UNITED STATES DISTRICT COURT

________________ DISTRICT OF TEXAS

_________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO. _________________
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_____________________	                             §

MOTION FOR DOWNWARD DEPARTURE AND REQUEST FOR SEALING OF MOTION AND SENTENCING HEARING

	TO THE HONORABLE DISTRICT JUDGE ____________:

	NOW COMES  Defendant _______________, by and through his undersigned attorney, and files this Motion for Downward Departure from the Sentencing Guideline Range for his possession of child pornography offense.  He also requests that this motion and his sentencing hearing be sealed,  and would show this Honorable Court as follows.
I
Introduction
	_________________was eighteen years old when he answered a personal ad posted on the internet by an undercover policeman.  The policeman, posing as a guy named “_______________,”  posted the ad which read: “18 year-old male, located in __________, seeking 18 year-old-or-older male or female for e-mail pen-pal, activity partner, short-term relationship, or long-term relationship.”  Further into the text of the ad, “_______________” said he was thirteen years old.  See App. A. at 1.1 
	___________ responded to _______________’s ad. The two began communicating with each other, and continued to do so for a period of time.  From the context of their e-mails, it is clear that what drew ______________  to respond to and continue communicating with _______________ was _______________’s apparent confusion over his own sexual orientation.  _______________ shared this confusion.  Not unlike many adolescents, _______________ had questions and deep concerns about his sexuality.  Raised according to deeply religious, Mormon principles–which taught that homosexuality was wrong–_______________ was too fearful and embarrassed to approach his family or bishop with his concerns.  Instead he turned to the internet for answers.  _______________ confided in _______________ that he was attracted to other guys, but that he acted “100% straight”; _______________ added that  he was “inexperienced in this whole thing[,]” that he had been trying to find other guys who were like him, and that that was why he responded to _______________’s ad. See App. A at 1.
	It is also clear from the context of the e-mails that _______________ considered himself to be of roughly the same age and sexual maturity as _______________, and that he in no way deceived _______________ about his true age or identity.  _______________ explained that even though he was 18, everyone thought he was 15 or 16.  App. A at 4.  _______________ sent  a picture of himself taken during soccer practice.  He explained that the picture was about eight months old, but that he had not changed much.  Undercover officer “_______________” responded that _______________ looked like he could be his age.  App. A at 33.  
	When _______________ asked _______________ if he had ever had sex with a guy, _______________ confided that he was a virgin.  App. A at 2.  “_______________” explained that he was similarly inexperienced.  He told _______________ that he did not know if he was attracted to girls or guys, and that he had never seen a guy naked, he asked _______________ if he had.  App. A at 3.   In response, _______________ said he would try to send him nude pictures of guys around their age.  He suggested that _______________ could look at those pictures and see how they made him feel, and that it might help him figure out if he was really gay.  Id. at 5–6.  _______________ possessed some of these types of pictures.  Sometime prior to when _______________ began his e-mail exchanges with _______________, _______________ had received some sexually explicit images of teenaged males from someone he had been “chatting” with who claimed to be at a university.  _______________ had asked the guy for a picture of himself–like a school photo–so that he could see who he was chatting with.  Instead the guy had sent _______________ 35 of the prohibited pictures at issue in this prosecution.  See P.R. at 5–6.2
	_______________ sent these images to _______________.  _______________ told _______________ that he liked the pictures he had sent and he asked _______________ if he had any more.  App. A at 7, 9.  _______________ said he could try to find more on the Internet, but that it might be hard for him to find any because it is illegal to post those kind of pictures on a website.  Id at 24.  _______________ again requested more pictures.  Id at 27.  Eventually, _______________ searched the internet and found 14 additional sexually explicit images, mostly of teenaged males, and he sent these pictures to _______________ as requested.  
 	It is also evident from the exchanges between _______________ and _______________ that _______________ developed genuine feelings of friendship for undercover officer “_______________.”   See App. A at 31; P.R. at 10 (Hollingsworth letter).  These feelings prompted _______________ to comply with _______________’s request for additional pictures, even though he was plainly reluctant to do so.  These warm feelings also resulted in a desire to meet _______________.  The two guys expressed a mutual desire to meet in person, and to possibly explore a sexual encounter.  P.R. at 6. When _______________ told _______________ that he was going to be in Dallas visiting relatives, _______________ arranged for _______________ to travel to San Antonio.  Id.  When _______________ went to meet “_______________” at the bus station, United States Customs agents seized upon him, armed with a search warrant for his family’s home and computer. 
	_______________ pleaded guilty to possession of the 49 images of child pornography recovered by the agents.  The Probation Officer prepared a presentence report in which she calculated his guideline range at 33 to 41 months’ imprisonment.  P.R. at 13.  _______________ moves for a downward departure from this range to a sentence of probation.  His youth and lack of emotional and sexual maturity at the time of the offense, as well as the circumstances under which he came to possess and transmit the prohibited images, remove this case from the heartland of  possession of child pornography offenses.  In addition, _______________’s vulnerability to abuse in prison strongly counsels for a downward departure.  Due to the sensitive nature of these issues, particularly this last departure ground, the defense requests that both this motion and the sentencing hearing be sealed.
II
Argument and Authorities
	The sentencing court may depart from the applicable guideline range when it “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b); see also U.S.S.G. §5K2.0, p.s. (same). The Sentencing Commission “did not adequately take into account cases that are, for one reason or another, ‘unusual.’” United States v. Rodriguez-Montelongo, 263 F3d 429, 432 (5th Cir. 2001) (quoting Koon v. United States, 518 U.S. 81, 93 (1996)). The Guidelines enumerate certain factors that can never be a basis for departure. See Rodriguez-Montelongo, 263 F3d 429, 432; see also U.S. Sentencing Guidelines Manual § 5H1.10 (prohibiting consideration of race, sex, national origin, creed, religion, and socio-economic status); id. § 5H1.12 (prohibiting consideration of lack of guidance as a youth); id. § 5H1.4 (prohibiting downward departure for drug or alcohol dependence). Aside from the limited number of categorical prohibitions, however, the Sentencing Commission did “not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.” U.S. Sentencing Guidelines Manual ch. 1, pt. A, intro. cmt. 4(b); see also Koon, 518 U.S. 81, 93.  “When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.”   United States v. Hemmingson, 157 F.3d 347, 360 (5th Cir. 1998) (quoting U.S.S.G. Ch.1, Pt. intro. comment. 4(b)).  
III
_______________’s Youth and Lack of Sexual and Emotional Maturity at the Time He Possessed the Prohibited Images Supports a Downward Departure

	In this case, _______________ Hoopes’s youth at 18 years old, and his lack of emotional and sexual maturity at the time of the offense take this case outside the heartland of child pornography offenses.  While youth is not ordinarily relevant in considering a sentencing departure, see U.S.S.G. §5H1.1, it may be considered in an exceptional case.  See U.S.S.G. Ch.5, Pt.H, intro. comment. ;see also U.S.S.G. §5K2.0, p.s.  This is such a case.  _______________ was convicted under a law designed to protect children; the fact that he had so recently passed from that protected status himself is an exceptional and relevant circumstance.  Cf United States v. Ramsey, 237 F.3d 853, 861 (7th Cir. 2001) ( while sentence adjustment under  §3B1.4 for using a minor to commit a crime technically applies despite closeness in age of nineteen-year-old defendant and sixteen-year-old minor involved, a downward departure may be appropriate).  
	Both the federal government and the state of Texas have recognized youth as a relevant factor in assessing culpability in possession of child pornography cases.  The Office of the Inspector General of the United States Department of Justice, in a congressionally requested study of pornography cases prosecuted from 1980 to 2000, noted that the juvenile status of an offender is a factor in decisions to decline prosecution of possession of child pornography offenses.  See Glenn A. Fine, Review of Child Pornography and Obscenity Crimes, July 19, 2001 http://www.usdoj.gov/oig/i0107/results.htm (Table 4:Reasons for Not Prosecuting Child Pornography Cases).  In addition, Texas recognizes the closeness in age of a possessor and the minors pictured in pornographic images as an affirmative defense to its possession of child pornography offense.  See Tex. Pen.Code §§ 43.25(f)(4), 43.26(c) (affirmative defense if defendant is not more than two years older than the child). 
	There can be little question that _______________’s youth and lack of sexual experience factored heavily into the commission of the offense.  In a letter written to Probation by one of _______________’s counselors, Richard Hollingsworth, LMSW, regarding _______________’s involvement in the instant offense, Hollingsworth opined that _______________ “was engaged in exploration, tantalized by the lack of restraints placed in his way.  He had just left Germany a few months before his internet encounters; severing ties to friendships he built there in the small American high school community.”  Hollingsworth concluded that “_______________’s behavior was motivated by a sense of curiosity, and a real desire to develop a friendship, not as a means of fulfilling the desires of a sexual predator.”    
	Hollingsworth’s observations and the contexts of the e-mail transmissions show that the commission of this offense was largely attributable to _______________’s inexperience, youth, and his diminished capacity resulting from his nearly obsessive concern about his sexual orientation. Repeated throughout _______________’s e-mails to _______________ are questions about sexual orientation.  _______________, who had never lived anywhere but in his family’s home, made it clear that he was not comfortable talking through these issues with any of the adults in his deeply religious family or with any clergymen of his church.  Instead, he was searching for answers through the internet; and it was this youthful search that lead to _______________’s possession of the prohibited images.3 
IV
The Circumstances Under Which _______________ Came To Possess the Prohibited Images Support a Downward Departure

   	In addition to _______________’s youth and lack of sexual and emotional maturity, the circumstances under which _______________ came to posses the prohibited images support a downward departure.  _______________ came to possess the first 35 images when they were sent to him, unsolicited, by an adult male with whom he was “chatting” on the internet.  The fact that _______________ was in no way actively seeking those images when they were sent to him makes him an atypical possessor of child pornography.   Although _______________ did retain those unsolicited images, it seems likely that such an emotionally and sexually undeveloped eighteen year old did not perceive himself as being significantly older than the adolescent males pictured in the images.  This factor, combined with _______________’s diminished capacity resulting from his concerns over his sexual orientation, are exceptional circumstances not factored into the applicable sentencing guideline. 
	While _______________ did actively seek the additional 14 images he sent to the undercover officer posing as _______________, he did so only after being prompted by someone he plainly admired.  The UC told _______________ that he liked the pictures he had sent and he asked _______________ if he had anymore.  App. A at 7,9.  Even though _______________ explained that it might be hard for him to find any more images because it is illegal to post those kind of pictures on a website, the UC again requested more pictures.  Id at 27.  Eventually, _______________ searched the internet and found the 14 additional sexually explicit images.  _______________’s possession of the prohibited images, resulting in part from the prompting by the UC,  removes this case from the heartland of child pornography possession cases.
V.
_______________’s Vulnerability to Abuse in Prison Supports a Downward Departure
	_______________’s vulnerability to abuse in prison also counsels in favor of a downward departure in this case.  See Koon v. United States, 518 U.S. 81, 113 (1996)(susceptibility to abuse in prison can support a downward departure). Although the offense conduct, in this case, occurred almost three years ago, _______________ remains both sexually and emotionally immature.  He has never lived independent of his family.  And, as reported in the presentence report, _______________ has undergone counseling and treatment for situational depression resulting from his involvement in the  offense.  P.R. at 10–11.  Due to _______________’s youth, sexual and emotional immaturity, and his compromised emotional state, he lacks the resources to ward off the sort of abusive conduct endemic to the prison population.  
	In a recent study documenting predictors of which members of a prison population are particularly susceptible to sexual abuse in prison, several factors were noted as significantly increasing the likelihood of abuse.4  _______________ falls into almost every category that insures that an offender will be sexually abused.  He is a young, first-time offender5, convicted of a non-violent offense6; he is of a middle economic status7; he has sexual identity issues8; his life experience has not made him “street-wise”9; and he is convicted of a sex-crime involving minors.10  _______________ does  not ask for a departure based on any of these factors in isolation; it would be impermissible to depart based on factors such as economic status or offense of conviction.  Rather, it is the mix of these factors, especially combined with _______________’s extremely religious upbringing and his lack of life-experience and “street-smarts,” that suggest a particular susceptibility to abuse in prison.  These factors, combined with the other factors discussed above, strongly support a downward departure from the current 33–41 month guideline imprisonment range.
VI
Other Departure Factors Under Koon
	Arguably, the Government’s approximately two year-long delay in filing this indictment reflects its belief that this is a marginal case. Moreover, during this delay, _______________ attempted to assist Government agents.  He met with agents in an attempt to locate the source of these photographs.  This constitutes another ground for departure under Koon, 518 U.S. 81, 109.  _______________ also met with counselors and his church bishop during this period in order to understand and address his offense conduct.  This constitutes a form of early, pre-indictment acceptance of responsibility.  Finally, the long pre-indictment delay is an implicit indication that the Government does not view _______________ to be a danger to others.  To the contrary, his conduct has shown that a departure to probation is an appropriate sentence given these unique facts and circumstances.
VI
Prayer
	Even if no single factor mentioned above rises to the level justifying a downward departure, the sum total of these factors indicates that a departure to a probation range is within the spirit and acceptable limits of the sentencing guidelines.  For all these reasons, it is respectfully requested that the Court depart downward from the guidelines.
						Respectfully submitted.

						__________________________
						
						Attorney for Defendant

CERTIFICATE OF SERVICE

	I certify that I served a copy of the foregoing Defendant's Motion for Downward Departure (With Incorporated Authorities) on _______________, United States Attorney for the __________District of Texas (ATTN: Assistant United States Attorney ___________), by hand-delivery at his office at ____________________ on ___________________, 20___.

						Attorney for Defendant

APPENDIX A

APPENDIX B