Citations
- 188 F. Supp. 3d 152
Full opinion text
Statement of Reasons for Sentencing Pursuant to 18 U.S.C. § 3553(c)(2)
Jack B. Weinstein, Senior United States District Judge.
Table of Contents
I. Introduction... 155
A. Instant Case.,. 155
B. Consistency in Sentencing... 156
II. Facts and Procedural History.. .156
A. Background.,. 156
B. Sexual History... 157
C. Child Pornography... 157
D. Arrest.., 157
E. Mental Health Treatment.. .158
F. Guilty Plea... 159
III. Sentencing Hearing... 159
A. Medical... 159
1. Alexander S. Bardey, M.D.... 159
a) Credentials... 159
b) Evaluation... 160
c) No Risk of Contact Offense ,..161
d) Low Recidivism Risk with Treatment...^
2. Larry Menzie, LCSW... 164
B. Social Worker,., 164
C. Wife.,.166
IY. Sentence Imposed... 166
Y. Sentencing Law... 166
A. Discretion of Sentencing Judge... 166
B. Applicable Statute,.. 167
C. Advisory Nature of the Sentencing Guidelines... 167
1. Section 3553(a) Factors.167
2. Departures Based on Disagreement with Commission Policy.. .168
3. Statement of Reasons Required... 169
D. Restitution.., 169
VI. Application of Law to Facts... 170
A. Guidelines Sentencing Range.. .170
B. Analysis of Section 3553(a) Factors .,.170
1. Circumstances of Offense; Characteristics of Defendant... 171
2. Purposes of Sentencing.., 172
3. Kinds of Sentences Available.., 175
4. Guidelines, Policy, and Other Criteria of Sentencing Commission... 175
5. Unwarranted Sentence Disparities ...176
C. Policy Considerations.. .177
VII. Conclusion... 179
I. Introduction
A. Instant Case
This case underscores the unreasonableness of current child pornography sentencing patterns, and the excessive in-carceratory terms recommended by the Sentencing Commission. The law in this field is overdue for revisiting.
Defendant pled guilty to one count of possession of child pornography in violation of sections 2252(a)(4)(B).. and 2252(b)(2) of title 18.of the United States Code, The Guideline sentence was 51 to 63 months in prison. Imposed was a sentence of five years of probation with substantial and adequate continuing controls and treatment to protect the public. See infra Part IV.
Defendant admits to having downloaded on his computer images involving young girls—most between twelve and fourteen years old—posing naked, engaging in “lascivious display,” He first viewed and downloaded adult pornography during a period of depression and isolation when he was unemployed and separated from his family. This led. to viewing child pornography. There is no evidence that defendant ever produced such materials, or that he took any steps towards engaging in any kind of inappropriate contact with a minor.
The court conducted an extensive Fatico evidentiary hearing before sentencing. Convincing medical and expert testimony demonstfatéd that defendant poses no current Or future risk to any child. He has been successfully engaged in psychological and sex offender treatment for a year. Experts testified that treatment required by the court -will decrease his already low risk of re-engaging in any sex offense.
Possession of child pornography is a serious crime. “The theory is that (1) computer depiction of children being sexually exploited creates a permanent widespread record of abuse, perpetuating and potentially exacerbating the harm initially suffered by the victim in the production, and (2) acquisition of these images encourages abuse of children in their production since viewers create demand.” United States v. R.V., 157 F.Supp.3d 207, 209, 2016 WL 270257, at *1 (E.D.N.Y. Jan. 21, 2016).
No mandatory minimum applies to the instant offense. The sentencing factors under section 3553(a) of title 18 of the United States Code require a sentencing judge to perform an “individualized assessment” of the situation. See 18 U.S.C. § 3553(a); Gall v. United States, 552 U.S. 38, 49-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Analysis is guided by “[r]easonableness” and an “individualized application of the statutory sentencing factors.” United States v. Dorvee, 616 F.3d 174, 184 (2d Cir.2010) (citing Gall, 552 U.S. at 46-47, 128 S.Ct. 586) (emphasis added).
The judge’s sense of proportionality must be applied. In the present case, a sentence of probation, with strict controls and required continuing treatment, is appropriate. Defendant’s life will always be shadowed by the stain of a federal felony conviction for a sex-related crime. Extensive restrictions affecting where he can live and work, and how he will be controlled, will follow him. An incarceratory Guidelines sentence would have an adverse impact on the substantial progress that defendant has already made through his participation in individual and group therapy. It will deprive his family of vital financial and emotional support while doing little to further protect the public. It will unnecessarily add to taxpayers’ burdens.
B. Consistency in Sentencing
This court has been attempting to rationalize its own sentences by establishing general criteria for similar cases, a project required by the wide discretion in sentencing afforded under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See, e.g., United States v. Chin Chong, 13-CR-570, 2014 WL 4773978, at *1 (E.D.N.Y. Sept. 24, 2014) (accounting for prospect of deportation when imposing a term of incarceration); United States v. Sarpong, No. 14-CR-242, 2014 WL 5363775, at *2 (E.D.N.Y. Oct. 21, 2014) (same); United States v. Palaguachy, No. 14-CR-0184, 2014 WL 6606668, at *2 (E.D.N.Y. Nov. 19, 2014) (same); United States v. Florez Parra, No. 14-CR-332, 2015 WL 105885, at *2 (E.D.N.Y. Jan. 7, 2015) (same); United States v. D.M., 942 F.Supp.2d 327, 352 (E.D.N.Y.2013) (sentencing defendant who pled guilty to one count of possession of child pornography to five years’ probation); R.V., 157 F.Supp.3d at 223-24, 2016 WL 270257, at *14 (sentencing defendant who pled guilty to one count of possession of child pornography to time served and seven years’ supervised release); see also United States v. G.L., 305 F.R.D. 47, 48 (E.D.N.Y.2015) (“With the increase in sentencing discretion and concern over unnecessarily long incarcerations has come an increased need for each judge to try to avoid inconsistency in his or her own sentences. Stating reasons for sentencing in memoranda helps minimize both dangers.”).
II. Facts and Procedural History
Defendant will be- referred to by his initials, “E.L.,” to enhance rehabilitation and reduce adverse impact on his family, in particular harm to his young children. See R.V., 157 F.Supp.3d at 212-13, 2016 WL 270257, at *4.
Relevant information has been derived primarily from a comprehensive Fatico hearing and the Presentence Investigation Report (“PSR”) submitted by the Department of Probation. See PSR, Feb. 9, 2016; Def.’s Objections to PSR, Mar. 19, 2016, ECF No. 35 (“PSR Objections”); Hr’g Tr., Mar. 23, 2016, ECF No. 42 (“Sent. Hr’g”), at 137:10-24 (incorporating defendant’s corrections to the PSR).
A. Background
E.L. is a fifty-one year old male residing in Brooklyn. See PSR at 2. He was raised in Yonkers, New York, primarily by his maternal grandmother, since both of his parents were alcoholics. Id. at ¶¶ 36, 44; PSR Objections at ¶3. His mother was abusive. PSR at ¶ 44. She died from liver failure and his father died from lung cancer. Id. at ¶ 35. He has no siblings. Id.
He graduated from Lincoln High School in Yonkers. Id. at ¶ 54. He received a bachelor’s degree in computer information systems from Mercy College. Id. at ¶ 53. He worked for several years as a computer programmer, with intermittent periods of unemployment. See id. at ¶¶ 56-58. Since 2012, defendant has been employed as a senior information technology consultant in Brooklyn. Id. at ¶ 55.
E.L. is married and has nine year old twin boys. Id. at ¶ 38. He is the sole financial provider for the family. Id. In addition to his wife and children, E.L. furnishes financial support to his mother-in-law and father-in-law. See PSR Objections at ¶1. His father-in-law was recently diagnosed with bladder cancer and his mother-in-law is in the early stages of Alzheimer’s disease. Id. at ¶ 4. Defendant’s wife and children reside at a home that the family owns in Stroudsburg, Pennsylvania. PSR at ¶ 37. The defendant travels there on the weekends from his job in Brooklyn. The family plans to sell their apartment in Brooklyn to pay debts. Id.; PSR Objections at ¶4.
E.L. suffers from hypothyroidism, high cholesterol, acid reflux disease, and osteoporosis. PSR at ¶41. He was born with Syndactyly—the webbing of hands and feet. Although partially corrected by surgery, it has left him with painful arthritis in his hands. Id.; PSR Objections at ¶ 6. As a teenager, defendant was treated for scoliosis. PSR at ¶ 41. He continues to have a back problem which decreases his lung capacity and sometimes makes breathing difficult. PSR Objections at ¶ 6.
He has no history of drug or alcohol abuse. PSR at ¶ 52. Apart from the instant offense, he has no convictions. Id. at ¶¶ 27-33.
B. Sexual History
Defendant’s first sexual relationship was with an adult woman when he was twenty-one. Id. at ¶ 43. As he has gotten older, he has experienced some difficulty with intercourse. Id.
E.L. stated that in the summer of 2011, while unemployed, he would visit Brighton Beach in Brooklyn, take photographs of people and collect them on his computer. Id. He denied voyeurism. Id. Some of his subjects “may have been 15 or 16.” Id.
C. Child Pornography
Defendant reported that he began looking at adult pornography on the Internet while he was unemployed and separated from his family. Id. at ¶42. He was increasingly depressed and anxious because of his inability to find work. Id. He spent more and more time , online; downloading movies, watching pornography, and,, eventually, downloading child pornography. Id.; PSR Objections at ¶ 7.
He denied having a physical sexual interest in children, although he admitted that he was “probably looking for teen” pornography on the Internet. PSR át ¶ 43. He explained that the images he viewed were not violent and looked like “modeling” to him; Id. He said he then had a different understanding of child pornography; he now admits he was wrong and understands that what he was doing was more than just viewing “a photo,” or “soft porn,” with no harm to children. Id.
E.L. attempted unsuccessfully to refrain from viewing pornography in 2011. Id. He sought help. Id.
D. Arrest
Between October 21, 2014, and October 23, 2014, a Federal Bureau of Investigation (“FBI”) agent conducted an undercover investigation using a “Bittorrent” application into Internet distribution and possession of child pornography. Id. at ¶4. “Bittorrent” is a peer-to-peer file sharing software program. Id..
During this investigation, the FBI agent located a computer that was sharing child pornography using the “Bittorrent” file sharing network. Id. at ¶5. The agent downloaded 324 files from a sharing client that had an IP address. Id. The downloaded files revealed that almost all of the “Bittorrent” files depicted sexually explicit images of children. Id. Several of the files involved prepubescent girls naked and exposing their genitalia. Id.
The email address associated with the computer’s IP address belonged to E.L.’s wife. Id. at ¶ 6. The physical address associated with the computer’s IP address was E.L.’s residence in Brooklyn. Id.
In November 2014, FBI agents executed a search warrant at defendant’s Brooklyn residence. Id. at ¶ 7; see also- PSR Objections at ¶2. The majority of the child pornography images found on defendant’s computer involved children between the ages of twelve and fourteen years old, posing naked. PSR at ¶ 10. E.L. admitted that he used the “Bittorrent” system to download movies and pornography, including child pornography. Id. at ¶ 8.
Defendant was arrested in February 2015. Id. at ¶ 10. He was almost immediately released on bail. See Minute Entry, Feb. 23, 2015⅛ ECF No. 4.
E. Mental Health Treatment
E.L. has had a long history of complex mental health problems. See PSR at ¶¶ 44-51. He had a nervous breakdown after his mother died, but did not receive treatment. Id.. at ¶ 45. He exhibited obsessive behavior. He collected items such as baseball cards, newspapers, stamps, and coins. He continues to collect business cards, paper advertisements, menus, bus schedules, papers, and bills. Id. He washed his hands constantly. He bit his nails. Id.
To help control anxiety and depression, in 2009 defendant was treated by a psychiatrist who prescribed Lexapro. Id. at ¶ 46; see also PSR Objections at ¶ 8.
After E.L.’s encounter with FBI agents in November 2014, he was severely anxious. PSR at ¶ 47. He began .therapy with a psychiatrist and was diagnosed with anxiety, depression and obsessive compulsive disorder (“OCD”). Id. Lexapro and Clomi-pramine were prescribed. He meets with the doctor once a month. Id.; PSR Objections at ¶ 9.
Over the past year, defendant has been attending weekly group therapy sessions, ineluding sex offender treatment, at Queens Counseling for Change (“QCFC”) in Queens, New York. PSR at ¶ 48; see also QCFC, Client Status Summary Report, Feb. 13, 2016, ECF No. 33-2 (“QCFC Report”) (sealed). He believes this regimen has been beneficial and wishes that he had been aware of this kind of help before he was “in trouble.” PSR at ¶ 48. The result of this ongoing treatment has been described in a December 2015 client summary report as positive: “defendant’s speech was less impulsive, he appeared less anxious, and his verbal boundaries were improving incrementally, in session.” Id. Continued treatment was “strongly recommended” in order to “help maintain safe behavior.” Id.
Defendant has also been receiving biweekly individual psychotherapy treatment with Dr. Irina Voskoboynik, LCSW-R. See Letter from Irina Voskoboynik, LCSW-R, Jan. 20, 2016, ECF No. 33-3 (“Voskoboy-nik Letter”) (sealed). Ms. Voskoboynik finds “Adjustment Disorder with depressed mood. [E.L.] suffers from a combination of anxious and depressive symptoms, insomnia, disturbed attention and[] concentration, impaired social, executive and daily functioning, low self-esteem, fair judgment and insight into his problems.” Id. She notes that defendant “has been making a very good progress during the cognitive-behavioral ,.. sessions over the last few months.” Id.
At the request of defense counsel, Dr. Alexander S. Bardey, a certified forensic psychiatrist, conducted a psychiatric and psychosexual evaluation of defendant, which included an assessment of defendant’s risk to the public. See PSR at ¶ 50; Alexander S. Bardey, M.D., Forensic-Psychiatric Evaluation, Aug. 6, 2015, ECF No. 33-1 (“Bardey Report”) (sealed). Dr. Bar-dey believes defendant is a good candidate for treatment and rehabilitation and considers his risk of re-offending to be low. PSR at ¶ 50. He notes that defendant’s behavior was restricted to a computer; there is no evidence that defendant has an interest in a contact sexual relationship with a minor. Id. The doctor reported that defendant does not meet the criteria for a diagnosis of pedophilia, and is not a sexual predator. Id. He observed that defendant appears to have “an intact moral compass” and noted that at the time of the instant offense defendant felt abandoned by his wife and children: “With no other outlets, no hobbies other than obsessive collecting, and no friends ... he turned to the Internet for company.” Id.
F. Guilty Plea
Defendant pled guilty to a count charging that on November 14, 2014, he possessed visual depictions of minors engaging in sexually explicit conduct contained in digital files, in violation of sections 2252(a)(4)(B) and 2252(b)(2) of title 18 of the United States Code. Id. at If 1.
III. Sentencing Hearing
An all-day sentencing evidentiary hearing was conducted. See Minute Entry, Mar. 23, 2016, ECF No. 39. The parties had been ordered to present expert testimony regarding the risks, if any, posed by defendant to the public. See Order, Feb. 17, 2016, ECF No. 32.
The sentencing proceedings were videotaped to develop an accurate record of the courtroom atmosphere, as well as some of the subtle non-verbal factors that a district court considers in imposing a sentence. See In re Sentencing, 219 F.R.D. 262, 264-65 (E.D.N.Y.2004) (describing the value' of video recording for possible review of sentences on appeal).
A. Medical
1. Alexander S. Bardey, M.D.
a) Credentials
Dr. Alexander S. Bardey, a forensic psychiatrist who evaluated defendant, provided expert testimony. See Sent. Hr’g at 47:7-111:3. Dr. Bardey graduated from Harvard University with a bachelor’s- degree in biology and then attended SUNY ■Stony Brook School of Medicine. Id. at 47:14-15. He completed a four-year internship and residency at NYU School of Medicine, where he specialized in psychiatry. Id. at 47:16-18. He was an attending psychiatrist at Bellevue Hospital, first in the emergency room, and then in the Forensic Psychiatry Department, where he served for ten years and eventually became deputy director. Id. at 47:18-24. For about two years, Dr. Bardey was the director of mental health services at Rikers Island, after which he entered private practice. Id. at 48:3-5. Over the course of the last thirteen years, he has served as a consultant to the Mental Health Court in Brooklyn as well as to the Department of Mental Health in Nassau County. Id. at 48:5-9. He is board certified in psychiatry and forensic psychiatry; his training includes “the evaluation and assessment of sex offender^], specifically around the issue of risk.” Id. at 48:13-16.
b) Evaluation
Dr. Bardey examined defendant on four occasions—March 19, April 2, April 9, and July 17, 2015. Bardey Report at 1. He also reviewed E.L.’s indictment, criminal complaint, and medical records. Id. at 2. He administered the Personality Assessment Inventory (“PAT), a psycho-diagnostic test, as well as the Abel Assessment for Sexual Interest-3 test (“Abel Test”) in order to provide a psychosexual assessment of defendant. Id. at 1.
E.L. was diagnosed as suffering from dysthymia, a form of depression of mild to moderate severity, as well as a personality disorder with obsessive compulsive and avoidant features. Sent. Hr’g at 51:19-24.
In evaluating defendant’s risk of re-offense, this expert took into account both dynamic factors (which can be managed and mitigated through specific intervention), such as E.L.’s ongoing participation in sex offender therapy, as well as static factors (which do not change over time and are part of an individual’s profile), including E.L.’s age and personality disorders. Dr. Bardey explained his analysis as relevant to the evaluation of a person convicted of a sex offense:
Now, more specific to sexual offenses, especially with individuals who are charged with possession of child pornography, I look to see if there’s evidence of two things. One is whether or not the involvement with child pornography is in some sense a portal to additional behaviors. In other words, is this the beginning of a journey that the individual is taking toward eventually committing a contact offense.
And the factors that I look at in doing that is whether or not the individual’s behavior was just restricted to the collection and the amassing of images of child pornography, whether there was passive sharing of that pornography through some of the peer to peer programs, whether there was active sharing of the images, whether the individual was chatting with other like-minded individuals and exchanging images and comments with that person, whether the individual was posting on bulletin boards about thoughts or fantasies they had, whether the individual was trying to contact minors directly, either posing as a minor or through some other means, whether the individual actually made attempts .to meet with a minor, and, of course, whether the individual met with a minor. So by looking at whether any of those behaviors took place, it helps me then develop a better understanding as to what the risk is of this individual moving toward an actual contact offense.
The other thing that I look at is what is the risk of the individual engaging in collecting or viewing child pornography again. And what I look for in that is whether the individual is a pedophile or not. Whether those sexual desires are ego-dystonic or ego-syntonic. What I mean by that is, is the individual troubled by their behavior, or do they just find it just as normal as anyone else’s sexual orientation.
I look at whether the person—the degree to which they understand that they are victimizing people and they can draw the line between their behavior and the fact that these children are being harmed because of that.
And that—I also look at, are there psychological factors that would impact on the individual’s re-offending. Certain personality types might lead to an individual re-offending, other personality types and psychological factors might reduce the risk of re-offending.
Id. at 54:10-55:25.
He concluded that, with a reasonable degree of medical certainty, E.L. did not meet the criteria for a diagnosis of pedophilia and is not at risk of committing a sexual contact offense. Continuing treatment would lower the already low risk of defendant re-engaging in the viewing of child pornography. See Bardey Report at 16-18.
c) No Risk of Contact Offense
Dr. Bardey considered E.L.’s “risk of dangerousness to the community and his children.” Id. at 17. He explained that there were no signs that-defendant’s past viewing of child pornography was a step towards a contact offense:
In [E.L.’s] case, in terms of both of those types of risk assessment, I have found no evidence that he was on his way toward a contact offense. I saw no evidence that his behavior was anything but the sort of obsessive collecting of a very narrow range of images.
After I wrote my report just recently, [I] viewed the contents of his hard drive, where [I] saw a number of images that were, in my opinion, of a very narrow range. Rather than a bell curve distribution of images of different ages and different sexual activities, this was an extremely restricted range of just prepubescent girls, naked, not involved in any sexual behavior with other children or adults. There was no bondage, there was no use of any kind of devices, there were no sexual interactions with adults. In my experience, having evaluated a number of different sex offenders, with child pornography, that’s a much narrower range and much less virulent type of images that he was viewing: I saw no evidence that he had been chatting with anyone, that he had been involved in any of the behaviors that I testified to earlier that would lead one to believe that he toas or might be a risk of eventually committing a contact offense.
Sent. Hr’g at 55:25-56:22 (emphasis added).
The doctor testified that E.L. “has no history of prior sexual offenses and no history of inappropriate behaviors towards children.” Bardey Report at 16. While the psychosexual testing revealed a “chief interest” in females fourteen to seventeen years old, the expert noted that,
[b]ut for his involvement with the instant offense, there is no evidence that [E.L.] has ever engaged in, or attempted to engage in, a direct contact offense towards a minor. There is no evidence that he was attempting to chat with [a] minor, manipulate minors, or try to meet with a minor. Instead, it appears that his ability to compartmentalize his interest in the material has remained intact, in that he has been able to fully contain the behavior to looking at a computer. There is no evidence that he chatted with other individuals about the material, or that he ever tried to meet a •minor in any manner for any purpose. In other words, there is no evidence of an achual interest in a contact sexmal relationship with a minor.
Id. at 16-17 (emphasis added). He concluded that, “with reasonable medical certainty,” E.L. did not meet the relevant criteria for a diagnosis of pedophilia. Id. at 17. He also determined that, “[gjiven [E.L.’s] history, the result of this examination and the psychological testing results, it is my opinion with a reasonable degree of certainty that [E.L.] is not a sexual predator and is not currently a risk to others in terms of committing a contact sexual offense.” Id. (emphasis added).
Dr. Bardey relied in part on defendant’s path to viewing child pornography:
[E.L.], at the time of the offense conduct, was suffering from depression, as this needy man felt abandoned by his wife and children. With no other outlets, no hobbies other than obsessive collecting, and no friends to spend time with, he turned to the Internet for company. He also used the Internet for sexual gratification, which eventually pi[qu]ed his Interest in adolescent, post-pubertal models. If there is any deviant interest to be ascribed to [E.L.], it is his interest in 14 to 18 year old females. This in itself, is not an abnormal finding among normal heterosexual men. In [E.L.’s] case his personality features, his anxiety and social awkwardness, have rendered adult women his age unapproachable. Other than his wife, even with whom he has sexual performance issues, [E.L.] likely feels much less anxiety using the Internet for sexual gratification, including images of late-adolescent women.
Id, This expert explained that the apparent “anonymity” and “safety” of the Internet allowed defendant to view child pornography, but that he would not otherwise be likely to have any contact with minors:
[E.L.] is not, in my psychiatric opinion, at risk of committing a contact offense against a minor. To him, it would be both wrong and.too anxiety provoking. The anonymity, apparent safety, and distance provided by the Internet aire factors that permitted his acting out. Without such a medium, he would not be able to have any contact with that population. Thus, if his risk of recidivism regarding the use of Internet child pornography can be mitigated, then [E.L.] presents little to no risk to the community.
Id. at 18 (emphasis added).
He observed that defendant’s many problems led him to viewing child pornography:
[E.L.] is an unfortunate man who has suffered various developmental, medical, and psychological troubles in his life. Left with obsessive and avoidant personality traits, he turned to the Internet for social contact and sexual gratification during a period in his life where he was lonely, separated from his family, and depressed. His interest in the material in question does not represent, in my opinion, a portal to a contact offense.
Id. (emphasis added).
d) Low Recidivism Risk with Treatment
It was Dr. Bardey’s conclusion that defendant’s risk of committing a new child pornography offense is “almost zero:”
In terms of the risk of re-offending with child pornography, [E.L.] was deeply disturbed by his behavior. His underlying anxiety disorder has had a significant impact on his reaction to being arrested and prosecuted and being forced to deal with the consequences of this. And I think in that sense, that response is protective. I think he has insight in terms of how dangerous his behavior was, how harmful it was. And so based on that, my opinion is that he is essentially almost zero risk of re-offending in terms of both the engaging in a contact offense and of re-offending specifically with child pornography.
Sent. Hr’g at 56:23-57:8 (emphasis added).
He explained that E.L. is a “good candidate for treatment and rehabilitation.” Bardey Report at 18, Defendant is motivated to understand the criminal conduct at issue in the instant case, and to engage in individual and group treatment. Id. The expert noted that defendant’s already low risk of re-offense would be further reduced through continued participation in treatment:
Terrified by his current charges, and credibly engaged in the process of uncovering the psychological underpinnings of the offense conduct, [E.L.] is a good candidate for treatment and rehabilitation. He is motivated to understand his offense conduct and to benefit from individual and group treatment modalities. As a result, I believe that his risk of re-offending is low, given the consequences of his behavior and its impact on his psyche. As stated, his risk of re-offending, albeit small, would be further mitigated through continued participation in mental health treatment.
Id. (emphasis added); see also■ Sent. Hr’g at 56:23-57:16.
According to Dr. Bardey, the treatment E.L. is actively participating in at QCFC would further reduce any chance of him re-offending, particularly because he is cooperating:
A. ... I was impressed by [E.L.’s] commitment to treatment. And during the testimony of the prior witness, we heard details about the type of treatment that' he’s undergoing, the nature of the groups, the topics discussed. We heard about his involvement, his commitment, his compli-aneé, his level of participation. There was some talk of the kind of arc of his response to the treatment, ivhich taken all together, in my opinion, are helpful in reducing the risk of re-offending by improving his degree of insight in terms of- the underlying criminal behavior, in terms of developing tools and techniques to avoid situations that could put him at risk or put the community at risk. So I was impressed with what I heard in terms of doing exactly what I mentioned in the report, which is intervention that would further mitigate the risk.
Q. So the treatment that [E.L. is] receiving at Queens Counseling For Change, is that the kind of treatment that you anticipated would result in a ' reduction of risk?
A. Yes.
Sent. Hr’g at 110:4-22 (emphasis added); see also id. at 67:24-68:1 (“I think his risk is very small and I think ... further treatment like what he’s getting now even reduces that further.”), 109:14-18 .(“I think his active involvement in weeks and weeks of treatment, both individual treatment for his underlying psychological issues as well as the specific sex offender treatment, have only further mitigated the risk of recidivism-in [E.L.].”),
Particularly useful to the sentencing judge was Dr. Bardey’s conclusion that an incarceratóry ■ sentence would disrupt defendant’s'family and his treatment progress, increasing the chance of recidivism:
Q. And given your wide range of expertise, do you foresee any harm that could happen to [E.L.’s] treatment if he were incarcerated versus if he was continued in treatment? If there was a break in treatment through incarceration versus simply being allowed to continue with treatment?
A. Well, I think if the eye is on the long-term in terms of helping [E.L.] completely understand what caused him to engage in this behavior and to prevent him from ever engaging [in] it again, I don’t think incarceration would help with that. I think it would actually be harmful in terms of the significant disruption it' would cause to his family and to his children, which would then further isolate him socially, probably worsen his depression . and anxiety, which could be then ultimately aggravating factors in raising the chance of recidivism.
Id. at 58:15-59:8 (emphasis added).
2. Larry Menzie, LCSW
Larry Menzie, director of QCFC, also testified at defendant’s sentencing hearing. Mr. Menzie holds a bachelor’s degree in social work from Molloy College and a master’s degree in social work from Columbia University. See id. at 6:5-7. He is on the executive board of the New York State Association for the Treatment of Sexual Abusers and is president of the New York State Alliance for Sex Offender Providers. Id. at 7:5-9. Mr. Menzie testified that his organization is “one of the largest [treatment] providers in the state,” explaining that it “provide[s] treatment to about 90 percent of anyone in Queens County who has been either accused or adjudicated for a sex offense, whether they are on parole, probation, court supervision, family court supervision, or dealing with the foster care system.” Id. at 6:22-7:2.
Defendant attends weekly group therapy sessions at QCFC run by a licensed clinical social worker with some twenty-five years of social work experience and long familiarity with the treatment of sex offenders. See id. at 7:19-23. Mr. Menzie holds weekly meetings with E.L.’s treating therapist and also occasionally meets with E.L. on an individual basis. See id. at 11:13-20.
According to Mr. Menzie’s testimony, the goal of treatment “is to change the behavior, have clients understand their behavior, create safety plans, and help them to engage in their safety plans.” See id. at 8:2-4. Treatment normally lasts about two years. Id. at 8:7-8.
At the time of sentencing, defendant had attended about 40 sessions out of the 104 needed to complete the program. See id. at 7:16-17, 13:2-4. The QCFC Report notes defendant’s continued active positive participation:
[E.L.] presents as highly motivated towards treatment, less verbally impulsive and responds well to re-direction. He appears to understand material, appropriately brings questions or concerns to visits for counsel and feedback, reports using material in daily life, and reports having increased awareness of the effects of his actions on others. Client continues to focus on treatment goals related to: thinking patterns, increasing impulse control and judgment under stress, identifying high risk situations, and insight into actions. Client is assuming financial responsibility and is attending as scheduled.
QCFC Report (emphasis added).
According to Mr. Menzie, defendant has continued to improve throughout the course of therapy. See Sent. Hr’g at 15:6-8 (“We continued to see improvement. We have not really experienced a period with [E.L.] where we have seen a slide back.”).
B. Social Worker
Vivianne Guevara, the Director of Client and Mitigation Services at the Federal Defenders of New York, Eastern Division, carried out an assessment of E.L.’s family. It consisted of “visiting with the family, interviewing different family members, and generally observing the family interact.” Id. at 112:6-8. Ms. Guevara holds a master’s degree in social work from Columbia University. Id. at 111:24-112:1. She submitted a report and testified at the sentencing hearing. See Vivianne Guevara Family Assessment, Mar. 22, 2016, ECF No. 37-1 (“Guevara Report”); Sent. Hr’g at 111:13-121:25.
Ms. Guevara conducted two home visits with E.L. and his family in Stroudsburg, Pennsylvania. She first met with the entire family for a two-and-a-half-hour session, and then, two days later, met with the family without defendant for four hours. See Guevara Report at 1. She observed the children interact with and without then-father, as well as engage with other family members and in outside activities such as soccer and community events. See Sent. Hr’g at 112:22-113:10. Ms. Guevara described the -importance of observing the children in family interactions in order “to see if there’s a difference or what kind of behaviors they display when interacting with other people.” Id, at 113:18-19.
She reported observing a loving and close-knit family. See id. at 113:25-114:13. E.L. is the sole financial provider. Guevara Report at 1-2. His wife focuses on raising the couple’s two nine year old boys and running the household. Id. Ms. Guevara observed a close relationship between defendant and his children, who rely heavily on their father for physical and emotional support:
[E.L.] is a very supportive father and connects with his children on an emotional level. The children rely on their father for social support and guidance in their path from boyhood to manhood. ... [E.L.’s] children are affectionate towards their father and their obvious bond is expressed through respectful conversations and a willingness to share positive experiences and joyful memories. [E.L.] contributes financially to the family but also provides parental guidance; he is a role model to his sons, his contributions to his sons’ wellbeing and upbringing are immeasurable.
Id. at 3 (emphasis added); see also Sent. Hr’g at 117:14-16 (“[E.L.] is definitely the father figure- in the family. The boys look to him for that guidance and support. It was evident when I was there, that he is integral in this family.”). She testified that nothing she observed raised concerns about the relationship between E.L. and his children:
Q. In your observations, was there anything that you observed that gave you pause or concern about the relationship between [E.L.] and his children?
A. No. There was no cause for concern for the relationship. He has a very loving relationship with his boys. They treat him with respect, they speak to him in a very playful but also respectful manner, and the interaction seems very appropriate and the attachment very appropriate.
Sent. Hr’g at 120:11-18 (emphasis added).
Ms. Guevara concluded that the family would be seriously adversely impacted if defendant were to be sentenced to a term of incarceration:
[E.L.’s] financial and parental contributions to the ... household are vital to this family’s survival; the family literally depends on [E.L.] for the basic needs of shelter, food, and clothing. [E.L.’s] social and emotional contributions as a father are expected by his two sons and then-absence would negatively impact the children’s emotional, social, and cognitive development. It is evident [E.L.’s] strong family structure is a protective factor that has helped him remain free of incidents while on pretrial release, and that will ensure his compliance with any future requirements of supervision. ... The most beneficial outcome ... will be to keep the family together.
Guevara Report at 5 (emphasis added); see also Sent. Hr’g at 119:11-15 (“I definitely think that' incarceration would fragment this family, primarily financially, at first, but then the boys would just—I mean, I don’t foresee anything positive happening from it. I think they would suffer immensely.”) (emphasis added).
C. Wife
E.L.’s wife testified at his sentencing hearing. She spoke of the loving relationship that unites them and their children, and the heavy financial and emotional burden that a prison term would place on their family. See Sent. Hr’g at 122:12-129:14.
IV. Sentence Imposed
Defendant was sentenced on March 23, 2016. Before sentencing, he affirmed his guilty plea. Id. at 135:18-136:12.
The total offense level under the United States Sentencing Guidelines (“Guidelines”) is 24, with the lowest possible criminal history category of I. PSR at ¶¶ 15-33, 64. This yields a sentencing range of 51 to 63 months of imprisonment. Id. at ¶ 64. The parties did not contest these calculations. See Sent. Hr’g at 138:11-23. Following a detailed analysis of defendant and the instant offense, the Probation Department recommended five years of probation with no incarceration. See U.S. Probation Department Sentencing ■ Recommendation, Feb. 9,2016 (sealed).
Defendant was sentenced to five years of probation. Conditions of supervision were outlined in detail in Court Exhibit 9 at the sentencing hearing. Nee Sent. Hr’g at 155:19-158:11; Ct. Ex. 9 (Excerpt from U.S. Probation Department Sentencing Recommendation). They include: obligations regarding the disclosure of financial records; sex offender registration; participation in mental health treatment programs; polygraph examinations;' limitations on use of the Internet and other electronic devices; monitoring of defendant’s Internet activities; prohibition on the- possession of firearms; agreement to submit to searches of home and property by a Probation officer and to respond positively to Probation’s order's. See Sent. Hr’g at 155:19-158:1.
Defendant is prohibited from associating with any children under eighteen unless a responsible adult is present; this requirement does not- apply to his own children. Id. at 156:21-157:6. He is currently employed as a computer programmer; he is allowed to use a computer for business purposes. See id. at 156:6-20. No restrictions are imposed on defendant traveling from Brooklyn, where he works, to and from Pennsylvania, where his wife and children reside. See id. at 155:19-158:11. This is a non-Guidelines sentence. .
Since defendant lacked sufficient assets to pay a fine, none was levied. See id. at 140:13-15. A $100 special assessment was imposed. Id. at 140:23-24. Forfeiture of defendant’s external hard drive and laptop was ordered. See Order of Forfeiture, Mar. 23, 2016, ECF No. 41.
'One victim was identified for purposes of restitution. See Sent. Hr’g at 149:1-4. At the time of sentencing, the government was attempting to collect further information from the victim. See id. at 131:8-14. The parties agreed to stipulate to a restitution amount and submit the stipulation within 90 days of the sentencing hearing. See id. at 131:18-132:6.
V. Sentencing Law
A. Discretion of Sentencing Judge
A high degree of discretion is possessed by the sentencing judge when determining appropriate punishment. See, e.g., United States v. Cavera, 550 F.3d 180, 188 (2d Cir.2008) (en banc) (“A sentencing judge has very wide latitude to decide the proper degree of punishment for an individual offender and a particular crime.”). It is the sentencing court that “is in the best position to judge the appropriateness of a- sentencing departure in light of the defendant’s overall history and character, his remorse or lack of it, and other factors bearing on the sentence to be imposed.” United States v. Crowley, 318 F.3d 401, 421 (2d Cir.2003); see also D.M., 942 F.Supp.2d at 341.
B. Applicable Statute
■ Defendant pled guilty to possession of child pornography acquired through a computer. The statute reads:
Any person who ... knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce .... by any means including by computer, if—(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section.
No statutory mandatory minimum term of imprisonment is applicable. See 18 U.S.C. § 2252(b)(2). The maximum prison term is ten years, Id.; PSR at ¶ 63. Defendant is subject to a minimum term of supervised release of five years. 18 U.S.C. § 3583(k); PSR at ¶ 65.
In the absence of a statutory mandatory minimum sentence, a district court must consider a variety of traditional factors when determining - the appropriate punishment. Justice Stevens in dissent summarized these considerations: “before guideline sentencing became so prevalent[,] ... sentencing judges wisely employed a proportionality principle that took into account all of the justifications for punishment—namely, deterrence, incapacitation, retribution, and rehabilitation.” Ewing v. California, 538 U.S. 11, 34-35, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003).
C. Advisory Nature of the Sentencing Guidelines
A district court must determine the applicable sentencing range pursuant to the Guidelines. See Dorvee, 616 F.3d at 180 (citing Gall, 552 U.S. at 49, 128 S.Ct. 586). Nonetheless, in United States v. Booker, the Supreme Court determined that the Guidelines are advisory only. Booker, 543 U.S. at 245, 264, 125 S.Ct. 738. Although no longer mandatory, the Guidelines’ sentencing ranges continue to function as “the starting point and the initial benchmark” for sentencing proceedings. Gall, 552 U.S. at 46, 49, 128 S.Ct. 586 (noting that the Guidelines are presumed to be “the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions”). The Guidelines must be given “respectful consideration” by the sentencing court. See Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (internal citations omitted).
1. Section 3553(a) Factors
After consulting the Guidelines, a sentencing court performs an “individualized assessment” of the situation. Gall, 552 U.S. at 50, 128 S.Ct. 586. This analysis is guided by “[r]easonableness” and an “individualized application of the statutory sentencing factors” listed in section 3553(a) of the United States Code, title 18. See Dorvee, 616 F.3d at 184.(citing Gall, 552 U.S. at 46-47, 128 S.Ct. 586); Kimbrough, 552 U.S. at 113, 128 S.Ct. 558 (Scalia, J., concurring) (“[T]he district court is free to make its own reasonable application of the § 3553(a) factors, and to reject (after due consideration) the advice of the Guidelines”). These are as follows:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law; and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established [by the Guidelines;]
(5) any pertinent policy statements [issued by the Sentencing Commission;]
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
Pursuant to the “parsimony clause” in section 3553(a), a court should “impose a sentence sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a); see also Dorvee, 616 F.3d at 182 (internal citations omitted). In view of the excessive incarceration rates in the recent past and their unnecessary, deleterious effects on individuals sentenced, their families, society and our economy, frugality in incarceration is prized. See, e.g., Nat’l Res. Council of the Nat’l Academies, The Growth of Incarceration in the United States, Exploring Games and Consequences, 8 (2014) (“Parsimony: the period of confinement should be sufficient but not greater than necessary to achieve the goals of sentencing policy.”).
2. Departures Based on Disagreement with Commission Policy
A sentencing court need not follow the sentencing range suggested by the Guidelines if it disagrees with the policy it reflects. See, e.g., Spears v. United States, 555 U.S. 261, 264, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (stating that “the point of Kimbrough” was to “recogni[ze] [the] district courts’ authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case”) (emphasis in original).
The Guidelines for child pornography offenses were not supported by a Commission study; they were amended at the direction of Congress. See Dorvee, 616 F.3d at 184-86; see also United States v. Diaz, No. 11-CR-821, 2013 WL 322243, at *3 (E.D.N.Y. Jan. 28, 2013) (providing that the authority for a non-Guidelines sentence “is at its greatest when the offense Guideline at issue is not the product of the Commission’s empirical analysis and technical expertise”). The Commission has sought—but has not been granted— authority from Congress to amend the current child pornography provisions to make them more appropriate. See U.S. Sentencing Comm’n, Federal Child Pornography Offenses (Dec. 2012), at 322 (“[T]he Commission believes that Congress should enact legislation providing the Commission with express authority to amend the current guideline provisions that were promulgated pursuant to specific congressional directives or legislation directly amending the guidelines.”); see also Dorvee, 616 F.3d at 185 (detailing the Commission’s opposition to Congressionally mandated changes).
3. Statement of Reasons Required
A sentencing court shall “state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). If the sentence is not of the kind prescribed by, or is outside the range of, the Guidelines referred to in section 3553(a)(4), the court shall indicate the specific reasons for imposing a sentence different from the Guidelines. 18 U.S.C. § 3553(c)(2). These “reasons must also be stated with specificity in a statement of reasons form.” Id. Even though, pursuant to Booker, the Guidelines are no longer mandatory, the sentencing court must still adhere to the requirements of section 3553(c)(2). United States v. Jones, 460 F.3d 191, 196-97 (2d Cir.2006).
The sentencing court’s written statement of reasons shall be “a simple, fact-specific statement explaining why the Guidelines range did not account for a specific factor or factors under § 3553(a).” United States v. Rattoballi, 452 F.3d 127, 138 (2d Cir.2006), abrogated in part on other grounds by Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). A statement should demonstrate that the court “considered the parties’ arguments and that it has a reasoned basis for exercising its own legal decisionmaking authority.” Camera, 550 F.3d at 193 (quoting Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)) (internal alterations and quotation marks omitted).
D. Restitution
Pursuant to section 2259 of title 18, victims of certain child exploitation offenses, including possession of child pornography, are entitled to mandatory restitution. The order of restitution “shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim’s losses.” 18 U.S.C. §■ 2259(b)(1). This includes:
[A]ny costs incurred by the victim for: (A) medical services relating to physical, psychiatric, or psychological care; (B) physical and occupational therapy or rehabilitation; (C) necessary transportation, temporary housing, and child care expenses; (D) lost income; (E) attorney’s fees, as well as other costs incurred; and (F) any other losses suffered by the victim as a proximate result of the offense. .
In Paroline v. United States, the Supreme Court outlined how to' determine the proper amount of restitution that “a possessor of child pornography must pay to the victim whose childhood abuse appears in the pornographic materials possessed.” Paroline v. United States, — U.S. —, 134 S.Ct. 1710, 1716, 188 L.Ed.2d 714 (2014). The Court held that “[r]estitution is ... proper under § 2259 only to the extent the defendant’s offense proximately caused a victim’s losses.” Id. at 1722. In a case in which a defendant possesses images of a victim and the
victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant,] ... a court applying § 2259 should order, restitution in an amount that comports with the defendant’s relative role in the ccmsal process that underlies the victim’s general losses.
Id. at 1727 (emphasis added).
The Paroline defendant possessed two images of the victim seeking restitution; he was one of potentially thousands of people possessing her images. Although any award should not be “a token or nominal amount,” the Court declared that in such instances restitution “would not be severe ... given the nature of the causal connection between the conduct of a- possessor like Paroline and the entirety, of the victim’s general losses from the trade in her images, which are the product of the acts of thousands of offenders.” Id. (emphasis added).
In directing how a restitution award'should be calculated, the Court concluded that “[t]his cannot be a precise mathematical inquiry and involves the use of discretion and sound judgment.” Id. at 1728. A court should “assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.” Id. at 1727-28. As a starting point, district courts should “determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images,” and “then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant’s conduct in producing those losses.” Id. at 1728. District courts could take into consideration a variety of factors, including:
[T]he number of past criminal defendants found to have contributed to the ■victim’s general losses; reasonable predictions of the number of‘future offenders likely tb be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s causal role.
Id.
The Court cautioned that “[t]hese factors need not be converted into, a rigid formula, especially if doing so would result in trivial restitution orders.” Id. Rather, the factors are to serve as “rough guideposts for determining an amount that fits the offense.” Id.
VI, Application of Law to Facts
A, Guidelines Sentencing Range
The applicable Guidelines offense level is 24, with no criminal history. This yields a sentencing range of 51 to 63 months in prison. The offense level was calculated as follows:
• Base offense level of 18 pursuant to U.S.S.G. § 2G2.2;
• Two-level enhancement because the material involved a prepubescent minor or a minor who had not attained the age of 12 years old, pursuant to U.S.S.G. § 2G2.2(b)(2);
• Two-level enhancement because the offense involved the use of a computer, pursuant to U.S.S.G. § 2G2.2(b)(6);
• Five-level enhancement because the offense involved at least 600 images, pursuant to U.S.S.G. § 2G2.2(b)(7)(D);
• Two-level reduction because defendant clearly demonstrated acceptance of responsibility for the offense, pursuant to U.S.S.G. § 3El.l(a);
• One-level reduction because the government was informed in a timely manner of defendant’s intention to plead guilty, pursuant to U.S.S.G. § 3El.l(b).
PSR at ¶¶ 14-33. The parties did not object to this calculation. See Sent. Hr’g at 138:11-13.
B. Analysis of Section 3553(a) Factors
A sentencing court is required to carry out an individualized assessment in order to reach a sentence that is “sufficient, but not greater than necessary, to comply” with the requirements of section 3553(a). See 18 U.S.C. § 3553(a).
1. Circumstances of Offense; Characteristics of Defendant
The individual circumstances of the case were analyzed, including the nature of the offense and the history and characteristics of the defendant. A non-incareeratory sentence is appropriate.
The offense conduct is the possession of child pornography. After turning to online pornography during a period of depression and loneliness caused by, among other factors, separation from family, unemployment, and feelings of abandonment and rejection, defendant collected images of underage girls posing naked—engaging in what is known as1 “lascivious display.” See, e.g., Sent. Hr’g at 145:24-146:2. The images did not depict sexual acts or violence; there was no bondage, and no objects were used. The.images downloaded by defendant fall into a narrow range, suggesting that his behavior bears a closer link to his obsessive compulsive disorder than to any pedophilic tendencies. See id. at 56:2-22 (Dr. Bardey); see also supra Part III.A.1,
There is no evidence of defendant ever trying to touch a child, or talking with a minor or with other individuals interested in child pornography. See, e.g., Bardey Report at 16-18; Sent. Hr’g at 145:24-146:2 (defendant’s counsel explaining that “[t]his is a serious offense, but, again, this is a very atypical offense where there is simply photographs of lascivious display, no videos, no endorsement of chat rooms, no child contact in any way shape or form
Defendant has been battling for a large part of his life with severe anxiety, depression, and OCD. He was born with a number of physical disabilities that continue to adversely affect him. His parents were alcoholics and his mother was abusive. Despite these handicaps, defendant was able to pursue higher education, build a family, and provide for his wife and children. His wife and Ms. Guevara, the investigating social worker, testified to the significant support E.-L. provides to his family—from being the sole financial provider, to offering guidance to his boys as they grow up. An incarceratory sentence would severely disrupt a wholesome family.
E.L. is deeply remorseful for his actions. In a letter to the court, which he read at sentencing, he stated that he understands what he did was wrong. He asked to be allowed to continue treatment:
I want my children to remember me as a loving and caring parent to them. Besides my wife and children, my in-laws also rely on me to help them understand how to live inside the United States because they do not read or write English; Currently, my wife and I are very active in seeking treatment for my father-in-law’s bladder cancer.'
I do not pretend. I know that I did wrong things to calm my anxious moods, depression and loneliness in1 the past. I have never been in trouble in my life before this arrest. I never physically hurt any adult or child in my life. I always voted and pay my taxes on time. I would like you to please give me a chance to continue my psychotherapy treatment'in Queens Center for Change so I can keep my current job and learn to become a better man, father, and husband.
Id. at 150:24-151:12 (emphasis added).
Since his arrest, E.L. has been actively engaged in both individual and group therapy, including treatment designed specifically for sex: offenders. Mr. Menzie testified to E.L.’s engagement and progress.
See supra Part III.A.2. Ms. Voskoboynik, E.L.’s treating psychotherapist, stated that
[h]e has been making a very good progress during the cognitive-behavioral ... sessions over the last few months. Overall, he has made some progress in improving his newly coping mechanisms and stress reduction techniques of dealing with his emotional condition. He needs to continue treatment to make sure that his overall functioning and emotional condition will remain stable.
Voskoboynik Letter (emphasis added).
Dr. Bardey agreed that allowing defendant to continue his current treatment would be beneficial to him and his family, and would lower any already low risk of re-offense. See Bardey Report at 18; Sent. Hr’g at 56:23-57:16; see also supra Part III.A.l.d.
A sentence of probation with strict conditions of supervision will allow defendant to continue his treatment and provide the necessary financial, social and emotional support to his family.
2. Purposes of Sentencing
Pursuant to section 3553(a)(2) of the United States Code, title 18, any sentence imposed must: reflect the seriousness of the offense; promote respect for the law; provide just punishment for the offense; afford adequate deterrence to criminal conduct; protect the public from further crimes of the defendant; and provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective. manner. 18 U.S.C. § 3553(a)(2); see also D.M., 942 F.Supp.2d at 345-46. The likelihood that defendant “will engage in future criminal conduct [is] a central factor that district courts mpst assess when imposing [a] sentence.”