United States District Court, District of New Jersey
June 23, 1999
UNITED STATES OF AMERICA
CORY STEPHEN LAKE.
The opinion of the court was delivered by: Orlofsky, District Judge.
[EDITOR'S NOTE: THIS PAGE CONTAINED AND ARE
NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT
[EDITOR'S NOTE: THIS PAGE CONTAINED AND ARE
NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT
Defendant, Cory Stephen Lake ("Lake"), has pled guilty to one
count of possession of child pornography, in violation of
18 U.S.C. § 2252(a)(4)(B), based on the seizure of 350 computer
disks containing images depicting children engaged in sexual
activities. The Government has moved for several upward
departures, seeking an increase both in Lake's criminal history
category, as well as his base offense level. In addition, the
Government has requested that the Court sentence Lake at the
upper end of the appropriate Sentencing Guideline Range because
of the sadistic and violent nature of the images. Lake opposes
the Government's motions and has filed his own motions, seeking
a downward departure based upon what he contends constitutes
"minimal" or "minor participation," and to account for four
characteristics of his offense that he alleges take this case
"outside the heartland" of cases covered by the Sentencing
Guidelines. See Koon v. United States, 518 U.S. 81, 98, 116
S.Ct. 2035, 135 L.Ed.2d 392 (1996).
The motions filed by the parties require this Court to
navigate the perilous sea of the Sentencing Guidelines, a
voyage which is made even more difficult in this case given the
emotionally charged nature of the offense to which Lake has
pled guilty. For the reasons set forth below, I find that there
is no reliable evidence in the record demonstrating: (1) that
Lake's criminal history category under-represents his past
criminal conduct or the likelihood of his future criminal
conduct; (2) that Lake has a cognitive or volitional
dysfunction sufficient to warrant a finding of diminished
capacity; and, (3) that Lake is susceptible to treatment or
likely to suffer from abuse in prison to a degree that
distinguishes his case from the heartland of other cases. By
contrast, I find, by a preponderance of the evidence,*fn1 that
the sheer volume of child pornography that Lake possessed
removes his case from the "heartland," justifying an upward
departure in his total offense level of two-levels. Finally, I
hold that Lake's motion for a downward departure based upon his
allegedly "minimal" or "minor participation" in the offense is
unavailable in a case, such as this, where the defendant has
only been charged with possession of child pornography.
Accordingly, I will deny all of Lake's motions for a downward
departure. I will grant the Government's motion for an upward
departure based upon the volume of child pornography Lake
possessed, however, I will deny the Government's motions in all
As a result of my disposition of the motions filed by the
Government and Lake, I find that Lake's total offense level is
20 and his criminal history category is I, which produces a
Sentencing Guideline Range of 33-41 months.
I. FACTUAL BACKGROUND
On May 12, 1997, the Montclair, New Jersey, Police Department
arrested Lake in the driveway of his apartment, as he was
exiting from his car. See Letter from Robert A. Warmington,
Esq., to the Honorable Stephen M. Orlofsky ("Lake's
Opposition"), dated April 29, 1999, Ex. C ("Statement of Facts"
at 5-11); Presentence Investigation Report ("PSR"), dated Jan.
12, 1999, at 4.*fn2 As he had on other days in the past, Lake
had been babysitting for an eleven-year old boy, however, on
May 12, 1997, the boy*fn3 had accused Lake of sexual assault.
The boy had:
made statements to the effect that Mr. Lake had
touched his "private parts" on several occasions.
On the day of the arrest Mr. Lake was allegedly
physically aggressing on [the boy], chasing him
around the house and touching his penis. Mr. Lake
was supposedly straddling [the boy] and
restraining him while touching him at one point.
[The boy] broke away and took refuge in a bedroom,
using a vacuum cleaner attachment to protect
himself. [The boy] stated that Mr. Lake threatened
to kill him if he told anyone.
Letter from Diana Vondra Carrig, Esq., Assistant United States
Attorney, to the Honorable Stephen M. Orlofsky ("Government's
Motion"), dated Apr. 15, 1999, Ex. C ("Forensic Assessment" of
David J. Tutone, M.A., Certified Clinical Criminal Justice
Specialist, dated Sept. 26, 1998).
In response to the boy's allegations, the Montclair Police
came to arrest Lake. During a search of Lake's car, the
Montclair Police discovered approximately 350 computer disks
containing approximately 2,100 visual depictions of child
pornography. As a result, Lake was indicted for one count of
possession of child pornography, in violation of
18 U.S.C. § 2252(a)(4)(B).*fn4 In addition, Lake was indicted by the
State of New Jersey for: (1) four counts of second degree
sexual assault;*fn5 (2) two counts of second degree child
endangerment; (3) one count of second degree distribution of
child pornography; (4) one count of fourth degree possession of
child pornography; (5) one count of tampering with evidence;
(6) one count of criminal restraint; and (7) one count of
terroristic threats. See Government's Motion, Ex. A (State
Indictment, dated Oct. 30, 1997, filed in Superior Court of New
Jersey, Law Division, Criminal, Essex County).
In response to the state charges, Lake claims that the boy,
who "has been diagnosed with Attention Deficit Hyperactivity
Disorder" and has "a history of severe acting out with a recent
pre-occupation with sexual matters,"*fn6 id., Ex. C, had been
experiencing a fit of rage and it became necessary for Lake to
restrain the child in order to control him. Lake maintains that
he did not sexually assault the boy. Further, he claims that,
because he is innocent of sexual assault, he will only plead
guilty to child endangerment, and not sexual assault. The plea
agreement proposed by the State of New Jersey contemplates that
Lake will plead guilty to two counts of third degree child
endangerment and one count of fourth degree possession of child
pornography. See Government's Motion, Ex. B ("Essex County
Prosecutor's Office Request to Recommend Disposition").
In the aftermath of Lake's arrest, Special Agents of the FBI
interviewed over ten former campers (or their parents) and
counselors who attended and worked at Echo Lake Summer Camp
while Lake was a counselor there. See Lake's Opposition, Ex. A
(various interview reports). None of these persons ever
reported experiencing or witnessing Lake touch any child in an
inappropriate manner. See id. Lake alleges that his "long
history of jobs that gave him access to children, without
reported incident, supports the finding that he does not
present a serious risk" to the community. Lake's Opposition at
A. The Government's Motions for Upward Departures
The Government seeks an upward departure on three separate
grounds. First, the Government contends that the Court should
grant a upward departure in Lake's criminal history category,
pursuant to Sentencing Guideline 4A1.3, "because Lake's
criminal history category does not adequately reflect his past
criminal conduct." Government's Motion at 3. Second, the
Government requests that the Court grant an upward departure
"because Lake's criminal history category does not adequately
reflect . . . his predilection to commit additional future
crimes." Id. at 5. Third, the Government seeks an upward
departure based on the "sheer volume" of materials that Lake
possessed, arguing that the number of images that Lake
possessed brings his case "outside the heartland" of other
cases involving the possession of child pornography. Id. at
7-8. I will address each of these issues seriatim.
1. "Pending" State Charges
In addition to the pending federal charge for possession of
child pornography, for which Lake is to be sentenced by this
Court, Lake has also been charged by the State of New Jersey
with crimes arising out of his possession of child pornography
and his alleged sexual assault of the boy for whom he babysat.
Section 4A1.3 of the Sentencing Guidelines provides:
If reliable information indicates that the
criminal history category does not adequately
reflect the seriousness of the defendant's past
criminal conduct or the likelihood that the
defendant will commit other crimes, the court may
consider imposing a sentencing departing from the
otherwise applicable range. Such information may
include, but is not limited to, information
concerning: . . .
(d) whether the defendant was pending trial or
sentencing on another charge at the time of the
(e) prior similar adult criminal conduct not
resulting in a criminal conviction.
The Third Circuit has explained that:
The task before the sentencing court in these
circumstances is to identify the category which
encompasses those defendants whose criminal
histories "most closely resemble[ ]" the
defendant's own. See [Sentencing Guideline] §
Where the defendant has confessed to the
commission of serious crimes for which he has not
been convicted, it would certainly seem . . .
reasonable for a sentencing court to consider what
the defendant's criminal history category would be
if he had been convicted of those crimes.
United States v. Harris, 44 F.3d 1206
, 1213 (3d Cir.), cert.
denied, 514 U.S. 1088, 115 S.Ct. 1806, 131 L.Ed.2d 731 (1995).
Where the sentencing court determines that an upward departure
under § 4A1.3 is warranted, that departure "must be calculated
by stepping up the criminal history category, not by increasing
the base offense level." United States v. Harvey, 2 F.3d 1318
1325 (3d Cir. 1993) (citing United States v. Hickman,
991 F.2d 1110
, 1114 (3d Cir. 1993) (when applying § 4A1.3 "the court is
obliged to proceed sequentially through [t]he criminal history
categories")). In other words, the court "may not move to the
next higher category until it has found that a prior category
still fails to adequately reflect the seriousness of the
defendant's past criminal conduct." Hickman, 991 F.2d at 1114.
Moreover, the Court may not "ratchet up" a defendant's
criminal history category unless there is "`reliable
information' in support of a judge's decision that the
applicable criminal history category is underrepresentative."
United States v. Short, 4 F.3d 475, 480 (7th Cir. 1993); see
also United States v. Brewster, 127 F.3d 22, 27-28 (1st Cir.
1997) (holding that "information upon which a sentencing
determination is based must possess `sufficient indicia of
reliability to support its probable accuracy.'") (quoting U.S.
Sentencing Guidelines Manual § 6A1.3), cert. denied, ___ U.S.
___, 118 S.Ct. 1543, 140 L.Ed.2d 691 (1998). "Reliability is a
flexible, case-specific standard in the sentencing context, but
it always is informed by considerations of due process and
experiential knowledge." Id. at 28. At a minimum, a defendant's
confession or "an independent investigation of the pending
state charges" by "either the prosecutor or the presentence
report author" constitute "reliable evidence." Short, 4 F.3d at
480; see Harris, 44 F.3d at 1213. "[A]n arrest record
standing alone[, however,] is not sufficiently reliable to
support a departure." United States v. Williams, 989 F.2d 1137,
1142 (11th Cir. 1993).
In this case, subsection (d), which instructs the Court to
consider "whether the defendant was pending trial or sentencing
on another charge at the time of the instant offense," is not
applicable, since the state charges were not "pending" at the
time that Lake committed the federal offense. See U.S.
Sentencing Guidelines Manual § 4A1.3(d); cf. United States v.
Touby, 909 F.2d 759, 773-73 (3d Cir. 1990) (holding that, in
sentencing a defendant for an offense committed in January,
1989, the district court properly granted an upward departure
in consideration of a state indictment, filed January 18, 1988,
even if the defendant planned to withdraw his guilty plea on
the state charges).
With respect to subsection (e), which directs the Court to
consider "prior similar adult criminal conduct," the Government
contends that the state charges against Lake reveal that Lake's
adult criminal history category does not reflect the full
extent of Lake's past criminal conduct. In response, Lake has
challenged the reliability of the allegations underlying the
state charges. Lake has submitted a lengthy factual background,
providing his version of the underlying facts giving rise to
the state charges, in which he claims that he merely attempted
to subdue a child having a violent temper tantrum. See Lake's
Opposition, Ex. C. Further, Lake contends that:
the State's proofs regarding the alleged sexual
assaults are not strong. The alleged victim of the
alleged sexual assault which led to Lake's arrest
on May 12, 1997 has a long history of serious
psychological problems; the circumstances of the
alleged assault (touching the alleged victim on
the outside of his pants)
are not incriminating (Lake was babysitting and
called the alleged victim's mother to come home
early because the boy was acting up) and there is
Id. at 18-19. Lake contends that he will not plead guilty to
any state charge that alleges that he sexually assaulted a
child; rather, he plans, at most, to plead guilty only to the
charges of endangering the welfare of a child, a third degree
and possession of child pornography, a fourth
Lake's Opposition at 14. In sum, Lake
argues "that under the totality of the circumstances involving
the state charges, the information regarding [these charges] is
insufficiently reliable to support an upward departure in [his]
criminal history category." Id. at 19.
The record does not contain evidence generally considered to
be "reliable," such as Lake's confession or an independent
investigation by the Government or the probation officer who
prepared the presentence report. See United States v. Short,
4 F.3d 475, 480 (7th Cir. 1993) (holding that "reliable" evidence
includes "an independent investigation of the pending state
charges" by "either the prosecutor or the presentence report
author"); United States v. Harris, 44 F.3d 1206, 1213 (3d Cir.)
(holding that a confession is "reliable" evidence), cert.
denied, 514 U.S. 1088, 115 S.Ct. 1806, 131 L.Ed.2d 731 (1995).
Lake challenges the veracity of the allegations underlying the
pending state charges, and he has not even conceded that he
will plead guilty to any of these charges. see id. at 14 ("The
final plea agreement, if in fact a plea is entered, could
differ in significant detail."); cf. United States v. Torres,
977 F.2d 321, 330 (7th Cir. 1992) (holding that a district
court may find evidence to be reliable "[w]hen a defendant has
an opportunity to and fails to object to the facts,
information, and records used to support a departure").
Moreover, "an arrest record standing alone is not sufficiently
reliable to support a departure." United States v. Williams,
989 F.2d 1137, 1142 (11th Cir. 1993). Thus, in this case, "the
record [is] totally devoid of any indication that [Lake] ha[s]
committed the crimes" charged in the state indictment. See
United States v. Klund, 37 F.3d 1249, 1252 (7th Cir. 1994). As
a result, I cannot find that there is "reliable" evidence that
Lake committed any of the crimes charged in the pending New
Jersey State indictment. Accordingly, I will
deny the Government's request for a upward departure based on
the pending state charges.
2. Recidivism and Predilection
As a second basis for an upward departure in Lake's criminal
history category, the Government argues that "Lake's criminal
history category significantly under-represents the likelihood
that he will commit future crimes." Government's Motion at 6.
The Government contends:
[t]hat Lake's conduct has gone far beyond the mere
possession of child pornography is beyond dispute.
Lake has consistently sought and obtained jobs
that give him access to children. Specifically,
Lake spent his summers during college working as a
camp counselor for Echo Lake Camps.
Id. In response, Lake argues that his past work with children,
without incident, suggests that he has no such predilections.
As proof of Lake's predilections, the Government submitted
the "forensic assessment" of David J. Tutone, M.A., Certified
Clinical Criminal Justice Specialist. See Government's Motion,
Ex. C. Based on an interview of Lake conducted on September 26,
1998, Tutone concluded:
Regarding the offense there is evidence
suggesting a pattern of repetitive and compulsive
pedophilic sexual behaviors. Mr. Lake is not
consciously intending to harm anyone, he is simply
not affected by, or cognizant of the dangerous
impact of his behavior on others.
Regardless of the disposition of this case, it
is recommended that Mr. Lake enter into long term
sex offender specific treatment for an indefinite
period. Since Mr. Lake has never been in treatment
before, and the fact that he is compliant and
without other antisocial characteristics, it
appears feasible to be optimistic regarding the
treatment's effectiveness. Given the nature of Mr.
Lake's current charges and his severely depressed
mental state, if he is incarcerated for any length
of time he may need a degree of protection from
other inmates and/or himself.
Id. (Tutone Report at 5). Lake has presented another expert
report from Timothy P. Foley, Ph.D., Director of Clinical &
Forensic Services at the Joseph J. Peters Institute, who
interviewed Lake on December 11, 1998, and reviewed numerous
documents related to this case, including police reports and
both the federal and state indictments. Foley determined that:
Mr. Lake falls into the moderate category of
sexual offense recidivism. His age and absence of
known perpetration history do not contribute to
the probability that he will recidivate. . . . Mr.
Lake's history of entertaining deviant fantasies
related to children and child oriented pursuits
contribute to the risk that he will offend in the
future. There are no indications of drug or
alcohol problems, difficulties with anger
management, criminal justice history, or other
indications of an anti-social personality. The
absence of these factors mitigates the likelihood
that he will sexually offend in the future.
It should be noted that the best predictor that
sexually offending behaviors will not occur in the
future is completion of a sex offender treatment
program. Although Mr. Lake is currently involved
in psychotherapy, he has not entered a program
dedicated to the treatment of sex offending
Lake's Opposition, Ex. A (Foley Report at 11-12). Foley
recommends that "Lake should be considered at moderate risk to
sexually offend against children. He should have no contact
with children without a supervising adult who is fully aware of
his history." Id. (Foley Report at 13). Thus, both of the
expert reports conclude that Lake has a "moderate" likelihood
of committing similar crimes as the one charged here.
In light of the absence of evidence of past criminal conduct,
however, I find that I cannot predict that there is a
likelihood that Lake will commit similar crimes in the future.
More importantly, I have difficulty increasing Lake's criminal
history category, and, as a result, his sentence, based on mere
predictions of future conduct. The criminal justice system
punishes crimes that have been committed or attempted, not
those that might only possibly occur in the future.
Accordingly, I will deny the Government's motion for an upward
departure based upon Lake's possible recidivism rate or
predilection to commit similar crimes in the future.
I will consider Lake's "moderate" risk for recidivism,
however, in determining the length of the period of supervised
release I will impose. To maximize the period of treatment and
supervision that Lake must undergo, I will impose a three-year
period of supervised release, which is the greatest time period
permitted by the Sentencing Guidelines. See U.S. Sentencing
Guidelines Manual § 5D1.2(a)(2). Further, during this period of
supervised release, I will require Lake to obtain appropriate
sex offender treatment, and I will prohibit him from engaging
in any employment or volunteer activities in which he would
have access to minor children.
3. The Volume of Images of Child Pornography
The Government contends that, pursuant to Sentencing
Guideline § 5K2.0, the Court should grant an upward departure
in Lake's total offense level to account for the "sheer volume
of Lake's child pornography collection." Government's Motion at
7. Specifically, the Government contends that:
The size of Lake's child pornography collection is
important for sentencing because it directly
contributes to the criminal conduct of others in
creating and distributing such offensive
materials. Where, as here, a person had such an
extensive collection of child pornography, the
Court can and should consider the impact upon the
victims of this crime.
Id. at 8. In his opposition to this motion, Lake argues that
the Government should be prohibited from engaging in a
"back-door, end-run," by attempting to "transform a simple
possession charge into offenses the Guidelines deem far more
serious." Lake's Opposition at 24 (citing United States v.
Thomas, 961 F.2d 1110, 1121 (3d Cir. 1992) ("Fairness dictates
that the government not be allowed to bring the firearm
possession crime through the `back door' in the sentencing
phase, when it had previously chosen not to bring it through
the `front door' in the charging phase.")).*fn9 In other
words, Lake argues that the Government chose to charge him with
only one count of possession of child pornography and,
therefore, it should not be permitted to circumvent the grand
jury process by increasing his sentence through the "back
door." Additionally, Lake contends that he did not possess an
atypical number of images, because in "[t]he reality of our
contemporary computer age[,] . . . vast amounts of information
and images are rapidly downloaded onto computer disks." Lake's
Opposition at 25.
Section 52K.0 provides:
Under 18 U.S.C. § 3553(b), the sentencing court may
impose a sentence outside the range established by
the applicable guidelines, if the court finds "that
there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not
adequately taken into consideration by the
Sentencing Commission in formulating the guidelines
that should result in a sentence different from
that described." . . . The decision as to whether
what extent departure is warranted rests with the
sentencing court on a case-specific basis. . . .
Any case may involve factors in addition to those
identified that have not been given adequate
consideration by the Commission. Presence of any
such factor may warrant departure from the
guidelines, under some circumstances, in the
discretion of the sentencing court. Similarly, the
court may depart from the guidelines, even though
the reason for departure is taken into
consideration in determining the guideline range .
. ., if the court determines that, in light of
unusual circumstances, the weight attached to that
factor under the guidelines in inadequate or
U.S. Sentencing Guidelines Manual § 5K2.0. Furthermore,
"[b]efore a departure is permitted, certain aspects of the case
must be found unusual enough for it to fall outside the
heartland of cases in the Guideline." Id., § 5k2.0 commentary
(quoting Koon v. United States, 518 U.S. 81, 98, 116 S.Ct.
2035, 135 L.Ed.2d 392 (1996)). "To resolve this question, the
district court must make a refined assessment of the many facts
bearing on the outcome, informed by its vantage point and
day-to-day experience in criminal sentencing." Id. (quoting
Koon, 518 U.S. at 98, 116 S.Ct. 2035). Thus, in order to depart
under § 5K2.0 the sentencing court must find that the relevant
"characteristic or circumstance is present to an unusual
degree[, so as to] distinguish the case from the `heartland'
cases covered by the guidelines." § 5K2.0.
In applying § 5K2.0, I must determine whether: (1) the
Sentencing Guidelines account for possession of a large volume
of child pornography; and (2) possession of 350 computer disks,
containing 2,100 images of child pornography is a volume of
pornography "unusual enough for it to fall outside the
heartland of cases." See Koon, 518 U.S. at 98, 116 S.Ct. 2035.
The Sentencing Guidelines clearly contemplate that the
sentencing court should consider the number of images of child
pornography possessed by a defendant. Section 2G2.4(b)(2)
provides: "If the offense involved possessing ten or more
books, magazines, periodicals, video tapes, or other items,
containing a visual depiction involving the sexual exploitation
of a minor, increase by 2 levels." The failure of the
Sentencing Guidelines to mention "computer disk" or
"computerized image," however, suggests that the Sentencing
Commission did not contemplate the possibility of possessing a
collection of child pornography as large as the one possessed
by Lake in this case. Furthermore, the Sentencing Guidelines
provide for a two-level increase for the possession of "ten or
more" items, indicating the Sentencing Commission did not
envision a collection as extensive as that possessed by Lake.
Thus, I find that, while the Sentencing Guidelines require that
I consider the number of items of child pornography possessed
by a defendant, they do not contemplate a collection as large
as the one at issue here. See United States v. MacLeod,
80 F.3d 860, 866 (3d Cir. 1996) ("When close to half of a defendant's
crimes may go unpunished, we consider this significant and
worthy of departure.").
In addition, I find that Lake's collection of approximately
2,100 images of children engaged in sexually explicit conduct
is unusually large. Compare United States v. Fellows,
157 F.3d 1197, 1202 (9th Cir. 1998) (defendant possess twenty computer
graphics files with visual depictions of child pornography);
United States v. Hall, 142 F.3d 988 (7th Cir. 1998) (defendant
possessed three computer disks with various files of child
pornography); United States v. Wind, 128 F.3d 1276 (8th Cir.
1997) (defendant possessed fifteen computer files containing
child pornography). The amount of time that it must have taken
Lake to amass 350 computer disks filled with images of child
pornography is astounding. Furthermore, the reference in the
Guidelines to "ten or more" items suggests that the typical
case contemplated by
the Guidelines involves a significantly smaller collection of
child pornography. Thus, I am compelled to conclude that Lake's
collection is sufficiently large "for it to fall outside the
heartland of cases." See Koon, 518 U.S. at 98, 116 S.Ct. 2035.
Accordingly, I will grant the Government's motion for an upward
departure based on the sheer volume of child pornography that
"Having determined that an upward departure is appropriate,
the Court must tackle the more difficult task of figuring the
amount of the departure." United States v. Lisk, 939 F. Supp. 332,
336 (D.N.J. 1996) (Politan, J.). "Almost by definition,
there cannot be rules for computing the amount of departure —
for if it were possible to do this, the factors could be
included in the guidelines, avoiding `departures' altogether."
United States v. Ferra, 900 F.2d 1057, 1062 (7th Cir. 1990).
"But it is possible to formulate approaches that link the
extent of departure to the structure of the guidelines." Id. As
a result, "the power to depart is not the power to `throw away
the guidelines,' in favor of any sentence that strikes the
judge as reasonable." United States v. Kikumura, 918 F.2d 1084,
1112 (3d Cir. 1990) (quoting Ferra, 900 F.2d at 1061-62). Thus,
"in determining the amount of an upward departure pursuant to .
. . § 5K2.0, the Court is guided by a reasonableness standard."
Lisk, 939 F. Supp. at 336 (citing Kikumura, 918 F.2d at 1110).
Furthermore, "there are `objective standards to guide the
determination of reasonableness.'" United States v. Baird,
109 F.3d 856, 872 (3d Cir. 1997) (quoting Kikumura, 918 F.2d at
1110). "Those objective standards can be found in the
[Sentencing] Guidelines themselves, which provide analogies to
which sentencing courts must look when making their
determinations." Id.; see also Ferra, 900 F.2d at 1062
(recommending that a sentencing court determine the amount of a
departure by analogy to factors that "the Commission
In this case, I find that an upward departure of an
additional two levels is reasonable, based on an analogy to
§ 2G2.4(b)(2) of the Sentencing Guidelines. In § 2G2.4(b)(2),
the Sentencing Commission has determined that a two-level
increase is appropriate to distinguish those defendants who
possess "several" items of child pornography, that is, more
than ten, as opposed to those individuals who merely possess a
"few" items, or less than ten. See U.S. Sentencing Guideline
Manual § 2G2.4(b)(2). An additional two-level increase
similarly distinguishes those offenders who possess "many"
items of child pornography, as is the case here, from those who
only possess "several." With this additional two-level
increase, Lake's total offense level is 20. With a criminal
history category of I, the applicable Sentencing Guideline
Range is 33-41 months.
I acknowledge that Lake is correct in suggesting that such an
upward departure allows the Government to seek a harsher
sentence, without indicting him for a more serious crime, or
for several counts of the same crime. The Sentencing
Guidelines, however, expressly permit such an outcome. By
allowing this Court to consider conduct "outside the heartland"
of cases, as well as uncharged conduct, the Sentencing
Guidelines enable the Government to seek a harsher penalty
despite its decision to indict the defendant for only one
violation of a statute, or for a less serious crime. See Witte
v. United States, 515 U.S. 389, 401-02, 115 S.Ct. 2199, 132
L.Ed.2d 351 (1995) (holding that a sentencing court's
consideration of uncharged conduct is constitutional); United
States v. Cianci, 154 F.3d 106, 111-13 (3d Cir. 1998) (holding
that, under the Sentencing Guidelines, the sentencing court may
consider uncharged conduct); United States v. Baird,
109 F.3d 856, 863 (3d Cir. 1997) (holding that a sentencing court may
consider "conduct underlying dismissed counts"). Thus, although
the Government may be using the "back door" to accomplish an
"end run" of the grand jury process, I hold that such a tactic
permitted by the Sentencing Guidelines. Furthermore, the Third
Circuit's opinion in United States v. Thomas, 961 F.2d 1110 (3d
Cir. 1992), which held that the Government may not use the
"back door" to seek a harsher sentence, has been overruled or,
at least, severely limited by the Third Circuit's subsequent
opinion in United States v. Baird, 109 F.3d 856, 866 (3d Cir.
1997) and by United States v. Watts, 519 U.S. 148, 117 S.Ct.
633, 136 L.Ed.2d 554 (1997). See note 6 supra. Thus, Lake's
reliance upon Thomas cannot prevent the result reached here.
B. The Government's Motion for Sentencing at the Upper
End of the Range
The Government requests that the Court impose a sentence at
the higher end of the applicable sentencing range because of
the sadistic and violent nature of the child pornography that
Lake possessed. See Government's Motion at 9-10. Without
recounting the disturbing descriptions of the images offered by
the Government,*fn10 a portrayal which Lake does not contest,
I find that many of the computer images he possessed were
indeed sadistic and violent. In addition to these computer
disks containing some violent and sadistic images of child
pornography, the search incident to Lake's arrest revealed that
Lake also possessed "a stained blue towel, numerous pictures of
child pornography, photographs of [the boy] (one of the
children [whom] Lake is accused of sexually assaulting),
children's magazines, children's toys and a flesh-colored child
size sexual device (dildo)." PSR ¶ 11.
Nonetheless, in opposition to the Government's request, Lake
argues that the "borrowing" of the specific offense
characteristic from § 2G2.2, which applies to the production
and distribution of child pornography, is "totally
inappropriate . . . because the Sentencing Commission has
clearly differentiated possession cases from other types of
cases governed by Section 2G2.2." Lake's Opposition at 27.
Without addressing the merits of Lake's contentions, I
observe that it is entirely within the Court's discretion to
impose a sentence at the upper, middle, or lower, end of the
range. See U.S. Sentencing Guideline Manual § 5C1.1 ("A
Sentence conforms with the guidelines for imprisonment if it is
within the minimum and maximum terms of the applicable
guideline range."). Furthermore, the Sentencing Guidelines
instruct that, "[i]n determining the type of sentence to
impose, the sentencing judge should consider the nature and
seriousness of the conduct, the statutory purposes of
sentencing, and the pertinent offender characteristics." Id.,
introductory commentary to chapter five. Thus, it is within my
discretion to consider the sadistic and violent nature of the
images that Lake possessed as part of the "nature and
seriousness of the conduct." See id.
C. Lake's Motions for Downward Departures
Lake moves for a downward departure on three separate
grounds, two of which can be dealt with together. See Letter
from Robert A. Warmington, Esq., to the Honorable Stephen M.
Orlofsky ("Lake's Motion"), dated May 3, 1999. First, Lake
argues that he should receive a reduction in his total offense
level as a "minimal participant," pursuant to Sentencing
Guideline § 3B1.2(a), or as a "minor participant," pursuant to
Sentencing Guideline § 3B1.2(b). See id. at 1-6. In United
States v. Romualdi, 101 F.3d 971 (3d Cir. 1996), the Third
Circuit held that such reductions are not available in a case
involving mere possession of child pornography, because the
crime "as charged, possession, not receipt, of child
pornography, is a crime that on its face requires no
concerted activity." Id. at 975. Thus, "[b]ecause the purpose
of § 3B1.2 is to permit mitigation of the sentence of a
defendant who is a minimal participant in an offense involving
concerted activity, . . . § 3B1.2 is simply unavailable" in
cases charging only possession. Id. Thus, I must deny Lake's
motion for a downward departure under § 3B1.2(a), as a "minimal
participant," or under § 3B1.2(b), as a "minor participant,"
because such departures are unavailable here.
Lake also contends that four characteristics of his offense
take this case "outside the heartland" of Guideline cases,
see Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135
L.Ed.2d 392 (1996), namely: (1) he "channeled" his pedophilic
desires into mere possession of pornography, and, therefore,
chose the "lesser of two evils" and avoided any actual sexual
contact with children, see Lake's Motion at 7-10; (2) his
criminal conduct resulted from a diminished capacity, see id.
at 10-14; (3) he is unusually susceptible to treatment, see id.
at 14-15; and (4) he is subject to an unusual potential for
abuse in prison. See id. at 16-17.
Because I have considered the legal standards applicable to
departures pursuant to § 5K2.0 above, I will not repeat them
here. Instead, I will proceed directly to address the issues
presented by Lake's motion.
In United States v. Artim, 944 F. Supp. 363 (D.N.J. 1996), I
considered a motion for a downward departure made by a
defendant who "argue[d] that a downward departure [was]
warranted because he never actually sexually abused children."
Id. at 368. In Artim, I relied upon United States v. Barton,
76 F.3d 499 (2d Cir. 1996), and United States v. Studley,
907 F.2d 254, 258 (1st Cir. 1990), to hold "that a defendant is not
entitled to a downward departure merely because he did not
commit another crime." Artim, 944 F. Supp. at 368. Because Lake
makes the same argument in this case, my holding in Artim is
applicable here. Accordingly, I will deny Lake's motion for a
downward departure "merely because he has not physically or
sexually abuse a child." See id.
2. Diminished Capacity
Pursuant to § 5K2.13 of the Sentencing Guidelines, "a
sentence below the applicable guideline range may be warranted
if the defendant committed the offense while suffering from a
significantly reduced mental capacity." The sentencing court
may grant a downward departure for "diminished capacity" when
the defendant presents medical reports, which reveal that
either: "(1) the person is unable to absorb information in the
usual way or to exercise the power of reason; or (2) the person
knows what he is doing and that it is wrong but cannot control
his behavior or conform it to the law." United States v.
McBroom, 124 F.3d 533, 548 (3d Cir. 1997); see also U.S.
Sentencing Guidelines Manual § 5K2.13 ("`Significantly reduced
mental capacity' means the defendant, although convicted, has a
significantly impaired ability to (A) understand the
wrongfulness of the behavior comprising the offense or to
exercise the power of reason; or (B) control behavior that the
defendant knows is wrongful."). In other words, the Court may
grant a downward departure if the defendant has either a
cognitive dysfunction and cannot understand that his or her
conduct is wrong, or a volitional dysfunction and cannot stop
himself or herself from performing an act that he or she knows
is wrong. See McBroom, 124 F.3d at 548 (noting that the
defendant may possess a cognitive impairment or a volitional
Before the Court may grant a downward departure pursuant to
§ 5K2.13, "a defendant must prove, among other things, that (1)
the offense is `nonviolent' and (2) a significantly reduced
mental capacity contributed to commission of the offense."
McBroom, 124 F.3d at
539 (citing United States v. Rosen, 896 F.2d 789, 791 (3d Cir.
1990)). The Third Circuit has already determined that, as a
matter of law, "the offense of possession of child pornography
in violation of 18 U.S.C. § 2252(a)(4) is a `nonviolent
offense.'" Id. at 542. Moreover, in this case, there is no
evidence of the use of violence in the commission of the crime,
and, therefore, I find that the Lake's crime was non-violent.
See id. ("The record is devoid of any evidence that McBroom's
conduct involved `violence in fact.'") (quoting United States
v. Askari, Civil Action No. 95-1662, 1997 WL 92051, at *3 (3d
Cir. Mar.5, 1997) (Becker, J., concurring), vacated on other
grounds, 159 F.3d 774 (3d Cir. 1998)). Thus, I must consider
whether Lake has a cognitive or volitional impairment.
There is no evidence in the record that Lake suffered from a
cognitive impairment. Lake was a successful student at
Montclair State University, who maintained a 3.488 grade point
average out of a possible 4.0, in a masters degree program in
theater arts. PSR ¶ 50. Additionally, in his report, Tutone
observed that "Mr. Lake was fully oriented in all spheres with
memory and cognitive function intact." Lake's Motion, Ex. B
(Tutone Report at 3). Neither Tutone nor Foley reported any
cognitive dysfunction after their interviews of Lake. Thus, I
find that there is no evidence in the record that Lake suffers
from a cognitive dysfunction.
A volitional dysfunction is one in which the defendant
realizes that his or her conduct is wrong, but cannot control
his or her behavior. See McBroom, 124 F.3d at 548. First, there
is no evidence in the record to suggest that Lake realizes that
his conduct was wrong. Tutone reported: "Mr. Lake was asked if
he felt he was doing anything wrong. He replied `no not
really', `because what I do comes from the heart.'" Id. (Tutone
Report at 5). In response to the "Abel Becker Cognition Scale,"
Lake agreed with the following statements:
3) A child 13 or younger can make her (his) own
decision as to whether she (he) wants to have
sex with an adult or not.
12) Sometime in the future, our society will
realize that sex between [a] child and an
adult is allright [sic].
19) My daughter (son) or other young child knows
that I will still love her even if she refuses
to be sexual with me.
27) An adult can know just how much sex between
him (her) and a child will hurt the child
Id. (Tutone Report at 2). Lake's agreement with these
statements, as well as his belief that he has not done anything
wrong, clearly demonstrates that Lake is not having trouble
resisting an impulse that he believes is wrong; rather, Lake
simply does not believe that the impulse is wrong. Cf. McBroom,
124 F.3d at 549 (remanding to the sentencing court because of
evidence that "[a]lthough McBroom understood the moral and
legal implications of this activity, he was unable to
discontinue the practice") (emphasis added).
Furthermore, Foley's report indicates that Lake has no
"difficulties with . . . impulsiveness." Lake's Motion, Ex. A
(Foley Report at 3). But see id., Ex. B (Tutone Report at 5)
(determining that Lake has "poor impulse control" and
"compulsive pedophilic sexual behaviors"). Similarly, Foley
concluded that "Mr. Lake's protocol indicates that he typically
has good capacities for control but that he is currently
experiencing a significant increase in situationally determined
stress." Id., Ex. A (Foley Report at 9). Foley also found that
"[t]here are no strong indications of problems with impulse
control or anger management." Id. (Foley Report at 10). Lake's
own behavior confirms Foley's conclusion that Lake does not
have a problem controlling his impulses. Lake told Foley that:
"In March or April, 1997,
[Lake] recalls coming to the realization that downloading
[child pornography] was an `obligation' and that he was `really
sick of it'. He said that he could resist it for a few days but
that he didn't want to `stop cold turkey.'" Id. (Foley Report
at 5) (emphasis added). In sum, there is compelling and
persuasive evidence in the record which reflects that Lake does
not believe that his conduct was wrongful, and that he has no
difficulty in controlling his impulses. Accordingly, I find, by
a preponderance of the evidence, that Lake does not, and never
has, suffered from a cognitive or a volitional dysfunction.
Therefore, I will deny Lake's motion for a downward departure
based on his alleged diminished capacity.
3. Susceptibility to Treatment
Lake argues that his "unusual susceptibility to treatment, as
opposed to incarceration, brings his case outside the heartland
and warrants [a] downward departure." Lake's Motion at 14.
There is no evidence in the record, however, suggesting that
Lake's case is "unusual enough for it to fall outside the
heartland of cases." See Koon v. United States, 518 U.S. 81,
98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Indeed, Foley
reports that "the best predictor that sexually offending
behaviors will not occur in the future is completion of a sex
offender treatment program." Lake's Motion, Ex. A (Foley Report
at 12). Thus, according to Foley's report, Lake's
susceptibility to treatment does not differ from most sexual
offenders who have yet to undergo appropriate treatment.
Furthermore, there is no evidence in the record to distinguish
Lake's susceptibility to treatment from that of any other
first-time sex offender. Accordingly, in the absence of any
evidence that Lake's case is "outside the heartland" of
Guideline cases, I find that a departure, pursuant to § 5K2.0,
is unwarranted in this case. See United States v. Artim,
944 F. Supp. 363, 367 (D.N.J. 1996) (finding that defendant's
allegations are not "sufficiently `extraordinary' to warrant a
downward departure from the applicable Guideline range").
4. Unusual Potential for Abuse in Prison
Finally, Lake requests that the Court grant a downward
departure, pursuant to § 5K2.0, in light of Lake's appearance
and the crime with which he has been charged. See Lake's Motion
at 16-17. Specifically, Lake contends that because "[h]e is a
slight individual, appears younger than his age, and has some
effeminate characteristics[,] . . . he is particularly
susceptible to abuse in prison." Id. at 16.
"[T]o qualify for a downward departure, a defendant's
vulnerability must be so extreme as to substantially affect the
severity of confinement, such as where only solitary
confinement can protect the defendant from abuse." United
States v. Graham, 83 F.3d 1466, 1481 (D.C. Cir. 1996). Mere
membership in a class of persons likely to suffer abuse in
prison does not qualify a defendant for a downward departure
pursuant to § 5K2.0. See United States v. Winters,
174 F.3d 478, 485-86 (5th Cir. 1999); see also United States v. Wilke,
156 F.3d 749, 753 (7th Cir. 1998) ("Mere membership in a
particular class of offenders that may be susceptible to abuse
in prison does not merit a departure for vulnerability to abuse
in prison."). Furthermore, as the Seventh Circuit concluded in
If we permitted defendants convicted of
distributing child pornography to use the crime as
a reason to justify a departure from the range
recommended by the Guidelines, then we would
eviscerate the recommended range for this crime
and undermine the goals of the Sentencing Reform
Act of 1984. . . . It seems illogical to us that
the crime on which the Sentencing Commission based
the recommended range may be a factor in
justifying a departure from that range. . . .
There would be no heartland of cases if the
district court uses the nature of the offense in
whether mitigating circumstances exist — the same
factor that established the sentencing range would
also be a factor in justifying a departure from
Wilke, 156 F.3d at 753-54 (citations omitted). Thus, the Court
may only consider a defendant's individual traits in
determining whether to grant a downward departure based upon a
defendant's potential to suffer abuse in prison.
In this case, there is almost no evidence that Lake's
individual situation differs from the other cases inside the
"heartland." In his report, Tutone observed that: "Given the
nature of Mr. Lake's current charges and his severely depressed
mental state, if he is incarcerated for any length of time he
may need a degree of protection from other inmates or himself."
Id., Ex. B (Tutone Report at 5). This statement alone, however,
is insufficient evidence from which to conclude that Lake's
case is sufficiently extraordinary to bring this case "outside
the heartland." See Koon, 518 U.S. at 98, 116 S.Ct. 2035.
First, the Court may not consider "Lake's current charges" as
the basis for a departure. See Wilke, 156 F.3d at 754. Second,
there is no evidence that Lake suffers from depression to a
degree "so extreme as to substantially affect the severity of
[his] confinement." See Graham, 83 F.3d at 1481. Thus, I find
that there is no evidence that Lake is likely to suffer abuse
in prison to an unusual degree and, therefore, I will deny
Lake's motion for a downward departure on that basis.
For the reasons set forth above, I find that there is no
reliable evidence in the record suggesting that: (1) Lake's
criminal history category under-represents his past criminal
conduct or his likelihood of future criminal conduct; (2) Lake
has a cognitive or volitional dysfunction sufficient to warrant
a finding of diminished capacity; and, (3) Lake is susceptible
to treatment or likely to suffer from abuse in prison to a
degree that distinguishes his case from the heartland of other
cases. By contrast, I find, by a preponderance of the evidence,
that the sheer volume of images of child pornography that Lake
possessed removes his case from the heartland, justifying an
upward departure in his total offense level of two-levels.
Finally, I hold that downward departures for "minimal" or
"minor participant" are unavailable in cases, such as this,
where the defendant has only been charged with possession of
child pornography. Accordingly, I will deny all of Lake's
motions for a downward departure. I will grant the Government's
motion for an upward departure with respect to the volume of
images that Lake possessed, however, I shall deny it in all
In sum, as a result of my holdings, Lake has a total offense
level of 20 and a criminal history category of I, which results
in a Sentencing Guideline Range of 33-41 months. Further, I
will impose a three-year term of supervised release, during
which Lake must obtain appropriate sex offender treatment and,
during which Lake may not engage in employment or volunteer
activities that would provide him with access to minor