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United States v. Robinson

United States Court of Appeals, Sixth Circuit

February 18, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellant,
v.
RUFUS ROBINSON, Defendant-Appellee

Argued October 2, 2014

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:09-cr-20091-1--Arthur J. Tarnow, District Judge.

ARGUED:

Kevin M. Mulcahy, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellant.

Kimberly W. Stout, Birmingham, Michigan, for Appellee.

ON BRIEF:

Kevin M. Mulcahy, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellant.

Kimberly W. Stout, Birmingham, Michigan, for Appellee.

Before: SILER, CLAY, and GRIFFIN, Circuit Judges.

OPINION

Page 516

CLAY, Circuit Judge.

The government appeals, for the second time, from the non-custodial sentence imposed on Rufus Robinson (" Defendant" ) for the possession of more than seven thousand images of child pornography in

Page 517

violation of 18 U.S.C. § 2252A(a)(5)(B). Defendant's previous sentence of one day of incarceration and five years of supervised release was held substantively unreasonable by this Court in United States v. Robinson, 669 F.3d 767 (6th Cir. 2012) (" Robinson I " ). On remand, the district court again sentenced Defendant to one day of incarceration, with credit for time served. The district court also lengthened the period of supervised release and imposed additional conditions of release. The government's second appeal raises the question of whether this second sentence is substantively reasonable.

For the reasons set forth below, we VACATE Defendant's sentence and REMAND the case for reassignment and resentencing.

BACKGROUND

Defendant pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) on March 9, 2009, without entering into a plea agreement. His prosecution arose from his paid subscription, in April 2006, to a website that allowed him access to large amounts of child pornography. This website became the subject of a national investigation by the Bureau of Immigration and Customs Enforcement (" ICE" ), which gathered credit card information of subscribers to the site. ICE agents identified Defendant through his credit card information and subsequently interviewed him at his home. Defendant provided written consent for the search of his home and examination of his two computers. Defendant also voluntarily turned over to the ICE agents approximately 100 optical discs (CDs and DVDs) containing child pornography.

A forensic examination of Defendant's computers and only fifty of the hundred-or-so discs revealed at least 7,100 images of child pornography. These images included depictions of appalling abuse of children, including child bondage and torture, and the rape of children and infants. One close-up image showed an adult penis anally penetrating a very young female child or infant. Other images showed adults engaging in oral sex with infants. The collection also included images of young girls, unclothed, in sexually explicit poses.

Defendant did not dispute the calculation of an adjusted offense level of twenty-eight under the Sentencing Guidelines, yielding a guidelines range of seventy-eight to ninety-seven months based on his Category I criminal history. Defendant's adjusted offense level reflected a base level of eighteen. Enhancements totaling thirteen levels were applied for material depicting prepubescent juveniles (two levels), material portraying sadomasochistic or violent content (four levels), the use of the computer (two levels), and the possession of more than six hundred images (five levels). Finally, a reduction by three levels was applied based on Defendant's acceptance of responsibility.

At the first sentencing hearing, the government requested a within-guidelines sentence, noting the serious nature of the crime and emphasizing that Defendant's affirmative purchase of child pornography contributed to the creation or expansion of a market for child pornography. Defense counsel sought lengthy probation, citing the conclusion of a psychologist retained by Defendant that he was neither dangerous nor a pedophile, as well as his cooperation with investigating agents and his attendance at counseling. The district court sentenced Defendant ...


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