The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
The Court must first rule on the objections the defendant has made to the PreSentence Investigation Report ("PSR"). In that regard, pursuant to Federal Rule of Criminal Procedure 32 (i)(A) & (B), the Court may accept any undisputed portion of the PSR as a finding of fact; and must -- for any disputed portion of the PSR or other controverted matter -- rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the Court will not consider the matter in sentencing.
As to objections, it is well settled that to rule against the defendant, the Court must find that the government has established the disputed allegations in the PSR by a preponderance of the evidence. United States v. Cordoba-Murgas, 233 F. 3d 704, 708-10 (2d Cir. 2000). This remains the case even though the Sentencing Guidelines have been determined to be advisory, rather than mandatory. United States v. Booker, 543 U.S. 220 (2005); United States v. Crosby, 397 F.3d 103 (2d Cir. 2005); United States. v. Gonzalez, 407 F.3d 118 (2d Cir. 2005).
In other words, the Court, within the advisory Guideline scheme, may continue to make factual findings resulting in enhancements to a defendant's offense level, based upon the preponderance of evidence standard, as long as the facts found by the Court, "do not increase the penalty beyond the prescribed statutory maximum sentence or trigger a mandatory minimum sentence that simultaneously raises a corresponding maximum." United States v. Sheikh, 433 F.3d 905, 905 - 06 (2d Cir. 2006).
In his Sentencing Memorandum ("Memorandum") (Docket # 145 ) in ¶ ¶ 8 -12, under the heading of "Factual allegations Defendant Contests," Mr. Rizzo, on behalf of the defendant states:
8. It is difficult as counsel, without access to the record, to determine what proof the Government actually adduced at trial. Counsel has had to rely heavily on the representations of Mr. Anson and makes some challenges listed below respectfully.
9. Contrary to the record on the second sheet of the PSR, Mr. Anson believes that the Illinois State Police may have filed a detainer against him; he indicates that he wishes to be honest about this point.
10. Mr. Anson denies the intent to abscond listed under page numbered 4, ¶ 11 and ¶ 22, page numbered 6.
11. Mr. Anson denies that "in one posting to OSC, Anson offered to trade the password to a child pornography site for .. [sic] pictures of child pornography ...". He insists that he traded his password for access to other sites only. As such there is some question as to whether he traded pornography for something of value.
12. On page 5 ¶ 19 the PSR characterizes the CDs ROM [sic] as containing "thousands of images of child pornography". The next paragraph indicates that the jury was "shown 10 images from each of the CDs ROM. Assuming 39 CDS, with 10 images each, the jury was shown 390 images, presumably.
Mr. Rizzo further states in ¶¶ 13-16, under the heading "Contest of level increases:"
13. It is not known what proof indicated that any children were under the age of 12, and the Defense questions the two level increase of ¶ 26 on page 6.
14. The Defense also challenges the five level increase under ¶ 27, per §2G2.2(b)(B). The evidence adduced through the witness Fottrell indicated only that a password was exchanged for other passwords. The defense contends that this is outside the purview of the "receipt of pornography for a thing of value". It was also not shown that the passwords received were from pay sites as opposed to free sites, and the government has failed in its burden with respect to this enhancement under Blakely v. Washington,124 S.Ct. 2531 (2004) and United States v. Booker, 125 S.Ct. 738 (2005).
15. The Defendant opposes the ¶ 30 five level increase. It is not known whether more than 600 images of child pornography were proven by the government to the jury, or are apparent from viewing the images. It does not appear 600 images were found by the jury, and this five level increase is opposed. Without specific findings by the jury, the principal ...