Opinion
Case No. C1-04-76.
June 14, 2005
SENTENCING MEMORANDUM
I. BACKGROUND
On October 1, 2004, the grand jury returned a two-count indictment charging the defendant, Todd Zastoupil, with sexual exploitation of minors and possession of material involving the sexual exploitation of minors. On December 15, 2004, after a jury trial, Zastoupil was found guilty on both counts.
The underlying facts which resulted in the indictment of Zastoupil are outlined in detail in the Presentence Investigation Report (PSR). On September 3, 2004, the Dickinson Police Department arrested an individual for the alleged sexual abuse of two minors. During the course of the arrest, the Dickinson Police Department obtained homemade videotapes of an adult male engaged in sexual acts with minors. The adult male was identified as Todd Zastoupil. The Police Department had initially received a telephone call from the victims' mother who informed the officers that her children had been sexually abused. The victims' mother had discovered the sexual abuse when she had viewed an unmarked videotape kept in the home. The date on the videotapes revealed that Zastoupil had engaged in sexual relations with the children in August 2004.
The disturbing videotapes reveal Zastoupil orally and digitally copulating the prepubescent female; engaging in oral and vaginal sex with the prepubescent female; engaging in oral and anal sex with the six-year old boy; and numerous videotapes depicting Zastoupil engaging in other forms of sexual abuse of the minors as well as masturbating and engaging in other bizarre and deviant behavior. The Dickinson Police Department received approximately twenty VHS tapes, two 8 MM tapes, and numerous Polaroid pictures which depict the sexual contact.
During the course of the investigation and following his arrest, Zastoupil was interviewed and admitted to the deviant sexual behavior with the minor children. Zastoupil also admitted to the sexual misconduct at trial. He indicated during the interview following his arrest that he had videotaped the sexual acts so that he could watch the tapes at a later date and masturbate without a need to sexually molest the children again.
At the time of the incidents of sexual abuse in August 2004, Zastoupil was a registered sex offender in the State of North Dakota. On June 20, 2000, Zastoupil had been placed on the sex offender registry after entering a plea of guilty to two counts of corruption of a minor.
The Supreme Court's recent decision in United States v. Booker, 125 S.Ct. 738 (2005), renders the federal Sentencing Guidelines "advisory." The Court is now required to consider the Guidelines in imposing a sentence but it is not required to impose a sentence mandated by the Guidelines. Following United States v. Booker, a court will generally follow a three-step process. First, the Court must determine the advisory Sentencing Guideline range. Second, the Court must determine whether any departures from the advisory Sentencing Guideline range apply. Finally, the Court must determine an appropriate and reasonable sentence in light of the factors set forth in 18 U.S.C. § 3553(a). This Court will continue to give consideration to the the "advisory" Sentencing Guidelines which will be afforded substantial weight in sentencing. United States v. Peach, 356 F.Supp.2d 1018 (D.N.D. 2005). Although the Sentencing Guidelines are considered to be advisory rather than mandatory, the Court has consistently held that the Guidelines are presumptively reasonable and carry substantial weight in determining an appropriate and reasonable sentence. This Court, in imposing any sentence, will give careful and thoughtful consideration to the Sentencing Guidelines, the applicable policy statements, the guideline range for sentencing, and all relevant factors enumerated in 18 U.S.C. § 3553(a). United States v. Peach, 356 F.Supp.2d 1018, 1022.
II. SENTENCING GUIDELINE CALCULATIONS
With respect to Count I (sexual exploitation of minors), the PSR established a base offense level of 27 under U.S.S.G. § 2G2.1(a). See PSR §§ 20, 32. The victims were six and nine years of age and, therefore, a four-level increase is warranted in accordance with U.S.S.G. § 2G.2.1(b)(1). In addition, U.S.S.G. § 2G2.1(b)(2) requires a two-level increase because the minors were in the custody, care and supervisory control of Zastoupil. U.S.S.G. § 3A1.3 requires an additional two-level enhancement if the victim or victims were physically restrained during the course of the offense. PSR §§ 21-25, 33-34. The videotapes reveal that, with respect to the sexual assault of the six-year old boy, Zastoupil had the child's legs held behind his head while performing anal intercourse. Therefore, the Court finds that a two-level enhancement for the restraint of the victim is applicable. PSR § 35. As a result, the total adjusted offense level for Count 1(sexual exploitation of minors) is 33 with respect to the nine-year old female, and 35 with respect to the six-year old male.
With respect to Count 2 (possession of material involving the sexual exploitation of minors), the base offense level is 27 as described in detail in the PSR. See PSR §§ 26, 39. A four-level enhancement is warranted under § 2G2.1(b)(1). In addition, a two-level enhancement is warranted under U.S.S.G. § 2G2.1(b)(2) because the children were in the custody, care, and supervisory control of the defendant. PSR §§ 27-31, 40-41. Again, an additional two-level enhancement is warranted because the victim or victims were physically restrained during the course of the offense as set forth in U.S.S.G. § 3A1.3. See PSR § 35. The total adjusted offense level under Count 2 is 33 with respect to the nine-year old female, and 35 with respect to the six-year old male.
The PSR established a criminal history category of V. See PSR § 91. As a result, of the multiple count adjustment calculations conducted under U.S.S.G. §§ 2G2.1 and 3D1.4, the advisory sentencing range on Count 1 is 360 months — life with a mandatory minimum sentence of 25 years. The advisory sentencing range on Count 2 is 120 months with a mandatory minimum of 10 years of imprisonment in light of Zastoupil's prior criminal history. III. 18 U.S.C. § 3553(a) FACTORS
The Court next turns to the imposition of sentence in light of the factors set forth in 18 U.S.C. § 3553(a) which include the following:
(1)the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3)the kinds of sentences available;
(4) the advisory guideline range;
(5) any pertinent policy statements issued by the Sentencing Commission;
(6) the need to avoid unwarranted sentence disparities; and
(7) the need to provide restitution to any victims of the offense.
The Court is required to consider the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to apply just punishment for the offense. See 18 U.S.C. § 3553(a)(2)(A). All of these factors weigh heavily in favor of imposing a sentence at the high end of the Sentencing Guideline range. The evidence clearly establishes that Todd Zastoupil is a deviant pedophile who has little respect for the law. Zastoupil is 32 years old and has a prior conviction for gross sexual imposition from June 2000 which conduct involved sexual intercourse with a minor. Unfortunately, due to his lack of respect for the law and his sexual preference for children, he has again tarnished and victimized two more innocent children. More troubling is the fact that Zastoupil continues to minimize and even justify his deviant sexual behavior. Zastoupil has evidenced little, if any, respect for the law and even less respect for the young children he has victimized to date. The Court firmly believes that the only "reasonable" sentence is one at or near the statutory maximum of fifty (50) years of imprisonment on Count 1 and twenty (20) years of imprisonment on Count 2. The Court must also consider the need to provide adequate deterrence to criminal conduct and to protect the public from further crimes of the defendant. See U.S.C. § 3553(a)(2)(B)(C). This Court is of the firm opinion that a deviant sexual predator such as Zastoupil should be incarcerated for a lengthy period of time to protect innocent young children and avoid the devastation to innocence that occurred in this case. Zastoupil is a dangerous pedophile. There is very little question that he will reoffend again if given the opportunity. Zastoupil's despicable conduct; his tainted belief that others are responsible for his deviant sexual behavior; and his total lack of remorse for the devastation he has caused to his step-children, strongly support the Court's belief that Zastoupil should remain incarcerated so that no other innocent, young children will ever be victimized by him in the future.
More important, a court-ordered evaluation conducted by Dr. Greg Volk in late January 2005, disclosed that Zastoupil poses a high risk to society. The following clinical summary of Dr. Volk provides strong support for a lengthy period of incarceration:
CLINICAL SUMMARY:
There are no extenuating circumstances that diminish Mr. Zastoupil's responsibility for the perpetration of sexual crimes against his victims. His intellectual ability is adequate for him to understand the consequences of his actions and to distinguish between appropriate and inappropriate behavior. There are no indications of prominent mood instability or psychosis.
Mr. Zastoupil displays no remorse for his actions and, in fact, attributes his actions to the seduction of his victim in the case of [the female child]. He apparently accurately states that the children did not say no to his abusive actions. However, he neglects the fact that [the male child's] cries of pain are clear indications to a rational mind that an action is not wanted.
Despite facing the consequences of his abuse of the children, Mr. Zastoupil continues to groom their mother, encouraging a continued relationship while also expressing inappropriate affection toward the children. He has been through prior sex offender treatment, albeit inadequate, and continues to demonstrate serious cognitive distortions, irrational thought patterns, and significant risk of harming others. It is this examiner's opinion that Mr. Zastoupil does and will present a serious risk to the community. The assessment indicates that he poses a HIGH level of risk. (emphasis added)
The Court has also carefully considered the nature and circumstances of the offense, and the history and characteristics of the defendant. See 18 U.S.C. § 3553(a)(1). The facts as set forth in detail in the PSR establish a very disturbing scenario of a defendant (Zastoupil) who has engaged in the sexual exploitation of minors in the past, and will continue to engage in a similar pattern of destruction if allowed to live outside the walls of a federal prison. In the Court's opinion, Zastoupil is a sexual deviant and a despicable predator who poses a significant threat to young children. Dr. Volk specifically noted that Zastoupil displays the following characteristics which indicate that he poses a high level of risk to society:
• numerous assaults on the victims or multiple victims
• used physical force
• compulsive ideation regarding offenses
• disregard for victim's objections
• prior apprehension for sex-related charges
• escalation in offending
• continued to offend after contact with the law
• previous treatment for sexual offending
• blames the victim
• limited remorse for the victim and no consideration of how the assault affected the victim
• does not understand why the assault is wrong
• limited awareness of how to prevent future assaults
• victim of sexual abuse
• limited social supports
• multi-problem family
• history of sexual abuse in other family members
Zastoupil's prior history and the above-identified characteristics lead the Court to believe that a sentence at the high end of the Sentencing Guidelines is appropriate and reasonable.
In conclusion, the Court has carefully considered the Sentencing Guidelines and each of the factors enumerated in 18 U.S.C. § 3553(a) to determine a reasonable sentence. It is clear that Congress, the general public, and this Court firmly believe that sexual predators/child molesters like Todd Zastoupil need to be incarcerated for a lengthy period of time. The Court is of the firm opinion that an appropriate and reasonable sentence is a sentence at or near the statutory maximum under federal law. The statutory maximum on Count 1 (sexual exploitation of minors) is fifty (50) years of imprisonment and the statutory maximum on Count 2 (possession of material involving the sexual exploitation of minors) is twenty (20) years of imprisonment. Zastoupil is 32-years old and has one prior felony conviction for a sex offense involving a minor.
The criminal misconduct and the sexual abuse that occurred in this case is horrendous. The videotapes reviewed by the Court depict a dark, troubled individual who has little, if any, regard and respect for innocent young children. Todd Zastoupil has shown no remorse for his deviant criminal behavior. There is nothing that Zastoupil has done or said during the trial, during post-trial proceedings, or at the sentencing hearing that has convinced the Court that a sentence significantly less than the maximum allowed by law is warranted or reasonable. Zastoupil is a recognized and continued threat to young children and he presents a serious risk to the community. The only remedy that will protect the public, and particularly children, is Zastoupil's incarceration in a federal prison for a lengthy period of time.
It is the judgment of the Court that the defendant, Todd Zastoupil, shall be committed to the custody of the Bureau of Prisons to be imprisoned for a term of fifty (50) years on Count 1 and twenty (20) years on Count 2, to be served concurrently.