The opinion of the court was delivered by: Judge McClure
On July 10, 2008, a grand jury sitting in the Middle District of Pennsylvania returned a one-count indictment against defendant Daniel Michael Sullivan charging him with Distribution of Child Pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). (Rec. Doc. No. 1).*fn1 Sullivan was arrested on July 17, 2008.
The facts, taken from the PSR, are as follows. In May of 2008, a special agent, posing as a 13 year-old boy, entered a chatroom entitled "Both Ways 2." Apparently, bi-sexual or gay individuals frequented this chatroom. A William Valentine contacted the 13 year-old boy with the screen name "email@example.com."*fn2 The special agent observed in Valentine's profile window a collage of pornographic images containing depictions of children. In this initial chat, Valentine also provided pornographic images of children to the special agent. These images that were provided were of male victims under the age of 12.
From May 2, 2008, until July 13, 2008, the special agent and Valentine had approximately 26 chats. Valentine transmitted over 1,000 images of child pornography to the special agent that were highly graphic, containing bondage and bestiality.
On June 29, 2008, Valentine provided Sullivan with the special agent's undercover internet address, as Sullivan apparently was willing to travel to Pennsylvania to have sex with the 13 year-old boy. At this time, Sullivan lived in North Berwick, Maine, which was about a 12-hour drive from the special agent's location. Valentine resided in Texas.
In total, there were 15 chats between the special agent and Sullivan, beginning on June 29, 2008. During the course of these chats, Sullivan provided 137 images of child pornography to the special agent, approximately 20 percent of which portrayed children under 12 years of age. Arrest and search warrants were executed on July 17, 2008, at Sullivan's residence. Officials located 292 images of child pornography on Sullivan's computer.*fn3 Three images of sado-masochistic behavior were located, one image of anal penetration of a baby and one image of bestiality.
On August 12, 2008, Sullivan entered a not guilty plea. (Rec. Doc. No. 12). On December 29, 2009, Sullivan filed a motion to withdraw his plea of not guilty. (Rec. Doc. No. 51). By an order filed on the same date, this court granted the defendant's motion and entered a plea of guilty as to Count I. Id.*fn4 On April 2, 2010, the court received a Presentence Investigation Report ("PSR"), with an Addendum. Pursuant to this PSR, an advisory guideline range of 188 months to 235 months was produced, based on the defendant's Criminal History Category of II and Total Offense Level of 35. PSR, ¶ 49. On June 2, 2010, the court received a Second Addendum to the PSR, which contained two additional objections by the defendant and responses from Probation. Sullivan objected to eight paragraphs in the PSR. His objections to the PSR can be summarized into two issues that could affect the guideline range: (1) the defendant's objection to any upward departure made pursuant to U.S.S.G. § 4A1.3(a), and referenced in paragraph 61 of the PSR, which would require the court's conclusion that a Criminal History Category of II substantially under-represents Sullivan's criminal history or the likelihood of recidivism;*fn5 and (2) the defendant's contention that two enhancements, pursuant to U.S.S.G. § 2G2.2 and found in paragraphs 17 and 19 of the PSR, were inapplicable, as these enhancements would be based upon images that did not form the basis for the Distribution of Child Pornography charge to which the defendant pled guilty.*fn6 Sullivan also asked that this court grant his request for a downward departure, based upon an extraordinary physical impairment, pursuant to U.S.S.G. § 5H1.1. As the applicability of this downward departure affected Sullivan's guideline range, this issue is also addressed in the instant Memorandum and Order.
If all of the above issues, absent a downward departure pursuant to U.S.S.G. § 5H1.1,*fn7 were to be resolved in Sullivan's favor, the guideline imprisonment range would decrease to 87 to 108 months. Sullivan also contended that his prior convictions did not constitute prior convictions under 18 U.S.C. § 2252A(b)(1); if such convictions were to qualify under that statute, the defendant's applicable statutory range for the instant offense would increase from 5 to 20 years to 15 to 40 years. Although this issue did not impact Sullivan's advisory guideline range, it did impact the statutory mandatory minimum and maximum penalties faced by the defendant and therefore is addressed by this court's Memorandum and Order.
On June 7, 2010, two days prior to Sullivan's sentencing hearing, the defendant filed a sentencing memorandum, in which he argued that the enhanced mandatory minimum and maximum penalties under 18 U.S.C. § 2252A(b)(1) were inapplicable, offered support for his objections to paragraphs 17 and 19 of the PSR, argued that a downward departure pursuant to U.S.S.G. § 5H1.4 was warranted, and contended that a non-guideline sentence was warranted pursuant to the applicable § 3553(a) factors. (Rec. Doc. No. 58). On June 9, 2010, several hours before the sentencing hearing, the government filed its response. (Rec. Doc. No. 59). In its sentencing brief, the government argued that the enhanced mandatory minimum and maximum under 18 U.S.C. § 2252A(b)(1) should be applied. The government did not address, in its brief, the defendant's objections to paragraphs 17 and 19 of the PSR or the defendant's contention that he was entitled to a downward departure pursuant to U.S.S.G. § 5H1.4.*fn8 In addition, the government argued that, pursuant to the applicable § 3553(a) factors, a sentence within the applicable guidelines range was warranted. On June 9, 2010, this court held a sentencing hearing at which we heard argument relating to the instant matter. This Memorandum and Order sets forth the reasoning behind this court's decision at the sentencing hearing that a guideline range of 188 to 235 months imprisonment was appropriate in the instant case.
All of the rulings set forth in the instant Memorandum and Order were made during, or at the conclusion of, the sentencing hearing held on June 9, 2010. At that hearing, we sustained the defendant's objection to paragraph 61 of the PSR and overruled the defendant's objection to paragraphs 17 and 19 of the PSR. In addition, we concluded that a downward departure based upon extraordinary physical impairment pursuant to U.S.S.G. § 5H1.1 was not warranted. Finally, we concluded that the defendant's Maine conviction did not constitute a prior conviction under 18 U.S.C. § 2252A(b)(1), and that the government offered insufficient evidence for this court to make an adequate determination as to whether the defendant's New Hampshire conviction constitutes a prior conviction under § 2252A(b)(1).*fn9 The following contains the reasoning supporting the above rulings.
A. Applicability of the Enhanced Mandatory Minimum and Maximum Penalties under 18 ...