United States District Court, M.D. Pennsylvania
William W. Caldwell United States District Judge
se defendant, Jeffrey Schmutzler, confined at the Federal
Medical Center-Devens, Ayer, Massachusetts, pled guilty to
receiving child pornography in violation of 18 U.S.C. §
2252A(a)(2). He has filed a motion under 18 U.S.C. §
3582(c)(2) for a reduction in his sentence, arguing for
retroactive application to him of Amendment 801 to the
sentencing guidelines. In pertinent part, Amendment 801
amended U.S.S.G. § 2G2.2(b)(3)(B), which at the time
Defendant was sentenced authorized a five-level increase in
the offense level when a defendant has distributed child
pornography in return for child pornography. Defendant argues
that he no longer qualifies for the five-level increase under
the amended section 2G2.2(b)(3)(B). He also argues his
sentence should be reduced for postsentencing rehabilitation.
We will deny the motion.
April 2013, Defendant was named in a two-count indictment.
Count I charged him with knowingly receiving child
pornography that had been mailed, shipped and transported in
and affecting interstate and foreign commerce by any means,
including by computer, in violation of 18 U.S.C. §
2252A(a)(2) and (b). Count II charged him with possession of
material containing images of child pornography, in violation
of 18 U.S.C. § 2252A(a)(5)(B). In July 2013, Defendant
pled guilty to Count I.
presentence report (PSR) was prepared using the 2013
guidelines manual. (PSR ¶ 20). Under U.S.S.G. §
2G2.2(a)(2), Defendant's base offense level was 22. (PSR
¶ 21). In addition to other increases in the offense
level totaling 13 points, Defendant was given a five-point
increase under section 2G2.2(b)(3)(B). (PSR ¶ 23). This
gave Defendant an offense level of 40, reduced to a total
offense level of 37 after three points were deducted for
acceptance of responsibility under U.S.S.G. § 3E1.1(a)
and (b). (PSR ¶ 31). Combined with a criminal history
category of I, Defendant's guideline range was 210 to 240
months. (PSR ¶ 57).
time the PSR was prepared, section 2G2.2(b)(3)(B) allowed a
five-point increase in the offense level when a defendant had
engaged in distribution of child pornography “for the
receipt, or expectation of receipt, of a thing of value, but
not for pecuniary gain . . . .” U.S.S.G. §
2G2.2(b)(3)(B)(2013). This provision was defined in part to
include “any transaction, ” including
“bartering, ” “conducted for a thing of
value.” “Thing of value” was defined in
part as “child pornographic material received in
exchange for other child pornographic material.”
U.S.S.G. § 2G2.2, application note 1 (2013).
objected to the five-level increase, contending that he never
traded child pornography for anything of value. The probation
officer responded that the increase was based on
Defendant's admission that:
Although the defendant denied trading child pornography with
anyone in particular, he has used file sharing programs such
as “WinMix” and did acquire videos of younger
boys having sex and did share those files with others.
Schmutzler did not know who but knows his system was set to
receive and send files he had on his computer. He also used
“BitTorants” (a file sharing protocol for
transferring large amounts of data) to collect pornography.
to the PSR ¶ 2, quoting PSR ¶ 12.3).
sentencing hearing held on July 24, 2014, defense counsel
pursued the objection to the five-level increase, arguing
that there was case law from other jurisdictions stating that
“simply participating in these file sharing programs .
. . may not be enough to prove distribution.” (Doc. 70,
sentencing transcript at p. 7). However, when pressed about
Defendant's admission, counsel said he was not going to
dispute it. (Id.).
court therefore overruled the objection. (Id.).
Defendant's guideline range thus remained at 210 to 240
months. The court granted a downward departure and
sentenced him to 108 months' imprisonment.
February 2015, the Third Circuit affirmed his conviction and
sentence on direct appeal. United States v.
Schmutzler, 602 F. App'x 871 (3d Cir.
2015)(nonprecedential). In April 2015, we denied his 28
U.S.C. § 2255 motion. United States v.
Schmutzler, 2015 WL 1912608 (M.D. Pa. April 27, 2015).
In December 2015, the Third Circuit denied a certificate of
appealability on Defendant's appeal of our order denying
the 2255 motion. United States v. Schmutzler, No.
15-2462 (3d Cir. Dec. 21, 2015). In October 2016, the Third
Circuit denied Defendant's first application to file a
second or successive 2255 motion. In re Schmutzler,
No. 16-3817 (3d Cir. Oct. 27, 2016). In January 2017, the
Third Circuit denied Defendant's second application to
file a second or successive 2255 motion. In re
Schmutzler, No. 17-1001 (3d Cir. Jan. 27, 2017). In
addition, the United States District Court for the District
of Massachusetts denied two 28 U.S.C. § 2241 petitions
Defendant filed there challenging his conviction. See
Schmutzler v. Grondolsky, No. 16-CV-12308, 2016 WL
7209667 (D. Mass. Sept. 12, 2016).
part, Amendment 801 to the sentencing guidelines, effective
November 1, 2016, amended section 2G2.2(b)(3)(B) so that it
now reads: “If the defendant distributed in exchange
for any valuable consideration, but not for pecuniary gain,
increase by 5 levels.” U.S.S.G. §
2G2.2(b)(3)(B)(2016). As explained in the commentary to the
Amendment, which quoted commentary in application note 1 to
the amended section, the Amendment was enacted to clarify
that the five-point increase was only proper in part when
“the defendant agreed to an exchange with another
person under which the defendant knowingly distributed to
that other person for the specific purpose of obtaining
something of valuable consideration from that other person,
such as other child pornographic material . . . .”
(Amendment 801, Reason for the Amendment at p. 145,
Supplement to Appendix C to the guidelines manual, Nov. 1,
2016). The Sentencing ...