*1 within-guidelines ed sentences. See Alva-
rado, 597-98; 691 F.3d at United States v. (5th Cir.2006).
Alonzo, 551, 554 America, UNITED STATES of He has therefore failed to show substan- Plaintiff-Appellee error, otherwise, plain part tive district court. additionally Marquez argues for the first SCHMIDT, Benet also known as time on that the appeal erred Brazthumper, Defendant- imposing supervised a term of release in Appellant. involving deportable a case alien without No. 12-30459. providing fact-specific reasons for its deci- 5Dl.l(c)’s of Appeals, § sion to deviate from United States Court U.S.S.G. Fifth Circuit. supervised recommendation that release imposed not be in such circumstances. We Jan. this review issue also for error. See Dominguez-Alvarado, United States v.
district court retains the discretion to im-
pose supervised release “uncommon [involving deportable
cases where alien] protection
added deterrence and are need-
ed.” Id. at 329. In Marquez,
the district court indicated that it took into 3553(a) factors,
account the 18 U.S.C.
particularly the need to deter future crimi- conduct, promote respect
nal for the
law, provide just punishment. and to Con-
sequently, Marquez has shown no
error on the of the district court in supervised a term of release.
See id. at 329-30.
AFFIRMED. *2 McKeivier, Attorney,
Ashli Summer L.L.P., Group, United Defense Studio CA, City, Defendant-Appellant. for JONES, "WIENER, and Before GRAVES, Judges. Circuit * PER CURIAM: Defendant-Appellant Benet engaging to one count of pleaded guilty exploitation enterprise a child December of 2011. After the district imprisonment, of Schmidt to months timely appealed, challenging his sen- procedural and substantive tence on grounds. We affirm.
I. AND PROCEEDINGS FACTS containing Schmidt made several members-only to a on- pornography child called line bulletin board service “Dreamboard.” That service’s adminis- applicants for member- required trators containing child ship post to submit a application. pornography by ex- initial like those made Such members, sample included isting typically description, and instructions images, downloading por- child locating for Members risked deletion nography. * 47.5, set forth in 5th Cir. has the limited circumstances Pursuant to 5th Cir. R. the court not be determined that this should R. 47.5.4. precedent except under published and is not
their if they Dreamboard accounts failed level acceptance responsi- reduction for post bility. pornography regularly. At sentencing, expressed re- Dreamboard’s structure comprised sev- *3 morse; court, apologized to the the vic- eral membership Higher levels. levels af- tims, society and at large; acknowledged forded pornography; access to more child that he was addicted pornography; to child each member was entitled to view posts expressed and a desire to receive treat- by made other members of equal or lower ment for that addiction. He did not ask membership levels. “Administrators”— for a below-Guidelines but he did highest approved rejected or level— request leniency. Schmidt also character- membership applications promoted pornography ized the child he viewed as demoted members based on the content involving underage victims who were posts. and number of their There were “smiling,” suggested that he did not four levels of membership below Adminis- “realize that going there was still abuse VIP.,”1 “Super VIP,” trator: “Super on.” The government countered that “VIP,” and Only “Member.” members “distorted,” Schmidt’s characterization was posted who child pornography they describing posts his depicting as “the produced had themselves could attain the worst kind of very abuse of our youngest “Super VIP.” level. children,” including four-year-old children being violently sodomized adult men. basis, According to the factual Schmidt government that, The offered if the con- made most of which were in the tents of images were placed VIP area and thus only available to other along a continuum with those of all other VIP members and higher members of 3553(a) co-defendants, “a sentence versus rank. The factual basis also states that guideline sentence” would be warranted. Schmidt’s “level membership of was VIP.” The district court interrupted gov- record, It however, is not clear from the ernment attorney’s remarks to note that whether Schmidt’s membership began at produce Schmidt did not pornogra- began VIP level or at the Member phy, government a fact which the attorney level and subsequently was elevated to the acknowledged. then At the conclusion of VIP level. government’s presentation, the district pleaded guilty to one count of court adopted the Guideline calculation in engaging exploitation a child enterprise. presentence investigation report parties The do not dispute that the district (“PSR”) and stated that the Guidelines court properly calculated Schmidt’s Guide- failed to reflect the nature severity months, lines range as 240-293 given the the abuse of the depicted children in statutory minimum of 240 months and the After the district court statutory maximum of life. range This twice referred to Super Schmidt as a VIP- 20-year minimum, reflects the Dreamboard, level member of total offense level of and a criminal counsel, conferred with prompting his history category of I. The total offense district court to ask whether the court had level in turn reflects a base offense level of misstated something. Schmidt responded 35, a four-level enhancement for a victim member, that he had been a VIP not a age under the a two-level Super enhance- VIP member. The court acknowl- ment for computer, use of a correction, and a three- edged the then commented: period "Super VIP.” was of that level’s label. 3553(a) analysis was instance, at the ed that the Section I have to look “In this well, it tells because the circumstances. It appropriate under nature up- probably were you me that reference to the Guidelines specific made ladder, the vine of mem- swing, up up characteristics, personal to Schmidt’s was Dreamboard.” bership levels that including history, his lack of criminal his factual find- adopted The district court offense, involvement in the and his addic- addendum, and the ings from the PSR pornography. regard tion to child With to 444 months of then sentenced Schmidt addiction, the district court stated supervised imprisonment and a life term “appears progressive that it to me to be release. character, kind and which is of serious *4 the the dis- concern to this pronouncing After Court.”2 com- explanatory trict court made several the content of
ments. It described II. STANDARD OF REVIEW posts as “almost unbelievable” Schmidt’s objections Schmidt made no to the PSR top” near the “in “ranking] at or during made none the sentencing ... posted terms of the kind of material sentence was hearing imposed. or when his these children are obvious dis- because Thus, Only for error.3 plain our review is by sodomized adult males.” being tress both the defen- when a error affects court noted that each act of distribu- fairness, rights dant’s substantial and the pornography viewing tion and each of child public reputation judicial or of integrity, against abuse separate constitutes a act of cor- proceedings do we have discretion to victims, and stated that depicted the rect it.4 public the protect it intended to The court re- Schmidt’s future crimes. “do not ade-
peated that
the Guidelines
III.
ANALYSIS
or
... how vile
quately punish
describe
A.
Error
Procedural
of abuse is with children.” It
type
this
procedural
A
court commits
the
also stated that it had considered
when it
a sentence based
“seleet[s]
error
tencing factors listed in Title
United
8558(a),
A district
Code,
clearly erroneous facts.”5
States
Section
and conclud- on
Mondragon-Santiago,
of
4. See
564 F.3d
357
The district court’s written Statement
Mares,
(citing United States v.
402 F.3d
reflects its determination that
Reasons also
Cir.2005)).
(5th
Employing alternate
appropriate based on
520
Schmidt’s sentence was
(1)
explained
plain-error
phrasing, we have
factors:
the nature and
six of the
"(1)
history
comprises
if
review
four determinations:
circumstances of the offense and the
defendant;
error, (2)
(3)
(2)
plain,
if
if it was
the
there was
and characteristics of
(4)
offense,
rights, and
if al-
error affects substantial
need to reflect the seriousness of the
law,
seriously
lowing
stand
affects the
respect
provide
that error to
promote
for the
and to
fairness,
(3)
reputation
ju-
integrity,
public
or
of
afford ade-
just punishment;
the need to
deterrence; (4)
proceedings.” United States v. Alvara-
protect the
dicial
quate
the need to
Cir.2012)
defendant;
do,
(5th
(citing
598
public from further crimes of
Olano,
725, 732,
(5)
113
v.
507 U.S.
provide appropriate medical
United States
the need to
(1993)).
committed error claiming procedural error also fails. The his sentence on the basis of two erroneous following district court made the remark at (1) findings: factual The Guidelines did not sentencing hearing, with emphasis sup adequately address content instance, plied: “In I this have to look at (2) posts; Schmidt was on well, the nature because it “upswing” of membership levels at you probably tells me that were suggests Dreamboard. further ladder, upswing, up up the vine of that the district court’s initial references to membership levels that was Dreamboard.” member, Super although him as a VIP disagree We with Schmidt’s contention corrected Schmidt’s counsel at the sen- that this remark was an unsupported mis tencing hearing, nonetheless indicate “con- *5 charaeterization of his membership histo fusion” on the of the regarding ry. The district court assessed the degree the of Schmidt’s involvement. posts history Schmidt’s of member —not ship promotions or the lack that, thereof —and
We cannot even arguendo assume posts inferred the that Schmidt “was by weighing the content of Schmidt’s probably upswing,” or that sentence, fashioning his the district likely would have promotion received a court made a finding factual that could point some in the future but error, for the inter possibly procedural constitute be- vention of law enforcement officers. As cause we made clear in United States v. above, discussed the district court’s consid Dickson that a district court “consid- eration of the nature of the posts was the nature images” ] when sen- ere proper applicable under precedent. Nei tencing a defendant for possession of child ther did the district court Dickson, plainly err when pornography.7 In applied we it inferred that likely would have plain-error review to affirm the district promotion received a future on the basis of application sentencing court’s of a en- the number of his and the graph hancement.8 The correctly defendant ob- ically depicted violent nature of the abuse. jected to the district court’s calculation of The district court did level, not select a sentence his base offense but we concluded inferences, based on erroneous facts or ample that the court had independent bas- procedurally and therefore it did not err. es for an 840-month statutory which was the maximum and was B. Substantive Error significantly properly above the calculated range.9 Guidelines independent These In the next step of our bifurcated review, bases included the sadistic and violent con- totality we consider the of the cir Here, cumstances, tent of the child pornography.10 including the extent of the Caldwell, 6. United States v. 8. Id. at 190-92. Id. Dickson,
7. United States v.
—
denied,
Cir.2011),
U.S. -,
cert.
Id.
(2011).
court.”
range, to as-
reversal of the district
Ultimate-
from the Guidelines
variance
'
sentence unreason-
ly,
non-Guideline
“[a]
the substantive reasonableness
sess
to
sentenc-
ably
States
fails
reflect
sentence.11
United
(1)
that,
it
does not account
explained
ing
has
factors where
Supreme Court
sig-
out-
for a factor that should have received
judge imposes
a sentence
“[w]here
(2)
Guidelines,
weight,
gives significant weight
nificant
judge
explain
will
side
(3)
factor,
improper
cir-
to an irrelevant or
he has done so.”12 Under some
why
suffice,
cumstances,
represents
judgment
a clear error of
explanation
a brief
will
balancing
sentencing
factors.”18 The
“conceptually
when the issue is
especially
soundly rejected
has
a for-
explained
Supreme
have also
that “a
Court
simple.”13 We
3553(a)
approach”
mulaic or “mathematical
to eval-
checklist recitation of
section
uating
sufficient
the substantive reasonableness of a
necessary
factors is neither
nor
variance, including
approach
an
that at-
to be reasonable.”14
for
quantify
to
the variance and the
tempts
reasonable-
Our “review for substantive
justification
they
pro-
and ensure that
are
deferential,’ because the
‘highly
ness is
portional.19 As we have determined that
position
court is in a better
sentencing
not
procedur-
the district court did
commit
under the
import
find facts and
their
Schmidt,
sentencing
al
error in
we
3553(a)
respect
particu-
to a
factors with
conclude our review for substantive error
The deference we owe
lar defendant.”15
in turn each of the reasons
by addressing
when,
greater
court is even
advances for such error.
here,
only.
for
error
our review is
Moreover,
contention of sub-
“may
primary
consider the
although we
*6
deviation,
error is that
the district court’s
give
of the
must
due
stantive
[we]
extent
justify
to
the ex-
reasoning
court’s decision
is insufficient
deference to the district
3553(a) factors,
whole,
specifically,
a
tensive
variance. More
that
the
on
clear-
urges that the district court
the extent of the variance.”16 To Schmidt
justify
sentencing fac-
sure,
ly
balancing
be
erred in
the
major departure
be
should
“[a]
suggests
He
that the district court
significant justifica-
more
tors.
supported
given greater weight
have
to such
one.” But
fact
should
“[t]he
tion than a minor
(1)
evidence that
reasonably
factors as
the absence of
appellate
might
that the
(2)
pornography,
the
produced
sentence
have concluded that
different
participated in
absence of evidence that he
justify
is insufficient to
appropriate
was
—
-,
997,
denied,
States,
178
131 S.Ct.
U.S.
128
U.S.
11. Gall v. United
552
(2011)).
586,
(2007); see also
L.Ed.2d 832
307 appeal. grounds by time on other “[T]he marks for the first United States Guiller- Balleza, mo 613 F.3d 433 n. 1 in this circuit is that a claim general rule Cir.2010). assistance of counsel cannot for ineffective when the appeal
be resolved on direct When Schmidt was April sentenced on claim has not been raised before the dis- 2012, fifteen other defendants already had opportunity no existed to trict court since sentenced been the same for the the record on the merits of the develop offense, same 18 2252A(g), U.S.C. based allegations.”22 Accordingly, we decline to on their involvement with the same bulle- argument. address this board, tin Dreamboard.1 The average sen- imposed tence was 286.4 months of impris- IY. CONCLUSION onment. sentence of 444 months the highest was that had been Schmidt has failed to show that the dis- imposed up point, to that and was over trict court committed error sen- years above the average years and over 12 him. tencing We therefore AFFIRM his guidelines range. above the maximum sentence. This is surprising, given somewhat GRAVES, Judge, JAMES E. Circuit all; no history Schmidt had criminal concurring: that there was no allegation that he had personally produced pornogra- ever Although join I in the children; phy or otherwise abused that his court, I separately my write to address membership equal level was to or lower concern that Schmidt’s appears than of most of these other defen- See, unreasonably disproportionate. to be dants; pled guilty cooper- and that he e.g., Armstrong, United States v. 550 F.3d government. ated with the (5th Cir.2008) (explaining that a defendant establish substantive un- In a district court by identifying reasonableness “a case in must consider “the need to avoid unwar- similarly-situated disparities among which a defendant re- ranted sentence defen- sentence”), ceived a lower overruled on dants with similar records who have been Pierce, #413; Sowders, Anthony 22. United States v. Doc. Paul denied, (5th Cir.), 5, 2012, months, cert. 506 U.S. January tenced on to 324 (1992) (cita #416; Schneider, L.Ed.2d 554 Gary Doc. sentenced on omitted); quotation tions and marks see also 12, 2012, months, January # to 240 Doc. Cantwell, United States v. Mosley, and Jamil Lamar on Janu- months, ary to 240 Doc. #423. *8 Nine were of these defendants co-defen- charged Six of these defendants were in a charged dants in the same series of indict- indictment, separate Case No. 5:10-CR-319 Schmidt, ments that included Case No. 5:11— Timothy in the District of Louisiana: Western CR-62 in the Western District of Louisiana: 10, 2011, May Gentry, on to 300 Pyeatte, September Charles sentenced on months, 427; Biggs, # Doc. Michael sen- months, #315; to 327 Doc. David Mi- months, 31, 2011, May to 240 tenced on Doc. Whitten, 5, 2011, chael sentenced on October 430; Childs, # Michael sentenced on June months, 344; Christopher to 420 Doc. # #438; months, to Doc. Charles Luke, 5, 2011, James sentenced on October to Christian, July Edward sentenced on 346; months, Stephen Doc. # Clinton #454; months, to 265 Doc. Micheál 14, 2011, Kinney, to sentenced on October 13, 2011, September Thompson, sentenced on months, 353; # Doc. Rush Frank Blank- 469; months, Larry Ridley, # to 240 Doc. 1, 2011, enship, to sentenced on December sentenced on October to 240 months, Barton, Doc. # William L. months, #Doc. 490. months, January sentenced on to 327 culpability dangerousness found of similar conduct.” on Schmidt’s guilty 3558(a)(6). Sowders, judge The district in part. Anthony U.S.C. Paul who was at acknowledged requirement; this this case membership the same level as Schmidt explained people that 72 sentencing, posts, with the same number of received a in connection with had been indicted months, much lower sentence of 327 de- Dreamboard, that he recognized must spite having personally exploited children ranking at the overall of other “look[] produce pornography.4 to David Michael people” “properly place on [Schmidt] Whitten, membership at the same level of Dreamboard.” membership the vine of many posts and with sixteen times as Schmidt, slightly received a lower sentence The that he judge district stated must months, despite of 420 the fact that he had However, posts.” “look at the number of repeatedly sexually young abused a child fifteen none defendants sentenced ten-year over a period.5 posts, before Schmidt had fewer and some many them posts had over ten times as concluded, judge district based on as Schmidt.2 The judge also stat- extreme, hard-core nature of Schmidt’s ed that he must at the [membership] “look he was “on upswing” However, level that occupied.” [Schmidt] levels; membership seemingly this would of the fifteen other defendants sentenced imply that Dreamboard higher members at Schmidt, occupied before seven the same membership posted levels more extreme Schmidt, level as and three were VIP actu- culpable. conduct and are therefore more ally higher Super at the VIP level. However, three defendants sen- already tenced before Schmidt were at the Of given by the reasons the district level; higher Super VIP one of these de- judge exceptionally high for Schmidt’s fendants received the mandatory minimum tence, only potentially two could distin- months, of 240 and the other two received guish Schmidt from the other defendants Finally, sentences under 300 months.6 graphic, highly listed above: the abusive several defendants who received much low- nature of the pornography posted by Schmidt, er sentences than posted files and Schmidt’s admitted addiction imply with names that pornography, including pornogra- sodomization of unclear, however, children, It phy.3 young is whether which the district court actually any these greater being factors indicate characterized as among the most membership finding 2.The number of levels 3. The district also relied on his "probably upswing” taken are from the factual bases for each Schmidt was However, 5:ll-CR-62, plea. membership levels. defendant’s In Case No. as the notes, (Schneider); court’s this was an inference see Doc. # 144-2 Doc # 146-2 (Luke); based on the nature of Schmidt's (Pyeatte); Doc #209-2 Doc #216-2 (Whitten); (Kinney); Doc # 220-2 Doc (Sowders); transcript (Mosley); # 229-2 4. See the of Sowders’ Doc. # 227-2 5:10-CR-319, hearing, Case No. Doc. #470. (Blankenship); Doc. # 298-2 and Doc. (Barton). 5:10-CR-319, # 312-2 In Case No. *9 (Childs); see Doc. # 320-2 # transcript sentencing Doc. 5. See the of Whitten’s (Christian); 5:10-CR-319, (Thompson); hearing, Doc. # 423-2 Case No. Doc. #379. (Ridley). #Doc. 453-3 The factual bases for Biggs Gentry months; are unavailable on the dis- Larry Ridley, 6. sentenced to 240 Christian, Additionally, trict court docket. the factual Charles Edward sentenced to 265 months; Kinney, basis for Schneider does not Stephen state his number Clinton tenced to 293 months. disturbing content.7 extreme
Nevertheless, as Schmidt’s inasmuch dispari- the issue of
counsel neither raised rea- objected nor to the
ty sentencing at imposed,
sonableness of had no reason to judge
district further very There well
explain his rationale. why reasons Schmidt’s sen- compelling
be the factors of appropriate under
tence is any dispar- regardless
18 U.S.C. Furthermore, co-defendants.
ity between hear- transcripts
because many of the defendants sentenced
ings for unavailable, are are we
before Schmidt reasons the specific
unable to consider the their judge upon
district relied I that the Accordingly, agree
sentences. err in sen- plainly did not
tencing Schmidt. America,
UNITED STATES
Plaintiff-Appellee
Lloyd CURRY, Defendant- E.
Appellant.
No. 12-30518. of Appeals,
United States Court
Fifth Circuit.
Jan. 5:11-62, 4; basis, basis, Case No. Ridley Whitten factual See factual Case No. 5:10-CR- Thompson factual Doc. #453-3 Doc. # 220-2 at 4. 5:10-CR-319, basis, Doc. # 423-2 at Case No.