UNITED STATES of America v. Blaine R. HANDERHAN, Appellant.
No. 12-3500.
United States Court of Appeals, Third Circuit.
Argued Sept. 11, 2013. Opinion Filed: Jan. 7, 2014.
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Philip Gelso, Esq. [ARGUED], Briechle & Gelso, Kingston, PA, Marissa A. McAndrew, Esq., Briechle & Gelso, Carbondale, PA, Matthew R. Gover, Esq., Brian W. Perry, Esq., Gover, Perry & Shore, Harrisburg, PA, for Appellant Blaine Handerhan.
Before: RENDELL, JORDAN, GREENAWAY, JR., Circuit Judges.
GREENAWAY, JR., Circuit Judge.
Blaine Handerhan (“Appellant” or “Handerhan“) appeals the District Court‘s August 21, 2012 judgment of sentence of 96 months’ imprisonment. Appellant argues that the sentence he received for possessing thousands of images of child pornography was both procedurally and substantively unreasonable. Specifically, Appellant contends that the District Court erred by failing to (a) explicitly address his request for a downward departure based on mental health issues and (b) meaningfully consider the factors enumerated in
I. FACTUAL AND PROCEDURAL HISTORY
In late 2005, an undercover investigation by the Internet Crimes Against Children Task Force—a joint organization of federal, state, and local law enforcement agencies—determined that a single computer was sharing over “1400 images and/or video files of child pornography” through a file-sharing program. (Presentence Investigation Report (“PSR“) ¶ 5.) The Pennsylvania State Police were notified and conducted an investigation and learned that the computer in question was located in the residence of Handerhan, a retired Lieutenant, who served for 25 years in the Mount Carmel Police Department. Thereafter, a search warrant was executed on Handerhan‘s residence and his computer was seized. An evaluation of the computer revealed that it contained over 6,000 images and video files of child pornography, including images of pre-pubescent children and other images depicting sadomasochism and bondage. In addition, the forensic analysis of Handerhan‘s computer revealed that he had configured Shareza, a file sharing program, in order to distribute some of the images.
Appellant was charged in a two-count indictment in October 2010 with distribution of child pornography, in violation of
Prior to Handerhan‘s sentencing, both parties were given copies of the PSR. The probation officer calculated Appellant‘s guidelines range as being 151 to 188 months’ imprisonment based on an offense level of 34 and a criminal history category of 1.1 “[H]owever, because the statutory
Appellant argued that a downward departure pursuant to U.S.S.G. § 5H1.3 was appropriate “in light of the fact that he suffers from a mental health condition and has taken extraordinary measures to rehabilitate himself.” (Id. at 28.) According to Appellant, and supported by various medical documents submitted to the District Court, he suffers from obsessive compulsive disorder coupled with an “internet addiction,” manifesting itself in an uncontrollable urge to download and catalogue pornographic images of all kinds. (Id. at 17-18.) Appellant‘s mental illnesses resulted in Appellant giving into the urge to download thousands of child pornographic images and video, and to store and “meticulously catalogue[]” them on his home computer. (Id. at 18.) Shortly after the police searched his home, Appellant sought treatment from multiple psychiatrists, searching for the most effective treatment. According to all of his psychiatric evaluations, Appellant did not exhibit any sexual attraction to children, nor did he apparently seek out the images in question for purposes of gratifying his sexual urges. (See id.)
Appellant also argued that the proposed Guidelines sentence was inappropriate in light of the
The District Court subsequently held a sentencing hearing in August 2012. At the hearing, both parties argued the merits of Appellant‘s request for a downward departure, as well as the evaluation of the
Well, needless to say, this is a very unfortunate situation for you, Mr. Handerhan. You did the right thing at least, you acknowledged your participation in this ugly crime. And what I am concerned about in all of these child pornography cases is the fact that it is people who view this and download it and distribute it or just look at it, they‘re the people who perpetuate the ongoing abuse of children who are the subjects of these pornography images.
....
The Government is asking for a 10-year sentence, which is the statutory maximum and is less than the guidelines would provide for this offense. In considering [Appellant‘s counsel‘s] presentation, I am somewhat impressed under
3553(a) factors that a variance could be granted in this case based upon what we‘ve discussed here this morning and those factors that have been mentioned.Considering all of those factors, I will make a slight variance from the statutory maximum penalty in imposing a sentence this morning. I‘m sorry that you have to endure imprisonment, and I hope that you will be able to do that and come back to the community and be a law-abiding citizen.
Pursuant to the Sentencing Reform Act, it is the judgment of the Court on Count 2 that the Defendant, Blaine R. Handerhan, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 96 months.
(Id. at 125-27.)
Appellant subsequently appealed his sentence, arguing that it was procedurally and substantively unreasonable. Specifically, Appellant posits that the District Court‘s failure to explicitly rule on his request for downward departure, and its allegedly inadequate treatment of the
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to
We review both the procedural and the substantive reasonableness of a district court‘s sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). “Appellate review is limited to determining whether the sentence is reasonable.” United States v. Friedman, 658 F.3d 342, 360 (3d Cir.2011) (citation omitted). Our review for reasonableness proceeds in two stages. First, we must “ensure that the [D]istrict [C]ourt committed no significant procedural error, such as failing to calculate (or improperly calculating) the [U.S. Sentencing] Guidelines range, treating the Guidelines as mandatory, failing to consider the [
III. ANALYSIS
A. Procedural Unreasonableness
When imposing a sentence, a district court must follow a three-step process. First, “[c]ourts must determine to calculate a defendant‘s Guidelines sentence precisely as they would have before [United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)].” United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (citations omitted). Second, district courts “must formally rul[e] on the motions of both parties, and stat[e] on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and tak[e] into account our Circuit‘s pre-Booker case law, which continues to have advisory force.” Id. (alterations in original) (citation omitted) (internal quotation marks omitted) (emphasis added). Third, districts courts must “exercise[] [their] discretion by considering the relevant [
These steps ensure “that the District Court‘s decision-making process is both logical and fair,” and we therefore recommend that the District Court “consider the steps separately and sequentially.” Id. at 361. Failure to adhere to this process may result in a procedurally unreasonable sentence, United States v. Merced, 603 F.3d 203, 214–15 (3d Cir.2010), and may even “risk the substantive reasonableness of any decision [the district court] reache[s],” United States v. Goff, 501 F.3d 250, 256 (3d Cir.2007).
Appellant contends that the District Court‘s sentence was procedurally unreasonable because it failed to adhere to the second and third steps of the Gunter process.4 Appellant also challenges his sentence as substantively unreasonable, arguing that the District Court‘s alleged procedural errors render the substance of his sentence unreasonable or that, in the alternative, “no reasonable sentencing court would have imposed the same sentence on [Appellant] for the reasons the district court provided.” Tomko, 562 F.3d at 568. For the reasons discussed below, we affirm the District Court‘s sentence and find it both procedurally and substantively reasonable.
1. Gunter Step 2—Failure to Formally Rule On Downward Departure Request
Appellant challenges his sentence by asserting that the District Court did
As a result, we generally require that district courts “state expressly whether [their] denial of [a] defendant‘s departure request was based on legal or discretionary grounds.” Id. at 838-39 (internal quotation marks omitted) (noting that the rule is still applicable, even post-Booker). Thus, where the “district court‘s stated reasons are ambiguous—so that the record does not reflect whether the court‘s denial is based on legal or discretionary grounds—then the proper remedy is to vacate the sentence and remand for the district court to clarify the basis for its ruling.” Stevens, 223 F.3d at 247 (internal quotation marks omitted).
The admonition against ambiguous rulings on downward departure requests is not ironclad, however. Both before and after Booker, this Circuit has recognized its ability to “infer meaning from the District Court‘s actions” in a case. Jackson, 467 F.3d at 840. Thus, even where the district court does not explicitly rule on a motion for downward departure, this Court has held that it will “not remand for re-sentencing when the Government‘s arguments to the district court concede[d] the plausibility of the downward departure.” Id. at 839 (alteration in original) (citations omitted) (internal quotation marks omitted). In Jackson, and in similar circumstances, we found it “quite likely that the district court‘s refusal to depart ... was discretionary, and thus [this Court could] infer that the departure motion had been denied by the [district] court in recognition of its ability to depart had it chosen to do so.” Id. at 839 (citations omitted) (internal quotation marks omitted). While we have applied this rationale several times since the 2006 opinion in Jackson, “having to infer the District Court‘s thinking is not our preferred course.” Id. at 840 (internal quotation marks omitted).
In this case, Appellant argues that the District Court erred in failing to (1) acknowledge that it had discretion to depart; (2) consider the substance of Appellant‘s downward departure request; and (3) formally rule on that request. (Appellant Br. 23.) “By failing to consider and formally rule upon Mr. Handerhan‘s argument that the addiction itself was sufficiently contributory to his commission of the offense to entitle him to a downward departure, the District Court created no record to support a thorough consideration of [the] motion for downward departure.” (Id.) We agree with the Appellant that the District Court did not explicitly deny Appellant‘s request for a downward departure. Nonetheless, we are able to infer that the District Court used its discretion because it was fully informed on the issues prompting the request, and the Government requested that “the Court exercise its discretion to deny the downward departure....” (App.120.) This demonstrates that the Gov-
As previously noted, this Court‘s jurisdiction to consider Appellant‘s arguments depends on the basis for the District Court‘s ruling. See Stevens, 223 F.3d at 247-48. “If the ruling was based on the district court‘s belief that a departure on the grounds proffered by the defendant was legally impermissible, we have jurisdiction to determine whether the district court‘s understanding of the law was correct. By contrast, if the district court‘s ruling was based on an exercise of discretion, we lack jurisdiction.” Id. at 247 (citation omitted) (internal quotation marks omitted). Therefore, it is imperative that this Court understand the basis for the District Court‘s ruling. In this case, because we find that the District Court utilized its discretion, “[w]e do not have jurisdiction to review [the] discretionary decision[] by [the] district court[] to not depart downward.” United States v. Vargas, 477 F.3d 94, 103 (3d Cir.2007) (citation omitted).
2. Gunter Step 3—Procedural Unreasonableness
While we do not have jurisdiction to review the District Court‘s resolution of Appellant‘s downward departure request, “[o]ur lack of review on this issue ... goes no further than step two of Gunter, as step three requires our review of the sentence against the several
Here, Appellant argues that the District Court neglected to address his arguments “(1) that the Sentencing Commission did not employ its characteristic empirical approach in setting guideline ranges for crimes involving child pornography and (2) that the enhancements in the Sentencing Guidelines, which were applicable in this case, are inherent in almost all offenses involving child pornography.” (Appellant Br. 25.) The Government contends that while “the district court did not recite every sentencing factor verbatim, the record clearly demonstrates that the court took all of the factors into consideration.” (Appellee Br. 15.)
We find that the District Court did consider
The Government also argues that the District Court adequately considered two other factors—
Appellant also argues that his sentence is procedurally unreasonable “because the District Court failed to consider and formally rule upon Mr. Handerhan‘s motion for downward variances based on flaws in the sentencing guidelines.” Specifically, “the Sentencing Commission‘s failure to enact guidelines based on empirical research, focusing instead on Congressional directives, as is not its institutional role.” (Appellant Br. 13.) Appellant argues that United States v. Sevilla, 541 F.3d 226 (3d Cir.2008) should govern. In Sevilla, this Circuit found the sentencing procedure of the district court to be unreasonable because it failed to address the defendant‘s arguments regarding his childhood and the crack/powder disparity within the Sentencing Guidelines. Id. at 232.
However, as Appellant acknowledges, the District Court did state, “I think that some of these penalties for this offense are more serious than they need to be.” (App. 131.) The District Court then went on to say, “But in light of all the circumstances that I have learned in this case ... I think ... that a penalty that is significant is appropriate in this case.” (Id.) This demonstrates, albeit not as formally as we would prefer, that the District Court did consider arguable problems in the sentencing guidelines but found the sentence, when coupled with the variance ultimately granted, to be appropriate.
Here, the District Court‘s consideration of the
The District Court said, “I am somewhat impressed under the
B. Substantive Unreasonableness
Having concluded that the District Court committed no procedural error, we now review the substantive reasonableness of the sentence under an abuse of discretion standard. Tomko, 562 F.3d at 567. We will affirm a procedurally sound sentence as substantively reasonable “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Id. at 568. In reviewing the substantive reasonableness of a sentence, we look to “whether the final sentence, wherever it may lie within the permissible statutory range, was premised upon appropriate and judicious consideration of the relevant factors.” United States v. Young, 634 F.3d 233, 237 (3d Cir.2011). “We focus on the totality of the circumstances, and the party challenging the sentence bears the burden of proving the sentence‘s unreasonableness.” Friedman, 658 F.3d at 360.
Appellant argues that “based upon the totality of the circumstances in this case, no reasonable sentencing court would have imposed a sentence of 96 months considering all of the
Furthermore, reviewing courts are entitled to presume that a sentence within the advisory Guidelines is reasonable. Rita, 551 U.S. at 364, 127 S.Ct. 2456. In this case, Appellant received a below Guidelines sentence of 96 months’ imprisonment. Under the deferential standard of review, the challenge to the length of imprisonment fails.
Today we affirm the District Court‘s ruling and find that Handerhan‘s sentence was neither procedurally nor substantively unreasonable. Nonetheless, having to infer that the District Court used its discretion to deny a downward departure on the basis that the Government addressed the downward departure is not our “preferred course.” Jackson, 467 F.3d at 839-40. We should not have to venture down that path only to conclude that we have no jurisdiction to review the district court‘s discretionary denial of a downward departure. We want to be certain of the reason a district court judge denied a downward departure. We have provided specific guidance in Gunter and its progeny and that precedent must be followed.