Cook

MEMORANDUM **

Charles William Cook was convicted by a jury of transporting and possessing material involving the sexual exploitation of minors, in violation of 18 U.S.C. §§ 2252 (a)(1) and (a)(4)(B). A jury found him guilty on both counts and Cook was originally sentenced to 87 months in prison and 3 years of supervised release. His sentence included a 4-level upward adjustment pursuant to U.S.S.G. § 2G2.2(b)(3) because the material portrayed sadistic conduct. A Ninth Circuit panel reversed and remanded for “resentencing, limited to reconsideration, in light of this memorandum, of the upward adjustment.” United States v. Cook, 246 F.3d 676 (9th Cir.2000).

On remand, the district court decided that the § 2G2.2(b)(3) adjustment was justified. The court then departed downward 8 levels under § 5K2.0, sentencing Cook to 37 months in prison. Five days later, the government filed a motion for reconsideration. The next day, Cook filed his notice of appeal in the morning and the court held an afternoon hearing on the government’s motion. The court determined that the 8-level downward departure was impermissible and, pursuant to Federal Rule of Criminal Procedure 35(c), changed the…