Full opinion text
MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on: (i) the United States’ Sentencing Memorandum and Recommendation, filed January 20, 2012 (Doc. 200)(“USA Sentencing Memorandum”); and (ii) the Defendant’s Objections to Presentence Report, filed March 15, 2012 (Doc. 203-l)(“Objections”). The Court held a sentencing hearing on May 23, 2012. The primary issues are: (i) whether the Court should sustain Defendant Edward Christy’s objections to various factual statements in the Re-Disclosed Presentence Investigation Report, disclosed February 8, 2012 (“Re-Disclosed PSR”); (ii) whether a 2-level enhancement under U.S.S.G. § 2G1.3(b)(2) for the exercise of undue influence over a minor to engage in prohibited sexual conduct is appropriate; (iii) whether a 2-level enhancement under U.S.S.G. § 2G1.3(b)(4) for the commission of a sex act or sexual contact is appropriate; (iv) whether a 4-level enhancement under U.S.S.G. § 2G2.2(b)(4) for possession of an image that portrays sadistic or masochistic conduct is appropriate; (v) whether a 5-level enhancement under U.S.S.G. § 2G2.2(b)(5) for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor is appropriate; (vi) what amount, if any, in restitution should the Court award to one of the individuals — “Vicky”—who appears in some child pornography photographs found in Christy’s possession; (vii) whether the Court should vary downward to a sentence of 108-months imprisonment in light of the parties’ rule 11(c)(1)(C) plea agreement; and (viii) whether the Court should impose a lifetime sentence of supervised release for Christy. The Court will overrule many of Christy’s objections to the Re-Disclosed PSR on the basis that: (i) the United States Probation Office (“USPO”) has corrected information in the Re-Disclosed PSR to account for his objections; (ii) the parties reached a compromise at the sentencing hearing regarding some of the statements Christy found objectionable; and (iii) there is sufficient evidence to support a finding by a preponderance of the evidence that certain facts Christy finds objectionable have occurred. Furthermore, Christy did not pursue many of his factual objections at the sentencing hearing, and, rather than ruling on those objections, the Court will disregard certain facts he finds objectionable when arriving at his sentence. The Court concludes that a 2-level enhancement under U.S.S.G. § 2G1.3(b)(2) is appropriate, given that Christy has not presented evidence to rebut the rebuttable presumption of undue influence that applies to this case. The Court finds that a 2-level enhancement under U.S.S.G. § 2G1.3(b)(4) is appropriate, because Christy engaged in sexual contact with Jane Doe — a victim of the offense — within the meaning of U.S.S.G. § 2G1.3(b)(4). The Court concludes that a 4-level enhancement under U.S.S.G. § 2G2.2(b)(4) is not appropriate, given that the child pornography image in question is not sadistic or masochistic. The Court concludes that a 5-level enhancement under U.S.S.G. § 2G2.2(b)(5) is appropriate given that Christy engaged in a pattern of activity involving the sexual abuse or exploitation of a minor. While the Court concludes that no amount of restitution is appropriate for Vicky given the lack of causation and lack of proof of her damages, the parties’ stipulation to $500.00 in restitution relieves Plaintiff United States of America of the burden of proving that this restitution amount is appropriate. The Court sentences Christy, as to Counts 1 and 2, to 108-months imprisonment and a lifetime term of supervised release, because that sentence best reflects the factors contained in 18 U.S.C. § 3553(a). FACTUAL BACKGROUND Christy “was born on June 8, 1952,” and his “father passed away in 1965 from emphysema.” Re-Disclosed PSR ¶ 83, at 22. Christy “described his childhood as normal as his basic needs were met, and absent of any abuse.” Re-Disclosed PSR ¶ 83, at 22. Christy related that his first sexual experience was when “he was approximately 15 years old after receiving a call from a female friend who asked him to come over to her house as her parents were out of town.” Re-Disclosed PSR ¶ 91, at 24. Christy states that “he has never been a victim of sexual abuse.” Re-Disclosed PSR ¶ 91, at 24. Christy asserts “that he always becomes emotionally involved in” relationships, because “he is a protector by nature.” Re-Disclosed PSR ¶ 92, at 24. Christy has been employed as an engineer from approximately 1986 to 2009. See Re-Disclosed PSR ¶¶ 98-100, at 25. “[F]rom 1986 to 1992, he was employed at Honeywell Incorporated in Albuquerque, New Mexico as an engineer....” Re-Disclosed PSR ¶ 100, at 25. “[FJrom 1996 to November of 2009, he was employed at EG & G Technical Services in Albuquerque, New Mexico, as a senior engineer .... ” Re-Disclosed PSR ¶ 98, at 25. Christy spent approximately six years “in the United States Army Reserve, being honorably discharged in 1980.” Re-Disclosed PSR ¶ 101, at 26. “On November 8, 2009, Jane Doe’s (juvenile female) father allegedly made a report regarding a missing juvenile, his daughter, to the Westminster Police Department in Westminster, California.” Re-Disclosed PSR ¶ 10, at 7. “Jane Doe’s ... father advised that when [he and his wife] awoke on November 8, 2009, they found a note from Jane Doe ... stating she had run away.” Re-Disclosed PSR ¶ 10, at 7. “On November 8, 2009, Jane Doe’s ... father returned to the Westminster Police Department to report he had learned from a friend of Jane Doe ... that Jane Doe ... had been in contact with an adult male on the internet.” Re-Disclosed PSR ¶ 10, at 7. After obtaining some nude photographs of Christy from Doe’s father, an officer with the Westminster Police Department was able to locate an online profile for Christy for an account with which Doe had been communicating. See Re-Disclosed PSR ¶ 11, at 7. Shortly afterwards, “an investigator for the Orange County District Attorney’s Office was contacted to report she was investigating a missing juvenile whom she believed left the state with an adult male.” Re-Disclosed PSR ¶ 12, at 7. Investigators obtained contact information for Doe and Christy from Doe’s cellular telephone and electronic mail records. See Re-Disclosed PSR ¶ 12, at 7. From a review of cellular telephone records, investigators learned that Christy and Doe had traveled from California to Arizona, and then to Albuquerque, New Mexico. See Re-Disclosed PSR ¶ 13, at 8. “In the evening of November 9, 2009, the investigators in California contacted the Bernalillo County Sheriffs Office ... in Albuquerque, New Mexico, requesting they respond to Mr. Christy’s address to perform a welfare check in reference to a missing juvenile from Orange County, California.” Re-Disclosed PSR ¶ 15, at 8. “Upon arriving at Mr. Christy’s residence, deputies looked through a window, noticing what appeared to be a young female who matched the description of the missing juvenile.” Re-Disclosed PSR ¶ 9, at 6. “During questioning, both Mr. Christy and Jane Doe ... admitted to having sexual intercourse on two separate occasions.” Re-Disclosed PSR ¶ 9, at 6. “Mr. Christy stated he believed Jane Doe ... to be 18 years old and had asked her to send him naked photographs of herself, of which Mr. Christy received two.” Re-Disclosed PSR ¶ 17, at 9. “Mr. Christy further stated that, on or about November 6, 2009, Jane Doe ... told him if she could not leave her home and stay with him, Jane Doe ... was going to kill herself.” Re-Disclosed PSR ¶ 18, at 9. “Jane Doe ... mentioned that Mr. Christy insisted on using a cover story in case they were caught, stating that Mr. Christy had rescued her from her abusive father.” Re-Disclosed PSR ¶ 21, at 10. “A subsequent search of Mr. Christy’s residence revealed multiple images of child pornography and hundreds of chats involving minor children (9 to 15 years old), several of which were sexual in nature.” Re-Disclosed PSR ¶ 9, at 6. On one computer in Christy’s possession, officers found “310 possible child pornography images, including 32 possible images of Jane Doe.”. Re-Disclosed PSR ¶ 27, at 11. Officers also found “10 possible cartoon child pornography images; 4 images appearing to be Mr. Christy; and [images of] 112 underage girls in sexually suggestive positions who were half-clothed, known to be child erotica.” Re-Disclosed PSR ¶ 27, at 11-12. “One of the images found on the Hewlett Packard HDX laptop” in Christy’s possession “had an image titled ‘JPEG_5796074.jpg.’ ... which depicted an image of a young child with an adult penis in her mouth.” Re-Disclosed PSR ¶ 27, at 12. The USPO relates: Deputies ... located drawings made with crayon that appeared to have been made by a young child and [that] appeared to be addressed, in a child’s writing, stating “to Ed from Re Re.” A note was also located, which appeared to be made by a teenage girl, who stated she was upset with her parents for making plans to move to Nova Scotia. The note also stated the girl wanted to run away from her parents, and go camping with Mr. Christy again. Further investigation revealed that Mr. Christy was the Kung Fu instructor for this particular girl (14 or 15 years old at the time) for approximately three years in Tijeras, New Mexico. The information discovered correlates to a note found in Mr. Christy’s residence. Re-Disclosed PSR ¶ 32, at 13. “During the investigation by the FBI, they learned several past allegations were made [against Christy], including one in which Mr. Christy molested a young girl, and one in which Mr. Christy was in the process of ‘grooming’ two other girls.” Re-Disclosed PSR ¶ 33, at 13. “The officers also uncovered hundreds of internet chats, including sexual conversations between Mr. Christy and minors.” Re-Disclosed PSR ¶ 33, at 13. The USPO provides examples of “only the most egregious” of the chats, including the following: In July 2009, Mr. Christy discussed sexual matters with a 12 year old, stating he was “not far away by plane.” During the same conversation, Mr. Christy admitted he had a ‘neighborhood girl’ as his “playmate,” claiming her grandfather didn’t know. Mr. Christy further admitted he liked younger than 12 and would go “9 to 10 year olds.” In a chat from July 23, 2009, the Defendant discussed being “lovers” with his wife and daughter, if he had one. In this same chat, Mr. Christy discusses with someone that if he lived with her and her child, he (Mr. Christy) would [be] able to teach her baby, specifically stating “you have a fresh daughter.” In another, dated on August 23, 2009, Mr. Christy stated “I’d always thought when my daughter first fed from her mother that I would masturbate and put cum on her nipple so I could nourish my girl too.” He further states “I’d want us all to sleep in one bed with no barriers. Daddy’s cock should be pacifying to his kids. They should feel safe and secure and loved sucking him fall to sleep with his cock in their mouth.” Additionally, in a chat from August 24, 2009, the Defendant admitted he is “drawn to open sex in his own family,” and added that children who have sexual relationships in their own families are “more balanced than most.” Mr. Christy also acknowledged that “even though he is more drawn to girls, his sons would know him sexually too.” In a chat dated August 26, 2009, Mr. Christy admitted to performing sex on a 12 year old neighborhood boy within the last three months, and a 14 year old girl a few years ago. Re-Disclosed PSR ¶ 34, at 13-14. “Investigators noted Mr. Christy’s chat logs revealed he dedicated a lot of his time in internet chat looking for other adolescent girls in which to cultivate a sexual relationship.” Re-Disclosed PSR ¶ 35, at 14. “After speaking to surrounding neighbors, deputies also learned Mr. Christy would often interact with kids in the neighborhood,” and would invite them to “breakfast and to use his Jacuzzi hot tub.” Re-Disclosed PSR ¶ 35, at 14. “Additionally, the forensic examiners, also uncovered large amounts of internet search activity searching for child pornographic images on the internet, as well as countless amounts of chats illustrating Mr. Christy’s sexual interest in young females, including have ‘cybersex’ with a web cam.” Re-Disclosed PSR ¶ 39, at 15. “Examiners discovered his searches revealed him seeking out younger females, 15 years old or younger, by using ‘older_for_youngl,’ and screening for girls with younger profiles.” Re-Disclosed PSR ¶ 39, at 15. “Mr. Christy would join chats with titles such as ‘horny teens 4 old dirty men’ and ‘father and daughter romance.’ ” Re-Disclosed PSR ¶ 39, at 15. On November 9, 2009, New Mexico officers arrested Christy for the underlying criminal conduct at issue in this case. See Re-Disclosed PSR ¶ 81, at 21. The State of New Mexico charged Christy with various counts, including: (i) two counts of criminal sexual penetration; (ii) one count of criminal sexual conduct; (iii) four counts of sexual exploitation of children; (iv) one count of contributing to a delinquency of a minor; and (v) one count of custodial interference. See Re-Disclosed PSR ¶ 81, at 21. The state court dismissed those charges on speedy trial grounds. See Re-Disclosed PSR ¶ 81, at 21. Christy possessed some child pornography images from a series of images attributable to an individual named Vicky. See Re-Disclosed PSR ¶¶ 42-46, at 15-16. There “is a national restitution claim pending by the victim of the ‘Vicky’ series.” Re-Disclosed PSR ¶ 45, at 16. Although Vicky has an attorney representing her case, the USPO was not able to contact her attorney. See Re-Disclosed PSR ¶ 45, at 16. “As of June 10, 2011, the attorney for the victim identified in the Vicky’ series advised the full amount of ‘Vicky’s’ document economic losses are $1,224,697.04.” Re-Disclosed PSR ¶ 45, at 16. “As of June 10, 2011, the victim of the Vicky’ series has received $248,279.40 in restitution payments,” bringing the amount of restitution she is allegedly entitied to receive “to $976,417.64.” Re-Disclosed PSR ¶ 46, at 16. “As of the latest information, there are more than 40 judgment nationwide” in Vicky’s favor, totaling $2,638,291.82. Re-Disclosed PSR ¶ 46, at 16. PROCEDURAL BACKGROUND A federal grand jury indicted Christy on a superceding indictment with: (i) one count of Transportation with Intent to Engage in Criminal Sexual Activity, in violation of 18 U.S.C. § 2423(a); and (ii) three counts of Possession of a Matter Containing Visual Depictions of Minors Engaged in Sexually Explicit Conduct, in violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), and 2256. See Superseding Indictment at 1-3, filed April 26, 2011 (Doc. 93). On September 30, 2011, Christy pled guilty to Counts 1 and 2 in the Information, filed September 30, 2011 (Doc. 193), charging him in Count 1 with a violation of 18 U.S.C. § 2422(a), that being coercion and enticement, and in Count 2 with a violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), and 2256, that being possession of matter containing visual depictions of minors engaged in sexually explicit conduct. See Plea Agreement ¶ 3, at 2. The Plea Agreement stipulates, under rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, to a “term of imprisonment of 9 years (108 months).” Plea Agreement ¶ 9, at 5. “Both parties agree that neither a request for an upward departure nor a request for a downward departure is permitted by either of the parties.” Plea Agreement ¶ 9, at 5. Christy “agrees not to seek a downward departure or variance from the stipulated sentence of 9 years imprisonment.” Plea Agreement ¶ 12, at 11. “The parties agree that, as part of the Defendant’s sentence, the Court will enter an order of restitution pursuant to the Mandatory Victim’s Restitution Act, 18 U.S.C. § 3663A.” Plea Agreement ¶ 7, at 4. The parties agree that Christy will pay Vicky, one of the females depicted in some of the child pornography images found in Christy’s possession, $500.00 in restitution. See Plea Agreement ¶ 7, at 4. Christy “reserves the right to have a hearing on any restitution sought or ordered as related to Count 1, after completion of the presentence report in this case.” Plea Agreement ¶ 7, at 4. Christy stipulates: “I engaged in sexual conversations with Jane Doe, a person I knew to be 16 years of age. These sexual conversations between Jane Doe and myself included the exchange of sexually explicit images of each other and discussions about sexual activities between the two of us.” Plea Agreement ¶ 10, at 6. Christy stipulates that, “[djuring the course of’ his travels with Doe, he “had sexual intercourse with Jane Doe at a motel in Needles, California and my Albuquerque, New Mexico residence.” Plea Agreement ¶ 10, at 6-7. He stipulates that he “knew Jane Doe was 16 years old at the time of this sexual activity.” Plea Agreement ¶ 10, at 6-7. Christy stipulates that, “[b]y planning to take and ultimately taking Jane Doe from her home without her parents’ permission, [he] caused and encouraged Jane Doe to refuse to obey the reasonable and lawful commands or direction of her parents, who had lawful authority over her.” Plea Agreement ¶ 10, at 7. Christy agrees to waive “the right to appeal [his] convictions and any sentence that is consistent with the sentence agreed to by the parties in” the Plea Agreement, “as well as any fine and/or restitution ordered by the Court.” Plea Agreement ¶ 22, at 14-15. 1. Contents of the Re-Disclosed PSR. The USPO disclosed a Presentence Investigation Report (“PSR”) for Christy on December 13, 2011. The USPO re-disclosed the PSR on February 8, 2012, to address some concerns the United States had raised regarding the number of child pornography images attributable to Christy. In the Re-Disclosed PSR, the USPO does not group Counts 1 and 2 pursuant to application note 2 to U.S.S.G. § 3D1.2. See Re-Disclosed PSR ¶ 58, at 18. For Count 1, the USPO calculates Christy’s base offense level to be 24. See Re-Disclosed PSR ¶ 50, at 17. The Re-Disclosed PSR includes a 2-level enhancement for Count 1 under U.S.S.G. § 2G1.3(b)(2)(B), because Christy exercised undue influence over Doe. See Re-Disclosed PSR ¶ 51, at 17-18. The Re-Disclosed PSR includes a 2-level enhancement for Count 1 under U.S.S.G. § 2G1.3(b)(3), because “the offense involved the use of a computer or an interactive computer service” to “communicate directly with Jane Doe.” Re-Disclosed PSR ¶ 52, at 18. The Re-Disclosed PSR includes a 2-level enhancement for Count 1 under U.S.S.G. § 2G1.3(b)(4), because “the offense involved the commission of a sex act or sexual contact.” Re-Disclosed PSR ¶ 53, at 18. The USPO relates that a 2-level enhancement is appropriate under U.S.S.G. § 2G1.3(b)(4), because “the defendant admitted to having sexual intercourse with Jane Doe ..., once in a motel, and another time upon arriving at his residence in Albuquerque, New Mexico.” Re-Disclosed PSR ¶ 53, at 18. The Re-Disclosed PSR calculates an adjusted offense level of 30 for Count 1. See Re-Disclosed PSR ¶ 57, at 18. For Count 2, the USPO calculates a base offense level of 18 pursuant to U.S.S.G. § 2G2.2(a)(l). See Re-Disclosed PSR ¶ 59, at 18. The USPO applies a 2-level enhancement for Count 2 under U.S.S.G. § 2G2.2(b)(2), because some of the material found in Christy’s possession “involved a prepubescent minor or a minor who had not attained the age of 12 years.” Re-Disclosed PSR ¶ 60, at 19. The USPO applies a 4-level enhancement for Count 2 under U.S.S.G. § 2G2.2(b)(4), because “the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.” Re-Disclosed PSR ¶ 61, at 19. The USPO relates that “the defendant possessed one image of a prepubescent minor with an adult penis in her mouth” on one of his computers. Re-Disclosed PSR ¶ 61, at 19. The USPO asserts that the “image appears to be sadistic as pain and humiliation is caused to this child.” Re-Disclosed PSR ¶ 61, at 19. The USPO notes that the image represents “conduct sufficiently likely to involve pain to support a finding that it is inherently ‘sadistic or violent.’ ” Re-Disclosed PSR ¶ 61, at 19. The USPO applies a 5-level enhancement for Count 2 under U.S.S.G. § 2G2.2(b)(5), because Christy “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” Re-Disclosed PSR ¶ 62, at 19. The USPO applies a 2-level enhancement for Count 2 under U.S.S.G. § 2G2.2(b)(6), because “the offense involved the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the” pornographic material. Re-Disclosed PSR ¶ 62, at 19. The USPO applies a 5-level enhancement for Count 2 under U.S.S.G. § 2G2.2(b)(7)(D), because “the offense involved more than 600 images.” Re-Disclosed PSR ¶ 64, at 20. The Re-Disclosed PSR calculates an adjusted offense level of 36 for Count 2. See Re-Disclosed PSR ¶ 68, at 20. After making an adjustment for the multiple counts under U.S.S.G. § 3D1.4, the USPO calculates a combined adjusted offense level of 37. See Re-Disclosed PSR ¶¶ 69-75, at 20. The Re-Disclosed PSR includes a 3-level reduction under U.S.S.G. § 3E1.1 based on Christy’s acceptance of responsibility. See Re-Disclosed PSR ¶ 76, at 20. The Re-Disclosed PSR calculates a total offense level of 34. See Re-Disclosed PSR ¶ 77, at 20. The Re-Disclosed PSR lists his criminal history category as I, based on 0 criminal history points. See Re-Disclosed PSR ¶ 80, at 21. The Re-Disclosed PSR calculates that an offense level of 34 and a criminal history category of I results in a guideline imprisonment range of 151 to 188 months. See Re-Disclosed PSR ¶ 107, at 27. The USPO relates that 18 U.S.C. § 3583(k) permits a term of supervised release of “not less than 5 years to life.” Re-Disclosed PSR ¶ 109, at 27. The USPO relates that U.S.S.G. § 5Dl.l(b) prescribes a term of supervised release of “not less than 5 years to life.” Re-Disclosed PSR ¶ 110, at 27. The USPO states that “[t]he Mandatory Restitution for Sexual Exploitation of Children Act” is applicable to this case. Re-Disclosed PSR ¶ 119, at 29. The USPO notes that “[r]estitution is outstanding and due in the amount of $976,417.64 to the victim of the “Vicky’ series of child pornography.” Re-Disclosed PSR ¶ 120, at 29. Nevertheless, the USPO follows the parties’ stipulation that Christy will pay Vicky $500.00. See Re-Disclosed PSR ¶ 120, at 29. 2. The Parties’ Objections to the PSR and Arguments for an Appropriate Sentence. On January 20, 2012, the United States filed its USA Sentencing Memorandum. See Doc. 200. The United States asserts that, consistent with the Plea Agreement, the Court should impose a sentence of nine-years imprisonment. See USA Sentencing Memorandum at 7-8. The United States asserts that a 4-level enhancement under U.S.S.G. § 2G2.2(b)(4) is not appropriate, because, “[t]ypically, courts in this district have imposed this enhancement if the [child pornography] images depict bound children,” and because Christy “did not possess any images depicting bondage or excessive torture of children.” USA-Sentencing Memorandum at 6. The United States agrees that a 5-level enhancement under U.S.S.G. § 2G2.2(b)(7)(D) should apply, given that Christy “possessed well over 600 images on his computers and computer-related media,” along with “6 known child pornography videos,” even though the United States maintains there is a “miscalculation in the PSR.” USA Sentencing Memorandum at 7. The United States also requests that the Court impose a lifetime term of supervised release. See USA Sentencing Memorandum at 8. The United States contends that lifetime supervised release is appropriate, because “[t]here is a risk of future recidivism,” given that Christy “is an individual who preys upon young and vulnerable children, all in pursuit of his selfish, sexual interests.” USA Sentencing Memorandum at 8. The United States asserts that Christy has “exploited numerous children through his collection of child pornography images and videos,” and will “go to great lengths to gain access to children with whom he can engage in actual sexual relations.” USA Sentencing Memorandum at 9. Relying on an article entitled Re-Offense Rates of Adult Sex Offenders, the United States argues that “there is a higher recidivism rate of contact sex offenders, like the Defendant, over time.” USA Sentencing Memorandum at 9-10 (citing Dr. S. Brake & G. Veeder, Re-Offense Rates of Adult Sex Offenders (Doc. 200-1)). On March 15, 2012, Christy filed his Defendant’s Motion for Leave to File out of Time Objections to Presentence Report. See Doc. 203 (“Motion for Leave to Late File”). Attached to the Motion for Leave to Late File are his Objections. See Doc. 203-1. In his Objections, Christy “objects to the characterization, under the heading ‘Custodial Status,’ of the first 209 days of Defendant’s confinement as ‘state custody,’ ” on the basis that “this investigation has at all times been a federal investigation.” Objections at 1. Christy objects to various statements in the Re-Disclosed PSR regarding the restitution he owes given that he has already stipulated “to pay the sum of $500.00 restitution for the alleged victims in Count 2 of the information.” Objections at 1-2, 9. Christy objects to a statement in paragraph 6 of the Re-Disclosed PSR that he was placed in a halfway house in Las Cruces, New Mexico. See Objections at 2. Christy objects to “the statements contained in paragraph 8 of the presentence report insofar as it states that emails and pictures exchanged between Mr. Christy” and Doe were “sexually explicit.” Objections at 2. Christy “objects to the suggestion, contained in paragraph 8, that Mr. Christy was aware of the female’s true age at the time the emails and photos were exchanged.” Objections at 2. Christy “objects to the statement contained in paragraph 9 that ‘Mr. Christy had arranged a meeting with Jane Doe (juvenile female), in the middle of the night, for Jane Doe (juvenile female) to run away with Mr. Christy,’ ” because Doe “threatened to harm herself if Mr. Christy did not come get her.” Objections at 2. Christy “objects to the statement in paragraph 9 that ‘deputies’ looked through a window, and requests that the statement be changed to reflect the actual truth, that only Deputy Littlefield looked through a crack in the blinds of a window, and no one else.” Objections at 2. Christy objects to a similar statement in paragraph 15 of the Re-Disclosed PSR. See Objections at 3. Christy “further objects to the statement in paragraph 9 that the female ‘was tied up by her wrist, and neck with straps, and was hanging from ceiling rafters,’ ” because this statement does not accurately reflect what occurred. Objections at 3. Christy “objects to the statement in paragraph 9 that he ‘had been actively using the Yahoo chat service since early 2003, to meet young girls and develop a relationship,’ ” because the statement “implies that Mr. Christy sought out young girls for improper purposes, when, in fact, Mr. Christy did communicate with numerous persons on the Yahoo chat service, of unknown gender and age, none of which Mr. Christy ever met personally, and none of whose actual identities have been established.” Objections at 3. Christy “objects to the statement at the end of paragraph 10, which characterizes the photographs and conversations between Mr. Christy and Jane Doe as sexually explicit,” because “[ajlthough the pictures depicted nudity, none were sexually explicit, and though the conversations contained discussions of Jane Doe’s desire to establish a dominant/submissive relationship with an older man, none described sexual acts.” Objections at 3. Christy “objects to the reference, in paragraph 15, to ‘camera-like’ flashes, as Deputy Littlefield’s testimony was adamant in stating that he had seen camera flashes, in order to support his assertion that child pornography was being produced.” Objections at 3. Christy objects to references in paragraph 17 of the Re-Disclosed PSR to one of the photographs Doe allegedly sent where she was posing nude, given that they are included “for shock value” and to suggest that he “had something to do with the production of these photos.” Objections at 3-4. Christy also relates that Doe had already sent these photographs to another person and that Doe’s sister took the pictures, such that, “if these statements are to be accurate, they either have to include the whole truth of the matter, or be entirely stricken.” Objections at 4. Christy “objects to the statements in paragraph 18 where in it is stated that Mr. Christy stated that he had sex with the juvenile female twice, once in Needles, California, and once in Albuquerque, New Mexico,” given that “any consensual acts between Mr. Christy and Jane Doe which occurred in the State of New Mexico were legal acts, as the age of consent in New Mexico is 16 years of age.” Objections at 4. Christy “objects to the statements in paragraph 19 of the PSR which begin with Mr. Christy’s admission that he knew Jane Doe was sixteen years old on November 6, 2009, and concluding with Mr. Christy’s alleged statement that ‘the emails between him and Jane Doe (juvenile female) were normal,’ ” because the age of consent in New Mexico is sixteen, making these statements misleading. Objections at 4-5. Christy “objects to the failure to include the statement by Jane Doe during her interview with the FBI that she took medication for ‘delusional thinking’ in any of the paragraphs relating to her interview,” because this information bears on Doe’s credibility. Objections at 5. Christy “objects to the inclusion of all statements contained in paragraphs 23 through 26 in the section of the PSR relating to the ‘Interview with K.Y.,’ ” because “all these statements relate to the search of Mr. Christy’s residence and subsequent interviews with Jane Doe, and are not properly part of the discussion of the FBI interview with Jane Doe.” Objections at 5. Christy objects to “the statement in paragraph 23 relating to Mr. Christy’s laptop being on his desk, having a web cam positioned so that it was pointing at a harness sex swing ... approximately six feet from the computer.” Objections at 5. He asserts that this statement “miseharacterizes the evidence, and creates the untruthful impression that Mr. Christy used the web cam for any improper purpose, totally ignoring the fact that no images were ever recovered ... of any pictures taken with said web cam.” Objections at 5. Christy “objects to the statement in paragraph 23 that there was a wireless router on the desk, and” that this arrangement “was suspicious because no other computer equipment could be located in the residence that would be networked via said router,” given that “this statement ignores the obvious fact that the laptop on the desk could be used ... from any location in the house.” Objections at 6. Christy “objects to the statements in paragraph 24 wherein it stated that ‘Several sex toys which appeared to have been used, along with pornographic comics, were also located in the bedroom,’ ” because “this describes matters which imply sexual conduct which, in New Mexico, would not have been criminal.” Objections at 6. Christy “further objects to the reference to finding a .45 caliber pistol in a safe, as” this conduct is legal and “is inserted herein only for its unfair prejudicial value.” Objections at 6. Christy “objects to the inclusion, in paragraph 26, of the statement that Mr. Christy inserted a ‘butt plug’ into Ms. Doe’s anus, as such statement was contradicted by Doe’s own testimony before the grand jury in this case,” and because the conduct “would have been legal under New Mexico law.” Objections at 6-7. Christy “objects to the inclusion in paragraph 27 of the reference to ‘ten possible cartoon child pornography images ... and 112 underage girls in sexually suggestive positions who were half-clothed, known to be child erotica,” because “by definition, cartoons cannot be pornographic,” and the “reference to ’112 underage girls ... known to be child erotica’ should not be included because the possession of any such images is not a crime and cannot be considered ‘relevant conduct’ for that reason.” Objections at 7. Christy “further objects to the inclusion in paragraph 27 of any reference to ’110109144.jpg’ which was a close image of Jane Doe’s (juvenile female) vagina,” because “said image has not been identifled by any means, and because the image, if actually that of ‘Jane Doe,’ was transmitted to Defendant prior to his finding out ‘Jane Doe’s’ true age.” Objections at 7. Christy “objects to the inclusion of any of the matters contained in paragraph 29, as the charges brought by the State of New Mexico were demonstrably untrue,” because Doe had told officers that the sex was consensual and “because the sexual acts attributed to the Defendant in the State of New Mexico were not criminal conduct.” Objections at 7. Christy further objects that his “alleged statements at the end of paragraph 29 are simply not relevant for any purpose, as they do not constitute a criminal act or indicate criminal intent, but are included simply for prejudicial effect.” Objections at 7-8. Christy objects to the statement in paragraph 30 of the PSR that “In sum, Mr. Christy communicated with Jane Doe (juvenile female) for two months via email and online chats, knowing she was a minor.”, [sic] as this statement is a total fabrication, demonstrably untrue, if one makes a mere cursory examination of the emails exchanged and evidence in this case, i.e., that the sites on which Mr. Christy encountered “Jane Doe” required a registrant to be at least eighteen years of age; that “Jane Doe’s” profiles on these sites all listed her age as being at least that old, and that no indication of her true age occurred until November 3, 2009. Objections at 8. Christy “objects to the entire contents of paragraph 33, as they are simply untrue,” and “[n]o allegation of molestation has been made, as referred to, and no ‘grooming’ behavior occurred.” Objections at 8-9. Christy also states that no “minors [have] been actually identified with whom Mr. Christy had sexual conversations on the internet.” Objections at 9. Christy objects to the “entire contents of paragraph 34, as all such conversations were ‘roll playing,’ in which Mr. Christy attempted to identify persons in chat rooms by assuming the rolls that they, themselves led,” because “[n]one of this behavior is ‘offensive behavior,’ as no minor has ever actually been identified as the recipient of any of these communications.” Objections at 9. Christy “makes the same objection to paragraph 35, as to paragraph 34, for the same reasons.” Objections at 9. Christy “objects to the statement in paragraph 48 of the PSR that he has not made a statement accepting responsibility, as such statement was made orally to the interviewer during the interview in custody and with counsel, before the original disclosure was made.” Objections at 9. Christy objects to the application of the 2 level increase in the sentencing level contained in paragraph 51 of the PSR (Undue Influence), and would respectfully show the Court that, while the young lady (Jane Doe) was, indeed, much younger than Mr. Christy, her previous admitted behavior of seeking out older men online by misrepresenting her age was the controlling factor in her own behavior, and the rebuttable presumption of undue influence does not apply to this case. Objections at 9. Christy “objects to the two level increase in paragraph 53 pursuant to Section 2G1.3(b)(4), as the sexual conduct engaged in by Mr. Christy at his home in Albuquerque, New Mexico was not prohibited sexual conduct under New Mexico law, and no other sexual conduct has been proven beyond a reasonable doubt.” Objections at 9-10. He objects to the four level increase in paragraph 61 pursuant to Section 2G2.2(b)(4) because the PSR writer simply presumes from the subject matter of the alleged image that pain and humiliation is inflicted on the child made the subject matter of the image referred to. The image is not inherently sadistic or violent, though it certainly may be found to be disgusting, and so the four level increase in sentencing level should not apply. Objections at 10. Christy “objects to the five level increase in sentencing level contained in paragraph 62, to the extent that it punishes behavior that was not against the law in the State of New Mexico.” Objections at 10. Christy “objects to the inclusion of the charges filed by the State of New Mexico in this case in paragraph 81, Criminal History, Other Arrests, as this is the same case, the agents of the State of New Mexico had no factual or legal basis for the Counts charged,” and “had affirmative knowledge that the charged conduct was not criminal under New Mexico law.” Objections at 10. Christy “objects to the inclusion of the statement in paragraph 95 that he ‘used cocaine on a monthly basis for six months’ at the age of 25, and denies any such use or statement.” Objections at 10. He “objects to the suggestion, in paragraph 115 and Attachment A, insofar as' it suggests that Mr. Christy should in any way be subjected to lifetime supervision, and reserves his right to present evidence at sentencing relating to his lack of future dangerousness and low risk of recidivism.” Objections at 10. Christy “objects to any suggestion that he has the ability to pay a fine in any amount, contained in paragraphs 116 and 117.” Objections at 10-11. Christy “objects to any suggestion, contained in paragraph 118, that he has any ability whatever to pay the costs of his incarceration or prosecution.” Objections at 11. On April 18, 2012, the USPO disclosed a Second Addendum to the Presentence Report to respond to Christy’s objections. The USPO makes some of Christy’s requested changes regarding how much time he spent in state custody, but maintains that Christy spent time in state custody. See Second Addendum to PSR at 2. The USPO does not make any of Christy’s requested changes to the sections of the Re-Disclosed PSR discussing restitution, because some of “the information was obtained from the stipulations in the defendant’s plea agreement,” and the rest of “the information is simply to provide the Court information regarding the national restitution claim pending by the victim of the ‘Vicky’ series, including the amount of economic losses.” Second Addendum to PSR at 2-4. The USPO maintains that the statements in paragraph 8 that the photographs exchanged between Christy and Doe were sexually explicit is consistent with the definition of that term in 18 U.S.C. § 2256. See Second Addendum to PSR at 2. The USPO asserts that an electronic mail transmission confirms that Christy knew Doe was sixteen as of June 6, 2009, and that Christy admitted that he knew Doe was sixteen when confronted with an electronic mail transmission he sent on November 6, 2009. See Second Addendum to PSR at 2. Regarding Christy’s objection “to the information contained in paragraphs 9, 10, 15, 17, 18, 19, 23-26, 27, and 29,” the USPO asserts that the available discovery supports these statements, including various investigation reports. Second Addendum to PSR at 2-3. Regarding Christy’s objection to paragraph 30 regarding the statements that he instructed Doe to fabricate a story about running away, the USPO state that this paragraph “will remain unchanged as the information was obtained from discovery, the defendant’s own admissions, and statements made by the victim.” Second Addendum to PSR at 3. Regarding Christy’s objections “to the information contained in paragraph 32, and paragraphs 33-35” which address alleged conduct involving other minors, the USPO responds that “the information is reliable based on the available discovery,” and notes, that, “[pursuant to 18 U.S.C. § 3661 and U.S.S.G. § 6A1.3, regarding resolution of disputed factors, no limitation should be placed on the information concerning the background, character, and conduct of a person convicted of an offense for the purpose of imposing an appropriate sentence.” Second Addendum to PSR at 3. The USPO also notes that “[t]he information contained does not enhance the base offense level or any related specific offense characteristics, and is listed under Offense Behavior Not Part of Relevant Conduct.” Second Addendum to PSR at 3. The USPO relates that Christy has still not provided a written statement accepting responsibility. See Second Addendum to PSR at 4. The USPO maintains that a 2-level enhancement under U.S.S.G. § 2G1.3(b)(2)(B) is “correctly applied,” given the “41 year difference” between Christy and Doe’s age, and the “rebuttable presumption” of undue influence in light of the more than 10-year age difference. Second Addendum to PSR at 4. The USPO states that a 2-level increase under U.S.S.G. § 2G1.3(b)(2)(B) is appropriate, given that “the defendant admitted to having sexual intercourse with Jane Doe ..., once in a motel, and another time upon arriving at his residence in Albuquerque, New Mexico.” Second Addendum to PSR at 5. The USPO asserts that a 4-level enhancement under U.S.S.G. § 2G2.2(b)(4) is appropriate given that “[t]he image” in question “can be interpreted to be sadistic as pain and humiliation is caused to this child.” Second Addendum to PSR at 5. The USPO relates that a 5-level increase under U.S.S.G. § 2G2.2(b)(5) is appropriate, because “Christy admitted to engaging in sexual intercourse with Jane Doe (juvenile female) on two separate occasions.” Second Addendum to PSR at 5. The USPO states that, regarding Christy’s argument that the USPO has recommended lifetime supervised release: “Paragraph 114 will remain unchanged as this paragraph makes no reference to a recommendation for lifetime supervision.” Second Addendum to PSR at 6. Regarding the paragraphs related to fines to which Christy objects, the USPO relates that this language “will remain unchanged as it is standard language in the presentence report provided for identifying guideline and statutory provisions available to the Court.” Second Addendum to PSR at 6. The USPO states in the Second Addendum to PSR that it makes Christy’s requested changes regarding the halfway house in which he lived and the number of deputies who looked through the window. See Second Addendum to PSR at 6. 3. The Sentencing Hearing on May 23, 2012. At the sentencing hearing on May 23, 2012, Christy stated that his main objection is to statements in the Re-Disclosed PSR that characterize his actions as having knowingly corresponded with an underage girl for several months before his arrest. See Transcript of Hearing at 6:3-7 (taken May 23, 2012)(“Tr.”)(McMillian). Christy conceded that, as of November 6, 2009, he knew that Doe was a minor. See Tr. at 7:20-8:2 (McMillian). He argued, however, that many of the exchanges between the two, including transferring images, occurred before he acquired that knowledge. See Tr. at 7:20-8:2 (McMillian). The United States responded that Christy had stipulated that some of the photographs that he and Doe exchanged were sexually explicit in his Plea Agreement. See Tr. at 8:9-13 (Kastrin). The United States noted that there is other evidence available indicating that Christy arranged with Doe to fabricate a story that he did not know Doe was underage. See Tr. at 9:13-10:6 (Kastrin). The parties then came to an agreement to modify the Re-Disclosed PSR to state that Christy knew that Doe was sixteen before he left to pick her up in California and to omit any reference to when he specifically became aware of her age. See Tr. at 13:12-20 (Kastrin, Court, McMillian). Christy then argued that the 2-level enhancement under U.S.S.G. § 2G1.3(b)(2)(B) for undue influence was inappropriate, but conceded that a rebut-table presumption that the enhancement is appropriate in light of the age difference between Doe and himself. See Tr. at 13:3-13 (Court, McMillian). Christy stated that he did not intend to pursue rebutting that presumption and that the Court could overrule his objection to this 2-level enhancement. See Tr. at 13:10-21 (McMillian, Court). The United States argued that Christy’s sexual contact in New Mexico with Doe was in furtherance of another crime, specifically custodial interference and contributing to the delinquency of a minor under N.M.S.A.1978, §§ 30-6-3 and 30-4-4. See Tr. at 14:15-22 (Rees). The United States also noted that criminal sexual penetration under N.M.S.A. § 30-9-11 criminalizes sexual perpetration perpetrated during the commission of another felony. See Tr. at 15:4-11 (Rees). The United States asserted that New Mexico recognizes that a minor is a person under the age of eighteen years old. See Tr. at 15:17-21 (Rees). The United States noted that Christy had pled guilty in Count 1 to having engaged in conduct that could have violated all three of these statutes. See Tr. at 16:20-17:11 (Court, Rees). Christy asserted that, in spite of his guilty plea, the United States still cannot show a pattern of conduct for purposes of a 2-level enhancement under U.S.S.G. § 2G1.3(b)(4). See Tr. at 17:14-17 (McMillian). The Court and the United States noted that this enhancement does not require a pattern of conduct, but only a sex act or sexual contact. See Tr. at 17:22-18:3 (Court, Rees). The Court then overruled Christy’s objection to the 2-level enhancement under U.S.S.G. § 2G1.3(b)(4). See Tr. at 18:6-18 (Court, McMillian). Christy then argued that a 5-level enhancement was not appropriate under U.S.S.G. § 2G2.2(b)(5), given that his sexual acts in New Mexico were lawful. See Tr. at 19:2-8 (Court, McMillian). The United States argued that there is a large amount of evidence indicating that Christy has engaged in a pattern of sexual exploitation of minors, including all the child pornography found in his possession and the individuals with which he chatted online. See Tr. at 20:13-21:22 (Rees). Christy asserted that none of the individuals he chatted with have been identified, including whether they are adults or minors, but conceded that the chat conversations have been presented to the Court. See Tr. at 21:24-22:8 (McMillian). Christy noted that no one has proved that he engaged in any sexual acts with children in his neighborhood. See Tr. at 22:9-13 (McMillian). The Court noted that the application note to U.S.S.G. § 2G2.2(b)(5) indicates that it has a low threshold for a pattern of activity, requiring only two or more separate instances of sexual abuse or sexual exploitation of a minor. See Tr. at 22:14-22 (Court). The Court noted that there was sufficient evidence to find that this enhancement applied by a preponderance of the evidence in light of Christy admitting to two sexual acts with Doe on separate occasions, and the Court overruled Christy’s objection. See Tr. at 22:14-23:8 (Court). The Court then sustained the parties’ objection to the 4-level enhancement under U.S.S.G. § 2G2.2(b)(4) on the basis that, while bondage is not required to support an enhancement under this guideline, the picture did not portray sadistic or masochistic acts. See Tr. at 25:7-31:7 (Court). The Court also concluded that, while awarding restitution to Vicky would not normally be appropriate given that Christy did not cause any of her harm and in light of the lack of evidence regarding her damages, the parties’ stipulation to an award of $500.00 in restitution to her relieved the United States of its burden to prove the appropriateness of restitution. See Tr. at 33:22-38:19 (Court). The United States asserted that it was not prepared to put forward any evidence, other than Christy’s stipulation, regarding Vicky’s damages. See Tr. at 38:20-39:7 (Rees). The Court then heard testimony from Dr. Carmen Petzold regarding an appropriate term of supervised release for Christy, and, specifically, Christy’s risk of recidivism. Dr. Petzold explained her education, training, and experience with sex-related crimes and related issues, including developing a juvenile sex-offender treatment program. See Tr. at 46:3-11 (Petzold). Dr. Petzold testified that she spent approximately sixty hours working on Christy’s case and about fourteen hours in diagnostic interviews with him. See Tr. at 50:14-51:1 (McMillian, Petzold). Dr. Petzold then explained the testing and evaluations she conducted with Christy. See Tr. at 51:3-53:1 (McMillian, Petzold). She asserted that there are no indications Christy suffered abuse as a child, but noted that he had a hard time dealing with his father’s death. See Tr. at 52:16-53:1 (Petzold). Dr. Petzold stated that, based on Christy’s history, there were not many indicators suggesting that he would be likely to commit crimes. See Tr. at 55:22-56:12, 59:12-59:1 (Petzold). Dr. Petzold related that some of the tests she conducted with Christy indicated that he: (i) is honest about his symptoms; (ii) has feelings of persecution and paranoia; (iii) is naive and optimistic; (iv) is energetic, precarious, and creative; (v) has no signs of a personality disorder or aggressiveness; and (vi) has some signs of predisposition to addictive behavior. See Tr. at 60:6-61:21 (Petzold). She stated that a test that focused on his long-term personality traits and behavior indicated that Christy: (i) showed signs of wanting to avoid other people, especially in a group setting; (ii) has the capability to have close relationships with others; and (iii) has a tendency to become isolated. See Tr. at 61:23-62:24 (Petzold). Dr. Petzold stated a test she performed on Christy regarding his sexual characteristics indicated that: (i) he had sexual desires similar to most adult heterosexual males; (ii) his level of sexual knowledge did not suggest he was likely to commit sex-related offenses; and (iii) he had indicators of sexual obsession consistent with most males. See Tr. at 65:3-19 (Petzold). Dr. Petzold said that Christy admitted to having sexual fantasies about post-pubescent, fully developed adolescents, and admitted to using leather whips and handcuffs before in a sexual manner. See Tr. at 66:14-19 (Petzold). She related that Christy answered questions in a more straightforward and open manner than most sex offenders she had seen. See Tr. at 66:20-23 (Petzold). Dr. Petzold concluded that Christy is not and has not been suffering from any major mental illness. See Tr. at 70:16-21 (Petzold). Dr. Petzold concluded that Christy is not a pedophile, because he does not have ongoing sexual fantasies or interest in prepubescent individuals, and because Doe consented to the sexual acts in question. See Tr. at 71:1-7 (Petzold). She related that his characteristics of naivete and emotional immaturity likely contributed to his commission of the offenses to which he pled guilty. See Tr. at 71:8-15 (Petzold). She stated that Christy has a susceptibility to outside influences, including what Christy described as a false sense of intimacy from interacting on the internet with others. See Tr. at 71:16-72:1 (Petzold). She noted that his lack of sleep before having sexual interactions with Doe likely contributed to some of his poor decision making given that he had reported not sleeping for approximately forty hours before picking up Doe. See Tr. at 72:8-73:9 (Petzold, McMillian). She stated that Christy’s recidivism rate is lower, because of his age, and that, once he reaches the age of sixty, his risk will decrease further. See Tr. at 74:3-20 (Petzold). She noted that his lack of prior criminal history also supports a conclusion that he will not recidivate. See Tr. at 75:2-10 (Petzold). She also stated that it is significant, in terms of Christy’s recidivism rate, that he did not commit the offense in a public place or with the use of force. See Tr. at 75:25-76:15 (Petzold). She stated that he had no history of anti-social behavior as an adolescent, had stable employment history, and had no pattern of significant drug use. See Tr. at 76:16-77:3 (Petzold). Dr. Petzold related that some studies that have concluded that sex offenders have a higher rate of recidivism are unreliable, because they lump too many disparate individuals into one sample group and do not properly account for variations within a larger group. See Tr. at 83:7-83:25 (Petzold). She said that treatment for sex offenders has improved since the 1980’s and noted that this change has helped lower their risk of recidivism. See Tr. at 84:4-12 (Petzold). Dr. Petzold acknowledged that many sex offenders and their victims do not report the crimes, and that sex offenders report only a fraction of their crimes after arrest. See Tr. at 84:15-85:12 (Petzold). She related that some sex offenders will be more likely to recidivate than others. See Tr. at 85:23-86:7 (Petzold). She stated that, in her history of performing tests to determine a defendant’s likelihood of recidivism, she has never seen a defendant score as low for recidivism as Christy. See Tr. at 87:24-88:1 (McMillian, Petzold). She recommended that the Court impose a term of 5 years supervised release. See Tr. at 89:14-22 (Petzold). Dr. Petzold acknowledged that surveillance of Christy’s computer activities would be appropriate while he was on supervised release. See Tr. at 93:2-9 (Rees, Petzold). She said that most of the child pornography images she had reviewed that investigators found in Christy’s possession appeared to be of older children. See Tr. at 96:14-18 (Rees, Petzold). She related that individuals can sometimes become addicted to child pornography and that those individuals would be more likely to relapse into that behavior. See Tr. at 100:24-101:12 (Rees, Petzold). She acknowledged that there are limitations to relying on tests that depend upon an individual’s self-reported information. See Tr. at 127:3-14 (Rees, Petzold). She stated that she did not believe that Christy had withheld information during the interviews she conducted with him. See Tr. at 128:19-129:3 (Rees, Petzold). Dr. Petzold noted that, according to the tests she performed, Christy had a 7.62 percent chance of recidivism over the next five years and a 11.21 percent chance of recidivism over the next ten years. See Tr. at 130:7-9 (Rees, Petzold). She noted that Christy had told her that there had been accusations against him in relation to improper conduct with other children. See Tr. at 154:22-24 (Rees, Petzold). The United States asked, in light of some representations Christy had made that certain chatroom conversations were not attributable to him, that the Court take judicial notice of some of its prior opinions where it had concluded that various chatroom conversations were attributable to Mr. Christy. See Tr. at 172:8-15 (Rees). The United States also related that it was willing to have a case agent testify that the child pornography images found in Christy’s home were from Christy’s computer media, but suggested that it may be more efficient to have the Court accept that evidence through a proffer. See Tr. at 172:16-173:1 (Rees). Christy did not oppose presenting this evidence by proffer and stated that he has, through presentation of his expert, conceded that this evidence is attributable to him. See Tr. at 173:4-8 (McMillian). LAW REGARDING RULE 32 Rule 32 of the Federal Rules of Criminal Procedure provides that a court must, at sentencing, “for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” Fed. R.Crim.P. 32(i)(3)(B). To invoke a district court’s rule 32 fact-finding obligation, a defendant is required to make “specific allegations” of factual inaccuracy. United States v. Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir.2006). Accord United States v. Jim, No. 10-2653, 2012 WL 2574807, at *23 (D.N.M. June 22, 2012)(Browning, J.). Defendants have “an affirmative duty to make a showing that the information in the PSR was unreliable and articulate the reasons why the facts contained therein [were] untrue or inaccurate.” United States v. Rodriguez-Delma, 456 F.3d at 1253. “The fact that a defendant has objected to the ultimate conclusions drawn by the PSR, however, does not necessarily imply that a ‘controverted matter’ exists.” United States v. Rodriguez-Delma, 456 F.3d at 1253 (citing United States v. Murray, 82 F.3d 361, 363 (10th Cir.1996)). LAW REGARDING U.S.S.G. § 2G1.3 18 U.S.C. § 2423(a) provides: A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life. 18 U.S.C. § 2423(a). U.S.S.G. § 2G1.3(a)(3) provides a base offense level of 28 “if the defendant was convicted under 18 U.S.C. §§ 2422(b) or 2423(a).” U.S.S.G. § 2G1.3(a)(3). U.S.S.G. § 2G1.3(b)(2) provides: “If (A) the offense involved the knowing misrepresentation of a participant’s identity to persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in prohibited sexual conduct; or (B) a participant otherwise unduly influenced a minor to engage in prohibited sexual conduct, increase by 2 levels.” U.S.S.G. § 2G1.3(b)(2). Application note 3(B) to this guideline provides in relevant part: In determining whether subsection (b)(2)(B) applies, the court should closely consider the facts of the case to determine whether a participant’s influence over the minor compromised the voluntariness of the minor’s behavior. The voluntariness of the minor’s behavior may be compromised without prohibited sexual conduct occurring. In a case in which a participant is at least 10 years older than the minor, there shall be a rebuttable presumption that subsection (b)(2)(B) applies. In such a case, some degree of undue influence can be presumed because of the substantial difference in age between the participant and the minor. U.S.S.G. § 2G1.3 cmt n. 3(B). U.S.S.G. § 2G1.3(b)(4) provides: “If (A) the offense involved the commission of a sex act or sexual contact; or (B) subsection (a)(3) or (a)(4) applies and the offense involved a commercial sex act, increase by 2 levels.” U.S.S.G. § 2G1.3(b)(4). Application note 1 to this guideline provides: “ ‘Sexual act’ has the meaning given that term in 18 U.S.C. § 2246(2).” U.S.S.G. § 2G1.3 cmt. n. 1. 18 U.S.C. § 2246(2) provides: [T]he term “sexual act” means— (A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however, slight; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; (C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or (D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.... 18 U.S.C. § 2246(2). LAW REGARDING U.S.S.G. § 2G2.2 For certain child pornography offenses, U.S.S.G. § 2G2.2(b)(4) authorizes a 4-level enhancement to a defendant’s base offense level “[i]f the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.” U.S.S.G. § 2G2.2(b)(4). The application note to this subsection provides: “Subsection