DANIEL L. HOVLAND, District Judge.
On June 8, 2010, the defendant, Christian Robert Webb, was charged in a two-count indictment with the crimes of receipt of materials involving the sexual exploitation of minors and possession of materials involving the sexual exploitation of minors, in violation of 18 U.S.C. §§ 2252(a)(2), 2252(a)(4)(B), 2252(b)(1), and 2252(b)(2). See Docket No. 12. On November 23, 2010, a plea agreement was filed and Webb agreed to voluntarily plead guilty to the receipt charge in count one of the indictment. See Docket No. 28. In the plea agreement, the parties agreed that the base offense level for the defendant's conduct is 22 under U.S.S.G. § 2G2.2(a)(2). The parties also agreed to upward adjustments for materials involving a prepubescent minor; for materials portraying sadistic, masochistic, or violent conduct; for the use of a computer; and for the possession of more than 600 images. Id. On February 17, 2011, a change of plea hearing was held in Bismarck, North Dakota. The Court accepted a plea of guilty to count one of the indictment and ordered that a Presentence Investigation Report be prepared by U.S. Probation and Pretrial Services.
The Presentence Investigation Report (PSR) revealed the following undisputed facts, all of which are adopted by the Court and incorporated by reference in this memorandum:
See Docket No. 39, pp. 4-6.
The PSR established a total adjusted offense level of 32 and a criminal history category of I, with an advisory Sentencing Guideline range of 121-151 months. See Docket No. 39, p. 8. A conviction on a charge of receipt of materials involving the sexual exploitation of minors carries a five-year mandatory minimum sentence.
On May 20, 2011, a sentencing hearing was held in Bismarck, North Dakota. Pursuant to U.S.S.G. § 5K1.1, the Government moved for a downward departure from the advisory Sentencing Guideline range of 121-151 months based upon the defendant's substantial assistance and cooperation in the investigation and prosecution of other individual(s) who participated in the offense. The Government did not move for a downward departure pursuant to 18 U.S.C. § 3553(e) which would allow for a sentence to be imposed below a statutory minimum. At the sentencing hearing, the Government recommended a downward departure of one-third (1/3) off from the low end of the advisory Sentencing Guideline range or a sentence of eighty-one (81) months. The defendant requested a probationary sentence based on (1) his lack of any criminal history, (2) his
The harm to children depicted in child pornography was first recognized decades ago in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). In Ferber, the United States Supreme Court noted that, in the judgment of state and federal legislators and authors of relevant literature,
The Supreme Court in Ferber also observed that the "materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation." Id. at 759, 102 S.Ct. 3348 (citation omitted).
Id. at 759 n. 10, 102 S.Ct. 3348 (citations omitted); see also Osborne v. Ohio, 495 U.S. 103, 109-10, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (re-affirming Ferber in a case involving possession of child pornography). Twenty years later, the Supreme Court again acknowledged the harm to victims depicted in child pornography and observed that a new harm is caused each time the images are shared with someone different. Ashcroft v. Free Speech Coal., 535 U.S. 234, 249, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (noting that "as a permanent record of a child's abuse, the continued circulation itself would harm the child who had participated. Like a defamatory statement, each new publication of the speech would cause new injury to the child's reputation and emotional well-being").
The cases in which courts of appeals have considered the Sentencing Guidelines in child pornography cases are also instructive
Id. at 929-930 (internal citations omitted) (emphasis in original).
In addition to case law, the legislative history of the statutes in Chapter 110 acknowledges the harm to victims caused by possessors, receivers and/or distributors of child pornography, and confirms that Congress understood the primary victim of child exploitation crimes is the child depicted in the pornography. Recently, Congress found that:
Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, § 501(1)(A), (2)(D), 120 Stat. 587, 623-24 (2006); see also, Effective Child Pornography Prosecution Act, Pub.L. No. 110-358, § 102(3), 122 Stat. 4001 (2008) ("Child pornography is a permanent record of a child's abuse and the distribution of child pornography images revictimizes the child each time the image is viewed.").
For more than thirty years Congress has focused attention on the scope of child pornography offenses and the severity of penalties for offenders. By creating new offenses, enacting new mandatory minimums, increasing statutory maximums, and providing directives to the United States Sentencing Commission, Congress has expressed its will regarding appropriate penalties for child pornography offenders.
The crime committed by the defendant, Christian Webb, is serious and despicable. Nelson Mandela once said that "there can be no keener revelation of a society's soul than the way in which it treats its children." When one considers the current statistics surrounding crimes involving child pornography, and becomes familiar with the background of the criminal conduct that occurred in this case, one can only conclude that we are living in a country that is losing its soul.
This is not the routine or typical case involving a defendant convicted of receipt or possession of materials involving the sexual exploitation of children, i.e., child pornography. The defendant did not simply receive or possess images of child pornography. He was a live spectator and an active participant in live, streaming video webcams which depicted the sexual molestation of young, innocent children.
The record reveals that Christian Webb regularly contacted pedophiles through a chat line on Yahoo. Webb used not only his Yahoo username "nd_biboy," but was also using the username "trish16nd2@ yahoo.com." Webb used the two usernames — one in which he portrayed himself as a young bisexual male, and the other in which he portrayed himself as a young, promiscuous female — to manipulate others to sexually abuse children while Webb watched via the other subject's webcam. In other words, each of the adult participants was actively involved in the sexual abuse of young male and female children and were willing to allow each other to view the abuse using a web camera. At the time of his arrest, Webb had in his possession at least 75 webcam videos (and possibly up to 150 videos) which depicted the live, sexual abuse of children.
The Court has viewed the live streaming webcam videos found on Webb's computer which were seized by law enforcement officers from Homeland Security Investigations, formerly known as Immigration and Customs Enforcement or "ICE." All of the videos were not viewed in their entirety because one can only handle so much of the horrors depicted in those disturbing images. The spectrum of criminal culpability associated with these types of crimes is wide-ranging. Few would disagree that the sexual deviants who molest children, produce, and distribute such images deserve the harshest punishment. Webb was not the person depicted in the live video webcams who physically committed the sexual assaults on the innocent children. However, he unquestionably played an active role as a participant who not only viewed the live images as they were actually being produced, but also encouraged the victimization through his communications with the sexual perpetrators who were at the production end of the spectrum. The live streaming video webcam images depict
The conduct of Webb as an active participant in the production of live video webcams is, without question, vile, heinous, disturbing, and reprehensible at best. Webb may not be the worst of the worst, but his deviant behavior in participating and encouraging the production of live video webcams in which innocent children are being victimized by pedophiles ranks near the top. The Court has seen a wide range of disturbing and deviant sexual behavior by pedophiles convicted of sexual crimes but this is a first. The defendant was not a mere consumer of child pornography. He was a spectator and an active participant in the production of live, streaming video webcams of sexual molestation which are preserved as a permanent record of the violent sexual abuse perpetrated on innocent children. The lifelong harm and misery caused to these innocent children is unconscionable.
Pursuant to U.S.S.G. § 5K1.1, the Government has moved for a downward departure from the advisory Sentencing Guideline range of 121-151 months based upon the defendant's substantial assistance and cooperation in the investigation and prosecution of other individuals who participated in the sexual offenses depicted in the live video webcams. See Docket No. 41. The Court is fully aware of its authority and discretion to depart downward under Section 5K1.1. In the exercise of its authority and discretion, the Court will grant a slight downward departure of seven (7) months.
It is well-established that the sentencing judge has broad discretion to grant or deny a motion for a downward departure under Section 5K1.1. See United States v. Morris, 139 F.3d 582, 584 (8th Cir.1998) (finding that decision to deny the government's 5K1.1 motion is not reviewable because the district court did not consider any illegal facts and clearly acknowledged its discretion to grant or deny the motion). The undersigned had given serious consideration to deny any downward departure in this case and a refusal to depart from the Sentencing Guidelines under Section 5K1.1 is also non-reviewable. United States v. Dobynes, 905 F.2d 1192, 1197 (8th Cir.1990). The Court is not convinced that the assistance and cooperation provided were substantial. The other pedophiles who were sexually molesting children on the live video webcams were persons whose identities and locations were obtainable from the IP addresses obtained as a result of the search and seizure of the defendant's computers. The Court is not obligated to explicitly state its reasons for granting or denying a motion for downward departure. Suffice it to say that the Court has carefully and independently considered each of the Section 5K1.1(a) criteria. In the exercise of its discretion, the Court
The PSR established a total adjusted offense level of 32 and a criminal history category of I, with an advisory Sentencing Guideline Range of 121-151 months. See Docket No. 39, p. 8. A conviction on a charge of receipt of materials involving the sexual exploitation of minors carries a five-year mandatory minimum sentence. The sentence within the advisory Sentencing Guideline range is sufficient but not greater
The defendant is not one of the typical troubled souls the Court encounters who for some strange reason decide to explore the underbelly of cyberspace for images of child pornography. Instead, the defendant was a spectator and an active participant in the production of live, streaming video webcams during which the defendant communicated with, and encouraged, the perpetrator to sexually molest minor children. The defendant was an actual eyewitness to the live and ongoing sexual abuse and molestation of young children using webcams and he sat and watched as more than a mere interested spectator. From the Court's perspective, Webb essentially stands in similar shoes to the pedophile committing the crime — Webb was encouraging the sexual molestation of children as a spectator while communicating live with the perpetrator. It does not get much worse than that.
The Court is also fully aware of its authority and discretion to impose a variance or a non-Guideline sentence after careful consideration of the sentencing factors enumerated in 18 U.S.C. § 3553(a). As previously noted, the undisputed facts contained in the PSR address each of those sentencing factors. Those facts have been adopted by the Court and incorporated by reference in this memorandum and in the judgment. The Court would never choose to impose a sentence below the advisory Guideline range based on the facts presented in this case. In light of the fact the Court has concluded that the Sentencing Guideline range of 121-151 months is "sufficient but not greater than necessary" under the circumstances, and in light of the fact the defendant cooperated with the Government and appears to have accepted responsibility for his misconduct, the Court reluctantly declines to impose a variance above the advisory Guideline range.
In the alternative, and in the event there is a challenge to the downward departure granted in this case, the Court would note in closing that it firmly believes an upward variance is warranted. Careful consideration of each of the sentencing factors set forth in 18 U.S.C. § 3553(a) leads the Court to believe that an upward variance approaching the twenty-year statutory maximum sentence is likely a far more appropriate sentence. The Court gave serious consideration to an upward variance in the range of 18-20 years (the statutory maximum) with the possibility of some deference being afforded to the Government's recommendation for a downward departure under Section 5K1.1, albeit a minimal departure, if any.
As a practical matter, the defendant could have been, and probably should have been, prosecuted for the production of sexually explicit materials under 18 U.S.C. § 2251. The conduct of the defendant equates with aiding and abetting the sexual exploitation of children which carries a 15-year mandatory minimum sentence. The advisory Sentencing Guideline range for a conviction under 18 U.S.C. § 2251 is set forth in U.S.S.G. § 2G2.1. Section 2G2.1 carries a base offense level of 32. There is a 4-level increase for images which depict children who had not attained the age of twelve years; a 4-level increase if the offense involved the commission of a sexual act; a 2-level increase for distribution; a 4-level increase for materials which depict violent conduct, i.e., sexual intercourse; a 2-level increase if there is a parent or legal guardian of the child involved in the offense or if the minor was in the custody, care, or supervisory control of a co-defendant; and a 2-level increase for
The statutory maximum sentence for the offense to which Webb pled guilty is twenty (20) years. This case falls outside the heartland of cases contemplated for a conviction of receipt of materials involving the sexual exploitation of minors. The evil that occurred in this case is unimaginable. Christian Webb is far from a sympathetic defendant. The fact that there are men like Webb who work in positions of trust and authority, who are educators in our public school systems, and who prey on vulnerable children, is horrifying and despicable. A lifetime in federal prison for such persons is probably not long enough.
Based upon the undisputed facts set forth in the PSR, and the factual findings made by the Court as set forth in this Sentencing Memorandum, which facts are supported by a preponderance of the evidence, the Court finds the following advisory Sentencing Guideline range applies:
Base Offense Level: 22 (U.S.S.G. § 2G2.2(a)(2)) Specific Offense Characteristics: +13 (U.S.S.G. § 2G2.2(b)) Acceptance of Responsibility: -3 (U.S.S.G. § 3E1.1) Total Adjusted Offense Level: 32 Criminal History Category: I (U.S.S.G. § 4A1.1) Advisory Guideline Range: 121-151 months imprisonment Downward Departure: 7 months (U.S.S.G. § 5k1.1)
Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant, Christian Webb, shall be committed to the custody of the Bureau of Prisons to be imprisoned for a period of 144 months (12 years) followed by a lifetime of supervised release and registration as a sex offender. The Court concludes that the sentence is sufficient but not greater than necessary to serve the ends of justice.
