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United States of America v. Derl H. Maurer

April 22, 2011


On Appeal from the United States District Court for the District of New Jersey D.C. Criminal No. 10-cr-00060 District Judge: Hon. Susan D. Wigenton

The opinion of the court was delivered by: Van Antwerpen, Circuit Judge.


Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 22, 2011

Before: SMITH, ALDISERT, and VAN ANTWERPEN, Circuit Judges.


Appellant Derl H. Maurer ("Maurer") pleaded guilty to a single count information charging him with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The District Court imposed a sentence of sixty months of imprisonment and a five-year term of supervised release, which included special conditions restricting internet access and association with minors. On appeal, Maurer challenges the procedural reasonableness of his sentence as well as the special conditions of his supervised release. For the reasons that follow, we will affirm.


Maurer came to the attention of authorities on July 7, 2009, after sending an email via an online social networking website to a fictitious eighteen-year-old teenager, ("Nate"), whose internet profile was created by undercover law enforcement officers to investigate crimes involving sexual exploitation of children. In the email, Maurer solicited the exchange of nude images and asked "Nate" how old he was. The following day, Maurer sent another email again inquiring about nude pictures and reiterating his interest in "young guys too your age and under," and stating "hope your into older men." (Presentence Report ("PSR") ¶ 10.) Three images, which depicted a nude older man exposing himself, were attached to this email. Thereafter, Maurer sent another email directing "Nate" to a website featuring pictures and videos of Maurer performing sexual acts.

In response to a request transmitted by authorities through "Nate," on or about July 13, 2009, Maurer mailed two compact disks ("CDs") to a provided address. The package containing the CDs included a handwritten note from Maurer describing the contents of the CDs, soliciting the trade of additional images, and expressing the desire to "meet and have some good fun together." (Id. ¶ 16.) Upon inspection, law enforcement officers confirmed that the CDs contained numerous images and videos of child pornography. Based upon this information, the investigating officers obtained a search warrant to search and seize computers and videos from Maurer‟s residence.

On July 23, 2009, law enforcement officers executed a search of Maurer‟s residence pursuant to the warrant. Maurer admitted to authorities that he had sent the CDs to "Nate," that he had been viewing and collecting child pornography for six months, and that there was additional child pornography on his computer as well as a library of CDs in his bedroom closet. He denied having any sexual contact with minors. In total, law enforcement officers seized from Maurer‟s residence forty image files and nineteen video files containing child pornography. An examination of these files revealed that several depicted adult males penetrating and otherwise sexually abusing prepubescent children, some of whom were bound with rope and tape. (Id. ¶¶ 17, 20, 23.)

On February 2, 2010, Maurer pleaded guilty, pursuant to a written plea agreement, to a one-count information alleging that he possessed child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). At his plea hearing, Maurer admitted that he "knowingly possess[ed] . . . . more than 600 images of child pornography,"*fn1 some of which depicted "individuals who were clearly minors that had not attained the age of 12 . . . engaging in sexually explicit conduct with other minors and adults." (Joint Appendix ("J.A.") at 36-37.)

Maurer additionally admitted that "possession of these images involve[d] the use of a computer." (Id. at 36.) These admissions were mirrored in the plea agreement, which also contained a waiver of Maurer‟s right to appeal the District Court‟s acceptance of the stipulations contained therein and an acknowledgment that the District Court was not bound by them. (Id. at 22, 26.)

The District Court held a sentencing hearing on June 28, 2010. According to the PSR prepared by the United States Probation Office, Maurer‟s total offense level under the Sentencing Guidelines was 28, and his criminal history category was I, yielding an advisory Guidelines range of 78 to 97 months of imprisonment. Notably, the Probation Office found that Maurer‟s offense involved material that portrayed "sadistic or other violent conduct," and therefore recommended application of a four level enhancement set forth in U.S.S.G. § 2G2.2(b)(4). (PSR ¶ 23.) The Probation Office relied on dictionary definitions of these terms to determine the applicability of this four level enhancement. (Id. ¶ 23 n.2.) Although Maurer stipulated to conduct providing the basis for sentencing enhancements relating to his use of a computer and possession of images depicting prepubescent minors, he did not stipulate to possession of images depicting sadistic or violent conduct. Prior to sentencing, Maurer objected to the application of § 2G2.2(b)(4) recommended in the PSR, contending that "the material described in paragraph 23 is [in]sufficient for the enhancement to apply nor does it seem to meet the definitions provided in footnote 2 of the report." (Id. Addendum.)

During his sentencing hearing, Maurer presented arguments against the application of § 2G2.2(b)(4) and requested a downward variance based on the factors set forth in 18 U.S.C. § 3553(a). The District Court denied Maurer‟s objection to the four level enhancement authorized by § 2G2.2(b)(4), stating that "[w]ithout question I think that‟s an enhancement that is applicable and has been appropriately applied." (J.A. at 67.) The District Court further explained, "I do think that [the enhancement] is appropriately applied . . . because to indicate that children being essentially molested, raped and tortured is not sadistic or somehow masochistic, I think it strains credibility to make that argument. . . [a]nd this case is certainly no different, given the videos that were involved, the photos that were involved." (Id.) The District

Court then proceeded to calculate Maurer‟s total offense level as 28 and his criminal history category as I, yielding a Guidelines sentence range of 78 to 97 months, consistent with the PSR. Upon considering Maurer‟s arguments pertaining to the sentencing objectives set forth in § 3553(a), the District Court granted a downward variance and ...

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