Appeal from a judgment of the United States District Court for the Northern District of New York (Norman A. Mordue, Chief Judge) convicting defendant-appellant of producing child pornography.
Amended: September 21, 2010
Before: KATZMANN, HALL, and CHIN, Circuit Judges.
Defendant-appellant Steven Ahders appeals from a judgment of the United States District Court for the Northern District of New York convicting him, pursuant to a guilty plea, of one count of producing child pornography, in violation of 18 U.S.C. §§ 2251(a), (e) and 2256(8), and sentencing him principally to a term of imprisonment of 580 months. We affirm the conviction and remand for the district court to reconsider and clarify the basis for one aspect of its sentence.
In 2005, while on supervised release for a prior conviction for possession of child pornography, Ahders met a woman through a personal ad. They married in September 2006, and the woman and her five-year-old son, EM, moved into Ahders's home in Schenectady, New York. Thereafter, Ahders began sexually molesting EM and filming and photographing the abuse. The molestation continued until July 2007.
Ahders was arrested in January 2008. In addition to admitting the molestation of EM, he admitted that he had purchased an "Acer" laptop computer in February or March 2007, and that he used the internet to download images of both boys and girls under the age of 15 years. Investigators seized, in Ahders's home, an Acer laptop computer, a digital camera, and a "personal digital assistant" ("PDA"), which included a storage card. The laptop and PDA contained numerous images of child pornography, including images of nude girls tied and bound, some approximately 11 to 12 years old, one tied to a bed and another tied and blindfolded. Two pornographic images of EM were found on the storage card.
During the ensuing investigation, EM informed investigators that Ahders sometimes tied EM's wrists to the headboard of a bed or the handlebars of a bicycle and then sexually abused him. EM described how Ahders used a video camera to record the abuse. Ahders admitted to filming EM engaging in sexually explicit conduct.
During Mother's Day weekend in 2007, Ahders sexually molested two other children, BB and VB, who had joined EM at Ahders's home for a sleepover. During the sleepover, Ahders made EM and BB perform sexually explicit acts on each other while he took pictures of them. BB's sister, VB, reported that the children slept together in a tent in the attic, and that Ahders approached her after the boys fell asleep and took off her pants and underwear even though she slapped his hands and tried to stop him. Ahders then held her legs apart and photographed her from about a foot away. VB also reported that Ahders had "a laptop" with him in the attic.
EM told investigators that a few days after the sleepover, Ahders showed him a picture of Ahders's penis in VB's vagina. VB, however, told investigators that Ahders never touched her vagina.
On November 7, 2008, Ahders pleaded guilty to Count 1 of the indictment, which charged him with producing child pornography involving "a male minor" -- EM. Ahders did not plead guilty to any charges involving VB or BB or the possession of the child pornography found on his laptop and PDA. Ahders and the Government entered into a written plea agreement, but they did not stipulate to the calculation of Ahders's sentencing range under the United States Sentencing Guidelines (the "Guidelines").
The Probation Department prepared a presentence report (the "PSR"). Although Ahders pleaded guilty only to the one count involving EM, the PSR concluded that Ahders had exploited three minors (EM, VB, and BB) and, pursuant to U.S.S.G. § 2G2.1(d)(1), treated the exploitation of each child as a separate count of conviction. The offense level was calculated separately for each victim. For EM, a 4-level enhancement was included for Ahders's possession of material that portrayed sadistic or masochistic conduct -- the images of nude minor girls bound and tied. For VB, a 2-level enhancement was included for Ahders's actions in removing her pants and underwear and photographing her. For BB, a 2-level enhancement was included for Ahders's actions in directing EM and BB to engage in sexually explicit conduct while he took pictures and sexually abused BB.
The three calculations were grouped pursuant to U.S.S.G. § 3D1.4. In the end, Ahders's offense level totaled 44,*fn1 which was then reduced to the highest offense level found in the Guidelines Sentencing Table: 43. The Guidelines "range" for an offense level of 43 is life imprisonment. Because the statutory maximum term of imprisonment for producing child pornography is fifty years, Ahders's Guidelines range was reduced ...