United States v. David Ryan Alberts
2017 U.S. App. LEXIS 10418
| 11th Cir. | 2017Background
- David Alberts pleaded guilty to receiving and possessing child pornography and was sentenced to 120 months.
- The PSR alleged a five-level enhancement under USSG § 2G2.2(b)(5) for a pattern of sexually abusing/exploiting a minor.
- Alberts admitted to past sexual acts with younger relatives when about 16, and to decades-long interest in incest/pedophilia.
- The district court adopted the PSR and applied the § 2G2.2(b)(5) enhancement, weighing aggravating and mitigating factors, and sentenced below the guideline range.
- Alberts challenged the § 2G2.2(b)(5) enhancement on grounds that he was a minor during the acts, the acts were decades old, and evidence was vague; he sought a downward variance partly for military service and abuse history.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the pattern of activity enhancement is supported by the facts | Alberts: admission lacks reliable corroboration | Alberts: evidence is insufficient/uncorroborated | Yes; the court did not clearly err; preponderance supported |
| Whether minor-on-minor conduct can support § 2G2.2(b)(5) | Alberts: acts were when he was a minor | Agrees that juvenile acts fall within application notes; argues only some acts qualify | Yes; acts of a minor against other minors can support the enhancement when within referenced statutes |
| Temporal proximity of acts to support pattern of activity | Turner precedent allows inclusion of distant past acts | No new time limit invalidating the enhancement; court relied on Turner | |
| Reasonableness of sentence (procedural) | Alberts: rehabilitation consideration violated Tapia | Plain error, but not affecting substantial rights; affirmed as procedurally reasonable | |
| Reasonableness of sentence (substantive) | Sentence overstated; guideline range inflated by enhancement | Enhancement properly applied; court weighed factors | Not substantively unreasonable; within range of reasonable sentences |
Key Cases Cited
- United States v. McGarity, 669 F.3d 1218 (11th Cir. 2012) (burden on government to prove facts for sentencing enhancement; clear error standard)
- United States v. Askew, 193 F.3d 1181 (11th Cir. 1999) (preponderance standard for § 2G2.2(b)(5) facts)
- United States v. Turner, 626 F.3d 566 (11th Cir. 2010) (no time limit on past abuse for pattern of activity)
- United States v. Vandergrift, 754 F.3d 1303 (11th Cir. 2014) (Tapia error is structural; rehabilitation Considerations limited)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error standard for procedural default)
- United States v. Williams, 456 F.3d 1353 (11th Cir. 2006) (abuse-of-discretion standard for reasonableness review)
- United States v. Reingold, 731 F.3d 204 (2d Cir. 2013) (juvenile conduct may support § 2G2.2(b)(5) under application notes)
- Aguillard, 217 F.3d 1319 (11th Cir. 2000) (plain-error standard in Tapia context)