On Appeal from the United States District Court for the District of New Jersey (D. C. No. 06-cr-00039-1) District Judge: Hon. Anne E. Thompson.
The opinion of the court was delivered by: Roth, Circuit Judge
Argued on February 5, 2009
Before: RENDELL and ROTH, Circuit Judges and PADOVA*fn1, Senior District Judge.
The government appeals a sentence of five years probation and a $10,000 fine imposed on George Lychock for his knowing possession of between 150 and 300 images of child pornography. The applicable Sentencing Guidelines range, as both parties had agreed, was 30 to 37 months. We agree with the government that Lychock's sentence was procedurally and substantively unreasonable. We will vacate the judgment of sentence and remand this case for resentencing.
On April 13, 2004, as part of a wider investigation into an international child pornography enterprise, agents from the Bureau of Immigration and Customs Enforcement conducted a consensual search of George Lychock's apartment and seized two computer hard drives. Lychock quickly admitted that the agents would find approximately fifty images of child pornography on his computer. He further admitted that he knew it was illegal to possess child pornography and acknowledged that he had purchased access to child pornography websites using his credit card. He asserted that he had stopped purchasing access to such websites one year earlier but that he still searched the Internet for free images.
Ultimately, forensic examination of the hard drives revealed far more than fifty images of child pornography, and Lychock pled guilty to a one-count information charging him with knowing possession of at least 150 but fewer than 300 such images. Pursuant to a written plea agreement, Lychock stipulated to the following Guidelines calculation: Because he had no previous criminal record, Lychock was in Criminal History Category I. The base offense level was 15, which was increased by two levels because the pornographic images involved prepubescent minors or minors under the age of twelve years, see id. § 2G2.4(b)(1), and another two levels because the offense involved the use of the computer, see id. § 2G2.4(b)(3). Lychock received a three-level enhancement based on the number of images in his possession. After crediting Lychock with a three-level reduction based on his continued accepted of responsibility, the parties reached an "agreed total offense level" of 19. Finally, the parties agreed that "a sentence within the Guidelines range . . . is reasonable" and that neither party would seek or argue for any departure or adjustment from the range. The applicable Guidelines range for Lychock's criminal history category and offense level was 30 to 37 months.*fn2
Despite the agreement of the parties, the District Court declined to impose a term of imprisonment. The court acknowledged that "possession of child pornography is a serious offense" and that the Guidelines range was based on "a global consideration" of the harm done to victims. Nonetheless, the court characterized Lychock as basically "law abiding" and a "young man" whose "background and history are in total conflict with a jail term." The court thus asserted that imprisonment would "be counterproductive." The court further noted Lychock's cooperation with law enforcement, his acknowledgment of wrongdoing, his "supportive family," his decision to seek psychological help immediately, and the report of his psychologist that he was benefitting from their sessions.
In imposing a sentence that was substantially lower than the applicable Guidelines range, the District Court relied, in part, on its view that imprisonment would neither deter criminal conduct nor protect the public from further crimes. The court opined,
The only benefit I could see [to imprisonment would be] as a deterrent to others, and that is a factor. . . . So other people would recognize that they cannot subscribe to these images with impunity. I am not persuaded that a jail term for this defendant warrants, or is to be equated with that value. The kind of psychological problem in persons who are drawn to this kind of material it seems to me is not going to be deterred by a jail term for an internet porno observer. There is no suggestion the public otherwise is threatened by his conduct.
Based on these factors, the District Court imposed a sentence of five-years probation and a $10,000 fine.
The government appealed the sentence imposed by the District Court as unreasonable. We have jurisdiction ...