Memorandum in Aid of Sentencing — United States v. Gary Edward Davis (D. Md., Dkt. 26, July 1, 2021)

Summary

Memorandum in Aid of Sentencing, Case 1:20-cr-00341, Document 26, filed 07/01/21 (D. Md.), submitted for Gary Edward Davis by James N. Papirmeister, Esquire, with attachments, for sentencing scheduled July 14, 2021. The memorandum states that the defense will ask for a sentence applying a substantial downward guidelines variance, citing the history and characteristics of Gary Davis, his disadvantaged background, and his efforts to rehabilitate himself. It describes a Psychosexual Risk Assessment and Evaluation by Dr. Ronald I. Weiner and a childhood in Frederick County, Maryland. The conclusion requests at least a 14 level downward variance, resulting in a total offense level of 10 and a guideline range of 6-12 months, to be served on electronic home monitoring.

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“Memorandum in Aid of Sentencing — United States v. Gary Edward Davis (D. Md., Dkt. 26, July 1, 2021).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-20-cr-00341-dkt-26-d-md-0f723ec5a8/, SHA-256 b8d1ebcef1f2f6ecb69b9c8f0edda6725acc891efcf2b7b31956ab2e251f7078.

Full text

Case 1:20-cr-00341-ELH Document 26 Filed 07/01/21 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA :
: Case No.1:20-cr-00341-ELH
vs. :
:
GARY EDWARD DAVIS :
:
Defendant. :

MEMORANDUM IN AID OF SENTENCING

COMES NOW the Defendant, Gary Edward Davis, by and

through James N. Papirmeister, Esquire, of the Law Offices of

James N. Papirmeister, P.C. and, hereby submits the following

Memorandum with attachments to aid this Court in rendering

the sentencing decision in this case, scheduled July 14, 2021

at 2:30 pm:

GARY DAVIS’ SENTENCING ARGUMENT IN A NUTSHELL

We are going to ask for a sentence that applies a

substantial downward guidelines variance in this case. Given

the nature and circumstances of the offense, the history and

characteristics of Gary Davis, his disadvantaged background,

his truly commendable character and efforts to rehabilitate

himself and study the root cause of his offense, and the

tremendous upheaval and pain in his and his wife’s life that

this case has wrought, we submit warrants a result that is

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more in line with what a state court in Maryland would

typically do in a case like this case, which in fact started

out in the District and Circuit Courts of Frederick County.

We hope to demonstrate that this case is extraordinary, that

Gary Davis is extraordinary, and that our recommendation is

entirely appropriate and in line with the sentencing factors

delineated in 18 USC §3553(a).

CHILDHOOD

Gary grew up in Frederick County, Maryland as the sister

of Cheryl Mathis-Lynn, nee Davis, and as one of two children

of Mr. George Davis and Mrs. Anna Davis. His father was a

farmer and his mother assisted on the farm and was a

homemaker. She currently lives in Ormond Beach, Florida. His

father passed away in 2005, from Non-Hodgkins Lymphoma, when

Gary was about 32 years old.

A Psychosexual Risk Assessment and Evaluation was

commenced in this case by Dr. Ronald I. Weiner, Ph.D., a

long-time clinical member of the Association for the

Treatment of Sexual Abusers [ATSA], shortly after Gary’s

release on bond in the Frederick County case, which was the

precursor to this federal case. Dr. Weiner was employed by

this counsel almost from the inception of this counsel’s

retention as Gary’s attorney by Gary’s family. Dr. Weiner
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engaged in in-depth interviews with Gary about his background

and his involvement mostly before this counsel did, and the

bulk of what this counsel has learned about Gary’s

background, came from Dr. Weiner’s extensive and months-long

evaluation process rather than this counsel’s client

interviews. Dr. Weiner is one of the premier ATSA Clinical

Members and experts in the field of Psychosexual Risk

Assessments and Evaluations in the Maryland and DC

Metropolitan Area. He has served as a court expert for

several federal and state judges, and has been a frequent

contractor with the United States Probation Office to conduct

evaluations and treatment in such cases. [See Exhibit 11, CV

of Dr. Weiner]. References to Dr. Weiner’s evaluation will

hereafter be made as “Weiner, p. x”, and the evaluation is

contained in its entirety as Exhibit 1.

It can be accurately said that Gary grew up in a

household and family that provided for his basic childhood

needs and with parents that were well-intentioned in terms of

exposing Gary to positive values, including hard work,

education, religious training, and exposure to farming. He

attended Catholic schools in Frederick through middle school,

and went to Frederick High School, graduating in June, 1990.

He was bullied, rejected by peers, and teased as a freshman
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and sophomore, but became more popular in his Junior and

Senior years. He reports being embarrassed by his weight,

physique, and lack of athleticism, which improved as he

became involved in the football team in high school. He was

an average student, but was never held back a grade, never

suspended and never missed school or skipped classes.

All was not well in his childhood, however. Gary grew up

on a pig farm in Adamstown, Maryland. He reports that most of

his growing up years were lonely and sad, and he frequently

felt ignored by his parents. He had few friends and worked on

the farm doing chores, often played outside alone, and

watched television when allowed by his parents. He described

his father as very stern, belittling, demanding,

disconnected, busy and unloving. His father was a relentless

taskmaster and was prone to angry outbursts and physical

punishment of Gary, who continuously felt his father’s

disappointment in him. Gary feared his father, who criticized

him about his weight, and other matters, and Gary lived in

terror of being beaten. While his mother was grounded,

consistent, and often the peacemaker, she too was distant.

Gary has established in adulthood a better relationship

with his mother, who traveled up from her home in Florida to

offer support when Gary was arrested. Gary enjoys a strong
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relationship with his sister, Cheryl Mathis-Lynn, who

suffered the death of her first husband, and he also has a

strong relationship with her second husband Mike. Sheryl and

Mike and their 10-year-old daughter also live in Frederick.

Worse than his father’s abusive treatment, moreover, was

another seminal childhood occurrence in Gary’s life. Gary’s

family’s devotion to rearing him in the Catholic faith, and

their regular involvement in, and attendance at their local

parish, unfortunately, put Gary in a position and place to

suffer childhood sexual abuse and trauma.

Mr. Davis reported that he was the victim of
child sexual abuse on multiple occasions
perpetrated upon him by an elder at his parish. He
was an altar boy at the time these events occurred.
He advised that the elder watched him disrobe
exposing his genitals and buttocks and “slid his
hands into my privates and smelling and watching.”
He indicated that the elder groomed him into
allowing the elder to fondle him veiled with
perceived legitimacy that he had to be clean and
not smell before being allowed to perform his altar
boy activities. He reported feeling “confused” and
“small.” He never disclosed this information to his
parents or to anyone else. He reports that he
continues to feel traumatized by the experience he
encountered as a pubescent age boy.

Weiner., pp 10-11. Gary describes having painful memories of

this abuse, and while he suppressed it for much of his life,

he has undergone extensive therapy for about 15 months, and
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it has been coming out now and the details are very clear to

Gary.

The pernicious effects of exposure to repeated childhood

sexual abuse, the incidence of delayed reporting, and myriad

manifestations of life-long adult traumatic effects are well-

documented. Gary Davis’ offense conduct is one such, not

atypical manifestation.

SERVICE TO COUNTRY

Gary Davis served 23 years in the United States Navy. He

enlisted and entered active duty on August 1, 1990, shortly

after graduating high school. He was Honorably Discharged on

September 30, 2013, retiring as a Senior Chief Petty Officer

(E-8). He served in numerous on-shore duty posts in Europe

and the United States, as well as on numerous naval war

vessels at sea and on nuclear submarines. He was trained in

cryptology and electronic intelligence, combat systems, and

ballistic missile defense. He achieved the second highest

ranking for an enlisted service member and earned numerous

Navy and Marine Corps Commendation Medals. He was selected

for the Military Electronic Intelligence Signals Analysis

Program [MESAP], as one of only eight service members

selected annually from all the armed services, to participate

in the NSA’s MESAP program.
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He was in charge of 600 people in his command. He was on

track to obtaining the highest rank he could achieve as

Master Chief Petty Officer (E-9) or eligibility to serve as a

Command Master Chief, either of which would have required him

to extend his enlistment for an additional four years and be

deployed at many sea-duty posts. His marriage was at this

time, falling apart, however, and he painfully decided to

turn down these career paths to salvage his marriage. Upon

taking this step, he was then shifted to administrative

duties, which essentially meant he was relegated to an office

and paperwork-heavy assignments, which he found unrewarding

and unsatisfying. [See Exhibit 3 for documentation of Gary’s

military service].

While serving on active duty, Gary diligently pursued

distance education and completed online undergraduate and

graduate degree-earning programs. He earned an Associate of

Science Degree in March, 2007 from Excelsior College. He then

completed his Bachelor of Science there in 2008. He then

earned a Master of Business Administration in 2009 from the

University of Phoenix. [See Exhibit 4].

Subsequent to Gary turning down his military advancement

and being relegated to the strictly administrative duties,

and in an effort to salvage his marriage and family life,
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Gary retired from the military. He was Honorably Discharged

in September, 2013, [see Exhibit 3], but he was fearful of

his transition to the private sector.

PRIVATE SECTOR WORK

Gary at first was hired in the last part of 2013 to 2014

as a Program Manager for SRC, a national security company.

Gary was then hired as a Business Process Expert and Program

Manager [USCYBERCOM] at CACI, a Defense Department [DOD]

contractor, providing defense, intelligence, homeland

security, and healthcare solutions, from March 2014 through

December, 2014.

Gary was then hired in December, 2014 at TechGuard

Security Company, another DOD contractor, starting out as a

Prime Contract Manager. He served in that capacity for about

four years until September, 2018, which included his serving

as Regional Director. During that time, he advanced to become

Vice President of Government Programs from 2016 to March,

2020, when his arrest in this case in Frederick County

occurred, and he lost his Top Secret/Specially Compartmented

Information//Special Access Program clearance.

Mr. Davis’ position with TechGuard Security is sometimes

misunderstood. He was never a Cyber Security Technician. He
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provided contract and personnel management, business

development and talent recruitment management. “Gary’s role

at TechGuard was not a technical Cyber Security Technician.

“Gary held a Program Management Professional Certification

(PMP) and he oversaw a large portfolio of contracts that

TechGuard held with the Government. “Gary’s role was to make

sure that every project was staffed appropriately,

deliverables were met and that the contract ran within

budget”. [Letter from Carla Stone, President and CEO of

TechGuard, Exhibit 5].

Gary was highly valued and was very successful in his

job at TechGuard. None of his behaviors in the receipt or

possession of any pornography was done at this job. All his

work computers were inspected and none was found to contain

any pornography at all, let alone child pornography. Gary’s

CEO as well as all the other principals and employees at

TechGuard were shocked and certainly dismayed about Gary’s

charges and arrest in this case. They have suffered a great

loss without Gary serving as a Vice President of the Company.

When he was terminated in March, 2020 as a result of his

arrest in this case, he was making over $200,000 a year, on

top of receiving his monthly military pension and disability

payments. He and his wife and children were not rich, and
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were laden with substantial debt even then, but he could

adequately provide for his wife Alysa and his younger

daughter Allison. Now, the family is financially bankrupt,

and we use the term “financially” with care. As you will see

below, and from an attachment, even with the discharge of

some of his debts in bankruptcy, and through the TPD program

for disabled vets who owe parental student loans, his monthly

retirement and disability check is barely enough to live on.

With the prospect of his possible incarceration for longer

than 60 days, he will lose, as will his wife, 90% of his

monthly disability payment. This will put his wife and him in

an ever growing and dire financial hole every month.

GARY DAVIS’ FAMILY

While deployed in the Navy, Gary met his wife Alysa in

Rota, Spain and the couple married on October 31, 1997. They

have one child Allison who is now 22 and a second child Lisa

who is now 28 and lives with her fiancé and two children in

Alaska. Allison was diagnosed with thyroid cancer and

underwent surgery at age 16 to treat the cancer. She

graduated Towson State University and is working temporarily

in a restaurant in Baltimore. [For reasons previously

explained, more details on the children are set forth on page

10 of Dr. Weiner’s report].
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Prior to his meeting her, Alysa was unfortunately the

victim to long-term intrafamily sexual abuse as a child, and

equally troubling, a gang rape by American servicemen when

she was 21 years old. She has significant mental health

issues, including prominent Post-Traumatic Stress Disorder

[PTSD], significant Persistent Postural Perceptive Dizziness

[PPPD], sexual problems, and numerous physical disabilities.

She suffers from vertigo, digestive problems, and other

health issues and is completely disabled. She can no longer

drive a vehicle. [See Alysa’s letter under Exhibit 6 and some

of her medical reports in Exhibit 7].

Gary and Alysa truly love each other and their

relationship has been improving since Gary has embarked on

his therapy over the last 15 months. The couple’s marriage

suffered greatly over the years, however, through Gary’s

military deployments and other career obligations, and

through Alysa’s deteriorating physical and mental health. Due

to both Gary’s own history of sexual problems and his wife’s

traumatization, physical and mental health issues, the

couple’s level of intimacy dwindled to virtually nothing over

the years, despite both maintaining a strong devotion and

loyalty to one another, and very positive physical

appearances.
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As is mentioned in the Character Statements, [Exhibit

8], Alysa has been deteriorating mentally and physically for

years, is now 100% disabled and is entirely dependent on Gary

for emotional, physical, and financial support. Twenty-two

[22] year old daughter Allison Davis poignantly describes the

depth of her mother’s dire situation, and is racked with

guilt about not wanting to stop her career and life to move

back home and take care of her mother, if her father is

incarcerated, noting her mother’s considerable needs. Id.

Gary’s 51 year old sister, Sheryl Mathis-Lynn

acknowledges some of the difficulties Gary confronted in his

childhood, particularly with his father. She and Gary have

always been close and have obviously been there for each

other throughout their lives. Id. Gary’s mother Anna Davis is

not as forthcoming or aware of her late husband’s

contribution to Gary’s condition, nor of Gary’s victimization

in the parish, because he has not wanted to discuss these

things with her. It was suggested in the PSI that Gary’s

mother can help his wife Alysa out if Gary is incarcerated.

Gary’s mother can come up from her home in Florida for short

periods of time, in the event of an emergency such as Gary’s

sudden arrest. But she is 78 years old and lives on a fixed

income in Ormond Beach, Florida. She is not prepared to, nor
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can afford to, just move to Maryland in her financial

condition, with her residence in Florida and the fact that

she moved to Florida for the climate and lower cost of

living.

The Court should also examine the letters provided by

Gary’s older daughter Lisa, and his brother-in-law Mike Lynn

[Exhibit 8].

FINANCIAL CONDITION

In Exhibit 9, you will see a Discharge in Bankruptcy, a

revised Asset and Liability balance sheet prepared by Gary,

and the TPD discharge of the student parental loans Gary was

paying off, from his daughter’s college education.

We ask the Court to seriously consider that once Gary

may be imprisoned more than 60 days, his military retirement

of $2,578 a month will not change, but his VA disability

benefit of $3,667 a month will drastically change. [He is

determined as 100% disabled.] The benefit will be reduced by

90% down to $147 a month. While his wife Alysa, can apply to

receive additional benefits, it is highly unlikely she will

be able to recoup the lost 90%. Furthermore, it often takes

up to 18 months to be approved for whatever she may be able

to obtain.

As Gary’s bankruptcy has now been finalized and the
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balance sheet looks somewhat more manageable for the time

being, it is still barely enough to live on now, and provides

for a monthly positive cash flow of about $77.00. Once he

loses 90% of the disability benefit, it will constitute a

desperate situation for Alysa, and present her with a

probable foreclosure of her and Gary’s home, not to mention

limiting her to a bare minimum on which to live.

THE OFFENSE

Gary Davis has plead guilty to count two, knowing

possession of child pornography, which images had been

received and possessed via his Apple iPad Mini, from December

27, 2019 to January 21, 2020. While the number of total

videos exceeded 500, it appears less than 30 contained short

clips of approximately 30 seconds each depicting prepubescent

minors. The time period of the offending behavior contained

in the Indictment was from December 27, 2019 to January 21,

2020, or just over three weeks. The images were recreated

forensically by the FBI and had not been saved on hardware

recovered in this case. In fact, it is significant, that

prior to his knowledge he was being investigated and being

charged, Gary rather emphatically, engaged in physically

destroying his iPad Mini, which was the singular device he
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used to send, receive, and consume this contraband material.

Gary explained to Dr. Weiner how his involvement came

about:

Once he entered into private chat rooms on the internet via KIK he
found himself in a setting occupied by persons who were
preoccupied with sexualizing children and sharing and trading
images and videos of children engaged in either sexualized scenes
or in direct sexual contact with adults. He stated:
“I became involved in these chat rooms that were deviant and lost my
moral compass for immediate gratification. I looked at [images and videos]
of underage adolescent females that were inappropriate along with
viewing a general pattern of looking at adult pornography. I saw stuff
that was very young. I was primarily looking at twelve to sixteen-year old
females doing dances and thought that nobody was forcing them. At the
time, in my mind no harm was done; nobody forced her to do that.”
Mr. Davis stated, “When you’re in a private group of twenty
people, your logic gets skewed.” He stated that he wanted to
terminate his involvement with these groups of individuals who
were sending child pornography and did so by destroying
everything that he had on his mini I-Pad. He reported feeling that
he had seen everything and “couldn’t believe the level of depravity
that was out there. He started praying that he would be able to rid
himself of viewing any and all forms of pornography but “knew
that it had a grip on me and I wanted it gone, out of my life and
knew that I was not in a good place. He stated that he destroyed his
mini I-Pad in early February, 2020 prior to his arrest stating that he
needed to “get this out of my life.” He indicated that he could never
imagine voicing the words of how deviant, disgusting, and evil the
child sexual exploitation material sent to him and that he sent out
to others was. He felt deep shame about posting material just to
have access to these private rooms with others interested in child
pornography stating that these sites required that one must post
material in order to receive material from others. Failure to do so
would prevent one from being allowed to continue participation
in the chat room.
Mr. Davis stated that he destroyed his I-Pad in the basement of his
home and put it in a trash bag and threw it away in a dumpster
behind his work. He stated that once he made the decision to get
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rid of this, “I felt like I’d made a good decision and the burden
was lifted, I had made some progress and felt like I had beat it. I
knew it was wrong and wanted desperately to purge it out of my
life.”

Weiner, pp 5-6.

Dr. Weiner summarizes Gary’s behavior thus:

Mr. Davis is a first-time offender with no history of sexual
offenses, violent criminality, or any property related crimes. He has no
chronic or sustained history of substance abuse or alcohol abuse or
dependence to complicate potential for compliance with any, and all,
probation supervision and mandated sex offender treatment
requirements the Court may impose. His test results do not indicate that
he has any serious mental disorder that would complicate compliance
with community supervision and sex offender treatment (e.g.,
schizophrenia, delusional disorder, bi-polar disorder). He does,
however, have some rather serious emotional management issues
and personality issues that will need to be addressed during the
course of any treatment he may receive.
There is no evidence from a review of law enforcement reports to
indicate that Mr. Davis communicated with any child for purposes
of engaging in sexual activity.
Mr. Davis is married. His wife is supportive of him and was unaware
that Mr. Davis was involved in child pornography activities. He has
one biological child with his wife, as well as an adopted daughter.
Mr. Davis’ test scores do not indicate evidence of him having
antisocial personality features. He does not have a history of
antisocial acts and involvement in illegal activities aside from his
index offense. He does not have a generally exploitative approach to
interpersonal relationships. His test scores indicate that he does not
have any problems with aggression (aggressive attitude, verbal
aggression, or physical aggression). Mr. Davis’ index offense and
his sexual and life history do not indicate that he is a preferential
predatory pedophile. The functional analysis of his offense conduct
indicates that his behavior involving the index offense represents a
crime committed as a result of a combination of expressive
motivations (negative emotional states) described earlier in the
report.
Based on an assessment of his scoring on the C-PORT, along with a
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dynamic risk assessment SOTIPS identifying the targets of needed
change, the results of his sexual history questionnaires, and my own
clinical interviews and rating of his overall level of emotional
adjustment and stability with Mr. Davis, Mr. Davis is assessed
currently as being in the low risk category for sexual re-offense
involving child pornography. His predicted probability of sexual re-
offense involving child pornography is 2.8% for five years.
Mr. Davis’ test results and my own assessment interviews indicate
that he is a very good candidate for involvement in sex offender
treatment and is likely to benefit such that he can develop
information, knowledge, and skills for avoiding sexual recidivism.
There is every indication that Mr. Davis can be safely treated in
the community without any undue risk to public.

Weiner, pp. 22-23, some emphasis supplied. Many people wonder how one who
possesses child pornography could not be deemed a pedophile. Dr. Weiner explains:

Although, on the surface, Mr. Davis offense conduct involving
possession and distribution of child pornography could reasonably
be assumed to represent pedophilic disorder, I do not consider this
to be an accurate representation that characterizes his offense
conduct. He does not present historically showing sexual interest
in children. He did not engage in online sexual communications
with a minor or an undercover officer posing as a minor. He did
not have any child pornography text stories. He did not volunteer
in a role with high access to children. His behavior leading to his
arrest and charges appears to be part and parcel of a larger problem
with pornography use generally combined with his involvement in
high-risk transient and homosexual contact with men with whom
he met on the internet. His high-risk involvement in private online
groups with men interested in child pornography is indicative of
his having impulse control difficulties related to general
pornography use as well as with his sexual impulses. His
prolonged marital problems have left him bereft of any sexual
intimacy with his wife leaving him to cast about in unhealthy high-
risk sexual transient sexual behaviors with other men.

Weiner, p. 19.

Dr. Weiner made comprehensive treatment recommendations
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after he completed his evaluation, which took many months.

All the while he was being evaluated, from the very week of

his pretrial release in the Frederick County case, Gary was

simultaneously undergoing weekly individual counseling with

the Executive Director of Clinical and Forensic Associates,

an ATSA Clinical Sex Offense Treatment program. As of

November, 2020, Gary added weekly 90 minute group sessions on

top of the weekly 45-minute individual sessions. All told, he

has now spent 65 weeks as of June 30, 2021 in weekly

individual sessions, and 51 hours of group sessions in the 34

weeks from November, 2020 through June, and counting.

COMPLIANCE WITH RELEASE CONDITIONS AND TREATMENT PROGRESS

Gary was initially held without bond in the Frederick

County Detention Center, after an initial bail hearing, on

his arrest for the related state charges on March 13, 2020.

Pursuant to a motion, he was granted a second bail review

hearing on March 27, 2020. He was released pursuant to

several restrictive, special conditions, supervised by the

Frederick County Probation Department. Those conditions

included 24-hour-a-day home confinement with electronic

monitoring, mandatory psychosexual risk assessment by Dr.

Weiner, weekly sex offense counseling by Clinical & Forensic
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Associates, an ATSA Clinical Program, mandated installation

on all electronic devices in the home of Covenant Eyes Anti-

pornography software, to be monitored by Dr. Weiner, an ATSA

Clinical member, with any violations thereof reported to the

probation agent, no contact with minors, and alcohol and drug

screening. Mr. Davis was fully compliant with all these

conditions, and left his home a total of four (4) times in

eight (8) months, as of November 4, 2020, [the commencement

of this federal case and concomitant nolle prosequi of his

state case]. Those four departures from his home were for

preapproved medical appointments and an attorney office

visit. [See attached Bail Review Summary, Order for Special

Conditions of Release and Order for Pre-Trial Home Detention,

Exhibit 10].

Moreover, similar release conditions were imposed on Mr.

Davis in this federal case as of November, 2020, and Mr.

Davis has been compliant with both the Covenant Eyes

monitoring software, and the federal antipornography

software, without any violations being reported for either

his Frederick County, or federal pretrial supervising

authorities. He has been fully compliant with his processing

by the US Marshalls, and his provision of extensive

documentation to his pretrial agent as well as Ms.
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McGuinness, the PSI Investigation Specialist.

Moreover, Elizabeth Raeder Freeland, as an ATSA clinical

sex offense counseling specialist, who is the Executive

Director of Clinical and Forensic Associates, indicates that

Mr. Davis has made substantial and excellent progress over

the 15 months of his near flawless participation in the

treatment program. [Exhibit 2, with refences to this report

hereafter being made as “Raeder, p. x”].

Director Raeder-Freeland writes:

His individual sessions with me continue to be meaningful and
productive. He attends all scheduled sessions on time and prepared,
and has completed additional psychoeducational work I have
assigned to him. He continues to demonstrate a strong understanding
of relapse prevention techniques that we have discussed, and reports
that he remains motivated to complete treatment successfully. His
participation in group treatment is also excellent. He has emerged as
a leader, providing empathic support to members of his group who
are struggling emotionally, but also willing to challenge individuals
who are engaging in high- risk actions or utilizing cognitive
distortions to justify lapse and relapse sexual behaviors.

Raeder, p. 1. Ms. Raeder-Freeland notes that one particularly

valuable exercise known as a “clarification letter” has been

successfully undertaken by Gary, and his letter is attached

as Exhibit 2B. This strategy involves having Mr. Davis take

full accountability for his actions by writing to the victims

he injured by his use of child pornography. “Mr. Davis took
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the assignment seriously and produced a thoughtful and

comprehensive letter, indicating that he now possesses an

understanding of the severe damage sexual abuse inflicts on

child and adolescent victims, which I believe he has deeply

internalized.” Raeder, p. 2.

. Ms. Raeder-Freeland is very positive about Gary’s

treatment progress:

He continues to display a commitment to working towards
understanding his behaviors, in the service of preventing recidivism
and living a more fulfilling life. In addition, he continues to
demonstrate what I perceive as a genuine sense of remorse and
shame for his behaviors. These are positive treatment indicators, as
acceptance of responsibility is a crucial piece of relapse prevention
treatment.

Raeder, p. 2.

Ms. Raeder agrees with Dr. Weiner that Gary is not a

pedophile, despite the material that was extracted by the FBI

in its forensic analysis. She notes that the root causes of

his offending behavior are from:

various unmet needs that contributed to his
offense behaviors, including: toxic stress
resulting from working long hours and having too
many job responsibilities; stress related to
reintegration and acclimation to civilian life
after 20 plus years of service in the United
States Navy; isolation; intimacy deficits in his
marriage resulting from mental and physical
health issues experienced by his spouse, and his
inability to communicate effectively with her;
lack of a support network; and unresolved sexual
trauma, and resulting adjustment and mood issues.
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Raeder, p. 3. She indicates that:

my provisional assessment does not lead me to
believe that he meets the diagnostic criteria of
a pedophile- someone who experiences intense and
recurrent sexual urges towards and fantasies
about prepubescent children. He is now able to
recognize that his offense behaviors were
maladaptive coping techniques that he used to help
him manage negative emotional states and
emotional adjustment difficulties, particularly
related to stress and isolation.

Id. Ms. Raeder-Freeland diagnoses Gary as having “Compulsive

Sexual Behavior Disorder” [Raeder, p. 4], who presents as a

“fantasy driven offender” as opposed to a “contact driven”

offender [Raeder, p. 5].

She points out that his relationship with his wife Alysa

has improved considerably in the last 15 months, as he has

made efforts towards being emotionally honest with her, and

is committed towards working on problems in the marriage,

particularly, emotional intimacy deficits. Id. She notes he

has shown greater control over his urges, and an ability to

avoid risky situations that could provoke his acting out.

Raeder, pp. 5-6. “In addition, he has followed all clinical

recommendations made by this writer, including obtaining a

psychiatric assessment and following the clinical
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recommendations of his psychiatrist.” Raeder, p. 6.

Ms. Raeder agrees with Dr. Weiner’s pretreatment

assessment that Gary is low risk for recidivism [Raeder, p.6,

p. 7], which is especially a strong factor now that he has

undergone 15 months of treatment.

Mr. Davis’s continued excellent participation and progress in
treatment, along with the various mitigating factors mentioned
above, continue to indicate a positive treatment prognosis. This
suggests that he is a strong candidate for an extended period of
probation in the community in lieu of a long period of incarceration,
should the court see fit to sentence him in such a way. As noted in my
previous letter, Dr. Ronald Weiner correctly stated in the
psychosexual risk evaluation he completed on Mr. Davis that research
indicates that individuals who commit sexual offenses respond more
favorably to treatment and supervision, thus lowering their risk of
recidivism, when they are monitored in the community. It is my
clinical opinion that Mr. Davis represents a low -risk to sexually
reoffend, and will continue to make additional gains in our treatment
program.

Raeder, pp. 6-7, emphasis in original. As demonstrated in

this exemplary Treatment Progress Report, Gary Davis has

embraced his wrongful conduct, he has embraced the intense

search to discover its root causes, and has embraced every

condition of release and treatment recommendation made to him

by top professionals in the field, uncompromisingly.

THE LOSSES AND THE PUNISHMENT IN THIS CASE

The losses Gary has experienced from his arrest and

charges in this case are profound. He has lost his job, his

top secret security clearance, his career, and any reasonable
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job prospects. He spent several weeks in the Frederick County

Detention Center, before being released on 24-hour-a-day,

home electronic monitoring, where the few times he has left

his home, have been solely for preapproved medical visits for

his wife, and legal and court obligations. That is a loss of

freedom.

Upon Frederick County District Court Judge Dino Flores’

decision to release Gary on a bond reconsideration motion,

Gary was the subject of very negative coverage in a local

newspaper article, and was excoriated in very negative

comments made to the newspaper by people in his own

neighborhood. He has lost any semblance of community

respect. He feels utterly embarrassed by his offense, shamed

and humiliated. He feels like a pariah and scourge of the

community. He has lost his dignity in so far as the community

is concerned.

He will be a lifetime convicted felon and on the sex

offender registry pursuant to SORNA and Maryland Law as a

Tier I offender for 15 years. In Doe v. Dep’t of Pub.Safety &

Corr. Servs, 430 Md 535 (2013), the Court of Appeals of

Maryland (J. Greene) expounded on the requirements of someone

being on the registry.

[a person] must report in person to law
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enforcement every three months, give notice to
law enforcement of his address and any changes
of address, and notify law enforcement before
being away from his home for more than seven
days…. Furthermore, he must disclose to the
State a significant amount of information, some
of which is highly personal, including: his
employment address; information about his
conviction; his social security number; his
email address and computer log-in names;
information about vehicles he often uses,
including those not owned by him; his finger
prints and palm prints; all ‘identifying
factors, including a physical description,’ and
an updated digital image of himself….
Additionally, other than to vote, [the person]
is prohibited from entering onto real property
that is used as a school or a family child care
center licensed under [the Family Law Article]
without first obtaining permission…. If [the
person] fails to comply with these requirements,
he faces terms of imprisonment depending on the
violation, of up the three or five years….

430 Md. at 562.

Quoting from prior Maryland cases and the Supreme Court,

the Court of Appeals opinion goes on to highlight the grossly

deleterious effects of registration in markedly powerful terms.

[D]issemination of a registrant’s information,
including some private information, imposes
‘affirmative disabilities’ on registrants
because the dissemination has the effect of
‘labeling a registrant as a sexual offender
within the community which can be highly
stigmatizing and can carry the potential for
social ostracism….’ Internet notification[that
was beginning to be used in Maryland would]
threaten widespread disclosure of highly
personal data and may implicate social
ostracism, loss of employment opportunities, and
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possibly verbal and physical harassment…. The
result is that the dissemination of information
about registrants… is the equivalent of shaming
them, and is, therefore, punitive for ex post
facto purposes….
Justice Ginsburg noted in her dissent in Smith,
the ‘public notification [requirement], which
permits placement of the registant’s face on a
webpage under the label ‘Registered Sex
Offender’, calls to mind shaming punishments
once used to mark an offender as someone to be
shunned’.

Id. at 565-566, emphasis supplied, and some citations and some

text omitted.

Gary lost his income, and his financial solvency, and

both he and his wife are financially tenuous and on the brink

of true financial desperation, especially if he is

incarcerated longer than 60 days. Now and even more

significantly after any period of incarceration, this now 49

year old man, has very limited employment prospects. He has

had three invasive foot surgeries and is 100% physically

disabled and cannot serve as a laborer.

As the Court well knows, the opening line of 18 USC

§3553(a) mandates that the Court impose a sentence

“sufficient but not greater than necessary” to achieve the

enumerated purposes of sentencing. The applicable guidelines

in this case, simply overrepresent the extent and nature of

Gary Davis’ conduct. Were this case to have remained in the
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Frederick County Circuit Court, there is little doubt in this

writers’ mind that Gary would be granted a fully suspended

sentence, with full credit for the now 16 months he spent in

jail or on court-ordered home monitoring, and he would be

placed on five years supervised probation, with typical

conditions, including no unsupervised contact with minors, an

order to successfully complete treatment at Clinical and

Forensic Associates, an order to submit to all sexual

history, maintenance and exit polygraphs as directed by his

treatment provider, an order to register as a Tier 1 sex

offender for 15 years, and an order to take all prescribed

medications, to comply with psychiatric treatment, and all

the standard conditions of probation.

Frankly, I do not know what any period of incarceration

would hope to accomplish in this case other than the interest

of making this first offender’s month-long foray into the

seedy world of Child Porn, consistent with the Guidelines

range of 51 to 63 months. Gary Davis has demonstrably gotten

the message from his offense, has wholeheartedly embraced his

treatment and rehabilitation with every fiber of his being.

He has been severely punished with life-long devasting

consequences to his job, career, finances, reputation,

stability of his family, particularly as to his wife, and has
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a somewhat bleak future. He is crushed, demoralized,

humiliated, shamed, embarrassed, shunned and brought very

low.

A SUBSTANTIAL VARIANCE DOWNWARD IS WARRANTED

Gary pled guilty to the possession of child

pornography. Without minimizing the nature of his conduct,

it was limited to what he did in a three-week period via his

iPad Mini device. He had no in-person contact with any

minors.

The Base Offense Level in this matter is 18 (27-33

months). The various specific offense characteristics in

this case have the effect of essentially “supercharging”

guidelines calculations resulting in a final Total Offense

Level of 24. This is after a three level reduction for

acceptance of responsibility, with a resulting guidelines

range of 51-63 months, or about five years for man with no

prior criminal record and an otherwise impeccable personal

history.

While the calculations of the Guidelines are technically

correct, they do not represent a reasonable assessment of

Gary’s level of culpability in this matter.

The use of a computer is a “given” in just about every

child pornography case and certainly in nearly every case
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where there is these days, a distribution, a possession

and/or a receipt count. Additionally, the Specific Offense

Characteristic for over 600 images will be applied in nearly

every child pornography case, particularly where there are

videos involved as five videos become the equivalent of more

than 600 images for Guidelines purposes.

It is hard to imagine a child pornography case where

there would ever be a strictly “Base Offense Level” case.

The need to be extraordinarily careful in the

application the 2G2.2 Guidelines has been the subject of

comment and caution by a number of courts as well as by the

Sentencing Commission.

In United States v. Dorvee, 616 F.3d 174, 182–83 (2d

Cir. 2010), the Second Circuit first reminded that even where

a district court has properly calculated the Guidelines, it

may not presume that a Guidelines sentence is reasonable for

any particular defendant, and accordingly, must conduct its

own independent review of the § 3553(a) sentencing factors

and that under § 3553(a)'s “parsimony clause,” it is the

sentencing court's duty to “impose a sentence sufficient, but

not greater than necessary to comply with the specific

purposes set forth” at 18 U.S.C. § 3553(a)(2). [I apologize

for the length of the following quoted passage, and
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acknowledge it pertains to a defendant whose offense conduct

is more serious than Gary’s conduct. Nevertheless, the

opinion notes several compelling considerations about the

guidelines and child pornography cases that are relevant to

the sentencing analysis in our case].

Even where a district court has properly calculated the Guidelines, it may not
presume that a Guidelines sentence is reasonable for any particular defendant,
and accordingly, must conduct its own independent review of the § 3553(a)
sentencing factors. See Cavera, 550 F.3d at 189. Under § 3553(a)'s "parsimony
clause," it is the sentencing court's duty to "impose a sentence sufficient, but not
greater than necessary to comply with the specific purposes set forth" at 18 U.S.C.
§ 3553(a)(2). United States v. Samas, 561 F.3d 108, 110 (2d Cir. 2009). In applying
§ 3553(a) and its parsimony clause, the court must look to "the nature and
circumstances of the offense and the history and characteristics of the defendant,"
18 U.S.C. § 3553(a)(1), "the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct," 18 U.S.C. § 3553(a)(6), and the Guidelines themselves, 18 U.S.C. §
3553(a)(5). In conducting this review, a district court needs to be mindful of the fact
that it is "emphatically clear" that the "Guidelines are guidelines-- that is, they are
truly advisory." Cavera, 550 F.3d at 189.

As we have explained, Dorvee's sentence was a within-Guidelines
sentence. However, we do not presume that such sentences are reasonable when
we review them substantively. See United States v. Fernandez, 443 F.3d 19, 27 (2d
Cir. 2006) (declining to establish "any presumption, rebuttable or otherwise, that a
Guidelines sentence is reasonable"). In United States v. Rigas, 583 F.3d 108 (2d Cir.
2009), we elaborated on the definition of substantive reasonableness. We likened
our substantive review to the consideration of a motion for a new criminal jury trial,
which should be granted only when the jury's verdict was "manifestly unjust," and
to the determination of intentional torts by state actors, which should be found only
if the alleged tort "shocks the conscience." Rigas, 583 F.3d at 122-23. We
concluded that substantive reasonableness review is intended to "provide a
backstop" against sentences that are "shockingly high, shockingly low, or
otherwise unsupportable as a matter of law." Id. at 123. We also emphasized that
substantive reasonableness review is not an opportunity for "tinkering" with
sentences we disagree with, and that we place "great trust" in sentencing
courts. Id.

Though we recognize the importance of punishment and deference, we
nevertheless find Dorvee's sentence substantively unreasonable. First, we are
troubled by the district court's apparent assumption that Dorvee was likely to
actually sexually assault a child, a view unsupported by the record evidence yet
one that plainly motivated the court's perceived need "to protect the public from
further crimes of the defendant." 18 U.S.C. § 3553(a)(2)(C). We believe that this
assumption, in the face of expert record evidence to the contrary, caused the
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district court to place unreasonable weight on this sentencing factor. See Cavera,
550 F.3d at 191 "At the substantive stage of reasonableness review, an appellate
court may consider whether a factor relied on by a sentencing court can bear the
weight assigned to it."). Although presented with medical evidence that Dorvee was
unlikely to engage in a personal relationship "unless the other person took the
lead" -- as the undercover agent posing as "Seth" had -- the district court's
comments at sentencing reveal that the court was convinced that Dorvee was a
"pedophile" likely to engage in sexual conduct with a minor. The court stated that
although it believed Dorvee would not initiate a relationship with a child, "if he were
given the opportunity, he would have sexual relations . . . with a younger boy." App.
136. The district court stated that "[f]or an adult of Justin's age to engage in sexual
conduct with somebody under the age of 14 . . . I think is extremely hurtful. . . . [I]t
might be worse than sticking somebody with a knife or shooting them with a
gun." Id. Dorvee, however, is not alleged to have had any actual contact with
children (undercover or real) under 14, and admitted only to taking non-explicit
photographs of children's feet. Dorvee appears to have been punished as though
he already had, or would, sexually assault a child, despite medical testimony to the
contrary and Dorvee's lack of any such criminal history. The irony of the court's
conclusion in this area, as we explain below, is that the Guidelines actually punish
some forms of direct sexual contact with minors more leniently than possession or
distribution of child pornography.

Similarly, the district court's cursory explanation of its deterrence rationale ignored
the parsimony clause. "Plainly, if a district court were explicitly to conclude that two
sentences equally served the statutory purpose of § 3553, it could not . . . impose
the higher." United States v. Ministro-Tapia, 470 F.3d 137, 142 (2d Cir. 2006). Here,
the district court provided no reason why the maximum sentence of incarceration
was required to deter Dorvee and offenders with similar history and
characteristics. Moreover, the district court offered no clear reason why the
maximum available sentence, as opposed to some lower sentence, was required
to deter an offender like Dorvee.

Finally, we are also troubled that the district court seems to have considered it a
foregone conclusion that the statutory maximum sentence "probably [would] be
upheld" on appeal, apparently because it concluded that its sentence was
"relatively far below" the initial Guidelines calculation of 262 to 327 months. App.
145. In all events, even a statutory maximum sentence must be analyzed using the
§ 3553(a) factors. As the Supreme Court made clear in Gall, the amount by which a
sentence deviates from the applicable Guidelines range is not the measure of how
"reasonable" a sentence is. Reasonableness is determined instead by the district
court's individualized application of the statutory sentencing factors. See Gall, 552
U.S. at 46-47.

These errors were compounded by the fact that the district court was working with
a Guideline that is fundamentally different from most and that, unless applied with
great care, can lead to unreasonable sentences that are inconsistent with what §
3553 requires. Sentencing Guidelines are typically developed by the Sentencing
Commission using an empirical approach based on data about past sentencing
practices. See Rita, 551 U.S. at 349. However, the Commission did not use this
empirical approach in formulating the Guidelines for child pornography. Instead, at
the direction of Congress, the Sentencing Commission has amended the
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Guidelines under § 2G2.2 several times since their introduction in 1987, each time
recommending harsher penalties. See United States Sentencing Commission, The
History of the Child Pornography Guidelines, Oct. 2009, available
at http://www.ussc.gov/general/20091030_History_Child_Pornography_Guidelines.
pdf (last visited April 19, 2010). Alan Vinegrad, the former United States Attorney
for the Eastern District of New York, has noted that the recent changes effected by
the PROTECT Act of 2003 evince a "blatant" disregard for the Commission and are
"the most significant effort to marginalize the role of the Sentencing Commission in
the federal sentencing process since the Commission was created by Congress,"
as Congress:

(i) adopted sentencing reforms without consulting the Commission, (ii) ignored the
statutorily-prescribed process for creating guideline amendments, (iii) amended the
Guidelines directly through legislation, (iv) required that sentencing data be
furnished directly to Congress rather than to the Commission, (v) directed the
Commission to reduce the frequency of downward departures regardless of the
Commission's view of the necessity of such a measure, and (vi) prohibited the
Commission from promulgating any new downward departure guidelines for the
next two years.

Alan Vinegrad, The New Federal Sentencing Law, 15 Fed. Sent. R. 310, 315 (June
2003).

The PROTECT Act of 2003 was the first instance since the inception of the
Guidelines where Congress directly amended the Guidelines Manual. See United
States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An
Assessment of How Well the Federal Criminal Justice System is Achieving the
Goals of Sentencing Reform, 2004, at 72, available at
http://www.ussc.gov/15_year/chap2.pdf (last visited April 15, 2010).
The Commission has often openly opposed these Congressionally directed
changes. In 1991, as Congress was considering a proposal to direct the
Commission to alter the child pornography Guidelines (by revoking the
Commission's earlier creation of a new, lower base level for receipt, possession,
and transportation of images than for sale or possession with intent to sell), the
Chair of the Commission wrote to the House of Representatives stating that the
proposed Congressional action "would negate the Commission's carefully
structured efforts to treat similar conduct similarly and to provide proportionality
among different grades of seriousness," and would instead "require the
Commission to rewrite the guidelines for these offenses in a manner that will
reintroduce sentencing disparity among similar defendants." See Troy
Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed
Progression of the Child Pornography Guidelines, January 1, 2009, at 4-9, available at
http://www.fd.org/pdf_lib/child%20porn%20july%20revision.pdf (unpublished
Comment, last visited July 28, 2010). Congress did not follow the Chair's advice. In
1996, the Commission criticized the two-level computer enhancement (which is
currently set forth at § 2G2.2(b)(6) and was adopted pursuant to statutory direction)
on the ground that it fails to distinguish serious commercial distributors of online
pornography from more run-of-the-mill users. See United States Sentencing
Commission, Report to Congress: Sex Offenses Against Children Findings and
Recommendations Regarding Federal Penalties, June 1996, at 25-30, available at
http://www.ussc.gov/r_congress/SCAC.PDF (last visited April 15, 2010). Speaking
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broadly, the Commission has also noted that "specific directives to the Commission
to amend the guidelines make it difficult to gauge the effectiveness of any
particular policy change, or to disentangle the influences of the Commission from
those of Congress." See United States Sentencing Commission, Fifteen Years of
Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is
Achieving the Goals of Sentencing Reform, supra, at 73.

The § 2G2.2 sentencing enhancements cobbled together through this process
routinely result in Guidelines projections near or exceeding the statutory maximum,
even in run-of-the-mill cases. The base offense level for distribution of child
pornography, which in 1991 was 13, has been gradually increased to 22 as the
Commission has attempted to square the Guidelines with Congress's various
directives. See United States Sentencing Commission, The History of the Child
Pornography Guidelines, supra, at 19. On top of that, many of the § 2G2.2
enhancements apply in nearly all cases. Of all sentences under § 2G2.2 in 2009,
94.8% involved an image of a prepubescent minor (qualifying for a two-level
increase pursuant to § 2G2.2(b)(2)), 97.2% involved a computer (qualifying for a
two-level increase pursuant to § 2G2.2(b)(6)), 73.4% involved an image depicting
sadistic or masochistic conduct or other forms of violence (qualifying for a four-
level enhancement pursuant to § 2G2.2(b)(4)), and 63.1% involved 600 or more
images (qualifying for a five-level enhancement pursuant to § 2G2.2(b)(7)(D)).

See United States Sentencing Commission, Use of Guidelines and Specific Offense
Characteristics for Fiscal Year 2009, available at
http://www.ussc.gov/gl_freq/09_glinexgline.pdf (last visited April 19, 2010).

In sum, these enhancements, which apply to the vast majority of defendants
sentenced under § 2G2.2, add up to levels, resulting in a typical total offense level
of 35.

An ordinary first-time offender is therefore likely to qualify for a sentence of at least
168 to 210 months, rapidly approaching the statutory maximum, based solely on
sentencing enhancements that are all but inherent to the crime of conviction.
Consequently, adherence to the Guidelines results in virtually no distinction
between the sentences for defendants like Dorvee, and the sentences for the most
dangerous offenders who, for example, distribute child pornography for pecuniary
gain and who fall in higher criminal history categories. This result is fundamentally
incompatible with § 3553(a). By concentrating all offenders at or near the statutory
maximum, § 2G2.2 eviscerates the fundamental statutory requirement in § 3553(a)
that district courts consider "the nature and circumstances of the offense and the
history and characteristics of the defendant" and violates the principle, reinforced
in Gall, that courts must guard against unwarranted similarities among sentences
for defendants who have been found guilty of dissimilar conduct. See Gall, 552 U.S.
at 55 (affirming a sentence where "it is perfectly clear that the District Judge
considered the need to avoid unwarranted disparities, but also considered the
need to avoid unwarranted similarities among other co-conspirators who were not
similarly situated" (emphasis in original)).

The irrationality in § 2G2.2 is easily illustrated by two examples. Had Dorvee
actually engaged in sexual conduct with a minor, his applicable Guidelines range
could have been considerably lower. An adult who intentionally seeks out and
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contacts a twelve year-old on the internet, convinces the child to meet and to cross
state lines for the meeting, and then engages in repeated sex with the child, would
qualify for a total offense level of 34, resulting in a Guidelines range of 151 to 188
months in prison for an offender with a criminal history category of I. Dorvee, who
never had any contact with an actual minor, was sentenced by the district court to
233 months of incarceration. What is highly ironic is that the district court justified
its 233-month sentence based on its fear that Dorvee would sexually assault a
child in the future.

A defendant convicted under 18 U.S.C. § 2252A(a)(5) of possessing on his
computer two nonviolent videos of seventeen-year-olds engaging in consensual
sexual conduct qualifies for a base offense level of 18 under § 2G2.2(a)(1), a two-
level enhancement for use of a computer under § 2G2.2(b)(6), and a three-level
enhancement for number of images under § 2G2.2(b)(7)(B). Even with no criminal
history, this individual's total offense level of 23 would result in a Guidelines
sentence of 46 to 57 months. This is the same Guidelines sentence as that for an
individual with prior criminal convictions placing him in a criminal history category
of II, who has been convicted of an aggravated assault with a firearm that resulted
in bodily injury.

The Sentencing Commission is, of course, an agency like any other. Because the
Commission's Guidelines lack the force of law, as the Supreme Court held
in United States v. Booker, 543 U.S. 220, 245, 264, 125 S. Ct. 738, 160 L. Ed. 2d
621 (2005), sentencing courts are no longer bound to apply the Guidelines. But, in
light of the Sentencing Commission's relative expertise, sentencing courts "must
consult those Guidelines and take them into account when sentencing." Id. This
deference to the Guidelines is not absolute or even controlling; rather, like our
review of many agency determinations, "[t]he weight of such a judgment in a
particular case will depend upon the thoroughness evident in [the agency's]
consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade, if lacking
power to control." Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L.
Ed. 124 (1944); see Kimbrough, 552 U.S. at 109 (citing the crack cocaine
Guidelines as an example of Guidelines that "do not exemplify the Commission's
exercise of its characteristic institutional role"). On a case-by-case basis, courts are
to consider the "specialized experience and broader investigations and information
available to the agency" as it compares to their own technical or other expertise at
sentencing and, on that basis, determine the weight owed to the Commission's
Guidelines. United States v. Mead Corp., 533 U.S. 218, 234, 121 S. Ct. 2164, 150 L.
Ed. 2d 292 (2001) (internal quotation marks omitted) (citing Skidmore, 323 U.S. at
139); see Gall, 552 U.S. at 51.

In keeping with these principles, in Kimbrough, the Supreme Court held that it was
not an abuse of discretion for a district court to conclude that the Guidelines'
treatment of crack cocaine convictions typically yields a sentence "greater than
necessary" to achieve the goals of § 3553(a), because those particular Guidelines
"do not exemplify the Commission's exercise of its characteristic institutional
role." Kimbrough, 552 U.S. at 109-10. As we have explained here, the same is true
for the child pornography enhancements found at § 2G2.2. Following Kimbrough,
we held that "a district court may vary from the Guidelines range based solely on a
policy disagreement with the Guidelines, even where that disagreement applies to
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a wide class of offenders or offenses." Cavera, 550 F.3d at 191. That analysis
applies with full force to § 2G2.2.

District judges are encouraged to take seriously the broad discretion they
possess in fashioning sentences under § 2G2.2 -- ones that can range from
non-custodial sentences to the statutory maximum -- bearing in mind that
they are dealing with an eccentric Guideline of highly unusual provenance
which, unless carefully applied, can easily generate unreasonable results.
While we recognize that enforcing federal prohibitions on child pornography
is of the utmost importance, it would be manifestly unjust to let Dorvee's
sentence stand. We conclude that Dorvee's sentence was substantively
unreasonable and, accordingly, must be revisited by the district court on
remand.

United States v. Dorvee, 616 F.3d 174, 182-88 (2d Cir. 2010), emphasis supplied.

Applying these principles and considerations, the

compelling facts of this case and Gary Davis’ ordinarily,

exemplary character traits, and law-abiding nature, his work

ethic, service to our country, family devotion, sincere

remorse, his efforts at confronting his troubling past

traumas which were certainly not his fault, his dutiful

following of every pretrial release and treatment

recommendation, and the need for him to take care and

provide for his ailing wife, all conspire to suggest a

reasonable sentence is not to put this man in jail. From the

time of his arrest on March 13, 2020 until his sentencing

date of July 14, 2021, amounts to 16 months. While this Court

is not required to give Gary any credit for his two plus

weeks in the Frederick County Detention Center, nor to his

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remaining time on court-ordered, 24-hour home electronic

confinement, it should give him credit, as would a State

court be mandated to do. His compliance with all the very

restrictive pretrial release conditions in both the state and

federal court, was flawless. Sixteen months is about the

equivalent of 13-14 Offense Levels in the Sentencing Table.

By this point in our analysis, there should be no

dispute that Gary Davis has already been justly punished. He

has overwhelmingly demonstrated how seriously he takes the

offense. There cannot possibly be any reasonable argument

that he poses a danger to the public, especially if he

continues treatment at Clinical and Forensic Associates

[CFA]. It is doubtful he can attain the quality and depth of

effective sex offender treatment at any facility in the

Bureau of Prisons, with a team of ATSA Clinical Members, such

are as employed at CFA, which has all masters and Ph.D. level

clinicians, uses weekly individual and group sessions, and

regularly employs sexual history, maintenance and exit

polygraphs, to ensure accuracy of information, and treatment

compliance. The economic and emotional hardships that will

befall Gary’s wife, Alysa should he be incarcerated, will

just add more misery and risk, and it is not necessary.

36
Case 1:20-cr-00341-ELH Document 26 Filed 07/01/21 Page 37 of 37

WITNESSES TO TESTIFY AT SENTENCING

We anticipate that in addition to Gary Davis addressing

the Court, several of his family members may address the

Court, such as his wife, sister, at least one of his

daughters, and possibly, his treatment provider, Elizabeth

Raeder-Freeland. We will notify the Court by July 6, 2021 as

to whether Ms. Raeder-Freeland will be testifying, which

family members will testify and the anticipated length of the

proceedings.

CONCLUSION

For all the foregoing reasons, and as reinforced in the

multiple exhibits and attachments to this Memorandum, and for

additional reasons as may be set forth at the sentencing

hearing, we respectfully request at least a 14 level downward

variance, which would result in a total offense level of 10,

and a resultant guideline range of 6-12 months, which we ask

be served on electronic home monitoring.

Respectfully submitted and served via ECF this 1st day of July, 2021,

_James N Papirmeister____
James N Papirmeister, Esq.
Law Offices of James N Papirmeister,PC
8630 Fenton St., Suite 320
Silver Spring, Maryland 20910
Office(301)589-2100; Mobile(301)367-6500
Fax (240)444-8096; criminalfirm@yahoo.com
Bar # 10789

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