United States v. Bresnahan

          SENTENCING MEMORANDUM

          ROBERT W. PRATT, JUDGE

         I. INTRODUCTION

         On August 13, 2019, this Court sentenced Defendant Dennis Edward Bresnahan to a term of incarceration of thirty months on Counts One and Two of the Indictment, to be served concurrently, followed by two years of supervised release. ECF No. 90. This memorandum explicates the Court's analysis and reasoning for this sentence.

         On March 1, 2019, Defendant pleaded guilty to two counts of making false statements or representations to an agency of the United States, in violation of 18 U.S.C. § 1001. See 18 U.S.C. § 3559; ECF Nos. 54, 56. This Court is now tasked with crafting a sentence that is “sufficient, but not greater than necessary, . . . (A) to reflect the seriousness of the offense[s], to promote respect for the law, . . . to provide just punishment for the offense[s]; [and] (B) to afford adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(2).

         II. FACTUAL BACKGROUND

         The Defendant is a former U.S. Probation Officer who served the District of Minnesota for over twenty-five years. PSR ¶ 7. In that position, Defendant was responsible for supervising probationers on federal pretrial and supervised release. Id. During his employment as a federal probation officer, Defendant had extensive access to the records of the probationers under his supervision, including their physical and mental health records, substance abuse histories, employment and financial records, as well as other personal information. Id. ¶ 8. Probationers were required to check in with Defendant via phone, e-mail, and in person, and Defendant was authorized to visit them at their workplaces and homes as part of his supervision duties. Id.

         In August 2016, the Government received sexually explicit recorded phone calls between Defendant and one of his female probationers. See Id. ¶ 17. The probationer had made the recordings in early April 2016 to prove to her disbelieving defense attorney that Defendant had had sexual phone conversations with her and that he had also requested she send Defendant nude photographs of herself. Id. ¶¶ 11, 13-15. Two FBI special agents interviewed Defendant about the phone calls on August 22, 2016. Id. ¶ 18. The agents asked Defendant about the probationer, and Defendant admitted he had had “boundary issues and inappropriate conversations” with her. Id. He further admitted he had had sexually explicit conversations with her and that he had received a nude photograph of her on his work e-mail. Id. Defendant also admitted he had deleted the photograph and failed to report his misconduct or the photograph to his supervisors. Id. ¶ 19. However, he refused to admit that he had requested the photograph. Id. ¶ 18. And when asked whether he had requested any additional sexual photographs from that probationer or any others, Defendant lied and said he had not. Id. ¶ 20.

         The two agents thereafter conducted an investigation into whether Defendant had engaged in sexual misconduct with any other probationers and discovered he had. The agents learned Defendant had supervised another female probationer from July 2013 until February 2014, during which time Defendant initiated sexually explicit phone conversations with the probationer. Id. ¶ 23-24. In exchange for Defendant's permission to travel out of state, the probationer sent Defendant nude photographs of herself and a sexually explicit video. Id. ¶ 24. The probationer was able to provide the FBI agents with e-mails between herself and Defendant that she had saved and hoped to eventually use to report him. Id. ¶ 25. The e-mails intermixed legitimate supervision topics and requirements with sexually explicit topics and photographs. Id. ¶¶ 26-36. At some point, Defendant began having phone sex with the probationer. Id. ¶ 37. The probationer told the FBI agents she participated in the sexual e-mails and phone conversations and sent Defendant sexually explicit photographs because she feared what he would do to her if she did not comply. Id. At the sentencing evidentiary hearing, the probationer testified she initially sent Defendant a random naked photograph she had found online, but because Defendant had access to her personal file, he determined that she was not the subject of the photograph because her tattoos were not pictured; Defendant then asked her to send him new photographs of herself naked. The probationer testified she felt like she had to play along with Defendant's advances because she did not think anyone would believe her and she was worried Defendant could have her sent back to prison. She further testified that, whenever Defendant started sexual conversations via phone, she tried to redirect the conversations into e-mail for written proof of his misconduct.

         The agents' investigation also revealed Defendant had not just had sexual conversations with some of his former probationers but also sexual contact. Id. ¶ 61. One former probationer who was under Defendant's supervision from 2010 until 2012, informed the agents that on one occasion, Defendant had called her on his way to her home and told her he wanted her to be naked when he arrived; she did not comply. Id. ¶¶ 62, 63, 65. After Defendant arrived at her home, he had the probationer sit on his lap while she was on the phone with her sister and later had her perform oral sex on him. Id. ¶ 63. The probationer stated she did as Defendant asked because she did not want to go back to prison. Id. After the incident, the probationer told her sister what had happened; both women decided not to report Defendant because they assumed no one would believe them. Id. ¶ 64. Four years after the probationer was released from supervision, Defendant utilized the Probation Office's records system to find contact information for her and call her. Id. ¶ 66. Upset by his renewed advances, the probationer contacted the Probation Office to file a complaint about Defendant. Id. When asked about her complaint, Defendant denied any sexual misconduct. Id.

         Defendant also had sexual contact with another former probationer whom he had supervised from 1994 until 1997. Id. ¶ 68. The probationer told the FBI agents that on at least three occasions, Defendant had come to her place of work and demanded that she perform oral sex on him. Id. On another occasion, Defendant went to the probationer's workplace and kissed her and told her to “feel him, ” meaning his penis. Id. Each time after the probationer complied, Defendant threatened her and told her not to tell anyone. Id. Defendant also tried to have sexually explicit phone calls with her, telling her he enjoyed the oral sex and wanted more. Id. Defendant knew from her file that the probationer had been sexually abused as a child and was raped while serving in the U.S. Air Force. Id.

         As part of their investigation, the FBI agents found undeleted e-mails of a sexual nature in Defendant's work e-mail account between Defendant and two of his former probationers who had been under his supervision from 2001 until 2003 and 2008 until 2010. Id. ¶ 58. One of the e-mails Defendant had sent attached a photograph of an erect penis in open pants and another attached a video of him masturbating at his desk. Id. ¶ 60. The FBI agents' investigation also revealed that Defendant had coerced more former probationers into having sexual conversations with him, and that he had sent another photograph of his penis to a female probationer who was not under his supervision, which Defendant had claimed was accidental. Id. ¶¶ 70-71.

         On August 15, 2018, the Government filed the four-count Indictment in this case. ECF No. 1. Counts One and Two concerned Defendant's false statements to the FBI agents that he had not requested more than one nude photograph from the probationer who initially reported his abuse and that he had not received photographs of a sexual nature from any other former or current probationers. Id. at 1-2. Counts Three and Four concerned Defendant's destruction of records by deleting the sexual photographs he had requested and received from current and former probationers. Id. at 2-3. Defendant pleaded guilty to Counts One and Two pursuant to a plea agreement. ECF Nos. 54, 56. Counts Three and Four were dismissed at sentencing upon the Government's motion. ECF No. 90.

         III. DISCUSSION

         It now falls to this Court to fashion a sentence for Defendant that is “sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a). As the Chief Justice of the United States has acknowledged, “[m]ost district judges agree that sentencing is their most difficult duty.” Chief Justice John Roberts, 2016 Year-End Report on the Federal Judiciary 5 (Dec. 31, 2016), https://www.supremecourt.gov/publicinfo/year-end/2016year-endreport.pdf. “The judge must confront the offender, face-to-face, and take just account of human failing. . . . In delivering the sentence, the judge speaks as the voice of the community.” Id. The important societal function sentencing courts perform is reflected by our laws; Congress has tasked sentencing courts with accomplishing the policy goals articulated in 18 U.S.C. § 3553(a)(2).

         Section 3553(a) delineates a number of factors that courts must consider when determining an appropriate sentence. Id. Those factors include a number of pragmatic concerns: “the nature and circumstances of the offense”; “the history and characteristics of the defendant”; “the kinds of sentences available”; the U.S. Sentencing Commission's recommended sentence, expressed through its Sentencing Guidelines, and relevant policy statements; “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct;” and “the need to provide restitution to any victims of the offense.” § 3553(a)(1), (3)-(7). The factors also include the aforementioned policy goals: “reflect[ing] the seriousness of the offense, . . . promot[ing] respect for the law, . . . provid[ing] just punishment for the offense; . . . afford[ing] adequate deterrence to criminal conduct; . . . protect[ing] the public from further crimes of the defendant; and . . . provid[ing] the defendant with needed” care, training, or treatment. See § 3553(a)(2).

         The Court begins by first determining the applicable advisory Guidelines range before proceeding to the Government's motion for an upward departure or variance and analyzing the § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 49-50 (2007); see also United States v. Coyle, 506 F.3d 680 (8th Cir. 2007).

         A. Advisory U.S. Sentencing Guidelines Range

         The parties agree Defendant's base offense level is six, as calculated in the Presentence Investigation Report (PSR).^[1] U.S. Sentencing Guidelines Manual § 2B1.1 (U.S. Sentencing Comm'n 2018) [hereinafter U.S.S.G.]. The Court applies a two-level enhancement for Defendant's Role in the Offense pursuant to U.S.S.G. § 3B1.3 because Defendant abused a position of trust or used a special skill in a manner that significantly facilitated the commission or concealment of the offense. The Court also applies a two-level reduction for Defendant's Acceptance of Responsibility, resulting in a total offense level of six. See U.S.S.G. § 3E1.1(a). The parties agree Defendant has a criminal history score of zero, establishing a criminal history category of I. See U.S.S.G. §§ 4A1.1, .2(e). Therefore, the applicable advisory Guidelines range is zero to six ...