Submitted: January 9, 2017
from United States District Court for the Northern District
of Iowa - Cedar Rapids
COLLOTON, MURPHY, and MELLOY, Circuit Judges.
MELLOY, Circuit Judge.
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 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.
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.
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.
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).
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
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,
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.
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 ...