United States v. Bain

III. Conclusion judgment affirm

Accordingly, we court. America, STATES

UNITED

Appellee, Jr., Appellant. BAIN,

Donald W.

No. 07-2981. Appeals,

Eighth Circuit. 15, 2008. April

Submitted: Aug. 2008.

Filed: Banc Rehearing En

Rehearing and 6, 2008.*

Denied Oct. * petition grant Judge Benton would analysis applies to MHRA Because the same par- Judge Melloy did not claims, rehearing age en banc. Loeb’s MHRA claims as ADEA or decision of ticipate Wittenburg, consideration fails. claim also discrimination this matter. F.3d at 841 n. 15. AUSA, Olson, argued, Leigh

Shannon Barrows, AUSA, Moines, IA, Joel W. Des IA, brief, appellee. Davenport, on the BALDOCK,1 GRUENDER, and Before BENTON, Judges. Circuit PER CURIAM. Bain, Jr., pled guilty one

Donald W. distributing and child receiving count (Count 1), and one count pornography (Count 2), pornography child possession of 2252(a)(2), §§ 2256. The district 18 U.S.C. im- months him 210 court2 sentenced 120 months on on Count and prisonment concurrently. Bain Count to be served jurisdiction Having the sentence. appeals § 1291 and 18 U.S.C. 28 U.S.C. under 3742(b)(1), court affirms. this I. FBI, acting on February

On government, ex- Norwegian tipa from at Bain’s house. ecuted search warrant numer- three Agents computers seized containing images disks floppy ous engaged in depicting minors digital movies Bain to the FBI acts. admitted sexual files traded child pornography that he home, sharing pro- using the file from his “Kazaa.” gram indicted, placed being After release, supervision and an with pre-trial He was al- appearance bond. unsecured country several travel outside the lowed to times, of the court. He permission with examinations, psychological two underwent meet that he did not concluding each diagnosis pedophilia, Simmons, argued, Daven- criteria Kent Allen of re-offense. low risk presented IA, he appellant. port, Jarvey, Baldock, United John A. 2. The Honorable Bobby R. 1. The Honorable Judge District for the Southern District Judge Circuit for the Tenth States Circuit designation. of Iowa. sitting by Appeals, Court of explain character, determined the base offense history, PSR his and the as 22. This was increased two levels level fact that he would not re-offend are rea- un- because some material involved minors long sons “that a sentence is not neces- 2G2.2(b)(2); age der U.S.S.G. five sary.” The respond. court did not he traded the material for levels because government After the asked for the low child pornography, more U.S.S.G. end of range, the court stat- 2G2.2(b)(3)(B); four levels because some ed: sadism, masochism, portrayed material or violence, You you knew when depictions doing other U.S.S.G. were it that it 2G2.2(b)(4); § wrong, you just two levels because he used didn’t know how a to computer punishment receive distribute mate- serious the is for this of- rial, 2G2.2(b)(6); § and five levels U.S.S.G. you you fense and so are right, have— than because the offense involved more you’re going dearly, to pay your wife is 2G2.2(b)(7)(D). § images,3 U.S.S.G. going pay dearly, to everybody associat- acceptance After a three-level decrease for you ed with going pay dearly is to and it of responsibility, Bain’s total offense level painful is you by because were all ac- history category was 37. With a criminal successful, very counts a contributing I, guidelines this to a range translates of your member to community, certainly to 210 to 262 months. your workplace, it is harsh. At Bain sentencing, requested the statu- The court then § considered the 3553 fac- months,

tory minimum ar- tors, concluding that “a sentence at the guing the factors. The district bottom range of the is sufficient to address court responded: sentencing essential considerations.” Hang I can’t do that. In on. order to

go pursuant below the Guidelines to II. Eighth 3553 which are viewed by now Circuit as affirmed the United sentence, Reviewing a this court Supreme Court as presumptively must “first ensure that the district court reasonable, got ground there’s to be a error, no significant procedural committed mean, for a I variance. what are the (or failing such as to improperly calculate grounds for a variance of much as as calculating) range, the Guidelines treating two-thirds to three-fourths of the sen- mandatory, the Guidelines as failing to People under the Guidelines? 3553(a) factors, consider the selecting a risk, cooperate put who their life at facts, clearly sentence based on erroneous if gives the Court them more than 45 or failing adequately or to explain the chosen percent putting off for their life at an including explanation any for sentence— risk, Appeals reverses that deviation from range.” the Guidelines — an unreasonable sentence. Here States, U.S. —, Gall United grounds what would the a vari- be for (2007). 586, 597, “If 169 L.Ed.2d 445 magnitude you talking ance of the are sound,’ ‘procedurally the decision was we about? then review the ‘substantive reasonable Bain grounds told the court that “a ness of the sentence’ under the abuse-of- acceptable considering totality variance that make it in the discretion standard Guidelines does not exist.” He went on to of the circumstances.” found, Although only "images” signed images 3. a were value of 75 each. See eight clips, least were video which are as- U.S.S.G. 2G2.2 cmt. 4. (noting “hardly Rita was obscure deci [an] Alvizo-Trujillo, Gall, Cir.2008), likely at 597. to citing 128 S.Ct. have been overlooked ] sion ”). sentencing judges.... dis federal

A. Rita trict court here did not commit error. Burnette, 518 district court argues that the Cf. (8th Cir.2008) (district presump procedural!y applying erred guidelines before that a statement Rita “sentence tion of reasonableness States, guidelines of Rita v. United presumed in violation within the reason range — U.S. —, Rita), L.Ed.2d petition 127 S.Ct. plain able” was error after cert, (June 2008). (2007), extraordinary by requiring filed, No. 07-11317 non-guidelines justify circumstances did not Although apply Gall, in violation presumption reasonableness court twice referenced The district range, it committed Gall error First, af- of reasonableness. presumption by requiring extraordinary circumstances statutory the minimum ter for Bain asked justify non-guidelines the requested to go “In replied, court order sentence the sentence. pursuant to 3553 below the Guidelines Gall, “discourage[d] Before this circuit Eighth in the Circuit which are viewed reductions sentences] drastic absent ex [in the by United States Su- now as affirmed traordinary circumstances, especially when reasonable, preme presumptively as Court sentencing guidelines already signifi the ground for a variance.” got there’s to be cantly reflect mitigating the factors.” added). Second, announc- when (emphasis Gonzalez-Alvarado, 477 stated, the “The ing court the sentence (8th Cir.2007). 648, 651 Bain’s sen rea- Sentencing presumed are Guidelines tencing occurred months four before the Court Eighth here in Circuit sonable “rejected][ an that appellate ] rule re They mandatory, are but Appeals. of quires ‘extraordinary’ circumstances study and they are based extensive justify sentence outside the Guidelines added). (emphasis refinement.” Gall, 128 range.” S.Ct. at 595. Court sentencing occurred one Bain’s “rejected] rigid also the use of mathe Supreme the Court decided month after matical percentage formula that uses the (decided Rita, 127 2456 Rita. See S.Ct. departure as of the standard deter 2007). pre are judges “Trial June strength justifications mining the of the it in apply know the law and to sumed to specific for a Id. required sentence.” v. Ari making their decisions.” Walton 639, 653, 110 zona, Taking S.Ct. the court’s 497 U.S. district com (1990), light on other law at L.Ed.2d 511 overruled ments the circuit the Arizona, time, grounds Ring undoubtedly 536 U.S. the court by believed that extraordinary L.Ed.2d 556 were circumstances re (2002). Presumably, justify court re quired requested Bain’s sen he presumption statutory alized that the of reasonable tence. When asked for the minimum, “I can’t only appellate presumption, ness is an district court said do that,” meaning noting give that that courts this was its when it stated when district presumed percent are than 45 or 50 reductions “more Circuit, guideline range] affirmed Eighth [the [defendants] off risk, putting See their life at the Court of Supreme Court. ” that reverses.... The fact Gray, Appeals appel court twice mentioned the circuit requires district This more than a request non-guidelines for a sentence in presumption late of reasonableness rein preserve error; order to Rita or Gall that it felt constrained this cir forces object defendant must to the district (then) review, percentage cuit’s strict court’s application erroneous of the law. independently did not consider Bain’s ar Gaddy, See United States v. that a guments 60-month sentence was (8th Cir.2008) (applying plain error greater necessary sufficient but not than review to Rita error because the defen goals sentencing to meet the object dant “did not to the district court’s (district Gall, at alleged presumption”); Alvizo-Trujillo, court “must make an individualized assess at (request for variance presented”); ment based on the facts Bur statement guidelines range un (district nette, reasonably high preserve did not alleged Appeals statement merely error because it “was commentary very tough on variances and “sentences and was made before guidelines range below the to amount to improper announced the presumption and anything easily are not accomplished” was sentence”); Vaughn, Gall). error after Rita and The district (applying By requiring court erred here. extraordi plain error review to Rita error where circumstances, nary it misapprehended its variance, defendant asked for because the authority non-guidelines to issue a sen object defendant did not in the district Tabor, tence. v. See United States 531 court); Burnette, (applying 518 F.3d at 946 688, 692 (“Significant F.3d plain error review to Rita and error procedural if the error occurs district court withdrawing objections because his “[a]fter scope fails to understand the of its authori PSR, to the made no fur [the defendant] ty sentencing.”). and discretion at objections sentence”); ther to his Marston, (8th 996, 517 F.3d 1004 Cir.2008) plain (applying error review to B. Rita error because the defendant “did not preserved, procedural If not sen object at sentencing that tencing only errors are plain reviewed interpretation of the law was incor Burnette, error. See 518 F.3d at 946. rect”). object Bain did Because to the preserved Bain asserts he error “in requirement district court’s of extraordi forming judge of the course of action nary justify request circumstances to take, judge by stating sentence, he wished the to may only ed this court review exact sought.”4 plain error.5 Co., 1506, government argued 4. The v. that review is for RexeneProds. 24 F.3d 1519 n. 24 party’s (5th 1994) (the of A abuse discretion. concession on Cir. standard of review cannot the standard of review does not bind the waived). be court, as a "[s]uch determination remains for Enter., this court to make for itself.” K & T support argument 5. Bain cites Rule 51 to his Co., 171, (6th Inc. v. Zurich Ins. 175 by requesting preserved that he the error here Cir.1996). Tyer, v. See also Worth non-guidelines an "exact” sentence. See Fed. 249, (7th Cir.2001) (courts, 262 n. not the 51(b) ("A party may preserve R.Crim. Proc. a review; parties, determine the standard of it by informing the .claim of error court—when waived), citing cannot be v. Micro Vizcaino nding sought the court or order is made or —of 1006, (9th Corp., 120 1022 n. soft take, party wishes the court to or action 1997) (en banc) (O’ Scannlain, J., Cir. concur party’s objection to the court's action and ring part dissenting part); Izzarelli that “the review, reviewing court must be satisfied the de error plan “Under (2) (1) error; ‘suffi- a different result is probability an must fendant show: (3) that affects substantial in the out- undermine confidence plain; is cient to 804, citing at 83, rights.” Vaughn, Id. at proceeding.” come’ of the States, 520 U.S. v. United Washing- Johnson v. Strickland quoting L.Ed.2d 718 466-67, 117 S.Ct. ton, 668, 694, 104 S.Ct. 466 U.S. (1997). not be will corrected plainA error (1984). L.Ed.2d 674 fairness, (4) seriously affects it unless end of the to low sentenced was judicial reputation public or integrity, is insufficient guidelines range. This alone Olano, 507 proceedings. United a reasonable probability to establish L.Ed.2d 725, 732, 113 S.Ct. U.S. a sentence. have received lower he would (1993). Pirani, 406 F.3d at 553. The plain. here is error The Gall stated that Johnson, Burnette, citing at dearly, your wife is going pay [Y]ou’re (it is 117 S.Ct. 1544 at 520 U.S. dearly, everybody associat- going pay at the time plain be enough that an error it pay dearly and you going ed is with error is whether the The issue appeal). you by all ac- painful is because were right. affected substantial successful, contributing very counts a substantial An error affects community, certainly to your member to Olano, 507 U.S. prejudicial. if right it is is your workplace, it harsh. sentencing A error the district court It is whether unclear prob there is prejudicial if harsh, or whether meant sentence was have received would ability the defendant meant it unfortunate the district court the error. Unit but for lighter well-functioning member that an otherwise Pirani, ed States crime. The society had committed this (en banc). “The reasonable- the proceeded consider to as, the is not same probability standard 3553(a) factors, concluding § that “[b]ased with, require a not be confused and should ... a of this case on all the circumstances prepon prove that a a ment defendant range the is at the bottom of that error evidence but for derance of the to address the sentenc- sufficient essential different.” United things would been have record, it is On this Benitez, 74, ing considerations.” 542 U.S. Dominguez States v. court what action the district not clear L.Ed.2d 157 83 n. 124 S.Ct. error. record, taken absent Gall (2004). the would have the the entire light In Moore, (same); F.3d (emphasis objection.”) grounds that the added). (same); (8th Cir.2008) v. United States Roberson, (8th Cir.2008) non-guidelines Although a sen requesting error, (same). Lang preserve generally Rita or Gall tence does not See United requesting (3rd Cir.2008) ("In that variance court held ford, this has 516 F.3d disparity cradt/powder-cocaine Rita, Gall, on the based Kimbrough, sought Kimbrough error. See preserve is sufficient to Tabor, many remedy courts to the errors (applying de novo at 692 virtually to treat Guidelines ‘continued Kimbrough where error defendant review to advisory mandatory,’ by reemphasizing their variance); States v. Cawth requested United granted nature as well as broad discretion (8th Cir.2008) orn, 679-80 3553(a).”), quoting § sentencing courts under Thomas, (same); v. J., Rita, (Stevens, concur at 2474 (same); United States ring). Lee, (8th clusion, presumption on the the rationale for the effect of the error “[W]here disappears. is uncertain or in the district court result to we have would indeterminate —-where This court will therefore determine appellant has not met his speculate —the whether the 210 month sentence is sub- showing probability a reasonable burden of stantively with regard to the would have been different that the result 3553(a) factors, presumption without the Pirani, 406 F.3d at but for the error.” of reasonableness. The factors to be con- Therefore, that Bain this court finds 3553(a) are: sidered under a rea- showing his has not met burden (1) the nature and of the circumstances of a lower sentence. probability sonable history offense and the and characteris- (no Gaddy, prejudice 532 F.3d at 791 defendant; tics of the where district court stated (2) imposed— the need for the sentence stern, “extensively but range pretty factors”). (A) discussed to reflect the seriousness of the offense, promote respect for the C. law, provide just punishment and to offense; that his sentence Bain also asserts for the objec No substantively is unreasonable. (B) adequate to afford deterrence to an attack on the preserve is needed to tion conduct; criminal reasonableness of sentence. substantive (C) protect public from further Wiley, 476- defendant; crimes of the Cir.2007). This court considers (D) provide the defendant with reasonableness of the sen “the substantive needed educational or vocational under an abuse-of-discre imposed care, training, medical or other cor- Gall, 128 S.Ct. at 597. tion standard.” rectional treatment in the most effec- argues this court should manner; tive presumption of reasonableness apply (3) available; the kinds of sentences within-guidelines sentence because to his (4) the kinds of sentence the sen- of the district court’s error. “[T]he tencing range established for— presumption reflects [of reasonableness] (A) category of applicable offense that, by appeals time an court the fact category the applicable committed considering within-Guidelines in the guide- of defendant as set forth review, sentencing judge both the and lines; will have Sentencing the Commission (5) any pertinent policy the same conclusion as to the statement is- reached Commission; particular by Sentencing in the case. the proper sentence sued determination significantly in That double (6) need to avoid unwarranted sen- the that the sentence is creases the likelihood disparities among defendants with Rita, a at 2463 reasonable one.” records who have been found similar original). in there is (emphasis When Gall conduct; guilty of and similar error, the district court feels constrained (7) provide the need to restitution to guidelines, the and therefore does not any victims of the offense. independently reach the same conclusion 3553(a). 18 U.S.C. If proper to the sentence. the district Bain, sentencing Sentencing court and the Commission did Before come to the same con- court stated: independently the need nature and cir- The Court has also examined the I have considered dispar- sentencing offense and the histo- to avoid unwarranted of this cumstances ity among of this defendant. defendants with similar rec- ry and characteristics the the seriousness of guilty I have considered have been found of sim- ords who regard in that that the and note offense quite ilar conduct. We have had involved here and the images of number people very number of that are similar- puts this case trading of files amount of Bain, successful, hard ly situated to Mr. in variety, the offense garden the above that working, family people get caught basic form. its most up in and so we have a track record this in all the here Federal Court and across ques- the has also considered The Court is, of Iowa and it of Southern District just punishment. tion of course, important pursuant very Report Presentence looked to Section 3553 pursuant Guidelines any pedophelia of hard to see evidence consistency promote among those that would exacer- anything or like that sentences. situation, aggravate the sen- bate this tence. system I conclude that the Guideline adequate adequately of addresses the circumstances I the issue have considered Sentencing conduct as I must deterrence to criminal of this defendant and of the extent that range and to reasonable. Guideline thing in imprisonment can do such detailed consideration of Given cases, certainly have that it will these 3553(a) factors, “deferential effect. that abuse-of-discretion standard of review protect need to I have considered the decisions,” Gall, applies sentencing to all rely further crimes and public from say 128 S.Ct. at this court cannot regard psychosex- on the heavily range a 210 month sentence is “outside the that was conducted in investigation ual of choice dictated the facts of the case.” that the— this case and which indicated Jones, a low risk for other that Mr. Bain has (8th Cir.2007) (defining abuse of discretion high and a likelihood for suc- problems Burnette, sentencing). 518 F.3d at rehabilitation. cessful (finding guidelines sentence substan- sentencing options I considered the tively despite have Rita and also, (due I have of that are available. error); Moore, at 580 course, the kind of sentences considered deferential standard of review and district advisory sentencing range es- explanation court’s careful by the Guidelines. The Sen- tablished factors, high end tencing presumed Guidelines are reason- substantively reasonable with or without Eighth here in the Circuit Court able reasonableness); présumption Vaughn, mandatory, They are not but Appeals. (finding guidelines 519 F.3d at 805-06 sen- study and they are based on extensive substantively despite They the will of refinement. exhibit error). Rita they promote consistency Congress and Accordingly the Court sentencing. III. an impor- looks those Guidelines judgment The of the district court is controlling though singularly tant affirmed. factor to be considered. 2008)

BENTON, concurring. (applying Judge, post-Gaii); harmless error Circuit Greene, 904, United States v. 513 F.3d precedent I concur due to this circuit’s (8th Cir.2008) (same); United States v. unpre- review of requiring plain error (8th Cir.2008) Huff, 514 F.3d sepa errors. I write procedural served (same). facts, because, v. rately on these Gall — States, —, 128 S.Ct. U.S. United Gall, plain Before this court ruled that (2007), re requires 169 L.Ed.2d 445 error review applies unpreserved Book mand. Pirani, er errors. See United States v. (8th Cir.2005) (en Booker, in- Supreme

Before banc). required Booker sentences to be 3742(f)(1) § as re- terpreted 18 U.S.C. only reviewed for “unreasonableness.” analysis misap- harmless error quiring Booker, United States v. 543 U.S. of the is a plication —which 260-61, 160 L.Ed.2d S.Ct. procedural post-Gaii. error See Williams (2005). v. “Gall United States calls for an States, 193, 203, 112 503 U.S. United (1992). appellate layers court to conduct two 1112, 117 L.Ed.2d 341 S.Ct. review, soundness, procedural first for up- a district court’s Williams addressed then substantive reasonableness.” departure prohibited on both ward based Vickers, J., 1122 (Shepherd, 528 F.3d at 196, 112 grounds. and authorized Id. at (citation omitted). Post-Gaii, concurring) harm- finding 1112. After the error S.Ct. this court apply plain-error continues to 3742(f)(1), § under the Court re- less to unpreserved procedural review errors. depart viewed the decision to for “reason- See, e.g., Alvizo-Trujillo, 3742(f)(2), under a review like ableness” (apply id. at post-Gail substantive review. See (reasonableness ing plain post-Gaii); error 203-04, 112 re- Burnette, (8th Cir. “exam- appellate view involves the court 2008), petition filed, cert. No. 07-11317 in im- ining] the factors to be considered (June 2008) (same). Guidelines, posing a under the as well as the district court’s stated rea- difficulty This case illustrates the of con- imposition particular for the of the sons review, ducting finding substantive after a sentence.”). that a The Court stated majority of Gall error. The finds Gall if “sentence thus can be ‘reasonable’ even here, under error but does not reverse given by some of the reasons plain error review because the record does justify departure court to from the not indicate that the district court would invalid, presumptive guidelines range are it been given have lower sentence had provided remaining reasons are authority out- aware of its full to sentence justify magnitude sufficient to of the guidelines. majority side the must departure.” Id. proceed then to review the substantive sentence, “nothing

This court has determined that reasonableness of the based explanation of the undermines Williams or makes the district court’s [ ] Gall, analysis inapplicable harmless-error factors. See (“[T]he appellate court should then procedural sentencing errors.” United Henson, 922, 924, 2008 consider the substantive reasonableness 07-1993, imposed under an abuse-of- slip op. No. at 3 WL standard.”). 3742(f) Unlike (noting that was left discretion Williams Booker). appellate the court could determine by intact See also United States where Vickers, jus- grounds 1121 the authorized alone v. 528 F.3d Cir. whether 886 the pellate no court that he has considered here the court has departure,

tified ba- parties’ arguments and has reasoned the sentence is judge whether basis exercising legal sis for his own decision- reasonable. added). making authority.”) (emphasis the 60-month sen- requested When no basis for Since this court has reliable stated, tence, “I can’t do the district court review, this sentence should be substantive that, gives [defendants] .... if the Court resentencing in reversed and remanded for putting off for percent than 45 or 50 more to fulfill the mandate of See order Gall. risk, Appeals their life at Pepper, 953 United an unreasonable sen- reverses that as (8th Cir.2008) (reversing remanding and court did not serious- tence.” The district error, resentencing harmless for a 60- ly arguments consider Bain’s —without error, plain or substantive review—where sentence; the entire month therefore “procedurally the district court erred tainted explanation is failing explain adequately [defendant’s] Vickers, at 1122- error. Gall See by relying predominantly sentence and J., concurring) (procedural (Shepherd, improper factors to determine the sen review— error “thwarts reasonableness variance”); Kemp, United States v. is, process be- it cuts off our review (8th Cir.2008) (reversing of reasonable- fore we even reach issue not remanding because “we are sure ness”); Langford, United States guide adopted that the district court (3rd (“Our reason- F.3d PSR”); range lines recommended ableness review relies on district Garcia-Hernandez, starting point of the reasoning from the (8th Cir.2008) (reversing through the correctly calculated Guidelines “relying on an errone procedural error 3553(a) factors.”). The record here does error, plain factor” ous without harmless sentence the district not indicate what error, analy or substantive reasonableness but not court believed “sufficient sis). Thomas, necessary.” than Due to the def- greater Cf. (8th Cir.2006) (reversing and standard, erential abuse discretion remanding Kimbrough error it because affirms the sentence based on majority it varied was unclear whether would have may reflect the dis- explanations that not it guidelines range from the had it know opinion. trict court’s unrestrained authority); had the United States v. Ro “make an individu District courts must berson, sentence, alized of the correct assessment” remanding er (reversing Kimbrough the chosen sen “adequately explain does ror because “[w]hen meaningful appellate tence to allow for argument an it is not consider because promote perception review and to so, power unaware of its to do remand [ ] Gall, 586, 597 sentencing.” fair appropriate.”). added). review un (emphasis Substantive precedent requir- Because this circuit’s requires der this court to defer to the Gall ing plain unpreserved error review of opinion about district court’s unrestrained remand, error does not allow a I concur greater what sentence is “sufficient but the result. necessary,” than reasons therefor. and the — States, also Rita v. U.S. —, —, (2007) (“The sentencing judge

L.Ed.2d 203 satisfy ap- enough

should set forth

Case Details

Case Name: United States v. Bain

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 8, 2008

Citation: 537 F.3d 876

Docket Number: 07-2981

Court Abbreviation: 8th Cir.