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United States v. Miller

October 3, 2006

UNITED STATES OF AMERICA
v.
DONALD R. MILLER



The opinion of the court was delivered by: Muir, District Judge

OPINION

I. Introduction

On October 17, 2005, after a five-day jury trial, Defendant Donald R. Miller was found guilty of receiving or distributing child pornography, possession of child pornography, and possession of marijuana.

On December 20, 2005, Miller's privately retained trial counsel filed a motion to withdraw his appearance. On February 24, 2006, the necessary information was filed by Miller indicating that he qualified to have counsel appointed to represent him. On February 27, 2006, the Federal Public Defender's office was appointed to represent Miller.

We received Miller's presentence report on January 20, 2006. United States Probation Officer Eric W. Noll determined in the report that Miller's advisory guideline Total Offense level is 25, his Criminal History Category is I, and his imprisonment range is four years and 9 months to 5 years and 11 months. Those figures are based in part upon the Probation Officer's conclusions that three upward adjustments of 2 levels each apply because 1) Miller possessed at least one image of a prepubescent minor or a minor under the age of 12 years of age, 2) Miller possessed between 10 and 150 images of child pornography, and 3) certain statements by Miller constitute an obstruction of justice pursuant to § 3C1.1 of the advisory guidelines.

After being granted an extension of time in which to do so, on May 18, 2006, Miller's appointed counsel filed objections to the presentence report. Miller objects to the application of all three of the two-level upward adjustments listed in the preceding paragraph. A presentence conference was held on May 23, 2006.

On May 24, 2006, we issued an order in which we established a briefing schedule as to Miller's objections to the presentence report. In that order we advised the parties that if a presentence hearing were necessary or advisable, a motion for such a hearing should be filed by counsel.

The briefs filed by the parties in connection with Miller's objections to the presentence report made it clear that material facts were disputed and an evidentiary hearing was required. On August 15, 2006, we issued an order scheduling a hearing on Miller's objections for September 15, 2006.

The hearing was held as scheduled and at its conclusion the parties requested, and we granted, an opportunity to file additional annotated proposed findings of fact and conclusions of law. The government's annotated proposed findings of fact and conclusions of law were filed on September 15, 2006. Miller's annotated proposed findings of fact and conclusions of law were filed on September 22, 2006. Miller's objections to the presentence report are ripe for disposition.

The following are the Court's findings of fact, discussion, and conclusions of law. Findings of fact which are not disputed are noted with a "U" in parentheses after each such finding. Findings of fact which are not disputed but as to which a party objects are noted with a "U/O" in parentheses after each such finding.

II. Findings of Fact

1. All of the photos at issue in this case were found on a zip disk during the execution of a search warrant at Defendant Donald R. Miller's residence on January 13, 2004.

2. At the sentencing hearing, the government stated that it would not be relying on the images from Utah which were the subject of counts two and three, the acquitted conduct. (U)

3. During the sentencing hearing, the government introduced 20 images on a zip disk taken from Miller's residence. (U)

4. Some of the images introduced had logos, captions, or website addresses. (U)

5. The words used in the logos or captions or website addresses on some of the images are not indicative of what is actually depicted in the images. (U)

6. The first image introduced by the government from the zip disk was marked as Government Exhibit 1.1 and depicts a female standing in water. (U)

7. The depiction is not a digital, computer or computer-generated image of a minor engaging in sexually explicit conduct.

8. The image does not depict graphic sexual intercourse, graphic or lascivious simulated bestiality, masturbation, sadistic or masochistic abuse, or graphic or simulated lascivious exhibition of the genitals or pubic area.

9. The actual age of the female is unknown. (U)

10. The age of the female depicted in the image is most likely between 12 and 17 years.

11. The focal point of the visual depiction is not the female's genitalia or pubic area.

12. The female is not looking at the camera. (U)

13. The female appears to be contemplating something. (U/O)

14. The setting of the visual depiction is not sexually suggestive.

15. The female is not in an unnatural pose.

16. The visual depiction does not suggest sexual coyness or a willingness to engage in sexual activities.

17. The visual depiction does not appear to be intended or designed to illicit a sexual response in the viewer.

18. The female is naked.

19. The second image introduced by the government from the zip disk was marked as Government Exhibit 1.2 and depicts a man ejaculating on a female's face. (U)

20. The female's actual age is unknown. (U)

21. The age of the female depicted in the image is most likely between 12 and 17 years.

22. The depiction is a digital, computer or computer-generated image of a minor engaging in graphic oral-genital sexual intercourse.

23. The third image introduced by the government from the zip disk was marked as Government Exhibit 1.3 and depicts four females who are topless.

24. The actual ages of the females are unknown. (U)

25. The ages of the females depicted in the image are most likely between 12 and 17 years.

26. The depiction is not a digital, computer or computer-generated image of a minor engaging in sexually explicit conduct.

27. The image does not depict graphic sexual intercourse, graphic or lascivious simulated bestiality, masturbation, sadistic or masochistic abuse, or graphic or simulated lascivious exhibition of the genitals or pubic area.

28. The fourth and sixth images introduced by the government from the zip disk are identical to each other and were marked as Government Exhibits 1.4 and 1.5.

29. Government Exhibits 1.4 and 1.5 depict two females who are topless.

30. The actual ages of the females are unknown. (U)

31. The ages of the females depicted in the image are most likely between 12 and 17 years.

32. The depiction is not a digital, computer or computer-generated image of a minor engaging in sexually explicit conduct.

33. The image does not depict graphic sexual intercourse, graphic or lascivious simulated bestiality, masturbation, sadistic or masochistic abuse, or graphic or simulated lascivious exhibition of the genitals or pubic area.

34. The fifth image introduced by the government from the zip disk was marked as Government exhibit 1.4(a) and depicts one female who is topless. (U)

35. The actual age of the female is unknown. (U)

36. The age of the female depicted in the image is most likely between 12 and 17 years.

37. The depiction is not a digital, computer or computer-generated image of a minor engaging in sexually explicit conduct.

38. The image does not depict graphic sexual intercourse, graphic or lascivious simulated bestiality, masturbation, sadistic or masochistic abuse, or graphic or simulated lascivious exhibition of the genitals or pubic area.

39. The female's face is not fully visible. (U)

40. The seventh image introduced by the government from the zip disk was marked as Government Exhibit 1.6 and depicts one female from the waist up who is topless.

41. The actual age of the female is unknown. (U)

42. The age of the female depicted in the image is most likely between 12 and 17 years.

43. The depiction is not a digital, computer or computer-generated image of a minor engaging in sexually explicit conduct.

44. The image does not depict graphic sexual intercourse, graphic or lascivious simulated bestiality, masturbation, sadistic or masochistic abuse, or graphic or simulated lascivious exhibition of the genitals or pubic area.

45. The eighth image introduced by the government from the zip disk was marked as Government Exhibit 1.7 and depicts three ...


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