U.S. v. RILEY, —F.Supp. 2d—2009 WL 2899896 (S.D. Fla. September 4, 2009)

A twenty-four year old married man initiated an instant messaging conversation with an undercover FBI agent posing as single mother with a 10 year old daughter. He expressed an interest in engaging in sexual activity with the agent and daughter and sent four pornographic pictures, including 2 depicting children 5 years or younger engaged in sexual activity with adult males. After making contact with the defendant, FBI agents discovered an additional 900 images of child pornography on his computer as well as 10 videos. Consequently, the defendant lost his job as an inventory manager at Walmart.
The defendant had been attending psychiatric therapy sessions, where it was opined that defendant was an excellent candidate for a community based treatment program, did not pose a risk of acting out sexually with children, and that his risk of re-offending was low. Another professional, who conducted a Sex Offender Specific Psychological Evaluation, opined that although the defendant qualified for a diagnosis of a paraphilia, he represented a low risk of re-offending and could be safely maintained in the community with supervision and outpatient mental health treatment.
The PSI calculated the offense level to be 37, making Guidelines range 210-260 months, but the statutory maximum was 240 the range was 210-240 months. Quoting at length from United States v. Hanson, 562 F.Supp. 2d 1004 (E.D. Wis. 2008), the court agreed with recent judicial criticism of Section 2G2.2 “which weighs against imposing a sentence within the Guideline recommendation.” The court concluded that a sentence at the near maximum should be reserved for the worst offenders and not those that are typical in this type of case. After reviewing the factors under §3553(a)(2), the court found that a sentence at the statutory minimum was a serious punishment and that it would adequately deter the defendant and others from committing the crime.