Submitted: February 17, 2015
from a January 29, 2013 judgment of the United States
District Court for the Northern District of New York (Sharpe,
J.), sentencing Defendant- Appellant Nathan Brown to 60
years' imprisonment. The sentencing transcript suggests
that the district court may have based its sentence on a
clearly erroneous understanding of the facts. Accordingly, we
remand for resentencing.
K. Sannes and Richard D. Belliss, Assistant United States
Attorneys, for Richard S. Hartunian, United States Attorney
for the Northern District of New York, Syracuse, NY, for
Michael Musa-Obregon, Maspeth, NY, for Defendant- Appellant.
Before: POOLER, SACK, and DRONEY, Circuit Judges.
POOLER, Circuit Judge
Brown pleaded guilty to three counts of production of child
pornography, in violation of 18 U.S.C. § 2251(a), and
two counts of possession of child pornography, in violation
of 18 U.S.C. § 2252A(a)(5)(B). The district court
(Sharpe, J.) imposed a sentence of 60 years'
imprisonment. Brown now challenges that sentence, arguing
that the district court miscalculated his guidelines range
and that the sentence is otherwise procedurally and
substantively unreasonable. We reject Brown's challenge
to the guidelines calculations, but we remand for
resentencing to ensure that the sentence is not based on a
clearly erroneous understanding of the facts.
February 2012, federal investigators discovered eleven images
on a child-pornography website that appeared to have been
uploaded by the same person. Two of the images depicted the
same eight-year-old girl. By examining metadata from one of
the images, investigators determined that the image had been
taken using a Motorola Droid X cell phone. The metadata also
revealed GPS coordinates associated with the image. With
assistance from the cell phone carrier in that region for the
Motorola Droid X, investigators determined the approximate
area where the photograph was taken. They then spoke with the
superintendent of schools within that area, who identified
the girl after viewing a sanitized version of the photograph.
agents visited the girl's home and spoke with her mother,
who identified her daughter in four images of child
pornography. The girl's mother also recognized her
thirteen-year-old niece in two of the images. The mother told
investigators that the two girls would sometimes spend time
together at a trailer home that had been rented by defendant
Nathan Brown and the mother's sister.
interviewed the eight-year-old girl, who told them that,
while babysitting, Brown would "play house" with
the girls, and she would play the "baby" and wear a
diaper. Brown would periodically "change" the
diaper as if it were soiled. She reported that, while doing
so, Brown had touched her as he "cleaned" her
vaginal area with a baby wipe. Brown also took pictures of
the girls as this was occurring.
girls recognized themselves in the photographs that they were
shown by investigators, and they remembered a number of the
pictures that had been taken while they were awake. One of
the girls told investigators that Brown offered to buy her an
iPad if she allowed him to take more pictures of her, which
on the information provided by the girls and their parents,
federal agents obtained a search warrant for Brown's
residence and electronic devices. They executed the warrant
at Brown's home and found him attempting to delete child
pornography from his computer. The agents arrested Brown and
seized his computers, cell phones, storage devices, and
his arrest, Brown told investigators that he had been viewing
child pornography online daily using software that hid his IP
address. He admitted to taking nude photographs of children
with his phone, including approximately 100 photographs of
the two girls depicted on the child-pornography website that
he uploaded from his phone to his computer. Images of the
eight-year-old girl included a picture of her wearing only a
shirt, with her vagina exposed, and with an open diaper next
to each of her legs. In another, the girl was naked in a
bathtub, again with her genitalia exposed. Additional
pictures included close-up images of the girl's vagina,
an image of a male hand pulling aside the girl's
underwear, and an image of a child's hand holding an
adult penis. The girl is sleeping in several of these images.
The images of the girl's cousin showed her sleeping, with
her underwear pulled to the side and her vagina exposed, with
her breast exposed, with an adult penis next to her mouth,
and with an adult penis on her lips. The images also included
close-up pictures of her vagina.
told investigators that he had also taken sexually explicit
photographs and videos of a third victim, who was eight years
old at the time. Investigators found images and videos of
this third victim on Brown's computer. One video showed
Brown touching his penis to her hand and ejaculating on it.
Another showed him ejaculating on her feet, and a third
showed him pulling down her underwear and spreading her
vagina with his fingers. Brown admitted to pulling down her
underwear and photographing her while she was sleeping. The
third victim was "asleep the entire time during the
production of the images and videos" and has "no
knowledge of having been victimized by Brown." PSR
Brown's arrest, investigators conducted forensic analysis
of his computers and phones. They found the eleven images
that originally prompted the investigation on Brown's
computers. They also discovered photos that Brown had taken
by hiding a pinhole camera in the bathroom of a home during a
pool party and in the bathroom of a hotel at a public water
park. The presentence report indicates that Brown also
produced 33 files of a "Victim #4" and 2 files of a
"Victim #5." PSR ¶ 36. The images of Victim #4
"depicted a female approximately eight to nine years old
with black hair opening her vagina, " and the images of
Victim #5 "depict an unknown infant." PSR ¶
computers collectively contained over 25, 000 still images
and 365 videos of child pornography, including approximately
4 still images involving torture, 60 displaying bondage, 30
depicting bestiality, 1, 873 involving sexual intercourse,
160 involving objects, and 18 involving infants. In total,
299 victims were identified in these images.
jury indicted Brown with three counts of producing child
pornography and two counts of possessing child pornography.
Brown pleaded guilty to all five counts pursuant to a plea
agreement. Under the plea agreement, Brown faced a mandatory
minimum of 15 years' imprisonment, and he reserved the
right to appeal any sentence greater than 405 months'
probation office prepared a presentence investigation report
in advance of Brown's sentencing. In determining
Brown's guidelines range, the presentence report
"grouped" Counts 1, 4, and 5, because those counts
involved "substantially the same harm." U.S.S.G.
§ 3D1.2(b). The base offense level for this group was
32. The base offense level was then increased 14 levels
because of five sentencing enhancements: (1) a four-level
increase pursuant to Section 2G2.1(b)(1)(A) because "the
offense involved a minor who had . . . not attained the age
of twelve years;" (2) a two-level increase pursuant to
Section 2G2.1(b)(2)(A) because "the offense involved
the commission of . . . sexual contact;" (3) a
four-level increase pursuant to Section 2G2.2(b)(4) because
the offense "involved material that portrays sadistic or
masochistic conduct or other depictions of violence;"
(4) a two-level increase pursuant to Section 2G2.1(b)(5)
because "the minor was . . . in the custody, care, or
supervisory control of the defendant;" and (5) a
two-level increase pursuant to Section 3A1.1(b)(1) because
"the defendant knew or should have known that a victim
of the offense was a vulnerable victim." These
enhancements increased Brown's adjusted offense level for
this group to 46.
presentence report then repeated this process for Groups 2
and 3, which corresponded to Counts 2 and 3, and determined
that each of those counts carried a total offense level of
42. This resulted in a "combined adjusted offense
level" on all counts of 49. Brown received another
five-level enhancement pursuant to Section 4B1.5(b) because
he "engaged in a pattern of activity involving
prohibited sexual conduct, " raising the adjusted
offense level to 54. Finally, Brown received a three-level
reduction pursuant to Section 3E1.1 because he accepted
responsibility for his crimes, resulting in a total offense
level of 51. This was "treated as" an offense level
of 43, the maximum offense level under the guidelines.
See U.S.S.G. ch. 5, pt. A, application note 2.
criminal history category I and offense level 43, Brown's
recommended sentence under the guidelines was initially life
imprisonment. Because each count was subject to a statutory
maximum, however, Brown's recommended sentence became 110
sentencing, the government requested this maximum sentence.
Defense counsel requested the mandatory minimum sentence of
15 years' imprisonment. The court heard from the families
of the victims, who described the significant behavioral
issues from which the victims suffer and how they struggled
to maintain relationships with family and friends. One
victim's family told the court that the family
"fel[t] violated in the worst imaginable way" and
that the victim "lives in fear" and continues to
"struggle with what happened." App'x at 83. The
third victim's mother, however, did not submit a victim
impact statement because her daughter "was unaware of
the abuse" and there was "no negative impact"
on her daughter. PSR ¶ 51.
district court began its remarks at sentencing by discussing
the various sentencing enhancements that applied in
Brown's case. The court then discussed the seriousness of
Brown's crimes, noting "the trauma to these three
children [as] reflected in the presentence report [and] the
statements of the relatives who have appeared on their
behalf, " which the court said "demonstrate[d] how
drastic and dramatic the criminal conduct [was] here."
App'x at 100. With respect to the possession counts, the
court stated that the children depicted in the photographs
Brown possessed "were hijacked by people exactly like .
. . Brown, put through [torture, sexual intercourse,
bestiality, and bondage], [and] photographed, " and that
the children would worry "for the rest of their
li[v]e[s]" that ʺthose photographs are out there
forever." App'x at 100. The court also said that
Brown's crimes were "as serious . . . as federal
judges confront" and that Brown was "the worst kind
of dangerous sex offender." App'x at 101-02. In
discussing the need to protect the public from Brown, the
court said to him, "[I]t may be true that you could not
help yourself, but it's also true that y[ou] destroyed
the lives of three specific children . . . ." App'x
court then imposed a sentence of 60 years' imprisonment.
It explained its selection of this sentence as follows:
Each of the first three counts deal with each of the three
documented victims here, Jane Does I, II[, ] and III; each of
[th]em contains a mandatory minimum sentence of 15 years and
a statutory maximum sentence of 30 years. So, on each of
Counts I through III, you're looking at 15 to 30. Counts
IV and V have a statutory maximum of 10 years each, and those
are the counts that deal with the photographs obtained over
the internet. When I look at the first three counts and look
at the specific children that are involved, then I have to
say to myself[, ] which one of [th]em didn't you abuse?
And my answer to that is there isn't none of the three
that you didn't abuse.
So when I look at the mandatory minimum on each of those
children, I'm not willin[g] to walk away from any of the
three. And as to those three counts, it is my sentence and I
hereby sentence you to 20 years on each of those three counts
to be served consecutively for a total of 60 years. On each
of the production counts, there are a hundred ninety plus
victims on those, I sentence you to the statutory maximum of
10 years on each of those two counts to be served
concurrently with the 60 years I have imposed as consecutive
sentences on Counts I through III.
App'x at 102. In addition to the 60 years'
imprisonment, the district court sentenced Brown to a
lifetime of supervised release and restitution in the amount
of $10, 416.00.
now appeals from this sentence, arguing that the district
court miscalculated his guidelines range and that the
sentence is otherwise procedurally and substantively
review a sentence for procedural and substantive
reasonableness, which is akin to a 'deferential
abuse-of-discretion standard.'" United States v.
McCrimon, 788 F.3d 75, 78 (2d Cir. 2015) (quoting
United States v. Cavera, 550 F.3d 180, 189 (2d Cir.
2008)). We "must first ensure that the district court
committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence-including an explanation for any deviation from the
Guidelines range." Gall v. United States, 552
U.S. 38, 51 (2007). "Once we have determined that the
sentence is procedurally sound, we then review the
substantive reasonableness of the sentence, reversing only
when the trial court's sentence 'cannot be located
within the range of permissible decisions.'"
United States v. Dorvee, 616 F.3d 174, 179 (2d Cir.
2010) (quoting Cavera, 550 F.3d at 189).
first address Brown's argument that the district court
miscalculated his guidelines range. We then turn to whether
Brown's sentence was otherwise procedurally and
Brown's Challenge to the ...