(D.C. No. 5:14-CR-00038-M-1) W.D. Oklahoma
Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
ORDER AND JUDGMENT[*]
MICHAEL R. MURPHY CIRCUIT JUDGE
After examining the briefs and appellate record, this court has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, we grant the parties' requests and order the case submitted without oral argument.
Stephen Huckeba pleaded guilty to one count of knowingly transporting child pornography, in violation of 18 U.S.C. § 2252(a)(1), and one count of receiving and attempting to receive child pornography, in violation of 18 U.S.C. § 2252(a)(2). The district court sentenced him to 151 months' imprisonment, a term at the bottom of the advisory range set out in the United States Sentencing Guidelines. Huckeba appeals, asserting the sentence imposed by the district court is both procedurally and substantively unreasonable. This court exercises jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirms the sentence imposed by the district court.
In September 2013, an Edmond, Oklahoma Police Department detective was conducting an investigation into the sharing of child pornography over the internet. The detective discovered Huckeba had downloaded child pornography from a peer-to-peer network ("P2P"). By following the Internet Protocol ("IP") address associated with that file-sharing account, investigators discovered Huckeba's identity. When confronted by investigators, Huckeba admitted that for the past couple of years he had possessed and viewed pornographic images of children, including images of infants being sexually abused. A search of Huckeba's computer by federal and state law enforcement officials uncovered 306 pornographic videos of children and 2, 837 still images of child pornography on the computer's hard drive. Investigators determined that Huckeba targeted pornographic images of children ranging from infancy to five-years old and that he had actively sought "younger pics" online.
A federal grand jury returned an indictment charging Huckeba with one count of knowingly transporting child pornography and one count of receiving and attempting to receive child pornography. 18 U.S.C. § 2252(a)(1), (a)(2). Huckeba pleaded guilty to both counts. In advance of the sentencing hearing, the United States Probation Office prepared a Presentence Investigation Report ("PSR"). Based on an offense level of thirty-four and a criminal history category of I, the PRS calculated Huckeba's advisory guidelines range as 151 to 188 months' imprisonment. In calculating Huckeba's offense level, the PSR included a four-level upward adjustment because he possessed sadomasochistic child pornography. See U.S.S.G. § 2G2.2(b)(4).
Although Huckeba originally objected to the application of the adjustment set out in § 2G2.2(b)(4), he ultimately conceded the enhancement applied and withdrew his objection. He did, however, request a substantial downward variance-five years' imprisonment followed by five years' supervised release, the statutory minimum sentence available under 18 U.S.C. § 2252(b)(1). In support of his request for a variance, Huckeba argued that the four-level upward adjustment set out in § 2G2.2(b)(4) was outdated in the era of P2P networks, as the Sentencing Commission's own statistics showed the adjustment applied in 79.4% of cases prosecuted in fiscal year 2011. He also argued that application of the adjustment in his case would result in an unjust sentencing disparity between him and similarly situated defendants. As an example, Huckeba cited the sentencing disparity between him and another defendant, Charles Layne, whom the district court had sentenced weeks before. Huckeba noted that Layne received a lighter sentence simply because Layne happened not to be subject to § 2G2.2(b)(4). Huckeba contended this disparity was unjust because Layne was more culpable in light of his prior convictions for contact sexual offenses.According to Huckeba, this disparity-along with consideration of his background, prior criminal history, and offense conduct-warranted a downward variance.
The district court disagreed, concluding that Huckeba was not similarly situated to Layne because Huckeba had possessed sadomasochistic child pornography. Agreeing with the government that such pornography constituted the "vilest of the vile child pornography, " the district court determined a downward variance was not warranted. The district court sentenced Huckeba to a bottom-of-the-advisory-guidelines-term of 151 months' imprisonment on each of the two counts, to be served concurrently.
"After the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), this court reviews sentences for reasonableness." United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). "Reasonableness review is a two-step process comprising a procedural and a substantive component." Id. (quotation omitted). Huckeba ...