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United States v. Cottrell

United States Court of Appeals, Eighth Circuit

April 4, 2017

United States of America Plaintiff- Appellee
v.
Michael Cottrell Defendant-Appellant

          Submitted: January 9, 2017

         Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

          Before COLLOTON, MURPHY, and MELLOY, Circuit Judges.

          MELLOY, Circuit Judge.

         Michael Cottrell pled guilty to one count of receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1), and one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(b) and 2252A(b)(2). The district court[1] sentenced Cottrell to 360 months' imprisonment, at the bottom of his advisory range under the United States Sentencing Guidelines. Cottrell appeals, arguing the district court procedurally erred by considering unproven facts in imposing the sentence and abused its discretion by imposing a substantively unreasonable sentence. We affirm.

         I.

         After law enforcement learned that Cottrell was using peer-to-peer file sharing software to download child pornography, officers executed a search warrant at Cottrell's residence. During the search, officers found an HP laptop and notebooks belonging to Cottrell. The notebooks contained handwritten stories by Cottrell depicting incest and minors engaged in sexual acts. A forensic examiner later found 422 videos and 1, 687 images of possible child pornography on the laptop, including images of prepubescent children.

         During execution of the search warrant, officers interviewed Cottrell. Cottrell admitted he downloaded child pornography and stated he normally did not share his child pornography files. Cottrell also told officers that he was charged with two counts of first degree sodomy as a juvenile in Kentucky, he pled guilty to two counts of misdemeanor third degree sexual misconduct, and he went to counseling. In a second interview, Cottrell stated that he "agreed to misdemeanors" and was put in counseling following the Kentucky charges. Regarding the handwritten stories found during the search, Cottrell explained that in counseling he was taught to write stories about his feelings.

         Cottrell was indicted for receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1), and possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(b) and 2252A(b)(2). He pled guilty to both offenses. Before sentencing, the Government indicated that based upon the Kentucky incident it would attempt to prove a prior conviction for sexual abuse or abusive sexual conduct involving a minor to increase Cottrell's sentence. The initial Presentence Investigation Report ("PSR") calculated a guideline range of 360-720 months (720 months being the statutory maximum), based on an offense level of 42 and a criminal history category of I. Treating the Kentucky incident as a conviction, the guideline range included the enhancement for a prior conviction pursuant to 18 U.S.C. §§ 2252(b)(1) and 2252A(b)(2). The guideline range also included a five-level enhancement for engaging in a pattern of activity involving sexual abuse or exploitation of a minor pursuant to United States Sentencing Guideline § 2G2.2(b)(5).

         Cottrell made a number of objections to the initial PSR. Specifically, Cottrell argued there was insufficient evidence to support an enhancement for a prior conviction. The Government subsequently declined to pursue the enhancement because evidence regarding the Kentucky incident was limited. The only records the Government produced were handwritten juvenile court docket cards that were largely illegible as to what the actual charges were and the final disposition of those charges.

         At sentencing, the district court calculated Cottrell's guideline range as 360-480 months. The Government requested a guideline sentence and Cottrell moved for a downward variance. In rejecting that motion, the court stated:

There are several aggravating factors that could take the Court to the very top of the advisory guideline range, including the fact that he has a prior conviction for hands-on abuse of minor children that were under his care as a baby-sitter; that he had over 33, 000 images, [2] and the guidelines score a level 5 for 600 or more images; and the fact that he violated the terms of his pretrial release by continuing to view and seek out erotica on his cellphone.

         Discussing Cottrell's history and characteristics, the court noted "his juvenile commitment for sex abuse second degree out of Kentucky." Cottrell did not object to these comments. The court sentenced Cottrell to 360 months' imprisonment, consisting of 240 months for receipt of child pornography and 240 months for possession of child pornography, to be served concurrently, except that 120 ...


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