United States v. Werner
713 F. App'x 27
| 2d Cir. | 2017Background
- Defendant Edward Werner was convicted for receipt of child pornography in violation of 18 U.S.C. § 2252A after investigation showed he accessed a child-pornography website.
- During questioning, Werner voluntarily gave a written statement admitting sexual contact with his three daughters when they were infants and inappropriate touching of seven friends of his daughters.
- Werner pleaded guilty pursuant to a plea agreement; the PSR and district court calculated a Guidelines range of 121–151 months (total offense level 32, CH I).
- At sentencing the district court applied a § 2G2.2(b)(5) enhancement for a pattern of sexual abuse/exploitation of a minor and denied a downward departure under U.S.S.G. § 5K2.16 for voluntary disclosure.
- Werner was sentenced to 121 months’ imprisonment, 15 years’ supervised release, and a $3,000 fine; he appealed contesting the § 5K2.16 denial, the § 2G2.2(b)(5) enhancement, and substantive reasonableness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Werner was eligible for a downward departure under U.S.S.G. § 5K2.16 for voluntary disclosure | Government: § 5K2.16 inapplicable because disclosure was connected to investigation of related conduct | Werner: his disclosure showed remorse and was voluntary, so § 5K2.16 warranted a downward departure | Court: Not eligible—Werner conceded disclosure occurred in connection with investigation/prosecution of related conduct, so § 5K2.16 does not apply |
| Whether § 2G2.2(b)(5) enhancement (pattern of sexual abuse/exploitation) was improperly applied | Government: enhancement valid given Werner’s admitted abuse of his daughters | Werner: challenges application of enhancement; urges plain-error review if waiver applies | Court: Enhancement stands—Werner stipulated to engaging in a pattern; any additional reliance on other conduct was harmless; timing of prior abuse does not preclude enhancement |
| Whether any error in enhancement reviewable under plain-error standard | Government: waiver bars review; alternatively enhancement correct | Werner: asks for plain-error review | Court: Did not decide waiver question; applied plain-error standard and found no plain error under Marcus factors |
| Whether the 121-month sentence is substantively unreasonable | Government: sentence reasonable given the severity of conduct and enhancements | Werner: sentence excessive given first-time offender status and offense of conviction was receipt of images | Court: Sentence substantively reasonable—within permissible range and justified by conduct, including abuse of daughters and viewing specific images |
Key Cases Cited
- United States v. Kent, 821 F.3d 362 (2d Cir. 2016) (standard of review for guideline interpretation)
- United States v. Marcus, 560 U.S. 258 (2010) (plain-error review framework)
- United States v. Reingold, 731 F.3d 204 (2d Cir. 2013) (prior sexual abuse may support guidelines enhancement)
- United States v. Park, 758 F.3d 193 (2d Cir. 2014) (standard for substantive-reasonableness review)
- United States v. Douglas, 713 F.3d 694 (2d Cir. 2013) (examples of substantively unreasonable sentences)
- United States v. Jenkins, 854 F.3d 181 (2d Cir. 2017) (distinguishing cases where defendant had no separate sexually dangerous behavior)