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United States v. Fellows

October 15, 1998

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
OTIS W. FELLOWS, III DEFENDANT-APPELLANT.



D.C. No. CR-97-00241-1-TSZ

Before: Eugene A. Wright, Mary M. Schroeder, and Charles Wiggins, Circuit Judges.

The opinion of the court was delivered by: Wiggins, Circuit Judge

FOR PUBLICATION

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Argued and Submitted September 14, 1998--Seattle, Washington

Opinion by Judge Wiggins

SUMMARY

Otis Warner Fellows, III pled guilty to possession of child pornography in violation of 18 U.S.C. S 2252(a)(4)(B). After enhancing Fellows' sentence and denying a downward adjustment for acceptance of responsibility, the district court sentenced Fellows to 57 months of imprisonment to be followed by a three-year term of supervised release. Fellows appeals his sentence. We have jurisdiction under 28 U.S.C.S 1291 and we affirm.

FACTS

In 1992, Otis Fellows began his descent into the sordid world of child pornography. His legal troubles started when he purchased two child pornography video tapes from an undercover postal inspector. Following his arrest, Fellows pled guilty to Receiving Child Pornography Through the Mails as well as Use of the Mails for Unmailable Materials. The court sentenced him to five years probation and six months of home detention. Unfortunately, this initial brush with the law did not sate Fellows' aberrant desires.

Sometime in 1993, Fellows molested a thirteen-year-old boy. In June of 1996, he was charged in state court with second-degree rape of a child. Approximately one year later, Fellows pled guilty to second-degree child molestation and was sentenced to twenty-four months in prison. After being charged, but prior to entering his plea, Fellows made contact via the Internet with what he believed to be a fifteen-year-old male.*fn1 The two made arrangements to meet in public. Unbeknownst to Fellows, the Mercer Island Police Department dispatched a female officer in the minor's stead. When Fellows approached the decoy, the police arrested him for communicating with a minor for immoral purposes.

Following this arrest, the police obtained search warrants for Fellows' home and computer. The search of Fellows' computer resulted in the seizure of child pornography, specifically twenty visual depictions of young boys engaged in sexually explicit conduct, including one of a prepubescent boy. Each image was stored in a separate graphics file within Fellows' computer. He was charged with possession of child pornography in violation of 18 U.S.C. S 2252(a)(4)(B).

PROCEEDINGS BELOW

After being sentenced to two years in prison by the state court on the child molestation charge, Fellows was brought to federal court by writ of habeas corpus ad prosequendum. On July 21, 1997, he pled guilty to possession of child pornography. The government also filed a petition to revoke Fellows' probation on the earlier receipt of child pornography charge.

Fellows admitted to two violations referenced in that petition (his state court conviction for child molestation and possession of child pornography in his computer) and admitted to the conduct underlying the other alleged violation (his communication via the Internet with the minor).

After his plea, the government and the defendant filed sentencing memoranda. The defendant included a brief letter to the district court with his memorandum. In the letter, Fellows expressed remorse for his actions: "I am sorry about the harm I caused to [the molestation victim], to his family and to my family. . . . I am also sorry that I broke the trust you placed in me by putting me on probation."

As all of the parties agreed, the base offense level for a violation of 18 U.S.C. S 2252(a)(4) is 15. See U.S.S.G. S 2G2.4(a). At the sentencing hearing on October 3, 1997, the district court determined that several specific offense characteristic adjustments applied in this case. First, the court imposed a two-level enhancement under U.S.S.G. S 2G2.4(b) (1) because one of the images was of a prepubescent minor. Second, the court imposed a two-level enhancement under U.S.S.G. S 2G2.4(b)(2) because the defendant possessed more than ten "items" (i.e., graphics files) containing visual depictions of minors engaged in sexually explicit conduct. Finally, the court imposed a two-level enhancement under U.S.S.G. S 2G2.4(b)(3) because Fellows used a computer to obtain the child pornography. These enhancements resulted in a total offense level of 21. The district court then denied the defendant a downward adjustment for acceptance of responsibility under U.S.S.G. S 3E1.1. In doing so, the court emphasized its belief that Fellows had ...


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