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Fort Worth Federal Judge John McBryde Child Porn Downward Departure Sentence

Mr. Lowe’s client was investigated by the Fort Worth Police Department (FWPD) officer assigned to Crimes Against Children Unit who was conducted an investigation of a peer-to-peer file sharing network.  The file sharing network being investigated was called eDonkey.  eDonkey required its users to download file sharing software called Shareaza.  This software enabled the users to share child pornography videos and images with other consenting users on the network.

During their investigation, FWPD officers identified the client’s IP address after downloading two child porn video clips from the client’s computer which was also connected to this file sharing network.  Further investigation by FWPD revealed the client’s identity and a search warrant was obtained to search the client’s residence and any computers inside of his residence.  Shortly thereafter, FWPD ran a search warrant on the client’s residence.  The client gave a statement to FWPD wherein he fully confessed to both possessing and sharing child pornography pictures and videos on the eDonkey network.  He described himself as being “addicted” to child porn and had been viewing it for decades.  After FWPD conducted a full forensic examining of the computers in the client’s home, 8,627 images and several videos of child pornography were recovered.  Because United States Sentencing Guideline (USSG) section 2G2.2  note 6(b)(ii) converts each video clip into 75 images, the total number of images was 16,911.

Mr. Lowe negotiated an unwritten plea agreement with the Assistant United States Attorney (Judge McBryde does not accept written plea agreements) so that his client could plead guilty to single count of Possession of a Visual Depiction of a Minor Engaged in Sexually Explicit Conduct in violation of 18 U.S.C. section 2252(a)(4)(B).  This charge limited the maximum imprisonment to 20 years.  The charge also eliminated any mandatory minimum which would have applied following a Transportation of Child Pornography conviction.

The client’s presentence report (PSR) made several upward adjustments to the client’s guideline base offense level.  The client received 2 levels for material involving prepubescent minor; USSG 2G2.2(b)(2); 2 levels for distributing child porn; USSG 2G2.2(b)(3)(F); 4 levels for images depicted sadistic or masochistic conduct or other depictions of violence; USSG 2G2.2(b)(4); 2 levels for use of interactive computer service in the possession or distribution of child porn; USSG section 2G2.2(b)(6); and the max of 5 levels for more than 600 images (16,911 total images) of child pornography.  After acceptance of responsibility, the client had a total offense level of 30 at criminal history category I.  This yielded an imprisonment range up to 121 months or 10 years and 1 month.  In addition, United States Probation recommended an upward departure due to the unusually large number of images found on the client’s hard drive.

Mr. Lowe’s case was automatically assigned to Senior District Judge John McBryde’s court.  Judge McBryde is commonly considered to be one of the least lenient federal judges in the State of Texas.  Judge McBryde also has a reputation for upward departure or sentences on the high end of the guideline range.

Mr. Lowe’s client hired him shortly after the search warrant was run on his home.  In the many months before Mr. Lowe’s client had to make his first appearance before Judge John McBryde, Mr. Lowe worked with his client and many other mitigation professionals to prepare for an eventual sentencing hearing.  Because Mr. Lowe’s client was intelligent and wisely followed Mr. Lowe’s advice, Mr. Lowe was able to ensure that these mitigation reports all appeared in the final PSR prepared for Judge McBryde prior to sentencing.

At sentencing, Mr. Lowe made a compelling argument for downward departure even though USPO made an argument for a departure above the max 121 recommended in the USSG range for level 30, criminal history category I.    At the conclusion of the sentencing hearing, Judge McBryde agreed with Mr. Lowe.  Judge McBryde sentenced Mr. Lowe’s client to 68 months.  68 months is 44% below the max 121 USSG range sentence.  In addition, 68 months is well below the minimum recommended sentence, 97 months.  Below is the redacted final judgment in the case.  Mr. Lowe’s client was relieved beyond belief and was in tears at the conclusion of the sentencing.

judgment redacted


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