7th Circuit upholds child porn prison sentence

A Bedford man sentenced to more than 11 years in prison after pleading guilty to possession of child porn has failed to convince the 7^th Circuit Court of Appeals to order a resentencing, with the court finding that the terms of the man’s plea agreement were not breached.

In United States of America v. Robert D. Taylor, 18-1545, Robert Taylor was identified as a user of a child pornography website as part of an investigative seizure of the site in 2015. Taylor’s account was found to have used the website for roughly 80 hours in the months leading up to the seizure, accessing multiple images and videos containing child porn.

When Taylor’s account on the site was traced to his home in Bedford, law enforcement executed a warrant on the home and searched Taylor’s smartphone, which phone revealed additional pornographic videos and images of Taylor’s 14-year-old stepdaughter. He was subsequently charged with possession of child porn and entered into a plea agreement that provided that he would be sentenced at a Level 31 offense.

Taylor’s sentencing level was reached after two levels were subtracted because there was no evidence of Taylor’s intent to distribute pornography. The agreement also required the government to “recommend a sentence within he advisory guidelines range as determined by the Court.”

However, when a probation officer prepared Taylor’s presentence investigation report, the officer disagreed with the two-level subtraction, thus raising the offense level to 33. Neither party objected to the PSR, and the Indiana Southern District Court accepted the Level 33 calculation.

The court then set the sentencing guidelines range at 135 to 168 months in prison and ultimately chose to impose 135 months. Taylor’s attorney did not timely file a motion to appeal, so Taylor instead filed a motion to vacate on the basis of ineffective assistance of counsel. Additionally, Taylor challenged an imposed sentencing enhancement for “engaging in a pattern of activity involving sexual abuse of a minor.”

The district court denied all of Taylor’s motions, but re-entered judgment to allow him to appeal. But the 7^th Circuit Court of Appeals upheld all aspects of Taylor’s sentence Monday, finding first that the government did not breach its duty under the plea agreement to advocate for a sentence within the guidelines range.

Judge Kenneth Ripple rejected Taylor’s argument that the government was obligated to advocate for a sentence within the range that would have applied if Taylor was sentenced pursuant to a Level 31 offense. Instead, Ripple pointed to language in the agreement that required the government to advocate for a sentence “within the advisory guideline range as determined by the Court.”

“In addition to the promises made with respect to the calculation, the agreement also contained explicit language about the ultimate sentence: after the court calculated the range that it would apply, the Government had to argue for a sentence within the guidelines range chosen by the court,” Ripple wrote. “Mr. Taylor, however, was free to argue for any sentence, including one below the range chosen by the court.”

The court also rejected Taylor’s challenge to two sentencing enhancements — one for “engaging in a pattern of activity involving sexual abuse of a minor,” and one for use of a computer — because Taylor agreed to both enhancements in his plea agreement. And in a footnote, Ripple wrote that “even without waiver, Mr. Taylor cannot now be released solely from the provisions of his plea agreement regarding these enhancements.”

“Although he requests, in the alternative, that he be permitted to withdraw from the agreement in its entirety at his election, his primary request to be resentenced enforcing the plea without these enhancements is an approach that we do not permit,” Ripple wrote.