[Copyrighted Material Omitted]
Camille Ann Domingue, Assistant U.S. Attorney, John Luke Walker, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Lafayette, LA, for Plaintiff-Appellee.
Jennifer P. McKay, Esq., Colvin, Smith & McKay, Shreveport, LA, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Louisiana.
Before HIGGINBOTHAM, OWEN, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
Richard Chandler pleaded guilty to engaging in a child exploitation enterprise. At sentencing, the district court varied upward by 127 months over the recommended Guidelines range to impose 420 months of imprisonment. We find that the district court erred by increasing Chandler's sentence based on the fact that he was a police officer. We remand for re-sentencing.
I. Factual and Procedural Background
Chandler joined " Dreamboard," a members-only online bulletin board which conditioned membership on posting and sharing child pornography. Members of the board would advertise child pornography available for distribution by posting a description, " preview" images and information about how to download the material. In order to obtain and retain membership on the board, an individual was required to post advertisements for child pornography on a regular basis. There were five distinct levels of membership, with each level having access to different sections of the bulletin board. The administrators of the bulletin board were the highest level members and had access to all of the advertised child pornography on the bulletin board. The second highest level was the " Super VIP." membership level, which included members who were producing child pornography and posting it on the bulletin board. The other three membership levels were " Super VIP," " VIP," and " Members." The members at each of these levels could see the posts on their membership level and on any level lower on the bulletin board.
Chandler joined Dreamboard in February 2010. He was a police officer at the time. As a result of his postings, he was raised to VIP status, the second-lowest membership level. He posted at least 117 posts, the majority of which were children posing or engaging in sexual acts with adults. The pre-sentence report (" PSR" ) reflected that Chandler published the advertisements and offered to distribute the material on April 27, June 7, and June 10, 2010.
Chandler was indicted in March 2011. A second superseding indictment charged
him with: (1) engaging in a child exploitation enterprise, 18 U.S.C. § 2252A(g); (2) conspiring to advertise the distribution of child pornography, id. § 2251(d)(1), (e), and; (3) conspiring to distribute child pornography, id. § 2252A(a)(2)(A), (b)(1). Chandler pleaded guilty to engaging ...