United States v. Grober
624 F.3d 592
| 3rd Cir. | 2010Background
- Grober possessed about 1500 images and 200 videos of child pornography found during a 2005 NJ search.
- Indicted in 2006 on six counts including transportation, distribution/receipt, and possession of child pornography; pled guilty to all six in 2007.
- Guidelines: base level 22, with § 2G2.2 enhancements resulting in offense level 40; after acceptance of responsibility, level 38 and a 235-293 month range.
- District Court held extensive 12-day sentencing hearings (2008) and twice explained concerns with § 2G2.2; sentenced Grober to the five-year mandatory minimum.
- Court concluded § 2G2.2 was flawed for downloading cases and opted not to apply the range; emphasized Grober’s personal factors per 18 U.S.C. § 3553(a).
- Government appealed alleging procedural errors; Grober cross-appealed contending the Court was obligated to impose the five-year minimum and not proceed variationally.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court committed procedural error in rejecting § 2G2.2. | Grober asserts procedural flaws in how § 2G2.2 was addressed. | Grober argues the Court properly varied from the Guideline range. | Procedural error found that requires remand in parts; affirmed in part and remanded? (note: the court majority held not significant; see reasoning.) |
| Whether Grober’s case was improperly characterized as a typical downloading case. | Grober contends the court mischaracterized his offenses as mere downloading. | Grober argues the court treated distribution/transportation as typical downloading. | District Court erred by misclassifying Grober; substantial factual errors supported remand. |
| Whether the district court impermissibly discouraged plea bargaining affecting sentence. | Grober contends the court punished the government for plea decisions by comparing to an unnamed earlier defendant. | Grober argues the court’s remarks about plea bargaining were improper steering. | Reversible error identified in criticizing plea bargaining; remand warranted for proper weighing of § 3553(a) factors. |
| Whether the district court’s reliance on a live witness/Commission testimony was improper in sentencing. | Grober argues the court’s evidentiary approach was flawed (invited live Commission testimony). | Grober contends no live witness requirement; the court considered briefs and testimony. | Procedural concerns noted; not all require remand, but some errors were reversible. |
Key Cases Cited
- United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) (within-Guidelines § 2G2.2 with empirical critique; policy-based variances require compelling justification)
- Kimbrough v. United States, 552 U.S. 85 (U.S. 2007) (empirical data vs. congressional directives; permit variance from guidelines)
- Gail v. United States, 552 U.S. 38 (U.S. 2007) (Gall v. United States; sentencing within reasonableness and explanation required)
- Beiermann, 599 F. Supp. 2d 1087 (N.D. Iowa 2009) (district court variance from § 2G2.2 factors in child pornography cases)
- Diaz, 720 F. Supp. 2d 1039 (E.D. Wis. 2010) (cites several district opinions challenging § 2G2.2)
- Shipley, 560 F. Supp. 2d 739 (S.D. Iowa 2008) (discussion of § 2G2.2 enhancements and distribution vs receipt)