UNITED STATES OF AMERICA v. CONNOR WILLIAM BIGGS FARLEY
No. 21-8013
United States Court of Appeals, Tenth Circuit
June 15, 2022
PUBLISH
Appeal from the United States District Court for the District of Wyoming (D.C. No. 1:20-CR-00084-NDF-1)
Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.
Timothy J. Forwood, Assistant United States Attorney (L. Robert Murray, Acting United States Attorney, with him on the briefs), Cheyenne, Wyoming, for Plaintiff-Appellee.
Before BACHARACH, EBEL, and CARSON, Circuit Judges.
Defendant-Appellant Connor Biggs Farley appeals the 630-month (52.5-year) sentence he received after pleading guilty to three counts of producing child pornography in violation of
Mr. Farley asserts that the district court‘s selection of his sentence was both procedurally and substantively unreasonable. We find that the district court‘s method for determining Mr. Farley‘s sentence involved plain errors of law, rendering the sentence procedurally unreasonable.
I. BACKGROUND
In April 2019, Wyoming authorities began investigating Mr. Farley, his spouse Ray Lucero, and an associate named Richard Willden. Agents uncovered many exchanges of child pornography between the three men, along with photo and video evidence that Mr. Lucero and Mr. Farley sexually abused and took nude photos of Mr. Lucero‘s nine-year-old nephew; sexually abused Mr. Farley‘s one-year-old cousin; and sexually abused a five-year-old boy who had temporarily lived with Mr. Farley and Mr. Lucero. On May 21, 2020, Mr. Farley was indicted for production, distribution, and possession of child pornography in violation of
On November 24, 2020, Mr. Farley submitted to the district court a plea agreement he had reached with the government, under which Mr. Farley would plead guilty to three of the charged counts of producing child pornography: Count One based on the sexual abuse of the nine-year-old nephew, Count Two based on the sexual abuse of Mr. Farley‘s infant cousin, and Count Five based on the sexual abuse of the five-year-old boy. In exchange, the government agreed to a stipulated sentence of 20 to 40 years’ imprisonment. Mr. Farley pled guilty under this agreement on December 14, 2020.1
Prior to sentencing, the district court ordered the preparation of a presentence investigation report (PSR) calculating the guidelines range for Mr. Farley‘s sentence. The PSR calculated a combined offense level of 49 after several enhancements and a decrease for acceptance of responsibility under the guidelines. The maximum offense level provided by the guidelines, however, is 43, so the PSR applied an offense level of 43 and a Criminal History Category of II. Based on those calculations, the guideline range was life in prison. But the statutory maximum for any single conviction under
At Mr. Farley‘s sentencing hearing on March 25, 2021, neither party objected to the PSR‘s calculations, but both parties argued in favor of the plea agreement‘s lesser stipulated sentence. Defense counsel urged the district court to impose a sentence of 20 years, at the bottom of the range stipulated in the plea agreement, based on the mitigating factors presented in Mr. Farley‘s sentencing memorandum. These factors included Mr. Farley‘s remorse at committing the crimes; his traumatic childhood that included multiple instances of sexual and physical abuse; his history of mental illness; his marriage as a teenager to Mr. Lucero, who is 14 years older than Mr. Farley; and the physical and emotional abuse of Mr. Farley by Mr. Lucero, who was also convicted and appears to have been the “driving force” behind the charged crimes. The government also relied on these mitigating factors—along with Mr. Farley‘s youth, cooperation with authorities, and lack of similar criminal history—to advocate for a sentence
After hearing the parties’ arguments, statements from Mr. Farley‘s family, and victim impact statements, the district court said it would reject the plea agreement‘s stipulated sentence because even a sentence of 40 years did not “respect each of the victims . . . in the context of the [15-year] minimum mandatory sentences that are prescribed for the conduct at issue.” ROA Vol. III at 80. Defense counsel, the government, and the judge then discussed the plea agreement further in the judge‘s chambers. The court indicated its initial intentions to impose a sentence of 60 years total (720 months), still a downward variance from the PSR recommendation. The hearing reconvened and Mr. Farley indicated that he would proceed with sentencing despite the rejection of the plea agreement. He spoke in allocution and expressed remorse. The district court then ultimately set the sentence at 630 months’ imprisonment, providing the following explanation:
I will reject the plea agreement, viewing that the offense conduct involves three separate victims, and while the conduct was charged in one indictment, the statutory minimum associated with the offense conduct should be respected. While it does not bind the Court because there‘s an opportunity to run sentences in a [partially concurrent] fashion as explained by the Government, the Court still feels subject to the spirit of the congressional statutes. . . .
I think it is important to state that for each of the defendants involved in the conduct charged in this docket, I have sentenced consistent with the guidelines, and in this case I will vary, so that is an unusual step to take for conduct that I think we all understand and appreciate is not only -- only not acceptable but reprehensible. The severity of the offense conduct has been a factor in this case that has been difficult for me to get past.
But in moving past that, I do recognize that there are mitigating circumstances present in this case as argued by your attorney. I also understand that you came into a very troubled relationship with an individual who took advantage of some vulnerability present, and that has significantly hurt you and others.
So in terms of the appropriate disposition in this case, you‘ll vary downward six levels to a sentence that still is a very lengthy sentence. And I do that still recognizing your worth and value, but, again, it is important to me to respect the culpability here involving your own conduct in the crime, and I will sentence accordingly.
Pursuant to the Sentencing Reform Act of 1984, and considering those factors set forth in
18 USC Section 3553(a) , it is the judgment and sentence of the Court that the defendant Connor William Biggs Farley is hereby sentenced to a term of 210 months per count -- One, Two and Five -- to be served consecutively in the Bureau of Prisons.
ROA Vol. III at 91–94 (emphasis added). Mr. Farley now appeals that sentence.
II. STANDARD OF REVIEW
When reviewing criminal sentences, we apply a standard of “reasonableness,” which involves “both substantial and procedural components.” United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007). Mr. Farley asserts both procedural and substantive unreasonableness, though we reach only his procedural unreasonableness claims. “A sentence cannot . . . be considered reasonable if the manner in which it was determined was unreasonable.” United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). Procedural unreasonableness most often involves “an improper determination of the applicable Guidelines range,” id., but in general, “a district court commits procedural error when it misunderstands or misapplies the law.” United States v. Gallegos-Garcia, 618 Fed. App‘x 402, 405 (10th Cir. 2015) (unpublished).
Mr. Farley failed to raise his claims below, and so he must show that the district court plainly erred in imposing the sentence in order to justify reversal. He must demonstrate that “(1) an error occurred; (2) the error was plain; (3) the error affected . . . substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of a judicial proceeding.” United States v. Wolfname, 835 F.3d 1214, 1217 (10th Cir. 2016) (internal quotations omitted).
III. DISCUSSION
Mr. Farley alleges two plain errors in the district court‘s methodology for determining his sentence. First, he claims that the district court erroneously interpreted federal law when it stated that it was following the “spirit of the congressional statutes” by applying consecutive sentences. ROA Vol. III at 91. Second, he claims that the district court relied on a misunderstanding of the sentencing guidelines in order to determine the extent to which it would vary downward from the PSR-recommended sentence. For the reasons discussed herein, we disagree with Mr. Farley‘s first claim but agree with the second, and so reverse on those grounds alone.
A. District Court‘s Statutory Interpretation
The district court stated that it was “subject to the spirit of the congressional statutes” in order to explain its decision to run the sentences of 210 months per count consecutively, rather than concurrently. Id. Mr. Farley construes this statement to mean that the district court “believed that it needed to sentence Mr. Farley to at least 45 years—i.e., to impose consecutive 15-year sentences for each of the three counts—in order to” respect the 15-year statutory mandatory minimum attached to
Mr. Farley‘s characterization of the district court‘s statement about the “spirit of the congressional statutes” as plainly erroneous fails for several reasons. First,
Second, it is not clear what “statutes” the district court was actually referring to. Given that the district court mentioned the statutory minimum in the sentence immediately prior to the challenged statement about the “spirit” of the statutes, the court was most likely referring to the statute under which Mr. Farley was convicted,
The government also suggests that the district court may have been referencing
And, in any event, the district court‘s decision to run Mr. Farley‘s terms of imprisonment consecutively was not directly based on its interpretation of any of the above federal statutes. We read the district court‘s explanation to indicate that it believed consecutive sentences for each of the three charges were appropriate not because Congress said so, but because the court wanted to give full respect to each of the three victims involved in the respective counts. This judgment is reasonable and falls within the district court‘s sentencing discretion. Accordingly, we find no error in the district court‘s reasoning for running Mr. Farley‘s sentences consecutively.
B. District Court‘s Application of the Guidelines
Separately, Mr. Farley claims that the district court plainly erred by using an unreasonable method to determine the sentence that it would apply to each count under the guidelines. In particular, Mr. Farley highlights the district court‘s erroneous statements about how much it would have to vary from the PSR‘s 1080-month sentence in order to impose the 40-year (480-month) sentence recommended by the prosecution. Early in the sentencing hearing, the district court expressed concern that the proposed 40-year sentence “would require the Court to depart ten levels”
But the district court did not have to vary ten levels or nine levels or six levels to impose the requested 40-year sentence. It would have had to vary downward only one offense level, from 43 to 42,6 which corresponds to a sentencing range of 360 months (30 years) to life on the guidelines table when paired with Mr. Farley‘s criminal history category of II.
The government comes up with a formula by which the district court could have applied a six-level variance without relying on a plainly erroneous view of the guidelines, but this too is flawed. According to the government, the court could have been doing something much more complicated than simply reducing the overall offense level: it could have looked at each count individually, then applied a “six level variance per count” to reduce the offense level from 42 to 36,7 which “yielded a range of 210-262 . . . arriv[ing] at a final sentence of
Given plain error, Mr. Farley must still demonstrate that the district court‘s misunderstanding about the offense level variance affected his substantial rights. Wolfname, 835 F.3d at 1217. An error affects substantial rights if there is “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1339 (2016) (internal quotation marks omitted). We find that condition met here. From the district court‘s explanation, we glean only three parameters that it used to find a sentence it was comfortable with: (1) it wanted to vary downward at least some degree from the PSR-recommended 1080 months’ sentence due to Mr. Farley‘s mitigating factors, (2) it wanted to run the sentences consecutively so as to respect each individual victim and the seriousness of the offenses, and (3) it did not want to vary down more than six offense levels (or really, seven offense levels, if using 43 as the starting point).
This third parameter resulted from district court‘s plain error in interpreting the extent of its variance and applying the sentencing table. Because one of the district court‘s three key considerations was predicated on an error, we find that the error was integral in the district court‘s reasoning and acted as a limiting factor in how low it was willing to go with Mr. Farley‘s sentence. Thus, a reasonable probability exists that the district court would have opted for a sentence below 630 months, had it used a reasonable methodology to determine the variance, and the third requirement of plain-error review is
The final question is whether the procedural unreasonableness of Mr. Farley‘s sentence seriously affects the fairness, integrity, or public reputation of judicial proceedings. Wolfname, 835 F.3d at 1217. A court‘s excusal of “obvious errors . . . that threaten to require individuals to linger longer in federal prison than the law demands” is likely to diminish the public‘s “view of the judicial process and its integrity.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908 (2018) (quoting United States v. Sabillon-Umana, 772 F.3d 1328, 1333–1334 (10th Cir. 2014)). Plain errors in the calculation of a defendant‘s sentencing guidelines range generally merit relief under plain-error review. Id. at 1907. While the district court here did not err in calculating the initial guidelines range, its errors derived from a misunderstanding of the guidelines’ proper application in these particular circumstances. The errors were then deeply embedded in the sentence Mr. Farley ultimately received. Letting those errors stand uncorrected, when Mr. Farley has a reasonably likely chance at a lower sentence if a proper method were used to determine the extent of the downward variance, would surely diminish the fairness and integrity of these proceedings. Thus, we find each prong of the plain-error test met and must reverse Mr. Farley‘s sentence.
IV. CONCLUSION
Based on the foregoing, we REVERSE and REMAND for resentencing due to the unreasonableness of the district court‘s methodology in determining the extent of Mr. Farley‘s variance.10
Notes
If multiple terms of imprisonment are imposed on a defendant at the same time . . . the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively.