The opinion of the court was delivered by: Judge McClure
Before the court are defendant's objections to the United States Probation Office's presentence report and arguments concerning application of 18 U.S.C. § 3553(a) sentencing factors. Defendant pled guilty to a one-count information that charged him with sexual exploitation of several children, including his three adopted sons. In its presentence report, the probation office added several enhancements to defendant's offense level, while refusing to apply an offense level reduction for defendant's acceptance of responsibility. Defendant objects to these calculations. We held a sentencing hearing and gave defendant an opportunity to argue his objections and put on evidence. In addition, defendant argued that the 18 U.S.C. § 3553(a) sentencing factors warranted imposition of only the statutory minimum sentence of ten years. For the following reasons, we will overrule defendant's objections and adopt the probation office's presentence report in full.
We will also reject defendant's request for the ten-year statutory minimum sentence.
I. Factual and Procedural History
Starting in 1995, the defendant adopted three sons through Eckles Adoption Agency, Williamsport, Pennsylvania. He adopted then nine-year-old Mark Densberger, Jr. on July 5, 1995, then thirteen-year-old Bryan Densberger on July 12, 1996, and then twelve-year-old Bruce Densberger on September 16, 1999. They resided in a duplex in Milton, Pennsylvania, which also included a detached garage converted into a martial arts studio. Up until 2002, defendant was employed by the Federal Bureau of Prisons, first as a corrections officer, and later as a teacher.
In May 2004, after receiving a statement from Bryan Densberger, Pennsylvania state officials charged defendant with rape and executed a search warrant for defendant's home.*fn1 Officials found several videotapes, nine of which depicted defendant engaged in sexual activity with his three adopted sons. In addition, authorities found videotapes depicting the sons engaged in sexual activity with minor females. These videotapes were found with the other videotapes. Based on these findings, Pennsylvania added charges of child pornography and three counts of incest. Defendant pled no contest to the three counts of incest, the prosecution nolle prossed the remaining counts, and defendant was sentenced to three to nine years of imprisonment on August 9, 2005.
On September 1, 2006, the United States Government filed a one-count information charging defendant with unlawfully and knowingly permitting his three sons to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, in violation of 18 U.S.C. § 2251(b). On the same day, defendant filed a conditional guilty plea agreement, which he had signed on November 8, 2004. On October 3, 2006, defendant waived indictment, entered his conditional guilty plea, and filed a motion to dismiss challenging the constitutionality of 18 U.S.C. § 2251, both facially and as applied to this case. On December 15, 2006, we denied defendant's motion to dismiss.
The probation office issued its presentence report and determined defendant's advisory sentencing range under the 2002 United States Sentencing Commission Guidelines Manual. Defendant has objected to the presentence report on several grounds. On March 28, 2007, the court held a sentencing hearing giving the parties an opportunity to argue defendant's objections, put on evidence and testimony, and also gave the parties an opportunity to make arguments concerning the sentencing factors the court must consider under 18 U.S.C. § 3553. The Court also received defendant's allocution at that time. These issues are now ripe for our disposition.
I. Standard for Sentencing
To determine defendant's ultimate sentence, the court must consider the United States Sentencing Guidelines. The Supreme Court made such guidelines advisory in United States v. Booker, 543 U.S. 220 (2005). Post-Booker, the Third Circuit has directed the district courts to follow a three-part process when applying these advisory guidelines:
(1) Courts must calculate defendant's Guidelines sentence in the same manner as they would have before Booker.
(2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit's pre-Booker case law, which continues to have advisory force.
(3) Finally, they are to exercise their discretion by considering the relevant 18 U.S.C. § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. United States v. Jackson, 467 F.3d 834, 837 (3d Cir. 2006) (quotation marks, brackets, and citations omitted) (quoting United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006)).
Accordingly, we will follow this procedure by first reviewing the guideline sentence calculation made by the probation office in its presentence report, consider the merits of defendant's objections to the probation office's guideline sentence calculation, and finally consider the sentencing factors enunciated under
18 U.S.C. § 3553(a).*fn2 When considering objections to the presentence report, we note that the party challenging the presentence report "has the burden of production . . . to come forward with evidence that tends to indicate that the report is incorrect or incomplete." United States v. McDowell, 888 F.2d 285, 290 n. 1 (3d Cir. 1989). Of course, the ultimate burden of persuasion rests with the party seeking an adjusted sentence, which in this matter means the government when considering offense level enhancements, and the defendant when considering offense level reductions. Id. at 291. When considering evidence, we will apply the preponderance of evidence standard, as required. United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006).
The probation office identified six minors as being sexually exploited by defendant - defendant's three sons, Bryan, Mark, and Bruce, and the three minor females depicted in some of the videos having sex with the sons. Pursuant to U.S.S.G. § 2G2.1(c)(1), the probation office considered each minor exploited as a separate group and calculated the offense level attributable to the defendant for each minor.
For defendant's sexual exploitation of Bryan, the probation office determined a base offense level of twenty-seven pursuant to U.S.S.G. § 2G2.1(a). Based on statements from Bryan which indicated defendant began sexually assaulting the minor when he was thirteen, the probation office determined that U.S.S.G. § 2G2.1(b)(1)(B) required a two-level increase to defendant's base offense level. Because defendant was Bryan's parent at the time of the arrest, the probation office increased defendant's offense level another two levels pursuant to U.S.S.G. § 2G2.1(b)(2). The probation office also determined that another two-level increase was warranted under U.S.S.G. § 3A1.1(b)(1) because defendant knew or should have known that Bryan, who had a troubled past, was a vulnerable victim. Finally, the probation office added another two levels for attempting to obstruct justice because it determined defendant attempted to flee the country while being investigated by the federal government for the instant offense. After adding the enhancements to the base offense level, the probation office calculated an adjusted offense level of thirty-five for defendant's sexual exploitation of Bryan.
The probation office applied the same enhancements and made the same calculations for defendant's sexual exploitation of Mark Jr. and Bruce, except the probation office added an additional two offense levels for the exploitation of Mark Jr. because he was under the age of twelve when first sexually assaulted and videotaped by defendant. As a result, the probation office calculated an adjusted offense level of thirty-seven for the group concerning Mark Jr., and thirty-five for the group concerning Bruce. For two of the minor females, the probation office calculated an adjusted offense level of thirty-one - twenty-seven for the base offense level, with an additional two levels due to the age of the minor females and two levels for the defendant's attempted obstruction of justice. For the third minor female, the defendant's adjusted offense level was twenty-nine - twenty-seven for the base offense level and a two-level enhancement for defendant's attempted obstruction of justice.
Pursuant to U.S.S.G. § 3D1.4, the probation office took the highest adjusted offense level from the group - thirty-seven - and added four levels for a combined adjusted offense level of forty-one.*fn3 The probation office found that although defendant pled guilty, defendant did not warrant an adjustment for acceptance of responsibility, and concluded forty-one to be defendant's total offense level. With a criminal history category score of I, defendant's sentencing guideline range is 324-405 months. Because the statutory maximum for his offense, however, is twenty years, the probation office stated the advisory guideline sentence as 240 months imprisonment. In accordance with U.S.S.G. § ...