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United States v. McElheney

November 14, 2007

UNITED STATES OF AMERICA
v.
EARL MCELHENEY



The opinion of the court was delivered by: Chief Judge Curtis L. Collier

MEMORANDUM AND ORDER

On September 27, 2007, the Court held the sentencing hearing in this case (Court File No. 73). The Court considered Defendant Dr. Norman Earl McElheney's ("Defendant") Motion for Downward Departure/Variance and supporting memorandum (Court File Nos. 45 & 46), Objections to the Presentence Report (Court File No. 47), Sentencing Memorandum (Court File No. 48), Supplement to Objections to Presentence Report (Court File No. 54), Supplement to Defendant's Sentencing Memorandum (Court File No. 59), Second Objection to Presentence Report (Court File No. 63),*fn1 and two additional Supplements to Defendant's Sentencing Memorandum (Court File Nos. 64 & 70). The United States ("Government") filed a Response to Defendant's Motion for Downward Departure/Variance (Court File No. 52) as well as a Response to Defendant's Second Objection to the Presentence Report (Court File No. 66).

At the hearing Defendant withdrew his factual objections to the Presentence Report. The Court determined the Sentencing Guidelines applicable to Defendant's case, decided Defendant's motions, and consistent with the Court's determinations as stated at the sentencing hearing, after carefully considering the arguments of counsel and the factors listed in 18 U.S.C. § 3553(a), imposed a sentence of 135 months (Court File No. 75).

The Court is required to explain the reasons for its sentence. 18 U.S.C. § 3553(c). This memorandum will elaborate upon the reasons stated at the time of the imposition of sentence.

I. Methodology Used by this Court in Sentencing

A. United States v. Booker

After the United States Supreme Court's ("Supreme Court") decision in United States v. Booker, 543 U.S. 220 (2005), the manner in which district courts imposed sentences changed. Prior to the Booker decision, sentencing judges followed the mandatory United States Sentencing Guidelines ("USSG"). In Booker the Supreme Court considered whether mandatory guidelines where judges were required to make factual determinations that could result in a defendant receiving an enhanced sentence violated the Sixth Amendment. Id. at 226. The Court held that the mandatory guidelines did run afoul of the Sixth Amendment. Id. at 245. To remedy the violation the Court severed and excised two parts of the statute authorizing the Guidelines, 18 U.S.C. § 3553(b)(1) (the provision making the Guidelines mandatory) and 18 U.S.C. § 3742(e) (the provision that provides for standards of review on appeal, including de novo review for departures from the applicable Guideline range). Id. at 245-46. With these excisions the Guidelines were no longer mandatory and binding on sentencing courts. Instead the Guidelines became advisory. Id. The modified statute then "requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well." Id. (citations omitted). Sentencing courts were instructed to look to 18 U.S.C. § 3553(a) ("§ 3553(a)") as a whole which requires the sentencing court to consider the applicable Guideline range in determining sentences. Id. at 259.

B. United States v. Phelps

Following the Booker decision, this Court issued an opinion in United States v. Phelps, 366 F. Supp. 2d 580 (E.D. Tenn. 2005), that explained in general terms the methodology it would employ in sentencing. Id. at 584-94. Complying with the holding in Booker the Court's methodology requires the Court to "determine the Guidelines range applicable to each case," id. at 584; "determine whether any departures from the advisory Guidelines range are appropriate," id. at 585; and "determine the appropriate sentence," id. at 586. In imposing an appropriate sentence the Court will be guided by § 3553(a)'s general parsimony provision and "will impose a sentence in each case which is sufficient, but not greater than necessary, to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate specific and general deterrence, and provide the defendant with needed training, care, or treatment in the most effective manner." Id. at 593.

Ultimately, in arriving at an appropriate sentence the Court must consider and comply with the factors set out in § 3553(a).*fn2 After taking into account those factors the Court must arrive at a sentence that is tailored to the nature and circumstances of the offense and the unique history, background and characteristics of the defendant.

C. Caselaw Since Phelps

Since Phelps was issued, the United States Court of Appeals for the Sixth Circuit ("Sixth Circuit") has decided a number of cases concerning the procedures that must be followed by district judges following the Booker decision. In one such case, United States v. Buchanan, 449 F.3d 731 (6th Cir. 2006), Judge Sutton, in a concurring opinion, explained in detail the procedural requirements a district court should use:

(1) the judge must make all findings of fact necessary to apply the guidelines to the defendant, United States v. Orlando, 281 F.3d 586, 600-01 (6th Cir.2002); see United States v. Moreland, 437 F.3d 424, 432 (3rd Cir. 2006);

(2) the judge must calculate the guidelines sentencing range correctly, see 18 U.S.C. § 3742(f)(1); United States v. Gibson, 409 F.3d 325, 338-39 (6th Cir.2005);

(3) the judge must determine whether to grant a downward departure or an upward departure from the guidelines, see, e.g., United States v. McBride, 434 F.3d 470, 474-75 (6th Cir. 2006); United States v. Puckett, 422 F.3d 340 (6th Cir. 2005);

(4) the judge must recognize her discretion to issue a sentence that varies from the guidelines, see Booker, 543 U.S. at 245-46, 125 S.Ct. 738;

(5) the judge must consider the § 3553(a) factors in exercising her independent judgment about what an appropriate sentence should be, id.;

(6) the judge must account for any relevant statutory minimum and maximum sentences, see, e.g., United States v. Van Hoosier, 442 F.3d 939, 946 (6th Cir. 2006); and

(7) the judge must give a reasoned explanation for the sentence, see, e.g., United States v. Jackson, 408 F.3d 301, 305 (6th Cir.2005); United States v. Kirby, 418 F.3d 621, 626 (6th Cir.2005).

Buchanan, 449 F.3d at738-39 (Sutton, J., concurring). Although more encompassing than the methodology described in Phelps, the guidance provided by Judge Sutton in Buchanan is entirely consistent with Phelps. Other recent Sixth Circuit case law is also consistent with Phelps. See, e.g., United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006) (indicating "sentences properly calculated under the Guidelines [are entitled to] . . . a rebuttable presumption of reasonableness").

D. Rita v. United States

The latest decision regarding the Sentencing Guidelines by the Supreme Court is Rita v. United States, 127 S.Ct. 2456 (2007). The question considered by the Court in Rita was whether it violated the Constitution for the courts of appeal to apply a presumption of reasonableness to sentences within the Sentencing Guidelines. Rita, 127 S.Ct. at 2459. The Supreme Court held that it was appropriate for the courts of appeal to apply a presumption of reasonableness to sentences by district courts that fall with the Sentencing Guidelines. Id. Although not the question considered by the Court, the Supreme Court provided instructive language regarding the responsibility of sentencing judges in imposing sentences. The Court stated:

The sentencing judge, as a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines. He may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the "heartland" to which the Commission intends individual Guidelines to apply, perhaps because the Guidelines sentence itself fails properly to reflect § 3553(a) considerations, or perhaps because the case warrants a different sentence regardless. Thus, the sentencing court subjects the defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure. In determining the merits of these arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.

Id. at 2465 (internal citations omitted).

From the Rita decision we see the Supreme Court again reiterating the obligation of sentencing judges to correctly calculate the applicable Sentencing Guideline range but to then impose a sentence based upon 18 U.S.C. § 3553(a).

This emphasis on the necessity of correctly calculating the applicable guidelines was recently commented on by the United States Court of Appeals for the Seventh Circuit ("Seventh Circuit") in a decision it issued following Rita. United States v. Sachsenmaier, 491 F.3d 680 (7th Cir. 2007). In that case the Seventh Circuit explained:

[T]he Supreme Court has now expressly endorsed the rebuttable presumption of reasonableness for appellate review of a district court's sentencing decision. The Rita decision emphasized that this is a standard for appellate review only. The district courts must calculate the advisory sentencing guideline range accurately, so that they can derive whatever insight the guidelines have to offer, but ultimately they must sentence based on 18 U.S.C. § 3553(a) without any thumb on the scale favoring a guideline sentence. If, however, a district court freely decides that the guidelines suggest a reasonable sentence, then on appellate review the defendant must explain why the district court was wrong.

Id. at 685 (internal citations omitted).

Additionally, the Sixth Circuit in United States v. Liou, 491 F.3d 334 (6th Cir. 2007), recently elaborated upon Rita. The circuit panel stated:

Rita exhorts the sentencing judge to satisfy the procedural requirement of setting forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority. The amount of reasoning required varies according to context. Rita indicates that when a sentencing judge concurs with the Sentencing Commission's conclusion that a within-Guidelines sentence is appropriate for a given defendant, the explanation for the sentence generally need not be lengthy. When the defendant or prosecutor presents non-frivolous reasons for imposing a different sentence, however, the judge will normally go further and explain why he has rejected those arguments.

Liou, 491 F.3d at 338 (internal quotation marks and citations omitted). This requirement on the part of the sentencing judge to address each non-frivolous argument or request by a party, while not grounds for automatic vacatur, helps to satisfy the appellate court the sentence is procedurally and substantively sound. Id. at 339 n.4.

With the benefit of Rita and recent appellate decisions concerning federal sentencing, the Court has determined that the general methodology set out in Phelps is consistent with the most recent case authority. Accordingly, this Court will adhere to and continue to employ that methodology.

II. Discussion

A. Nature and Circumstance of the Offense

1. Count of Conviction

On February 22, 2007, Defendant pleaded guilty before this Court to Count Forty (40) of the Forty-Four (44) Count Indictment charging him with on or about March 25, 2005, knowingly receiving child pornography that had been transported in interstate or foreign commerce by computer, in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1) (Court File No. 31). Defendant's guilty plea was pursuant to a plea agreement (Court File No. 32). The agreed factual basis filed by the parties in support of the guilty plea stipulated that images of child pornography were found on Defendant's computer at his place of employment, the Center for Sports Medicine and Orthopaedics ("CSMO") in Chattanooga, Tennessee (Court File No. 24). The factual basis stated a forensic examination of the computer confirmed that the computer was password-protected in the name of Defendant and that he had knowingly accessed the Internet to obtain the images involving children under the age of eighteen, and such images had been transported in interstate commerce. Id.

2. Other Offense Related and Relevant Conduct

Following his guilty plea, the United States Probation Department prepared a Presentence Report ("PSR") on Defendant and his sentencing hearing was set for June 21, 2007 (Court File No. 31). After Defendant filed objections to the Presentence Report, the United States ("Government") moved to continue the sentencing hearing based upon the Probation Office's request to revise the Presentence Report (Court File No. 55).*fn3 The Court granted the Government's request for a continuance and the Probation Office issued a revised Presentence Report ("PSR").*fn4

The 2006 edition of the United States Sentencing Guidelines ("USSG") was used in calculating Defendant's Guidelines' sentence. The PSR described in detail the facts applicable to the Offense Conduct. PSR, ¶¶ 10-21. Defendant's offense was discovered when he requested assistance from information technology specialists at CSMO, his place of employment, for his computer (apparently, his work computer). PSR, ¶ 10. The computer was randomly rebooting. Id. Defendant asked the information technology technician to "wipe" the hard drive and clean it. Id. Instead of "wiping" the hard drive, the technician tried to diagnose the problem. PSR, ¶ 11. In checking for viruses he found image and video files under a folder labeled "music." Id. When the technician opened one of the files he saw a video of a child engaged in sexual activity with an adult. Id. He opened another file and saw a similar video. Id. The technician thereafter reported what he had found to his supervisor. PSR, ¶ 12. The supervisor himself examined Defendant's computer, accessed the child pornography files and copied them to a compact disc. Id. CSMO's legal counsel was made aware of the child pornography discovered on Defendant's computer and reported this information to the Federal Bureau of Investigation ("FBI"). Id. Both the compact disc containing the files copied from Defendant's computer and the hard drive from the computer itself were surrendered to the FBI. Id. After the technician discovered the child pornography but before the compact disc and computer hard drive were provided to the FBI, Defendant ran on his office computer a Norton product designed to erase computer hard drive contents. Id. A subsequent forensic examination of the computer discovered that 20 of 23 videos depicting child pornography had been deleted. Id.

When the compact disc and the hard drive were examined by personnel of the FBI, at least 80 images of child pornography and 23 video files depicting children engaged in sexual activity were detected. PSR, ¶ 13. Several e-mails were also discovered that discussed child pornography. Id. One of these emails contained an image depicting child pornography. Id.

Agents of the FBI determined the images and videos were stored on the computer from January 7, 2005 through March 25, 2005. PSR, ¶ 14. A comparison of Defendant's work schedule at CSMO with the dates the images and videos were stored showed that he was at CSMO when each image or video was stored. Id. Interviews with employees at CSMO revealed that Defendant spent a great deal of time on his computer and that he frequently kept patients waiting in examination rooms because he was on his computer. Id. Interviews with information technology personnel disclosed they had found adult pornography on Defendant's computer in the past, and Defendant was warned about this at a staff meeting. Id. Following the discovery of the child pornography on Defendant's CSMO computer, he was terminated from CSMO. PSR, ¶ 15. Thereafter, he opened his own medical practice. Id.

On October 24, 2006, Defendant was indicted by a federal grand jury (Court File No. 1). At his initial appearance, he was arraigned and released on an appearance bond (Court File Nos. 2 & 3). One of the bond conditions specifically prohibited Defendant from securing residential internet access (Court File No. 4). While on bond Defendant on November 2, 2006, purchased a subscription to Home Collection 1002, a child pornography service, through his Comcast Internet service at his residence. PSR, ¶ 16. Agents of the FBI on December 4, 2006, executed a search warrant at Defendant's residence, arrested Defendant, and seized his laptop computer. Id. A search of that computer revealed it contained at least 64 images of child pornography. Id. On December 8, 2006, the pretrial services officer filed a petition for action on conditions of his pretrial release alleging Defendant did access the internet at his residence in violation of his bond conditions and allegedly committed new crimes while on release (Court File No. 11).

Following Defendant's arrest he was housed at the Hamilton County, Tennessee Jail. After a hearing on the petition from pretrial services Magistrate Judge Lee ordered Defendant's detention, finding he had violated the terms of his release (Court File No. 13).

Following his arrest on December 4, 2006, Defendant called the office coordinator of his new practice, Peggy L. Davis. PSR, ¶ 16. He informed her the FBI had searched his home. Id. He instructed her to remove his computer from his office. Id. Ms. Davis complied with Defendant's instructions and moved the computer from Defendant's private office into a common area in the practice. Id. The following week Defendant's sister, Norma Robertson, met with Ms. Davis, obtained a key to the practice, went to the practice, and removed the computer. PSR, ¶ 17. She delivered the computer to Defendant's then-counsel. Id. In a subsequent telephone conversation Defendant and Ms. Davis discussed in cryptic terms a hard drive which Ms. Davis had removed from a computer. PSR, ¶ 19. FBI agents executed a search warrant and obtained Defendant's office computer. PSR, ¶ 20. On December 20, 2006, Defendant's then-counsel surrendered an additional laptop and hard drive. Id. An examination of these computers and the hard drive discovered an additional 34 images of child pornography. Id.

The author of the PSR described some of the images found. PSR, ¶ 21. According to the author, among the videos discovered on Defendant's computers was a video of a child being subjected to anal intercourse, a child aged three years of age or younger in a sexually suggestive pose (with no penetration depicted), and a female child being forced to perform oral sex on an adult male (with that male forcing the head of the female child down on his penis, while the child appears to be crying). Id.

B. History and Characteristics of Defendant

The PSR contains information regarding Defendant's personal history, background and characteristics. PSR, ¶ 49-69. Defendant submitted a Sentencing Memorandum that contains additional information (Court File No. 48). Additionally, on July 20, 2007 Defendant sent a personal letter to the Court. The Government does not dispute the factual matters relating to his personal history and background. Therefore the Court used all three sources.

Defendant is a medical doctor with a specialty in orthopaedic surgery. He has practiced in that specialty almost his entire professional career in Chattanooga, Tennessee.

1. Defendant's Early Home Environment

Norman Earl McElheney was born in Atlanta, Georgia on September 29, 1956. He is now 51 years of age. His childhood was spent in a stable, wholesome and supportive home. He was the first of two children born to his parents. His father was an industrial engineer. His mother was an ...


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