United States v. Robert Thayer Stevens

Robert Stevens appeals a 30-year sem tence imposed by the district court after Stevens plead guilty to one count of Receipt of Child Pornography and one count of Possession of Child Pornography, both in violation of 18 U.S.C. § 2252A(a). For the reasons set forth below, we vacate the sentence and remand for resentencing.

I

The indictment and the plea agreement include only the most basic description of Stevens’s criminal activities during 2003 and 2004. On count one, Receipt of Child Pornography, Stevens admitted he “knowingly received a visual depiction ... of a minor engaging in sexually explicit conduct.” On count two, Possession of Child Pornography, Stevens admitted he “knowingly possessed computer disks ... which [he] knew contained visual depictions of minors engaged in sexually explicit conduct.” The pre-sentence report, however, provides the sordid details of, among other things, Stevens’s numerous online contacts with apparently underage girls, which he accompanied with pornographic materials and sexual solicitations.

The district court accepted the plea agreement and sentenced Stevens on November 18, 2005. In the course of calculating the defendant’s base offense…

dissenting:

I respectfully dissent.

Any error arising from the district court’s interpretation of the term “minor” as used in U.S.S.G. § 2G2.2(b)(2)(D) is harmless.

First, it is undisputed that Defendant sent pornographic images of children to a law enforcement officer, believing and intending that he was distributing the mate *1173 rials to a minor. That act constituted an attempt to distribute the materials to a minor as a matter of law, even though the officer was not a minor. See United States v. Meek, 366 F.3d 705, 717-18 (9th Cir.2004) (holding that an actual minor is not required to sustain an attempt conviction under 18 U.S.C. § 2422 , only that the defendant believed that he was inducing a minor). Therefore, the § 2G2.2(b)(2)(D) enhancement was appropriate. See id. cmt. n. 1 (defining “distribution” as “any act, including possession with intent to distribute, production, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor”).

Additionally, in reaching its sentencing decision, the district court clearly was motivated by Defendant’s atrocious related conduct and self-centered attitude. The record shows that…

462 F.3d 1169 UNITED STATES of America, Plaintiff-Appellee, v. Robert Thayer STEVENS, Defendant-Appellant. No. 05-30597. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 28, 2006. Filed September 13, 2006. Mark S. Werner, Federal Defenders of Montana, Billings, MT, for the defendant-appellant. Marcia Hurd, Assistant U.S. Attorney, Billings, MT, for the plaintiff-appellee. Appeal from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. No. CR-05-00034-RFC. Before: GOODWIN, TASHIMA, and GRABER, Circuit Judges. GOODWIN, Circuit Judge: 1 Robert Stevens appeals a 30-year sentence imposed by the district court after Stevens plead guilty to one count of Receipt of Child Pornography and one count of Possession of Child Pornography, both in violation of 18 U.S.C. § 2252A(a). For the reasons set forth below, we vacate the sentence and remand for resentencing. 2 * The indictment and the plea agreement include only the most basic description of Stevens's criminal activities during 2003 and 2004. On count one, Receipt of Child Pornography, Stevens admitted he "knowingly received a visual depiction . . .…