Citations
- 198 F. Supp. 3d 18
Full opinion text
JUDGMENT, MEMORANDUM AND ORDER ON SENTENCING
Jack B. Weinstein, Senior United States District Judge
JACK B. WEINSTEIN, Senior United States District Judge:
I. Introduction.. .23
II. Factual Background.. .24
A. Abuse and Neglect by Biological Parents.. .24
B. Abuse and Trauma in First Foster Family.. .24
C. Abuse and Trauma in Second Foster Family.. .25
D. Adoption.. .26
E. Sexual History and Addiction to Child Pornography., .27
F. State Incarceration.. .27
1. Repeated Rape... 27
2. Mental Health and Suicide Attempts. . .28
G. Release from State Custody.. .28
III. Instant Offenses... 30
A. FBI Investigation
1. Possession of Child Pornography. . .30
2. Fictitious Bus Company.. ,31
B. Arrest.. .32
C. Sexual Exploitation of a Child... 32
D. Plea Negotiations and Trial Preparation ... 33
E. Guilty Plea.. .33
F. Metropolitan Detention Center (“MDC”) Incarceration.. .33
1. Risk of Suicide... 33
2. Disciplinary Issues... 35
3. Lack of Family Support.. .36
G. Sentencing.. .37
1. Offense Level, Category, and Sentencing Guidelines Range... 37
2. Victim Impact.. .37
3. Medical and Psychological Evaluations .,. 38
a) Dr. Richard B. Krueger, M.D.... 38
b) Dr. Robert Prentky, Ph.D.... 42
c) Dr. Barry Rosenfeld, Ph.D... .44
4. Sentencing Hearing of June 2015...45
5. Defendant’s July 2015 Letter to Court.. .46
H. Evidentiary Hearings... 47
I. Guilty Plea.. .48
2. Witness Testimony.. .50
a) Medical Experts... 50
b) Bureau of Prisons (“BOP”) Experts ... 51
c) Additional Witnesses... 53
I. Amicus Curiae Briefs... 54
IV. Sentencing Considerations... 55
A. Risk of Harm to Defendant While in BOP Custody.. .56
1. Designation to Medium or High Security Facility.. .56
2. Prison Rape Elimination Act (“PREA”). - .60
a) BOP PREA Program Statement ... 60
b) BOP PREA Intake Screening. . .62
3. Limitations of PREA.. .64
4. Characteristics Rendering Defendant Highly Vulnerable... 66
a) Previous Sexual Victimization ... 69
b) Sexual Orientation... 70
c) Mental Illness... 71
d) Sex Offender Status... 73
B. BOP’s Use of Solitary Confinement to Protect and Punish... 74
1. Special Housing Units (“SHUs”).. .76
a) Disciplinary Segregation... 76
b) Administrative Detention... 76
c) Protective Custody.. .78
d) BOP Tracking of Inmates in SHU...85
2. Lack of Alternatives to Protective Custody...87
a) Transfer to Different Housing Unit... 89
b) Transfer to Different Facility. . .90
3. Effects of Solitary Confinement ... 90
a) SHU Syndrome... 90
b) Effects on Vulnerable Inmates ... 93
c) Post-SHU Syndrome... 93
d) Destructive Effects of Isolation on Defendant.. .94
C. FMC Devens; BOP Program for Sex Offenders... 94
1. Sex Offender Management Program (“SOMP”).. .95
2. Residential Sex Offender Treatment Program (“SOTP-R”).. .96
3. PREA Compliance... 98
D. Risk of Harm Posed by Defendant to the Public... 99
1. Pedophilia and Pornography Addiction ... 99
2. Risk Assessment.. .100
3. Significance of Fantasies... 103
a) Letter Concerning Sexual Fantasy with Young Boy... 104
b) Fictitious Bus Company Applications ...105
4. Amenability to Treatment... 106
a) Defendant’s Child Pornography Addiction... 106
b) Defendant’s Empathy.. .108
5. Effects of Incarceration on Defendant’s Recidivism... Ill
a) Empirical Research... Ill
b) Expert Testimony.. .113
6. Proposed Treatment Plan... 117
a) Individual and Group Therapy... 117
b) Outside Controls... 119
c) Educational Training.. .119
d) Outside Support.. .119
E. Community Reentry Plan.. .119
V. Law.125
A. Statutory Mandatory Minimum ...125
B. Sentencing Commission Guidelines ...125
C. Restitution... 126
D. Eighth Amendment.. .127
1. Proportionality Analysis Applicable to Sentencing.. .128
a) Length of Sentence... 130
b) Mandatory Minimum Sentences ... 180
2. Impact of Conditions of Incarceration on Sentence Proportionality...133 :
VI. Application of Law to Facts... 137
A. Fifteen Year Sentence If Properly Carried Out Not Unconstitutional... 138
1. Gravity of Offense... 139
2. Severity of Sentence... 140
3. MDC and Pre-Release Halfway
House... 143
B. Guidelines Excessive... 144
VII. Conclusion... 146
A. Sentencing Recommendations to BOP... 146
B. Unconstitutionality Should Court’s Recommendations Not Be Followed. . .147
C. Sentence Imposed.. .148
I. Introduction
Defendant is guilty of serious crimes: possession of child pornography and sexual exploitation of a child. A fifteen year minimum term of incarceration is mandated by statute.
The long term required, if served under the routine harsh and dangerous prison conditions D.W. faces, would be destructive to him, dangerous to society, and unconstitutional.
Under prevailing prison conditions, such a long term of incarceration would deny D.W.—with his severe mental problems— any meaningful opportunity to obtain needed medical treatment. It would likely expose him—gay, and previously repeatedly raped—to physical and sexual abuse. It would greatly increase the risk of suicide, given his repeated attempts at taking his own life. To protect him, it would probably include long, debilitating protective solitary confinement. Predictably, D.W. would be released from prison—if he survived— in more danger of recidivism than if he had served a shorter sentence, thus presenting a greater danger to society. Appropriately carried out, however, a sentence of fifteen years can be structured to avoid cruel prison conditions for this defendant, thereby avoiding unconstitutionality.
The trial judge cannot close his or her eyes to the conditions a particular defendant being sentenced will necessarily experience in prison. When a long term is fixed by statute, the prison environment must be considered by the sentencing judge in estimating total harm and benefits to prisoner and society—a utilitarian as well as a compassionate exercise.
Ours is a Madisonian government of independent departments—legislative, executive and judicial. To effectively carry out the people’s business these divisions of government must sometimes assist each other. Respectful cooperation is often required. The administration of criminal justice is an example: investigators, prosecutors, defense counsel, courts, prisons, and social assistance agencies must work together to protect the public and help the adjudicated criminal to a life free of crime. So, while a judge, in general, may lack the power on sentencing to direct the operation of federal prisons in an individual case—a responsibility of the Department of Justice—he or she must properly and reasonably recommend (assuming the recommendation will be given effect) how a person with special vulnerabilities should be treated in prison.
Sentencing is not merely an announcement of judgment. It is a prediction and assumption of how the sentence will be carried out.
In D.W.’s case the judge must include in his sentence a strong recommendation on how the federal prison system must treat him. The judge assumes that the Department of Justice will respect these specific recommendations.
Only defendant’s initials are used in this memorandum because, were his full name published, the likelihood of his being attacked in prison would increase.
II. Factual Background
A. Abuse and Neglect by Biological Parents
Defendant is a twenty-seven year old male born in Brooklyn, New York. See Presentence Investigation Report (“PSR”) at ¶ 81.
He has lost contact with his biological parents. He was separated from them when he was five years old. They lost custody as a result of their drug use and neglect. Id. In February 1996, the Kings County Family Court terminated their parental rights. See Def.’s Post-Hr’g Mem. of Points and Authorities, Feb. 23, 2016, ECF No. 130 (“Def.’s Post-Hr’g Mem.”), Ex. 13 (Forestdale Adoption Homestudy) at 4. He has not seen them since. PSR at ¶ 81.
As accurately stated by defense counsel:
The first four years of [D.W.’s] life are a black hole. What we do know is that he and his siblings were removed from his parents’ custody due to his mother’s crack addiction, that he had huge amounts of lead in his system, that he likely suffered from fetal alcohol [and drug] syndrome, and that his intellectual functioning was severely impaired.
Def.’s Sentencing Mem., June 8, 2015, ECF No. 69 (“Def.’s Sentencing Mem.”) at 4 (emphasis added).
B. Abuse and Trauma in First Foster Family
At age four, defendant was placed in his first foster care home. A psychological assessment conducted when he was five revealed diminished mental capacity and other symptoms identified in children exposed to drugs while in útero. PSR at ¶ 81. Lead exposure as a child increased adverse effects on defendant’s mentation. Cf. G.M.M. ex rel. Hernandez-Adams v. Kimpson, 116 F.Supp.3d 126, 129-130 (E.D.N.Y.2015) (describing the harm caused to young children by lead and the disproportionate exposure of low-income and minority families). Symptoms included “tiny stature, difficulties with language acquisition and comprehension of concepts, articulation problems, etc.” Def.’s Post-Hr’g Mem., Ex. 12 (Joan Healy, Ph.D., Psychological Assessment Report for [D.W.], Jan. 8,1994) at 5.
The psychologist who performed the early evaluation, Dr. Joan Healy, noted that D.W. defecated in his bed and smeared feces on his face and in his hair. Id. According to her, this could be interpreted as a “gesture of despair in a child with plenty of reasons to feel that way.” Id. (emphasis added). Dr. Healy observed that defendant suffered the traumatic consequences of his early separation from his parents:
[His] sad and traumatic past is very much “with” him. His limited intelligence makes things worse, and he has trouble figuring out exactly what’s happening to him and his siblings, and why. Fantasies tend to be starkly realistic, with “cops taking the kids” away from one mother and giving them to another.
Defendant was described as a “retarded and very young child with a deprived and emotionally traumatized background,” living “on the edge of his world” in a “bunker of fear and depression.” Id. She called his self-esteem “abysmal” and determined that he was “a deeply traumatized child ... who lives on the edge, and can easily slip over, if additional stress is added.” Id. at 6. She concluded that he needed “calm and stable” surroundings in order to overcome his trauma:
This child needs school and home environments that are calm and stable, consistent in their requirements of him, and coordinated in their ideas about what his behavior should be. This child has a limited mind, and the simpler things are at this age the more he’ll be able to absorb. This is not to say that he doesn’t know what’s going on—he is all too well aware of the environment and trauma he’s been exposed to, and his depression, far from being pathological, is a “normal” reaction to it. Different, more affirming experiences will hopefully bring him out of his present dyspho-ria.
Id. (emphasis added). D.W.’s foster placements by the City did not provide the stability and tranquility he required.
At his first foster home, defendant was repeatedly raped. PSR at ¶88. His anus was penetrated. Id. His genitalia and mouth were violated. Id. Physically beaten by his foster brother when he refused to drink urine out of a bottle, he suffered a broken arm, a final signal to the City’s child welfare services that he needed to be removed from that home. Id.
When interviewed by a psychologist about his first foster home, he reported: “The kid who broke my arm also forced his penis into my mouth and would say ‘suck it like a pacifier, you baby.’ ” Id. Two other children living in the foster home reported stories of similar abuse; their foster brother “would wake them in the middle of the night, urinate in their mouths, make them take off their pants, and [tell] them to ‘lick [his] butt.’” Id.-, see also Def.’s Post-Hr’g Mem., Ex. 14 (Accident Report of Feb. 14, 1994).
Eventually, due to the children’s reports of abuse, D.W. was transferred out of this foster family and placed with another one. See Def.’s Post-Hr’g Mem., Ex. 15 (Social Worker Report of Nov. 8,1993).
C. Abuse and Trauma in Second Foster Family
In a psychiatric assessment carried out shortly after his placement with a second foster family, D.W. was reported as functioning below his age level, and as having suffered from “severe emotional deprivation.” Defi’s Post-Hr’g Mem., Ex. 17 (Psychiatric Evaluation of D.W. by Dr. Flora F. Morente, M.D., Sept. 7,1994) (emphasis added). At age six, he was described by an evaluating psychologist as experiencing strong feelings of rejection and abandonment:
[D.W.] was found to be restless, having difficulty in relaxing, hyperactive, “always on the go”, nervous, jittery and fidgety. [D.W.’s] meager projective record is suggestive of a child who experiences himself as deprived, rejected and damaged. He seems to lack ego functions related to object constancy and the ability to self-soothe, leading him to often experience rageful and depressive effects in a direct, overwhelming manner. Generally, he does not see himself as being protected by others but rather views himself as alone, isolated and abandoned.
Def.’s Post-Hr’g Mem., Ex. 18 (Psychological Examination of D.W. by Randolph J. Maisky, Ph.D., Oct. 1994) at 5 (emphasis added).
The abuse continued. At this second foster placement, defendant was repeatedly raped. PSR at ¶ 84. He described his sexual abuse at the hands of his foster father as “penetration] ... with his penis ‘over and over.’ ” Id.
Child welfare eventually removed him from this second foster home. The six-year-old had fled to a school bus in his underwear, clothing in hand, after being warned by his foster mother that if he was late to school she “would beat him all day.” Id.
D. Adoption
When he was about six years old, in 1995, D.W. was placed in a foster family of “lower socioeconomic circumstances.” Id. at ¶85. He was legally adopted by the family in 1998. Id. Defendant described the family as “strict but nice,” with loving parents. Id.
At age seven, a psychiatric evaluation again determined his self-esteem to be “poor.” Defl’s Post-Hr’g Mem., Ex. 19 (Psychiatric Evaluation of D.W. by Dr. Flora F. Morente, M.D., June 30, 1996) at 2. His intelligence was described as “borderline to low average;” he met the criteria for Attention Deficit Hyperactivity Disorder (“ADHD”). Id. at 3. A psychological examination by Dr. Randolph J. Maisky, Ph.D. when D.W. was seven-and-a-half years old noted the effects of defendant’s emotional deprivation and presaged his future behavior:
It appears that while [D.W.] identifies with being vulnerable, fragile, and at times, at the mercy of environmental influences, there also seems to be a developing identification with the aggressor. The latter seems to be, from a defensive position, stemming from fears of annihilation. His apparent polarized view of the world about him leaves him emotionality] frightened, fatigued and depressed with minimal resources to meet age appropriate developmental challenges. There appears to be a relatively high risk of [D.W.] developing more serious psychopathology.
Def.’s Post-Hr’g Mem., Ex. 23 (Psychological Examination by Dr. Randolph J. Mai-sky, Ph.D, Mar. 30, 1996) at 7 (emphasis added).
By age eight, D.W. had been diagnosed with a learning disorder, as well as ADHD. See Def.’s Post-Hr’g Mem., Ex. 10 (Psychiatric Evaluation of D.W. by Dr. Flora F. Morente, M.D., Feb. 16, 1997) at 1. Ritalin was prescribed. The effect of this “psychostimulant medication” was closely monitored. Id. Again, he was described as being of “borderline to low average” intelligence and having “poor” self-esteem. Id. at 2. Lead exposure history was noted as contributing to his ongoing problems. Id. at 3.
Between 1998 and 2007, D.W. was treated at the Far Rockaway Mental Health Clinic. See Defl’s Post-Hr’g Mem. at 9. Provided were combinations of individual, group, and family therapy, as well as medication management. Id. He was identified as having an “excessive need to please adults.” See Def.’s Post-Hr’g Mem., Ex. 24 (Far Rockaway Mental Health Clinic, Clinical Notes of Diane Nadasy, CSW, Dec. 3, 1999), Ex. 25 (Far Rockaway Mental Health Clinic, Clinical Notes of Diane Na-dasy, CSW, July 16, 1999) (stating that D.W.’s “tendency is towards pleasing adults and he may feel that this is the only way that he’ll be liked”).
Defendant attended special education classes until he graduated from Far Rock-away High School in 2007. PSR at ¶ 95. His learning disabilities prevented him from earning a regular high school diploma. Id. at ¶ 105.
While in high school, D.W. worked at menial jobs at St. John’s Episcopal Hospital in Queens through a Board of Education program that offered job training to students. See Def.’s Post-Hr’g Mem. at 10; PSR at ¶ 112.
In the fall of 2007, defendant began attending Manhattan Community College. See PSR at ¶ 106. He did not earn any credits. In May of 2008 he was placed on academic probation. Id.
He subsequently was employed as a cashier at a Best Buy store for a year and a half; he was fired for failing to accurately record tardiness. Id. at ¶ 111. He then began work as a bus monitor. Id. at ¶ 110.
D.W. suffered from periods of intense depression resulting from his inability to complete college and loss of his job at Best Buy. See Dr. Richard Krueger, Psychiatric and Risk Assessment of Defendant, June 5, 2015, ECF No. 69-1 (“Krueger Report”) at 5, attached as Ex. A to Def.’s Sentencing Mem., June 8, 2015, ECF No. 69. He reported trying to kill himself in 2007. He tried to jump in front of a car; a friend intervened and pulled him back. See Gov’t Ex. 403 (BOP Suicide Risk Assessment, Feb. 22, 2013) at 1. It does not appear that during this time his treatment addressed the severe abuse he had suffered as a young child. See Def.’s Post-Hr’g Mem. at 9-10. His adopted family was reportedly not aware of D.W.’s traumatic past until he wrote to his adoptive brother while incarcerated at the federal Metropolitan Detention Center (“MDC”) in the instant case. Id. at 10; PSR at ¶ 103.
E. Sexual History and Addiction to Child Pornography
Defendant reported that his first “crush” was at age eight on an eight year old female. See Krueger Report at 9. He told Dr. Krueger, an evaluating psychiatrist, that he considers himself bisexual. He reported that at age eleven, he began to look at, and masturbate to, images of prepubescent, pubescent and young teenaged males and females—males much more than females. He felt that he had a problem with “pornography addiction” from the age of eleven onwards, oftentimes deleting pornographic images from his computer to try and stop viewing them. Id.
He has never had a female coital partner, even though his first non-genital touching and petting was at thirteen with a thirteen-year-old girl. He had intercourse with a fifteen or sixteen year old male on one occasion when he was fourteen. Id.
F.State Incarceration
While employed as a school bus attendant in April of 2009, at age twenty, defendant was arrested. He had given “wedgies” to three young boys—that is to say he pulled their underwear up between their buttocks—and he fondled two of them. PSR at ¶¶ 70-72. He also reportedly showed these victims pictures of naked children on his cell phone. Id. at ¶ 70.
In a New York State criminal court, he pleaded guilty to two counts of sexual abuse and one count of endangering the welfare of a minor child. Id. at ¶¶ 70-72. For this crime, at age twenty-one, he was sentenced to three years in State prison. Id. at ¶¶ 70-72, 87.
1. Repeated Rape
During his State period of incarceration, from April 2009 until April 2012, defendant was repeatedly raped by other prisoners. Id. at ¶¶96, 100; Krueger Report at 5.
The first rape occurred in the shower room of the Oneida State Correctional Facility by another inmate. PSR at ¶ 96. A sixty-year old inmate “smashed [defendant’s] head against a showerhead and then raped him anally.” Krueger Report at 5. The assailant, who was attending the same sex offender treatment program as D.W,, was removed from the facility. Id. As a result of his complaint, D.W. was treated by other inmates as “an outcast.” PSR at ¶ 96.
Transferred to Auburn Correctional Facility, defendant was again assaulted and anally raped by “several individuals.” See Krueger Report at 6; PSR at ¶ 96. Fearing the usual ostracism that results from making a rape complaint in prison, defendant suffered this abuse in silence. See Krueger Report at 6; PSR at ¶96. “[Defendant] said that [the] rapes had an [adverse] effect on him. He said that he had kept thinking about them, that he had become very guarded and untrusting of anyone, and he described the development of a startle[d] response.” Krueger Report at 6.
2. Mental Health and Suicide Attempts
While in State custody, D.W. was prescribed Celexa, Paxil, and Remeron to treat depression and anxiety. See Def.’s Post-Hr’g Mem., Ex. 37 (State of New York Department of Correctional Services Treatment and Medication Records).
Repeatedly, he tried to commit suicide. He twice attempted to hang himself. See Gov’t Ex. 403 (BOP Suicide Risk Assessment, May 8, 2013) at 14 (also submitted as Def.’s Ex. KK). On at least one of these instances, he was saved by a correctional officer. See Def.’s Post-Hr’g Mem., Ex. 29 (Psychiatric Evaluation of D.W. by David Stern, M.D., May 3, 2012) at 1; Gov’t Ex. 403 (BOP Suicide Risk Assessment, Feb. 22, 2013) at 1; Gov’t Ex. 403 (BOP Suicide Risk Assessment, May 8, 2013) at 15. He stated that he then paid another inmate to “stab” or “punch” him. Instead, that person reported him. See Def.’s Post-Hr’g Mem., Ex. 29 (Psychiatric Evaluation of D.W. by David Stern, M.D., May 3, 2012) at 1; Gov’t Ex. 403 (BOP Suicide Risk Assessment, Feb. 22, 2013) at 1.
D.W. stated that, while in custody at Rikers Island, he stockpiled medications and took them all at once. He was placed on suicide watch. At Bellevue Hospital, in a hospital prison ward, he tried to cut his wrists; at Downstate Correctional Facility, he dug into his wrists and was again placed on suicide watch. Krueger Report at 7.
G. Release from State Custody
Released from State custody in April 2012, defendant moved to the Charles H. Gay Shelter for Men on Ward’s Island. PSR at ¶ 87. He was not allowed to live with his adoptive mother while on parole because of his sex offender status—a daycare center had recently opened near her home. Id. D.W. became increasingly “paranoid,” depressed, and concerned with his safety at the shelter. See Dr. Robert Prentky, Evaluation of D.W., Sept. 12, 2013, ECF No. 69-2 (“Prentky Report”) at 9, attached as Ex. B to Def.’s Sentencing Mem., June 8, 2015, ECF No. 69. He feared that other former prisoners would attack him if they found out he was a sex offender. He overheard other shelter residents calling sex offenders “pieces of shit who should be killed.” Id. at 9, 15. Defendant experienced daily anxiety attacks; he reported feeling depressed, paranoid, and afraid, a sense that had started to overwhelm him after his first rape in prison. PSR at ¶ 97.
D.W. lost the help of his adoptive family following the significant shame and embarrassment they suffered as a consequence of his State arrest. See Def.’s Post-Hr’g Mem. at 14-15; PSR at ¶ 89; see also Letter of D.W. to the Court, July 6, 2015, ECF No. 74 (describing the adverse effect on his family of his State trial). Estranged from his family and with no support network, D.W. entertained suicidal ideations upon his release from State prison. See, e.g., Def.’s Post-Hr’g Mem., Ex. 28 (GOSO Assessment, Apr. 24, 2012) at 2 (“[D.W.] presently reports suicidal ideation but has no concrete plans to take actions on his ideations.”), Ex. 29 (Psychiatric Evaluation of D.W. by David Stern, M.D., May 3, 2012) at 2 (“While [D.W.] is currently not actively suicidal, his history of impulsive suicide attempts and the continued stress of his current living situation and the stressors inherent in his transition to the community make his risk for relapse of depression or suicidal attempt higher.”); Ex. 30 (Mental Health Evaluation of D.W. by Debjani Bhowmick, NP, Aug. 6, 2012) at 1-2 (recounting that he felt that his life was over before it began and reporting past suicide attempts), Ex. 31 (D.W. Psych Note by Debjani Bhowmick, Sept. 17, 2012) at 1 (indicating that D.W. reported suicidal thoughts and lack of communication with his family), Ex. 32 (Queens Counseling for Change Sex Offender Client Summary Report, Aug. 2012) (“Parolee stated that he felt depressed and thought of suicide .... and stated that he just said it but did not mean it. However, he does admit, in the past, to being suicidal”), Ex. 42 (Queens Counseling for Change Sex Offender Client Summary Report, Jan. 2013) (noting that D.W. indicated “the following Risky Emotional States: depression, stress, abandonment, frustration, lonely, anxiety, feelings of useless, worthless, and suicidal feelings”). He reported “feeling bad about [himjself for committing [a] sex offense—especially since he himself was a victim of sexual abuse as a minor.” Def.’s Post-Hr’g Mem., Ex. 32 (Queens Counseling for Change Sex Offender Client Summary Report, Aug. 2012).
In April 2012, he walked along Grand Central Parkway with the intention of jumping in front of a car. He called his adoptive mother in what appears to have been a cry for help; she responded that she “could not deal with him anymore.” Gov’t Ex. 403 (BOP Suicide Risk Assessment, Feb. 22, 2013) at 1; Gov’t Ex. 403 (BOP Suicide Risk Assessment, May 8, 2013) at 15. Ultimately, a friend picked him up.
D.W. attended sex offender treatment— a condition of his State parole—at Queens Counseling for Change. He also received psychiatric care from St. Luke’s-Roosevelt Hospital Center and services from Getting Out and Staying Out (“GOSO”), a reentry program in New York City which provided assistance with medication and job placement. See Def.’s Post-Hr’g Mem. at 12; PSR at ¶ 97.
In an assessment carried out shortly after his release from State custody, GOSO noted defendant’s “remarkable mental health history,” including his past suicide attempts and current reports of suicidal ideation. See Def.’s Post-Hr’g Mem., Ex. 28 (GOSO Assessment, Apr. 24, 2012). He was referred to Dr. David Stern, M.D., a psychiatrist, for evaluation.
Dr. Stern reported that D.W. had been diagnosed with borderline personality disorder and adjustment disorder with depressed mood. See Def.’s Post-Hr’g Mem., Ex. 29 (Psychiatric Evaluation of D.W. by David Stem, M.D., May 3, 2012) at 1. The doctor observed that “[t]he possibility of Dissociative Identity Disorder and Borderline Personality Disorder should be considered when making a psychiatric referral.” Id. at 2. He noted that although D.W. denied a suicidal ideation or plan, he was “feeling suicidal two days prior.” Id. The doctor concluded that “[wjhile he is currently not actively suicidal, his history of impulsive suicide attempts and the continued stress of his current living situation and the stressors inherent in his transition to the community make his risk for relapse of depression or suicidal attempt higher.” Id. (emphasis added).
Celexa was prescribed for his depression, Trazodone as an anti-depressant and sedative, and Depakote to stabilize his mood. See Def.’s Post-Hrig Mem., Ex. 38 (Initial Medical Evaluation by Dr. Vani Gandhi at St. Luke’s-Roosevelt Hospital, May 15, 2012) at 2, Ex. 31 (D.W. Psych Note by Debjani Bhowmick, Sept. 17, 2012) at 1; PSR at ¶ 102. Defendant continued to report feeling depressed and experiencing suicidal thoughts. See Def.’s Post-Hrig Mem., Ex. 31 (D.W. Psych Note by Debjani Bhowmick, Sept. 17, 2012) at 1, Ex. 32 (Queens Counseling for Change Sex Offender Client Summary Report, Aug. 2012). He attended monthly counseling sessions for depression. PSR at ¶ 97.
Because of his status as a sex offender, defendant struggled to find gainful employment. Id. at ¶ 109. He started handing out flyers for an energy company, North American Power, in 2012. Id. He then volunteered for “Green Energy,” a company located on the same premises as North American Power, where he was ultimately arrested in 2013 for the instant offenses. Id.
As described below, despite engaging with the mental health support network available to him upon his release from State prison, D.W. relapsed. He downloaded, viewed and collected child pornography while on probation. According to Dr. Robert Prentky—a forensic psychologist who examined D.W. in September 2013 (see infra Part III.G.3)—the resources available to him in the community did not target his specific risk or needs:
After he was released from [State] prison, the precautionary measures instituted by society and all of the rehabilitative services available to ex-offenders failed [D.W.] by not identifying and targeting precisely the risk that he posed and what his urgent needs were.
Prentky Report at 10-11.
III. Instant Offenses
A. FBI Investigation
On February 7, 2013, an agent working for the Federal Bureau of Investigations (“FBI”) logged into a publicly available peer-to-peer file-sharing program available on the internet. PSR at ¶ 3. He observed a user, operating under the screen name “Mikemunozl,” sharing over 1,800 files, including pornographic images of children. Id. at ¶¶ 3-4. Records obtained from the file-sharing website indicated two email addresses linked to the “Mikemunzol” screen name. Id. at ¶ 6. Both addresses were traced to a “facebook.com” account registered to an individual in Far Rocka-way, New York, who shared the name and appearance of defendant. Id. The internet protocol address associated with the file-sharing activity was registered to “Golden Care,” a Queens-based business. Id. at ¶¶ 5, 8.
The FBI interviewed the owner and manager of Golden Care. Id. at ¶ 8. She informed the agents that the second floor was rented out to a company, “Green Energy,” which accessed the internet through the Golden Care router. Id. Green Energy had two employees; one was defendant. Id.
A search warrant was issued authorizing a search of the Green Energy premises. Id. at ¶ 9. D.W. was present and agreed to be interviewed. Id. He granted the agents access to his peer-to-peer file-sharing account and made oral and written admissions regarding his use of the screen name “Mikemunzol” and the trading of child pornography on the internet. Id. at ¶¶ 10-11.
1. Possession of Child Pornography
Defendant told FBI agents that he had been working without pay at Green Energy for three to four months. Id. at ¶ 12. As a condition of his State parole release, he had been denied access to computers. Id. at ¶7. Nevertheless, for about a month prior to his arrest, defendant had been using two computers at Green Energy, from which he traded child pornography. Id. at ¶¶ 10-13.
Defendant told FBI investigators that he stored child pornography on an external hard drive. He explained that he had obtained some of the child pornography on the hard drive prior to his State arrest in 2009. He had given the hard drive to a friend to keep in a safe deposit box. The friend did not know that it contained child pornography. D.W. retrieved the hard drive upon being released from State prison in April 2012. Id. at ¶¶ 13-14,16.
He informed investigators that “he had been mewing and trading child pornography since his release, and that he was addicted to child pornography.” Id. at ¶ 14 (emphasis added). When arrested he possessed at least 1,000 video files and 7,000 child pornography images on his computer. Id. at ¶ 18. Defendant admitted to his adoptive mother that he has “an addiction” to child pornography and “really needs help.” Id. at ¶ 89 (emphasis added).
2. Fictitious Bus Company
During execution of the search warrant, the FBI found several school bus routes. It appears that defendant “fantasized about being a bus driver,” and he had imagined a company called “Mike Transportation, Inc.” Id. at ¶ 17; see also Gov’t Post-Hr’g Mem. of Law in Opp’n to the Def.’s Req. for an Incarceratory Sentence Below the Statutorily-Required Mandatory Minimum, Apr. 1, 2016, ECF No. 140 (“Gov’t Opp’n Post-Hr’g Mem.”), Ex. 601 (Def.’s Fictitious Bus Company Documents) at 50-62. The defendant told the FBI that he never in fact travelled to the schools identified in the made-up routes. PSR at ¶ 17.
One of the documents retrieved by the FBI was a “questionnaire for a position as bus driver, bus escort, or bus attendant.” Id. The document included questions such as “What is your sexual orientation?; Have you or are you attracted to children in any way?; As part of security pre-screening, if you were asked to do something like give a description of your body would you?; Are you circumcised?; Are you a very hairy person?” Id.-, see also Gov’t Opp’n Post-Hr’g Mem., Ex. 501 (Def.’s Fictitious Bus Company Documents) at 51-54.
It is not clear whether the questionnaire made-up by defendant was ever used by him. See PSR at ¶ 17 (not mentioning how and if the questionnaire was used by defendant); Gov’t Sentencing Mem., June 10, 2015, ECF No. 71 (“Gov’t Sentencing Mem.”) at 5 (observing that “[t]hese materials can be interpreted different ways: perhaps the defendant was actually planning to start a bus company, or perhaps he was merely fantasizing about it. What is clear, however, is that he was using this fake bus company to lure people at his shelter to share their interest in child pornography and to provide nude photos.”).
Dr. Krueger testified that the bus company fantasy “could be consistent with a pedophilic interest pattern.” Hr’g Tr., Dec. 22, 2015, ECF No. 105, at 71:19-20; see also infra Part IV.D.3. Defendant’s counsel has posited that the incident relates to D.W.’s childhood traumatic experience and related desire to become a bus driver. See Def.’s Post-Hr’g Mem. at 7, n,5; Def.’s Reply to Gov’t Mem. in Opp’n, Apr. 26, 2016, ECF No. 149 (“Def.’s Reply to Gov’t Mem. in Opp’n”) at 18-19. Pointed out was that when D.W. was found running in his underwear to catch the school bus, it was the bus matron who comforted him. See Def.’s Post-Hr’g Mem. at 7 (“Terrified and fearing for his life, [D.W.] ran to the bus, wearing just his underwear. In this deeply vulnerable state, [D.W.] was taken into the care of the bus matron, who covered him in a jacket, comforted him, and brought him and his situation to the attention of school officials. After this incident, [D.W.] was removed from [his foster] home—he was quite literally rescued by his bus matron.”); Def.’s Reply to Gov’t Mem. in Opp’n at 19 (writing that D.W. “was reenacting, remembering, holding onto, absorbing and reabsorbing a rare act of human kindness in a dark time” and that his “creation of a bus company has to do with him processing his past” rather than amounting to “evidence of any serious deceit or an intent to abuse children”); see also PSR at ¶ 84; Prentky Report at 5-6.
Several of D.W.’s childhood medical and psychological evaluations indicate a consistent and recurring desire to become a school bus driver. See, e.g., Def.’s Post-Hr’g Mem., Ex. 19 (Psychiatric Evaluation of D.W. by Dr. Flora F. Morente, M.D., June 30, 1996) at 2 (indicating that D.W., when seven years old, “would like to be a bus driver when he is grown”), Ex. 10 (Psychiatric Evaluation of D.W. by Di\ Flora F. Morente, M.D., Feb. 16, 1997) at 2 (again stating that D.W., then eight years old, “would like to be a bus driver when he is grown”), Ex. 20 (Queens Mental Health Clinic Psychiatric Evaluation, July 9, 1998) (noting that D.W., then nine years old, “wants to be a school bus driver”), Ex. 21 (FEGS Progress Note, Apr. 8, 1999) (stating that D.W., aged ten, “was looking forward to returning to school so that he can resume his job as the bus matron’s assistant”), Ex. 22 (Far Rocka-way Mental Health Clinic Clinical Note, July 5, 2000) (when asked to make three wishes, D.W., aged eleven, wrote “I wish I was a teacher to buses [sic] kid around”).
B. Arrest
Defendant was arrested on the premises of Green Energy on February 22, 2013— the same day that the search warrant was executed. PSR at ¶¶ 9, 14. He has been incarcerated at the Brooklyn MDC since the date of his arrest. See Def.’s Post-Hr’g Mem. at 16.
C. Sexual Exploitation of a Child
Defendant’s charge of sexual exploitation of a child relates to conduct that occurred prior to his 2009 State arrest. It was uncovered when federal agents reviewed evidence from his State conviction. PSR at ¶ 19. Included were images that had been on defendant’s phone, retrieved at the time of his 2009 arrest by the New York City Police Department (“NYPD”) pursuant to a search wai-rant. See Gov’t Sentencing Mem. at 1-2. Among the images were sexually explicit photographs of at least one young boy, as well as photographs of local day care centers. See id. at 2; Gov’t Opp’n Post-Hr’g Mem., Ex. 501 (Def.’s Pictures of Nearby Childcare Centers) at 203-208. The evidence indicated that the images of the young boy had not been downloaded from the Internet, as defendant had originally claimed. PSR at ¶ 19. Rather, the pictures has been taken by him. Id.
Investigators interviewed the pastor of a local church frequented by defendant prior to his State incarceration. The pastor noted that defendant had shared a close relationship with a young boy, and expressed his suspicion that the boy might have been sexually abused by defendant. Id.
After obtaining the mother’s permission, agents interviewed the boy. He told them that he first met defendant at church, when he was about five or six years old. He recounted that defendant showed him child pornography, which he identified as “sex with teens or younger,” on a laptop computer. The boy indicated that, on several occasions, defendant took him out to his car, where he sexually abused him. He said that they would sit in the back seat and his pants and underwear would be pulled down by defendant. Id. at ¶ 20. Defendant would then use his hand to rub the victim’s penis and masturbate him. Id. The defendant never touched the boy’s anus or put his mouth on his penis. Id. On at least one occasion, defendant masturbated in front of the boy. Id. The agents showed the boy images seized from the defendant. He identified himself in some of the pictures. Id.
There is no indication that these images were distributed by defendant. They do not involve penetration or sodomy. See Def.’s Sentencing Mem. at 6. Defendant has not engaged in any sexual contact with minors since his State arrest in 2009. Krueger Report at 15.
D.Plea Negotiations and Trial Preparation
A five-count indictment was filed in federal court on March 15, 2013. See Indictment, Mar. 15, 2013, EOF No. 7. It included four counts for distribution of child pornography and one count for possession of child pornography. Id.
Defendant entered a plea of “not guilty.” See Minute Entry, Mar. 23,2013, EOF No. 10. Plea negotiations were conducted over a long period while defendant remained in the MDC. See Order, Apr. 19, 2013, EOF No. 16.
- A superseding indictment was filed. See Superseding Indictment, Aug. 28, 2014, EOF No. 45. Added was a count for receipt of child pornography. Id. at 2.
Asking for an adjournment of a trial set for October 2014, the parties jointly requested permission to pursue plea negotiations. See Parties’ Joint Letter, Sept. 2, 2014, EOF No. -46. It was agreed that defense counsel would file a notice of intent to employ an insanity defense by late September. Id.
On September 22, 2014, notice was provided to the prosecution and the court that an insanity defense would be pursued on defendant’s behalf. See Notice of Insanity Defense, Sept. 22,2014, EOF No. 50.
Trial was reset for November 10, 2014. See Second Scheduling Order, Sept. 25, 2014, ECF No. 53. A plea hearing before the magistrate judge was scheduled for October 14, 2014. See Minute Entry, Sept. 30, 2014.
A superseding information was filed in October 2014, charging two counts: sexual exploitation of a child and possession of child pornography. See Superseding Information, Oct. 14,2014, EOF No. 56; see also Gov’t Letter, Oct. 3, 2014, ECF No. 54. Defendant waived his right to prosecution by indictment and consented to prosecution by information. See Waiver of Indictment, Oct. 14, 2014, ECF No. 55.
E. Guilty Plea
On October 14, 2014, defendant pleaded guilty before a magistrate judge 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, and one count of sexual exploitation of a child in violation of sections 2251(a) and 2251(e). See Hr’g Tr., Oct. 14, 2014, ECF No. 59. He did so despite being advised that, as a result of the plea, a fifteen-year mandatory minimum sentence would apply. Id. at 17:20-18:25.
F. Metropolitan Detention Center (“MDC”) Incarceration
1. Risk of Suicide
The defendant has serious mental problems with repeated suicide attempts. He arrived at the MDC on February 22, 2013. In his intake form, he reported that he had been the victim of sexual assault. See Defi’s Ex. T (BOP Intake Screening Form, Feb. 22, 2013). He also stated that he was thinking of killing himself.
Immediately, he was placed on a suicide watch. A psychology report indicated his “overall risk of suicide” to be “high.” Gov’t Ex. 403 (BOP Suicide Risk Assessment, Feb. 22, 2013) at 1. He remained on suicide watch for five days and was subsequently placed in the Special Programs Unit of the MDC, where inmates in need of additional psychological treatment are housed. See Gov’t Ex. 403 (BOP Post Suicide Watch Report, Feb. 27, 2013) at 8; Hr’g Tr., Nov. 23, 2015, ECF No. 101, at 159:02-09.
While in custody at the MDC, defendant attempted suicide. See PSR at ¶ 98. Feeling utterly “helpless” and overwhelmed by depression, defendant slashed his wrist with a razor. Id. He explained: “I was inside my mind. Thinking of [my adoptive] Mom and family. I felt like my situation was helpless.” Id.
Defendant again expressed suicidal ideas on May 8, 2013, as he was being taken to the MDC’s Special Housing Unit (“SHU”): “He stated that he had just been in SHU overnight pending an outside medical trip, and stated his intention to not return to SHU. He stated that his current thinking is to kill himself and ‘put me and my family out of misery.’ ” Gov’t Ex. 403 (BOP Suicide Risk Assessment, May 08, 2013) at 15; see also infra Part IV.B (addressing the use of SHUs by the Bureau of Prisons). The psychology report identified the following “suicide risk factors”: “SHU placement pending [Special Investigative Services] investigation, nature of his legal charges, history of suicide attempts, history of sexual abuse, unable to contact family currently, history of mental health concerns/treatment, reported suicidal ideation today.” Id. It also noted that “[finmate reports his suicidal ideation is conditional upon placement in SHU. This does not eliminate suicide risk, but suggests his motivation is more to avoid SHU placement than to kill himself.” Id. (emphasis added). He was again placed on suicide watch. Id. at 16.
After his release from suicide watch, defendant seemed to entertain some hope for the future, based primarily on his desire to reconnect with his family:
[D.W.] stated that he would not consider suicide currently because of his concern for his family’s current well-being, and his wanting to reach them to know about their health. He also reported that “I’m still young and I can work through my issues (referring to his reported abuse history.”).
Gov’t Ex. 403 (BOP Post Suicide Watch Report, May 13, 2013) at 23-24.
He was returned to the SHU. Id. at 24. Subsequent reports indicated that he would be “seen by Psychology Services every 30 days throughout the duration of his confinement to SHU.” Gov’t Ex. 403 (BOP Clinical Intervention-Clinical Contact Form, May 15, 2013) at 25.
At the MDC, D.W. has been diagnosed as having depressive disorder, anxiety, unspecified paranoid state, specified episodic mood disorder, and borderline personality disorder. Psychologists treated him with Divalproex (used in part to treat bipolar disorder), Setraline (antidepressant and anti-anxiety), Trazodone, Depakote (mood stabilizer), and Remeron (antidepressant). PSR at ¶ 99; Gov’t Ex. 403 (BOP Suicide Risk Assessment, May 08, 2013) at 14-16; Gov’t Ex. 403 (BOP Psychology Services Clinical Intervention-Clinical Contact Form, May 8, 2014) at 30 (also submitted as Ex. 40 to Def.’s Post-Hr’g Mem.).
He has continued to exhibit symptoms of depression and anxiety throughout his pretrial incarceration. See, e.g., Gov’t Ex. 403 (BOP Psychology Services Clinical Intervention-Clinical Contact Form, May 8, 2014) at 30 (“Inmate [D.W.] indicated during the past couple of weeks he has been struggling with lack of sleep, poor energy, poor appetite, and recurrent nightmares and flashback regarding his physical and sexual abuse during childhood .... He indicated he sent several cop-outs to Health Services. Psychology has been working with him, but it appears that the psychotherapeutic interventions have been insufficient. Inmate [D.W.] has been struggling with lack of support from family & friends. He feels abandoned, since his family has refused to talk to him.”); Gov’t Ex. 403 (BOP Psychology Services Suicide Risk Assessment, Nov. 10, 2014) at 31 (“[I]nmate [D.W.] wrote a letter to another inmate at another facility indicating that he had been sexually assaulted at a previous jail. He also indicated he was feeling depressed and possibly suicidal as a result of his legal case and lack of family support.”); Gov’t Ex. 403 (BOP Psychology Services Clinical Intervention-Clinical Contact Form, Feb. 13, 2015) at 35 (reporting “trouble sleeping, irritability, nightmares and flashbacks.”); Gov’t Ex. 403 (BOP Psychology Services Clinical Intervention-Clinical Contact Form, Sept. 29, 2015) at 41 (reporting “increasing depression and anxiety”).
2. Disciplinary Issues
During his incarceration at the MDC, defendant had two disciplinary reports. One resulted in a six month loss of phone privileges for allowing another inmate to use his prisoner’s number in placing a telephone call. Gov’t Ex. 402 (BOP Incident Report Form, Oct. 21, 2015).
The other incident involved allegations related to the Prison Rape Elimination Act (“PREA”). See infra Part IV.A (providing an overview of PREA). On June 11, 2013, a Special Investigative Services investigation concluded that D.W. had violated BOP rules and regulations by “engaging in sexual acts.” See Gov’t Opp’n Post-Hr’g Mem., Ex. 401 (BOP Incident Report, June 11, 2013) at 1. Defendant admitted to exposing his penis to another inmate, but stated “it was a mutual thing.” Id. at 5. Staff members also found letters in D.W.’s cell which “outlined [D.W.’s] sexual preference and what [D.W.] liked to do to various inmates.” Id. at 6. The Discipline Hearing Officer (“DHO”) placed D.W. in sixty days of disciplinary segregation and restricted his “commissary and visits.” Id. at 6-7. He was determined to no longer be eligible for housing in the Special Programs Unit. Hr’g Tr., Nov. 23, 2015, EOF No. 101, at 159:06-20.
In a separate incident that did not result in disciplinary action, D.W. was found to have been writing sexually explicit documents. See Gov’t Ex. 403 (BOP General Administrative Note, May 10, 2013) at 20; Gov’t Opp’n Post-Hr’g Mem., Ex. 404 (Def.’s Handwritten Notes). They included what appeared to be a journal entry describing a sexual fantasy with an eight-year old boy. See Hr’g Tr., Nov. 23, 2015, EOF No. 101, at 166:23-167:01 (noting that there were no indications that defendant’s handwritten note was intended to be sent and that it resembled “a diary type of reflection”). In the handwritten notes, D.W. described the young boy initiating and willingly participating in a sexual encounter involving oral, digital, and anal sex. Gov’t Opp’n Post-Hr’g Mem., Ex. 404 (Def.’s Handwritten Notes); Hr’g Tr., Nov. 23, 2015, EOF No. 101, at 163:04-165:07. There was no evidence that this note was sent; defendant was not subject to discipline. See Hr’g Tr., Nov. 23, 2015, EOF No. 101, at 164:14-165:12, 166:23-167:01, 195:09-196:09.
In June 2015, D.W.’s cellmate alleged that D.W. had made sexually suggestive comments to him. See Gov’t Ex. 403 (BOP Sexual Abuse Intervention Report, June 1, 2015) at 37 (also submitted as Ex. 41 to Def.’s Post-Hr’g Mem.). D.W. was accused of “attempting to speak to his cellmate about children in a sexual manner, making suggestive comments about gay pornography, and asking his cellmate personal sexual questions such as ‘are you circumcised?’ ” Id. Defendant denied the allegations. He admitted to asking his cellmate if he was circumcised, but stated that this comment was taken out of context. Id. The charges were investigated but not sustained. D.W. was placed in the SHU pending the investigation.
In November 2015, an investigation was initiated when D.W. wrote a “drop note” stating that an inmate had been sexually assaulted by another inmate. Gov’t Ex. 405 (BOP Mem. of Interview, Nov. 6, 2015). When interviewed, D.W. admitted to writing the note and stated that he “felt like [he] needed to report this incident because [he] was sexually assaulted when [he] was in the state jail and [did] not want to see this to happen to another inmate.” Id. An investigation was conducted and the allegation was determined to be “unfounded.” Gov’t Ex. 405 (BOP Mem. for Timothy Geier, Nov. 6, 2015).
3. Lack of Family Support
Defendant’s counsel indicated that D.W. has largely lost touch with his adoptive family:
During the three years he has been at MDC, [D.W.] has not received a single social visit, despite the fact that his large adoptive family is based in New York City. He has had extremely limited contact with his mother and brother ... the only one of his adoptive siblings [D.W.] has spoken with since his arrest. Despite repeated outreach efforts, they have never come to court, nor to defense counsel’s office to discuss what clearly is an extremely serious case. In his contact with psychological services at MDC, he has consistently cited the lack of support from his family as a cause for deep despair.
Def.’s Post-Hr’g Mem. at 18-19 (emphasis added).
Although defendant has attempted to reconnect with his adoptive mother and brother, his efforts, so far, appear to have been unsuccessful:
After [D.W.] wrote to his brother ... to explain the abuse he was subjected to before going to live with [his adoptive family], [his brother] relayed to [D.W.] through defense counsel that the letter had touched both him and their mother, who he said had been moved to tears. But even in light of these revelations, [they] have continued to shut [D.W.] out of their lives, ignoring phone calls and never visiting or writing. For a while, [D.W.] held out hope that he could maintain a relationship with his family; that they would eventually come around. But after three years of near silence on their end, whatever foundation there was for that ultimately false hope has crumbled. [D.W.] has been forced to give up on the family that raised him, after so many false starts in abusive foster homes.
Id. at 19 (emphasis added).
In May 2014, it was reported by the MDC’s Psychology Services department that D.W. “has been struggling with lack of support from family & friends. He feels abandoned, since his family has refused to talk to him.” Gov’t Ex. 403 (BOP Psychology Services Clinical Intervention-Clinical Contact Form, May 8,2014) at 30.
Defendant’s lack of familial support is a factor that will need to be addressed in a reentry program upon D.W.’s release from custody. See Order, Apr. 8, 2016, ECF No. 141, at 2-8 (noting that “[t]here is no present probability of family, companion, or other support available to defendant upon reentry, as there is in other cases before the court,” and requesting the parties to address “what resources will probably be available to this defendant after he is released from incarceration that will result in adequate protection to the public as well as support his own appropriate development”); see also infra Part IV.E (addressing the community reentry plans suggested by the parties).
According to his counsel, defendant has renewed a relationship with one of his biological siblings since his incarceration. Def.’s Post-Hr’g Mem. at 19. They exchanged letters, and D.W.’s brother “has vowed to remain supportive and be a part of D.W.’s life going forward.” Id. He has also been in contact “with an elderly woman in Pennsylvania, whom he began corresponding with while in State prison.” Id. at 20. Although they have never met, he refers to her as his “grandmother.” The relationship appears to be supportive; she writes to him and contributes to his commissary account. Id.
G. Sentencing
1. Offense Level, Category, and Sentencing Guidelines Range
The offenses D.W. pled guilty to carry a minimum term of imprisonment of fifteen years (180 months) and, if cumulated, a maximum term of fifty years (600 months). See Hr’g Tr., Nov. 23, 2015, ECF No. 101, at 8:09-9:10.
The applicable Sentencing Guidelines range was agreed upon by the parties and found to be 292 months (24 years) to 365 months (30 years) of imprisonment, based on an offense level of 37 with a criminal history category of IV. See id. at 13:20-14:10.
Defendant’s counsel sought a sentence no greater than the applicable mandatory minimum term of fifteen years. See Def.’s Sentencing Mem. at 1.
The government argued for a sentence higher than the minimum, within the applicable Guidelines range (24 years to 30 years), but it took no position as to where within the range the sentence should fall. See Gov’t Sentencing Mem. at 1, n.l.
2. Victim Impact
The young boy identified as having been molested by defendant, see supra Part III.C, submitted a victim impact statement. He stated:
[D.W.] sexually abused me when I was younger. He touched me in ways that I didn’t feel comfortable. If I would have been a little bit older, I would have been able to not let him touch me the way he did. When I was with him by myself, I didn’t like it. What happened was not what was supposed to happen to me.
When I was younger it affected me a lot because I thought about it a lot but never told anyone. I sometimes had trouble sleeping because it was always on my mind. I didn’t like talking to people. I felt ashamed and very uncomfortable. I didn’t tell my mom because it didn’t feel right talking about it, and I felt like there was nothing I could do about it.
Now that I am older, I don’t think about it because I have gotten into activities that help get my mind off of the sexual abuse.
In my opinion, I think [D.W.] should go away for a long time. It wouldn’t be right for him to come out and do the same thing to someone even younger than I was.
PSR at ¶ 23.
A sampling of the child pornography images collected from defendant was sent to the National Center for Missing and Exploited Children (“NCMEC”). Certain images depicted minors already known to law enforcement. See id. at ¶¶ 24-36. Some victims provided impact statements. Id. at ¶ 37. Three victims have submitted requests for monetary compensation from defendant. See id. at ¶ 38; Second Addendum to PSR, Apr. 25, 2016.
3. Medical and Psychological Evaluations
In preparation for sentencing, an evi-dentiary hearing was conducted. See Order, Apr. 15, 2015, ECF No. 63. The parties were ordered to present experts on the “dangers presented by the defendant and recommendations for treatment and incarceration.” Id.
The defendant submitted reports by Dr. Richard Krueger, M.D. and Dr. Robert Prentky, Ph.D. The government noted that it would introduce the testimony of Dr. N. G. Berrill. Because defendant did not wish to be interviewed by Dr. Berrill, the government did not ask him to submit a written report. Gov’t Sentencing Mem. at 6, n.5. The government had also previously requested Dr. Barry Rosenfeld, Ph.D. to evaluate defendant. His evaluation was limited to the issue of whether defendant was mentally fit to stand trial. See Hr’g Tr„ June 11,.2015, ECF No. 128, at 10:17-20.
The experts’ reports are summarized below.
a) Dr. Richard B. Krueger, M.D.
(1) Employment and Qualifications
Dr. Richard Krueger, M.D., is a psychiatrist specialized in the diagnosis and treatment of sex offenders. In addition to having a private practice, he is medical director of the Sexual Behavior Clinic at New York State Psychiatric Institute and associate professor of psychiatry at Columbia College of Physicians. See Hr’g Tr., Dec. 22, 2015, ECF No. 105, at 4:16-19. A 1977 graduate of Harvard Medical School, Dr. Krueger was board certified in psychiatry at Boston University Medical Center in 1984. Id. at 4:22-5:02. He also is board certified in addiction psychiatry and forensic psychiatry. Id. at 5:02-05.
Dr. Krueger has had extensive experience researching paraphilie disorders. He was part of the committee that revised the American Psychiatric Association’s diagnostic and treatment manual, and he participates in the work of the committee of the World Health Organization writing the criteria for the International Classifications of Disease manual, “revising the classification of paraphilie disorders, of disorders of sexual interest, patterns of sexual interest.” Id. at 6:08-25.
He is a member of the Association for the Treatment of Sexual Abusers, and, for the past twenty years, has been on the board of its New York chapter, the New York Association for Treatment of Sexual Abusers. Id. at 7:20-24. He also is a member of the International Academy of Sex Research and the International Association for the Treatment of Sexual Offenders. Id. at 8:01-06.
An “essential part” of his work in evaluating and treating sex offenders is assessing their risk of re-offense. Id. at 8:07-11. He estimates that he has evaluated, treated, and prepared risk assessments for over a thousand sex offenders. Id. at 8:12-15. He describes his work in such evaluations as performing “a comprehensive ... mental health assessment with the goal of achieving whatever diagnosis there might be, of seeing what might be treatable, then a risk analysis and addressing that risk with a treatment plan or treatment recommendations.” Id. at 8:16-24.
(2) Basis for Evaluation
At the request of defense counsel, Dr. Krueger carried out an evaluation of D.W. See generally Krueger Report. This evaluation was based on:
• Dr. Krueger’s four-hour interview of defendant;
• Psychological and psychiatric testing;
• His review of the materials listed in his report, which included:
o extensive psychological and psychiatric records from D.W.’s childhood and from the treatment he received following his release from State prison;
o documents related to the offense conduct in the instant case, such as the criminal complaint and PSR; and
o the reports of Dr. Robert Prentky and Dr. Barry Rosenfeld.
See id. at 1-4. His findings and recommendations were submitted to the court with defendant’s sentencing submission of June 8, 2015.
(3) Results of Evaluation
Dr. Krueger utilized a number of tests aimed at assessing deviant and non-deviant sexual behavior, other psychiatric syndromes, personality functioning, and risk of re-offense. See id. at 10-13.
He found that D.W. “had a command of language and interaction, which was far beyond his purported IQ of 70. He was able to provide a very coherent history and he was quite open about his various sexual interests and experiences.” Id. at 13. Defendant admitted to having a “pornography addiction ... with inappropriate interest in images of minors” and being “willing to engage in treatment.” Id. at 14. He noted that D.W. “had good insight, good judgment, and good impulse control.” Id.
Dr. Krueger observed that defendant “has an extreme history of adverse childhood experiences with his ACE [Adverse Childhood Experiences] score of 9 out of 10 being the high