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United States v. Cheever

United States District Court, D. Colorado

July 18, 2016



          John L. Kane SENIOR U.S. DISTRICT JUDGE.

         This matter is before me for sentencing on Defendant Shawn Cheever’s plea to a single count of possession of child pornography. I have heard the presentations of counsel, and Mr. Cheever has been afforded his right of allocution. Because the question of a condign sentence in this case, and in cases involving plea deals negotiated in rigid adherence to non-binding Sentencing Guidelines generally, raises sentencing issues about which I have thought long and hard, I take time to address them in the following written opinion.



         Shawn Cheever’s criminal record includes eleven prior felony convictions including those for forgery, fraud, assault, drug possession, and criminal impersonation. He was also convicted of a State of Colorado misdemeanor charge of possession of child pornography. He is known to have used at least seven different aliases. At age 45, he has been sentenced numerous times to community corrections and probation, but in all but one instance failed to conform to community confinement rules and was sentenced to jail or prison. In two instances, he was given deferred judgments and in both the deferrals were revoked and he was convicted.

         On January 27, 2015, a two count indictment issued charging Cheever with Receipt of Child Pornography and Possession of Child Pornography. The indictment also included an unnumbered forfeiture allegation. On April 29, 2015, as the result of a plea bargain, he plead guilty to the possession charge and admitted the forfeiture allegation. The prosecution agreed to dismiss the receipt charge at the time of sentencing. Numerous other quids and quos involving Sentencing Guideline provisions and calculations were set out in the Plea Agreement, but because the Guidelines will not be employed in this sentencing, they provide little assistance to me.

         Cheever has been in custody since his arrest. The case was set for sentencing on July 22, 2015, but by stipulation of the parties the date was continued because the question arose whether the child pornography statute’s recidivism provision applied based on Cheever’s state conviction under the Colorado pornography statute. If applicable, the federal statute would change the statutory penalty range of 0 to 10 years to a range from a mandatory minimum of 10 years to a maximum of 20 years. That exact issue was then pending before the Tenth Circuit Court of Appeals in United States v. Bennett, No. 14-1384 & 14-1402, 2016 U.S. App.LEXIS 9643, and the parties wanted to conserve resources and avoid an appeal or post conviction motions. On May 26, 2016, the Tenth Circuit announced its opinion in Bennett, holding that the Colorado statute triggered the mandatory minimum 10 year sentence. ___F.3d ___, 2016 WL 3034664 (10th Cir. 2016). Because Bennett applies to the instant case, sentencing was rescheduled for July 11, 2016.

         There is now no reason why sentencing cannot proceed. The statutory penalty, with the recidivism enhancement, is not less than 10 nor more that 20 years imprisonment, a fine range of $12, 500 to $125, 000 or both such imprisonment and fine together with a supervised release range from 5 years to life and a mandatory $100 special assessment fee.



         While I have determined for reasons stated below not to employ the advisory Sentencing Guidelines, I am nevertheless obliged to review them. Gall v. United States, 552 U.S. 38 (2007). The United States Probation Office has determined the correct total offense level to be 26 and Cheever’s criminal history category V resulting in a Guideline imprisonment range of 110 months to 120 months. The fine range of $12, 500 to $125, 000 and the supervised release range of 5 years to life are unchanged. Neither the government nor the defendant disputes this calculation. Because the mandatory minimum provision is triggered, however, the Guideline is revised to a range of 120 months to 137 months. I have independently reviewed the criteria as applied to this case and concur with the Probation Office’s calculations.

         Nevertheless, I have notified both defense counsel and the prosecution that I will not impose a sentence based on the Guidelines; that I base my sentence on the mandated minimum and a full consideration of the criteria set out in 18 U.S.C. § 3553.[1] I requested counsel to prepare their arguments accordingly and consider Cheever’s allocution in the same light.

         Other district courts have rejected the Guidelines in these circumstances and I have done so in previous cases.[2] Ordinarily “the Guidelines give a district court a measure of national practice to use as a starting point. . .” United States v. Smart, 518 F.3d 800, 808 (10th Cir.2008), but when Congress ignores the recommendations and studies of the Sentencing Commission and imposes a mandatory minimum sentence, the rationale and vaunted expertise of the Commission is otiose, in the sense that it produces no useful result.

         As the Supreme Court remarked in Gall, “some sections of the Guidelines are the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions” but others, “[n]otably, [are] not.” 552 U.S. at 46 & n. 2. This Guideline falls into this latter category. In fact, it is a recitation of the ipsi dixit of Congress’s mandate.[3] There is no basis for concluding that the application of such a Guideline will meet the requirement of 18 U.S.C. § 3553(a) that a sentence will not be “greater than necessary.” In fact, according to most studies, the contrary is true.[4]

         Having found the correct calculation of the Guideline sentence as set out above, I find: (1) the Guidelines are not mandatory; (2) the facts have been provided by the Probation Office and subjected to objection by both the prosecution and the defense, but no objections remain; (3) both parties have been advised that the sentence to be imposed will not be a Guideline sentence; and (4) both have been given full opportunity to brief and argue their positions as to a condign sentence even though the Supreme Court in Irizarry v. United States, 553 U.S. 708 (2008), has stated such notice is unnecessary. Moreover, Cheever has been given a full opportunity to exercise his right of allocution.

         Though I am bound by the statute and the Tenth Circuit’s decision in Bennett, supra, I am of the strong view that the mandatory minimum produces a sentence greater than necessary to achieve the purposes of 18 U.S.C. § 3553(a). A sentence of 60 months, if permitted, would enable the defendant to participate fully and complete programs offered by the Bureau of Prisons[5] to ensure his safe release with a minimum risk of recidivist behavior and still produce deterrence and punishment at a reduction in excess of $100, 000 to the cost of confining him for five more years. In its application, the imposition of a mandatory ten year sentence defeats the aspirations of § 3553(a). I will, however, consider its prescribed sentencing factors.


         A. Application of § 3553(a) Factors

         1. Nature and Circumstances of the Offense/History and Characteristics of the Defendant

         The facts of the offense were stipulated by the parties in the Plea Agreement:

In June 2014, the National Center for Missing and Exploited Children sent a CyperTip to the Denver FBI office advising that a “Google Picasa” user had uploaded four images of child pornography on March 2, 2014 from the email account <allitman 1>, with the associated name of Shawn Cheever of Denver and Facebook account “TylerDurdan1024." The FBI investigated using administrative subpoenas and court issued search warrants revealing that the uploading of the images was performed at Cheever’s residence.
The search warrant was executed on January 6, 2015. Cheever was present but the computers were not turned on. The laptop and external hard drive were seized, along with several other laptops belonging to others which Cheever advised were there for him to repair. Cheever admitted to the FBI agents that the subject laptop and hard drive contained child pornography and that he viewed the same whenever he was high on methamphetamine and heroin. A forensic examination revealed approximately 172 images of child pornography on the laptop and the external hard drive, both of which had been manufactured outside the District of Colorado. A review of Cheever’s email account disclosed that on October 28, 2014 he had received approximately 48 images of child pornography from someone who had seen his photos on Imagesource. Cheever admitted the material portrayed a prepubescent minor who had not attained the age of 12 involved in sadistic or masochistic conduct and other depictions of violence, and that the depictions involved the use of a computer.

         It serves no useful purpose to describe the images and videos with particularity. Suffice to say they are lurid and graphic images of young children, boys and girls, involved in demeaning sexual poses and activities.

         As mentioned above, at the time of the instant offense, Cheever had previously been convicted on a State of Colorado charge of Sexual Exploitation/Child-Possessing Material in violation of Colorado Revised Statute 18-6-403(3)(b.5), a Class One Misdemeanor. Cheever admitted to FBI agents that he posted on a website known to be used for purposes of transmitting child pornography and once wrote on it: “If you want to trade pics of girls 10 to 30 no fatties no boys just send me something and I will reply.” When individuals responded, he would advise they must send him something first (child pornography). After receiving these images, Cheever did not reciprocate with the promised images. In order to avoid having his probation or parole officers know or have access to his use of these sources, Cheever had set up a fictitious Facebook page with the alias “Brook Dakine” and then another under the name “Tyler Durden 1024"

         When officers went to his residence to execute the search warrant, he refused to answer or open the door. The officers breached the door and gained entrance though Cheever attempted to block them. When later he was asked why he would not open the door, he said, “I am an American. I have a right not to answer my door. I never answer the door for cops and I never will.” He admitted further that during the 15 or 20 minutes before the door was broken, he had been texting friends to let them know he was going back to jail and asking them to put money on his account books.

         Shawn Alexander Cheever was born in Denver, Colorado, to Donna Bell McKim. He did not meet his father, Robert Cheever, until he was 15 years old. He later discovered that the father of his two half-brothers was Robert Cheever’s brother, Laverne Cheever. Donna Bell McKim remarried Gerald Dewayne McKim when Shawn Cheever was 4 years old. He and his half-brothers were raised by Donna and Wayne McKim. The brothers considered Mr. McKim their father. The couple divorced when Shawn Cheever was an adult. His mother is 69 years old, retired and lives in Nebraska. Wayne McKim is now 75 and lives in Iowa.

         Cheever asserts he has a good relationship with his mother, except when he has used drugs. Mrs. McKim states she speaks with Cheever on a weekly basis and has been to see him a few times during his present incarceration. She states she is unaware of the charges against him and did not want the probation officer interviewing her to advise her. She stated, “If he wants me to know, he’ll tell me.” Cheever’s older half-brother, Stacey Bell, died in 2009 due to complications from diabetes. His older half-brother, Edward Bell, is now 48. The two have telephone contact with one another every month or two and maintain a cordial relationship. Cheever relates that McKim would physically abuse the older boys on occasion until they left home. When Stacey Bell died, Cheever states he became the recipient of the abuse. Mrs. McKim denies the abuse allegations. Cheever left home at the age of 15. He was adjudicated a juvenile delinquent the following year.

         Cheever had a common law marriage to one woman from about 1995 through 2006 when they divorced. He reports the marriage was marred by their use of heroin. The union resulted in a daughter, who is now 19. Cheever has had no relationship with the daughter in the past three years and owes back child support. For the past 13 years Cheever has had a relationship with a woman now age 46. They met at a halfway house in 2002 or 2003. She was then in custody for possession of a controlled substance, served a five month sentence and reports being drug free since her release.

         In 1994 Cheever fell three stories from a roof in a work related incident and received traumatic brain injuries. He was in an intensive care unit for one month and suffers from some incidental partial amnesia. At one time he was paralyzed and had to undergo rehabilitation at a neurological center for about two years. He continues on occasion to experience seizures and loses his sense of time. As a result, he does not drive cars. When he was younger, while riding a bicycle with his half-brother, he was in a collision with a car and has since been struck twice by cars but reports no major injuries as a result. He has eight tattoos on his chest, back, shoulder, and left thumb. He has had no mental health treatment, but admits to being a “cutter” and claims to have stopped. He was, however, caught while in custody for the present charge with prohibited possession of razors hidden in his cell and his cutting was confirmed by jailers. There is no immediate need of medical treatment, but the seizure problem is unresolved.

         As a consequence of his state misdemeanor conviction for Sexual Exploitation/Child-Possession Material, Cheever was required to register as a sex offender and attend sex offender treatment. He complied with the registration requirement, but he failed to enter offense-specific treatment as directed. He was instructed by the state probation department to submit to maintenance and monitoring by polygraph and failed to report as scheduled or to be tested. A Sex Offense-Specific Evaluation was completed on August 20, 2012, the conclusion of which was that he “presents with concern, ” which translates in essence to a lack of personal accountability, denial, and lack of motivation for treatment. His test scores show a low propensity for violent recidivism. The evaluative recommendations were for anger management, sex offense specific therapy and substance abuse treatment.

         A psychological assessment completed on July 18, 2015, showed his “abstract problem solving abilities were found to be in the low range.” His “response pattern suggests his behavior is characterized by physical and emotional withdrawal, motivated by a deep-seated fear of rejection by others.” When “faced with stressful situations, he is likely to become more detached and to withdraw into his protective shell.” Cheever reported that he was “currently feeling anxious, dejected and hopeless, and that he is bothered by memories of a troubling event .” The evaluator determined he did not meet criteria for Paranoid, Antisocial or Narcissistic Personality Disorder. He did, however, acknowledge an interest in online sexual behavior and previously engaging in illegal online activities. He showed no interest in building online relationships or engaging in online activities that involved interpersonal relations.

         The assessment of Sexual Interest revealed that Cheever identified adolescent and adult females as groups of individuals he is generally sexually interested in. He stated he watches pornography when “high” as a masturbatory stimulus. He denied any interest in deviant activities. The evaluator’s diagnostic impression was that Cheever has a specific personality disorder of mixed avoidant and depressive features, unspecified anxiety disorder, unspecified depressive disorder, opioid use disorder, and stimulant use disorder. He does not have an antisocial personality disorder and has not committed hands-on sexual offenses. He currently appears free of symptoms typically associated with a thought disorder. His failure to comply with court ordered mandates shows a high risk for conditional release and a high risk for further pornography related offenses if he has access to drugs and resumes using them. He did express a desire to engage in treatment in order to understand his behavior. This seems to be a departure from his previous comments and conduct.

         Cheever first started drinking alcohol in the 7th grade and last consumed alcohol shortly before his arrest for the instant offense. He first used marijuana at age 11 and last used it in January, 2015. He smoked marijuana about once a month, but says the newly available marijuana in Colorado “is too much.” He first used cocaine in the 8th grade and used it daily for one or two years. He used crack cocaine at age 26 shortly before going to prison. He tried LSD a few times as a teenager, but not thereafter.

         In 2001-2003, Cheever was a daily user of methamphetamine. He was a heavy user until 2006. He was drug free from 2006 until December, 2013, when he started using a combination of methamphetamine and heroin and did so regularly until his arrest for the instant offense. Once in custody, he was placed in medical housing due to withdrawal symptoms.

         While not in custody for extended periods of incarceration, Cheever has been employed as a waiter, as a firewood supplier, and in online computer work. He has a GED and completed online community college courses in graphic design. He has paid taxes sporadically, has no known assets and a negative net worth of $17, 069.88, which includes a $12, 762.88 arrearage in child support. Psychosexual Evaluation filed on July 8, 2015, prepared by a licensed clinical psychologist, concludes that Cheever’s most serious problem is drug abuse and that his other difficulties including resort to child pornography, failure to function successfully while on community supervision, and intermittent failures in personal relationships accompanied by abusive behavior are related to, if not entirely precipitated by, chronic and heavy drug use. His risk assessment for future recidivism is moderate to high depending on his access to and abusive use of drugs. His risk for “hands-on” offenses is low. His work history and capability when not abusing drugs demonstrate he can be self-supporting in lawful occupations. The emphatic recommendation of the evaluator is that Cheever, while in custody and thereafter, receive substance abuse treatment with traditional treatment modalities and specific ones including “Feeling-State Addiction Protocol, Desensitization of Triggers and Urge Reprocessing Protocol and Reprocessing Therapy.”

         2. The Need for the Sentence Imposed

         A. To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.

         The manufacture, distribution, and possession of child pornography constitute serious crimes not because of their focus on prurient interest or even that child pornography is obscene, which it most certainly is by any standard. Rather, in New York v. Ferber, 458 U.S. 747 (1982), the Supreme Court held that the government may prohibit the exhibition, sale or distribution of child pornography even if it does not meet the test for obscenity because “[i]t is evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’ . . . . [T]he use of children as subjects of pornographic materials is harmful to the physiological, emotional and mental health of the child.” The Court in Ferber said that child pornography is closely related to child abuse because children are harmed by the permanent record of their involvement in pornography and they are exploited in the making of it.

         Consumers, even “mere voyeurs, ” create a demand for the production and distribution of child pornography of the most damaging kind. Forensic pediatricians such as Sharon W. Cooper, M.D., provide powerful and convincing evidence that the children who have been exploited to satisfy this perversion suffer long-term devastating effects.[6] Dr. Cooper writes that the images of this kind of child abuse carry with them lasting feelings of guilt, self-blame and shame for children above the ages of 4-5 years. Moreover, such victimization produces eating disorders such as bulimia, anorexia nervosa and obesity and increases the risk for diabetes, heart disease and stroke. More obvious, the sequelae include numerous mental health problems of which the three most common are depression, anxiety, and posttraumatic stress disorder. Other losses include out of home placement, transience, poor academic performance, greater risk for deviant sexual behavior, substance abuse, mental dysfunction, self-inflicted injuries, increased risk taking, and suicide. Female victims are 28 times more likely in adulthood to be arrested for prostitution. These ruinous effects justify proscription and deterrence as essential societal objectives.

         Punishment is an unpleasant subject and its efficacy in many cases is questionable. Nevertheless, punishment is an integral part of the sentencing constellation. The noted English jurist, Lord Justice Denning, called punishment “the emphatic denunciation by the community of a crime.” When imposed in public with stated reasons expressed, punishment reinforces the community’s respect and declaration of its moral and legal standards and for that reason is justifiable. When imposed, however, in secret or without rational justifications, it becomes more mocked than feared. As stated by Thomas Jefferson, “[I]f the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.”[7]

         Arbitrary punishments, however, are just that and serve little, if any, positive purpose. Even the utilitarian assertion that punishment serves a positive purpose is mitigated by its proviso that every human being should be treated with at least a minimum of respect as a source of rights and expectations and not merely as an instrument for promotion of the social order. Ironically, the revulsion widely felt about crimes involving child pornography is exacerbated by the utter lack of empathy shown to the child victims by the offenders. That callousness alone is a factor that increases the proportional measure for punishment.

         Section 3553(a) provides evaluative criteria to achieve balance between the order of society intended to be protected by punishment and the utilitarian view that every human being must be afforded dignity. The stated criteria often clash and not all apply in every case, but they demand individuated considerations: No one size fits all. The object of this balancing process is not to fill in the blank of some mechanical calculation, but to impose a decent, appropriate and deserved sentence under all attendant circumstances. The imposition of mandatory minima removes that balancing from the sentencing calculus and is therefore antithetical to the adjudicative process. The result is a punishment without any expression of rational justification. The ...

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