his sentence.
Mr. Roberts completed high school through a home-schooling program, earning his diploma through the American School Program in Chicago, Illinois. He obtained a 3.4 grade point average. He later secured technical certificates, including in structural welding in December 2018 and industrial technology in May 2019, both summa cum laude , from Ivy Tech Community College of Indiana. He made the dean's list at the college. Mr. Roberts is thus bright and quite capable. He is to be commended for his educational success.
Mr. Roberts has no mental health history, though he has some indications of anxiety and depression. After law enforcement confronted Mr. Roberts, he voluntarily sought out mental health treatment, and he has been attending individual therapy sessions on a weekly basis that he reports have been beneficial. He required no indictment—he immediately accepted responsibility based only on an information and promptly sought treatment. That is not just a mark of responsibility, but of a man making a concerted effort to undergo treatment to change. From certain accounts, his possession of child pornography seems tied to his stress, anxiety, and depression. He has some history of alcohol and marijuana use at a young age that was recreational and stress-relieving. He has been clean while on pretrial supervision, however.
The government has advocated for a 58-month sentence, which represents a variance from the guideline range. The government notes that, in 2018, 70.9 percent of 1,416 child pornography offenders received a below guideline range sentence, appreciating that the statistics do not differentiate possession and distribution cases. See United States Sentencing Commission, Sourcebook , Table 27A (2018) (mean decrease of 40.1% and median decrease of 38.1%). Without sharper statistics, the government estimates only that a child pornography offender receives a sentence 20-30 percent below the guideline range currently, with below guideline sentences occurring more often in possession cases.
That in mind, as an initial benchmark, the court doesn't just presume that the recommended sentencing range is reasonable. See Gall v. United States , 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The guidelines may not apply "perhaps because ... the case at hand falls outside the ‘heartland’ to which the Commission intends individual Guidelines to apply, U.S.S.G. § 5K2.0, perhaps because the Guidelines sentence itself fails properly to reflect § 3553(a) considerations, or perhaps because the case warrants a different sentence regardless." Rita v. United States , 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
Although the guidelines provide a certain assurance of uniformity and fairness among defendants with similar records and offense conduct, thus avoiding unwarranted sentencing disparities, that tends to be less true with this particular offense. Indeed, one might argue persuasively that adhering mechanically to the guidelines in a possession case like this would create the very unwanted disparity the sentencing guidelines were in part intended to help prevent. See 18 U.S.C. § 3553(a)(6) ; United States v. Boscarino , 437 F.3d 634, 637 (7th Cir. 2006). This is a horrific crime to be sure, and one deserving of a commensurate sentence; that said, the court's task is to pronounce a reasonable sentence, not one that is greater than necessary to promote federal sentencing goals. 18 U.S.C. § 3553(a) ; Rita , 551 U.S. at 381, 127 S.Ct. 2456. The operative question is whether any disparity is unwarranted. Given the circumstances here, the court believes only a conservative variance is appropriate. See 18 U.S.C. § 3553(a)(6). The content of this child pornography collection cannot be understated. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A) ; see also 2012 U.S.S.C. Report at 320 (recommending consideration of this factor). This collection included minors under age 12 and also sadistic content. The activity in a short window, aided by P2P software, is likewise of concern. On the other hand, there is no indication that Mr. Roberts "organized, maintained, and protected his collection over time, including through the use of sophisticated technology." 2012 U.S.S.C. Report at 320. Aside from his use of P2P software, from all accounts he was less than sophisticated in his use of technology. In addition, there is no evidence that he produced child pornography or that he has a "history of engaging in sexually abusive, exploitative, or predatory conduct" with minors. Id. He did not seek pecuniary gain or exchange money in his acquisition of images, so he has not contributed to the commercial market for child pornography in this way.
In considering his history and characteristics, 18 U.S.C. § 3553(a)(1), he has not had improper contact with children and has never enticed a minor to engage in prohibited sexual conduct. He comes from a strong family. He also has maintained a relationship with an adult girlfriend for six years, thus with arguable less tendency toward antisocial behaviors that may prove a greater risk of recidivism. 18 U.S.C. § 3553(a)(2). He has been in family and social settings with children, including those of his siblings, and maintained proper relationships with them. Indeed, they seem to have looked up to him in the past. Mr. Roberts has no criminal history. He has never been arrested. He was not engaged in overt distribution of child pornography or its production.
These observations are not offered to excuse his criminal behavior, but to put it in the right light for sentencing, as required under 18 U.S.C. § 3553(a). Of course, due to the nature of this offense, Mr. Robert 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 serve as a deterrent and reduce the risk of recidivism. 18 U.S.C. § 3553(a)(2).
Review of all factors set forth in 18 U.S.C. § 3553(a) persuades the court that a sentence of 63 months is appropriate. The court is not convinced a sentence less than this would reflect the seriousness of the offense, promote respect for the law, or provide just punishment, especially given the accompanying circumstances of this case; and the court remains convinced that a higher sentence would prove greater than necessary to satisfy federal sentencing goals.
Restitution to the victims is mandatory under 18 U.S.C. §§ 2259, 2259A(a)(1). 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). Mr. Roberts agreed as part of his plea agreement to pay $5,000 per victim who seeks restitution, and the representatives of the victims have agreed to this restitution amount. The evidence, including the offense conduct, nature and number of the images, and other information submitted from the victims, supports the imposition of these restitution amounts for each victim. 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 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). Because Mr. Roberts is not indigent, this assessment must be imposed.
Because of his restitution and assessment, Mr. Roberts can't pay the fines recommended by the guidelines even if afforded the most generous of installment payment schedules, so the court imposes no fine. 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 5 years to life. 18 U.S.C. § 3583(k) ; see also U.S.S.G. § 5D1.2(b)(2) (same). A term of 5 years is appropriate in this case.
SENTENCE
The court now accepts the plea and plea agreement and finds Mr. Roberts guilty of possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2). Accordingly, it is the court's judgment that the defendant, Jonathan E. Roberts, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a total term of 63 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 (1) located at Elkton FCI or alternatively Milan FCI, or (2) where he might receive appropriate health treatment. The court also recommends as Mr. Roberts’ designated place of confinement, consistent with his security classification, a facility where he might participate in vocational training.
Upon release from prison, the defendant will be placed on supervised release for a term of 5 years. While on supervised release, he must comply with the terms of supervision set forth in ¶¶ 1-18 of the second addendum to 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.
It is further ordered that 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 four persons identified under seal (see ECF 20) in the amount of $5,000.00 each.
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 $300.00 per month commencing 30 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 defendant must also pay an assessment under the Justice for Victims of Trafficking Act in the amount of $5,000.00. Under 18 U.S.C. § 3014, this assessment will not be payable until the defendant has satisfied his restitution obligations.
Because the defendant is not able and, even with the use of a reasonable installment schedule, is not likely to become able to pay all or part of the fines recommended by the sentencing guidelines, the court imposes no fine.
He must pay to the United States a special assessment of $100.00, which is due immediately.
Within 72 hours of placement on supervision after release from the custody of the Bureau of Prisons, the defendant must report in person between the hours of 8:00 a.m. and 4:30 p.m. to the United States Probation Office in the district for which the defendant has an approved release plan. During this meeting the probation officer is directed to remind the defendant of the conditions of his supervision and to consider whether to recommend to the court any modifications of or additions to those conditions in light of any changes in the defendant's circumstances since the sentencing hearing. The court also directs the Probation Office to notify the court upon the defendant's placement on supervision, so that it may consider any appropriate modifications to the defendant's supervised release and schedule a hearing on that topic, if necessary.
SO ORDERED.