FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE Hon. John A. Woodcock, Jr., U.S. District Judge
W. Bourget and Law Offices of Ronald W. Bourget on brief for
B. Frank, United States Attorney, and Julia M. Lipez,
Assistant United States Attorney, on brief for appellee.
Howard, Chief Judge, Selya and Barron, Circuit Judges.
district court's factual findings at sentencing - as
elsewhere - are typically reviewed for clear error. Those
heights are difficult to scale. See United States v.
Matthews, 749 F.3d 99, 105 (1st Cir. 2014). This case
aptly illustrates the point.
Darrin Cates pleaded guilty to possession of child
pornography, some of which depicted minors under twelve years
of age. He now challenges his 120-month prison sentence.
Concluding, as we do, that the defendant's assignments of
error are impuissant, we affirm.
rehearse the relevant facts and travel of the case (reserving
some details for discussion in connection with specific
issues). Since "this appeal trails in the wake of a
guilty plea, we draw the facts from the undisputed portions
of the presentence investigation report (PSI Report) . . .
and the transcripts of the sentencing hearings."
United States v. Coleman, 884 F.3d 67, 69 (1st Cir.
times relevant hereto, the defendant - a self-employed
website developer - resided in Winslow, Maine, with his wife
and two daughters. In late 2014, the Maine State Police
Computer Crimes Unit (MSPCCU) identified an internet protocol
(IP) address registered to the defendant that had shared
files associated with child pornography on BitTorrent, a
peer-to-peer file-sharing network. The MSPCCU learned that,
between September 15 and October 30, the defendant's IP
address shared 36 torrents (large electronic files containing
metadata on smaller files, which here numbered in the
thousands). Based on its investigation, the MSPCCU obtained a
search warrant and executed it at the defendant's
residence on January 9, 2015. During the search, the
defendant admitted to using the BitTorrent network to
download "billions of images and videos" of child
pornography over the preceding three years. The
defendant's arrest followed, and a later forensic
analysis of his external hard drive and USB flash drive
revealed 826 pornographic images and 298 pornographic videos
involving children between two and eleven years of age.
course, a federal grand jury sitting in the District of Maine
handed up a single-count indictment charging the defendant
with possession of child pornography. See 18 U.S.C.
§§ 2252A(a)(5)(B), 2256(8)(A). On October 23, 2015,
the defendant pleaded guilty.
received, the PSI Report recommended a base offense level of
18 and suggested several adjustments. Pertinently, these
included a five-level enhancement for "engag[ing] in a
pattern of activity involving the sexual abuse or
exploitation of a minor," USSG §2G2.2(b)(5), a
two-level enhancement for "knowingly engag[ing] in
distribution" of child pornography, id.
§2G2.2(b)(3)(F), and a three-level downward adjustment
for timely acceptance of responsibility, see id.
disposition hearing, the district court considered the
proposed adjustments. In mulling whether to apply the pattern
of activity enhancement, the court relied on a series of
MSPCCU interviews limned in the PSI Report. One such
interview was with a woman (whom we shall call Jane Doe).
After hearing of the defendant's arrest, Doe called the
police and reported that, in 1997, the defendant - then her
mother's boyfriend - had sexually abused her when she was
seven or eight years old. In an interview with the MSPCCU two
days later (January 13, 2015), Doe related the details of two
sexual encounters. During the first such encounter, the
defendant allegedly forced Doe to sit next to him while he
masturbated. During the second such encounter, the defendant
allegedly forced Doe to perform oral sex on him.
went on to admit that she did not report the defendant's
conduct to the authorities until 2001 (when she was twelve
years old). At that time, she described three incidents in
which the defendant allegedly forced her to touch and rub his
penis with her hand and mouth. She said that she had performed
these acts because the defendant had threatened to hit her
(as he had done in the past). In an interview with the police
the following day, the defendant denied Doe's
allegations. No charges were brought.
the MSPCCU confronted the defendant regarding Doe's
allegations following his January 2015 arrest, the defendant
initially denied any sexual contact with Doe. Later in the
same interview, though, he described an encounter where Doe
had reached for and touched his penis. According to the
defendant, he had been "embarrassed" by the
incident and left the room immediately after it happened.
13, 2016, the Department of Homeland Security (DHS)
interviewed Doe. In this interview, Doe was able to recall
that the defendant forced her to touch his erect penis
through his jeans and, several days later, forced her to
watch him masturbate to pornography and then forced her to
perform oral sex on him.
defendant did not deny Doe's allegations at sentencing,
and the district court imposed a five-level enhancement for
"engag[ing] in a pattern of activity involving the
sexual abuse or exploitation of a minor." The court also
imposed a two-level enhancement for "knowingly
engag[ing] in the distribution of child pornography,"
finding that the defendant "distributed child
pornography in a shared directory available for download over
a peer-to-peer network and knew he was doing so." The
court based this finding on, among other things, the premise
that although "there's no evidence that [the
defendant] actively distributed any pornography to anyone . .
. [he made] his platform available for others to receive
pornography that was on his computer."
court further found that the defendant had timely accepted
responsibility for the offense of conviction and had neither
falsely denied nor frivolously contested any relevant
conduct. Accordingly, the court granted a three-level
downward adjustment for acceptance of responsibility.
adjusted, the defendant's total offense level was 35.
Coupled with his placement in criminal history category I,
this offense level yielded a guideline sentencing range of
168 to 210 months. The court reviewed the pertinent
sentencing factors, see 18 U.S.C. § 3553(a),
and attempted to balance the defendant's conduct against
what it perceived to be the aggregate severity of the child
pornography guidelines. In the end, the court imposed a
below-the-range sentence: a 120-month term of immurement.
This timely appeal ensued.
venue, the defendant challenges both the five-level
enhancement for "engag[ing] in a pattern of activity
involving the sexual abuse or exploitation of a minor,"
USSG §2G2.2(b)(5), and the two-level enhancement for
"knowingly engag[ing] in [the] distribution" of