A Pope County man released from federal prison in 2015 after serving nearly six years for possessing child pornography was sentenced to an additional two years after a federal judge found that he had violated the terms of his supervised release after being convicted of sexual indecency with a minor.
Justin Daniel Deatherage, 45, of Russellville was just under four years into a 10-year period of supervised release from federal custody when he was accused of exposing himself to an 8-year-old girl in a Russellville Walmart on Nov. 22, 2019. On Sept. 28, 2020, he pleaded guilty in Pope County Circuit Court to one count of sexual indecency with a minor and was sentenced to two years in state prison. With credit for 304 days for the time he was jailed before his conviction, Deatherage is scheduled to be released from the East Arkansas Regional Unit in Brickeys in November.
Then, on Dec. 8, Deatherage was charged with rape and sexual assault after investigators said he had raped and assaulted a child over a one-year period before his November 2019 arrest on the sexual-indecency charge. According to court records, no trial date has been set in that matter.
In a revocation petition to the court, federal prosecutors cited Deatherage's conviction on the sexual-indecency charge and pending prosecution on the rape and sexual assault charges as justification for the revocation petition.
In court Tuesday, U.S. District Judge Susan Webber Wright dismissed deliberation of the pending rape and sexual assault charges in her decision after Deatherage's attorney, Latrece Gray, objected and Assistant U.S. Attorney Michael Gordon declined to introduce evidence related to the rape and sexual assault charges.
"That charge is still pending so we deny that," Gray said. "But we admit to the Nov. 22, 2019 allegation in which he was convicted and received 24 months in the Department of Corrections for sexual indecency with a child."
"In order to prove that allegation I would have to call the witness," Gordon said. "With pending state charges and given the fact that the most this court can do in this case on this revocation is give Mr. Deatherage two years, I don't intend to subject the victim to having to go through court twice."
Gray asked that with the exclusion of the pending charges, that Wright sentence Deatherage to prison time within the guideline sentencing range of four months to 10 months recommended for the violation.
Gordon insisted, however, that the maximum two-year sentence would be appropriate because of the charge that led to Detherage's current incarceration coupled with the background of the 2009 investigation that eventually led to his conviction on the child-pornography charge. He said that investigation began after Deatherage, who was married at the time and also had a girlfriend, told the girlfriend that he had begun a sexual relationship with a 12-year-old babysitter and two children aged 10 and 8.
"He started having conversations with his girlfriend about involving her with the three kids and that concerned her," Gordon said, to the point that, "she reached out to the police, she wore a wire and through the conversations she had with Mr. Deatherage about those very topics," a full scale investigation was opened.
Gordon said that investigators were never able to ascertain what, if any, inappropriate conduct may have transpired, and were never able to identify the babysitter or the older child, and interviews with an 8-year-old neighbor proved inconclusive. But, he said, search warrants obtained by police turned up images and video files of child pornography, as well as files containing more than 100 links to child pornography websites.
He said a presentencing report used to calculate the 70-month sentence Deatherage received on the child-pornography offense had failed to accurately assess Deatherage, saying instead that Deatherage was not a danger to the community and had a low risk for reoffending.
"And yet, here we are," he said. "Even after 70 months in prison, four or five years of sex offender treatment and polygraphs, this is what happened."
Gordon asked that the two years incarceration the government was requesting run consecutively to his current sentence to ensure that Deatherage would go straight from state to federal custody upon his release and that, when he is eventually released from prison, Wright order his supervised release period to be extended, "as long as you can."
"Apparently," Gordon concluded, "he's a danger to the community and we need to keep an eye on him."
Gray argued that sentencing her client to two years in prison for violating the terms of his supervised release for the sexual-indecency conviction would not only exceed the recommended guideline for that offense, but would even exceed the guideline sentence for violating his supervised-release terms if he were to be convicted on the rape charge.
"He has not been convicted of the pending charge and two years is even in excess of, had they proven that he committed the rape, the guideline range would have been 12 to 18 months," Gray said.
But, citing what she called the "egregious nature of the violation," Wright said that a guideline sentence would not be sufficient.
"When I sentenced him on the underlying offense years ago, I did consider the presentence report and the recommendation of the probation office," Wright said. "It seems to me that Mr. Deatherage does need a lot of help and the public needs to be protected from what he might do."
In addition to the two-year prison term to be served consecutively with his current state sentence, Wright ordered that when Deatherage is released from prison, that he serve five years of supervised release with numerous conditions and restrictions in place, including participation in sex-offender treatment and submission to regular polygraph exams, and that he have no direct contact with children, including his own, without court permission.