United States v. Cherer

judges Shadows.” The district were en-

tirely right to order the

return the thousands private medical wrongfully

records it seized of pre- use

text and artifice.

I would affirm the orders of the district respectfully

court and must dissent from majority’s contrary conclusion. I con-

cur in the remand of the motion to unseal

records. America,

UNITED STATES

Plaintiff-Appellee, CHERER,

Paris Defendant-Appellant.

No. 06-10642.

United States Court of Appeals,

Ninth Circuit.

Submitted Nov. 2007 *.

Filed Jan.

* panel unanimously 34(a)(2). find R.App. this case suitable P. for decision argument. without oral Fed. Valencia, Henderson, NV,

Mario D. appellant. Myhre, Steven W. Acting United States Attorney, Ellman, Robert L. Appellate Chief, Nancy and J. Koppe, Assistant Attorney, NV, States Vegas, Las appellee. Before: T. JOHN NOONAN and M. McKEOWN,

MARGARET Judges, Circuit and TRAGER,** DAVID G. District Judge.

Opinion TRAGER; by Judge Partial Concurrence and Partial by Judge Dissent NOONAN.

TRAGER, Judge: District Paris Cherer was convicted under 18 2422(b) U.S.C. for attempting per- suade, entice, or coerce a engage minor to in sexual acts with him. appeals He his conviction on grounds. First, two that the district court committed prejudicial error by improperly instructing jury, and second, that the district improperly court admitted evidence of past his conviction prior and other bad acts under Federal 404(b). Rule of Evidence appeals also He ** Trager, Honorable David G. District by designation. Court Judge, York, Eastern District of New sitting any facility or Whoever, using the mail grounds months his sentence foreign com- or of interstate means This or long. unreasonably is that it merce, special U.S.C. maritime to 18 within or pursuant jurisdiction has § 1291. of the United jurisdiction 28 U.S.C. territorial § 3231 U.S.C. induces, en- appealable knowingly persuades, sentence States the conviction 3742(a). affirm We who tices, any individual coerces or sentence. years, age of 18 attained ac- any sexual or prostitution engage Background can be any person for which tivity Agent Sue Special FBI July On offense, at- or with a criminal charged chat America Online in an Flaherty was so, under fined shall be tempts to do the using capacity, undercover in room an 10 than less imprisoned and title And “SusieBabyGirl.” name AOL screen or for life. years name the screen Cherer, using 2422(b). U.S.C. her. with “G8rwith8nGV,” a chat initiated the jury, the to offense explain To the up to leading following weeks In the in- jury following two delivered Cherer, as arrest, First, jury instruction twelve structions. Flaherty, as “G8rwith8nGV,” Agent and stated, several online chatted “SusieBabyGirl,” indict- in the charged is The defendant they discussed chat During each times. Enticement.... and with Coercion ment experience, sexual sex, e.g., “Susie’s” to be found the defendant In order have willing to would be she whether government charge, of that guilty Cherer. relationship with sexual following ele- each of the prove must chats, Cherer different During three beyond doubt[.] a reasonable ments replied and she age, her asked “Susie” facility inter- of used a the first defendant particular, First: time. each fourteen fourteen, commerce; she was told Cherer state time “Susie” is cool....” “cool, fourteen replied, Cherer knowing- to intended defendant Second: thirty-five. time, was Cherer At the coerce induce, or entice ly persuade, act for a sexual person. engaging to meet into planned also “Susie” The two chats, pur- prosecuted under their online be he could According which “Susie” Nevada; was for meeting of this of pose of the State laws on Cherer. acts sex various perform something did the defendant Third: designated approached Cherer When toward step a substantial which him. agents arrested FBI meeting place, you crime, all of committing the arrest, made sev- sub- Following his constituted what as to agreeing FBI, including that to the eral statements step. stantial and that eighteen, thought “Susie” he persuade, attempt a crime It is “Susie” chats which recall the he did not into a minor entice, induce, or coerce was fourteen. him told she act sexual in a criminal engaging criminally prose- bemay person which Discussion of the State laws of under cuted (1.) Nevada. Jury Instructions Nevada, it of the state the laws Under charged Cherer commit Stat- attempt to an offense is 2422(b), provides, which

18 U.S.C. law or utory Seduction. Nevada de- omitted misstated an element of the Sexual “[o]rdinary seduction” as charged Staple fines “sexual offense.” United v. States intercourse, ton, (9th Cir.2002) or cunnilingus 1111, sexual fella- 293 F.3d person years tio committed Knapp, United v. (citing States 120 F.3d age person age (9th Cir.1997)). or older with a under the 928, reviewing “In years.” of 16 jury instructions, inquiry the relevant is whether instructions as whole are Second, stated, jury instruction thirteen misleading inadequate or to guide the charged The defendant is with Coercion jury’s deliberation.” United States v. Fre and Enticement. Title United States (9th Cir.1999) ga, F.3d 807 n. 16 2422(b) Code, provides, perti- Section Moore, (citing United States 109 F.3d part, person guilty nent that a (9th Cir.1997)). 1456, 1465 And trial “[t]he person: [sic], it if violating who court has substantial so long latitude as its using any facility ... or means inter- fairly adequately instructions cover knowingly state ... ... per- commerce suades, induces, entices, presented.” (citing the issues or Id. any coerces Garcia, who States v. age individual attained the Cir.1994)). years, any to in ... engage 18 sexual activity any which person can be 2422(b), § Under U.S.C. a 18 when offense, charged a criminal or at- defendant, Cherer, targeted like has an tempts do so. to decoy minor, adult rather than an actual Cherer asked the court to the fol- add requires the Ninth Circuit that the defen lowing instruction: “In order to find the dant have believed the target was a minor. guilty you beyond defendant must find a Meek, 705, States v. United 366 F.3d reasonable doubt that the defendant actu- (9th Cir.2004) (“[I]t apparent the that ally age believed “Susie” was under the ‘knowingly’ term both refers to the years age of consent in [the Nevada].” verbs—‘persuades, induces, entices, or The court declined to do so. object—‘a to coerces’—as well as the per

On appeal, argues Cherer that the court son age who not achieved the prejudicial committed error refusing ”) (citations to omitted) years.’ (interpreting proposed because, deliver his instruction 2422(b) involving in a U.S.C. case a Cherer, according to the instructions as Thus, sting operation). re Cherer’s belief given prevented effectively pre- him from garding age “Susie’s” is an the element of senting jury. his defense the crime.1 This government argues de that in- jury reviews novo “whether the district court’s instructions structions twelve and adequately thirteen 2422(b) example, prosecutions 1. For engage activity, charged; in- in sexual as Sec- volving sting operations, the ond: That the believed that such Defendant suggests using Eleventh following (18) Circuit the eighteen individual years was less than instruction, which is similar to the one Cherer age; activity Third: That if the sexual of had proposed, occurred, the Defendant could have charged guilty The Defendant can found be of that been with criminal offense under state]; only following of[identify offense if all of the facts are the law the and Fourth: proved beyond a reasonable knowingly doubt: First: That Defendant acted That knowingly willfully. the Defendant [the used Instructions, computer] Jury mail][a interstate Circuit [describe other Eleventh Pattern (2003) added), facility alleged attempt as (emphasis indictment] Criminal Cases induce, persuade, www.call.uscourts.gov/ entice an [or coerce] available (18) age eighteen documents/jury/crimjury.pdf. individual under the requisite that Cherer held the of mind. We conclude requisite state described inaccurate, in- state of mind. if not disagree. Even was explain jury that did not structions addition, however, following all of the that find that Cherer believed required to he facts demonstrate Cherer believed “Susie,” a minor. In other target, First, communicating with minor. words, connected appropriately neither 2005, 8, July on when Cherer wanted to mind—knowledge—with requisite state of “Susie,” him call she told she was afraid object—a minor victim. the statute’s her mother would answer. Cherer offered hang if up her mother answered. On case, however, omitting In this 18, 2005, July gave “Susie” after jury con an from the instructions element number, phone phone rang, her her “Jury instruc stituted harmless error. answered, agent FBI when adult male tions, if not a imperfect, are basis even 19, up. day, caller hung July The next showing overturning a conviction absent 2005, apologized “Susie” to Cherer for not Fre the defendant.” they prejudiced him picking up phone and told her (citing n. ga, 179 F.3d at 807 Second, 18, July father had answered. (9th Cruz, de 82 F.3d 864-65 States v. photograph, “Susie” sent Cherer a Cir.1996)). jury Erroneous instructions “Susie,” actually purportedly of of an error if it is “clear constitute harmless agent, FBI taken when she was around beyond rational a reasonable doubt Third, years fourteen old. on at least two jury guilty have the defendant would found occasions, Cherer asked “Susie” whether v. Graci absent the error.” United States be allowed out of the house to she would das-Ulibarry, Once, told him she would meet him. she Cir.2000) States, Neder (quoting v. United an alibi for her if have friend create she 18, 1827, 1, 144 L.Ed.2d 527 119 S.Ct. U.S. time if left. Another Cherer asked “Susie” (1999)). harm Omitting element is kept on “lock her mother her down.” if uncontest [is] less “the omitted element Fourth, occasion, discussing on one when by overwhelming evi supported ed and meet, she plans “Susie” told Cherer at Gracidas-Ulibarry, dence.” F.3d together get night not that because could Neder, 17, (citing U.S. gotten mother had them tick- her friend’s 1827). not Supreme The Court has S.Ct. fifth, ato movie. And when Cherer ets ed, however, jury instruction error address, “Susie” for her street she asked if a defendant “con would not be harmless it to him give she did not want said tested element and raised evi the omitted parents to because she did not want her contrary find support dence sufficient to sum, out had him. In these find she met Neder, ing.” 527 U.S. at 119 S.Ct. fourteen-year- as a portray facts “Susie” parental supervi- teenager, old under close overwhelm- government’s evidence sion, nothing about the communica- and ingly that Cherer believed “Susie” shows and indi- tions between Cherer “Susie” years During three dif- was fourteen old. cates that Cherer believed otherwise. chats, asked “Susie” ferent online Cherer he was, appeal, argues On Cherer replied how and that she old she she roleplaying. thought dur- he and “Susie” were Specifically, was fourteen each time. however, trial, chat, counsel scarce ing initial “Susie” told At Cherer’s their when On the fourteen, roleplaying defense. replied, ly raised Cherer she was Cherer contrary, closing “cool, argued counsel explicit cool....” These defense fourteen is (1) statements post-arrest age are sufficient that: Cherer’s references “Susie’s” they were unreliable because part were not re- Thus, of the act. the evidence would corded; (2) Cherer, someone other than not supported have a roleplaying defense. using name, Cherer’s screen was re- See, e.g., Gracidas-Ulibarry, 231 F.3d at sponsible for the enticing communications (finding 1197-98 that the court’s erroneous (3) “Susie”; manipulat- omission of the intent element from the ed the transcripts of the online chats be- jury instructions was harmless because (4) tween “Susie”; and Cherer did overwhelming evidence supported a find- not believe sixteen; “Susie” ing of though intent —even the defendant (5) Cherer did not take a substantial step claimed he asleep, and could not have toward the commission of the crime. This intent). had the requisite court will normally argu- entertain ments, sum, In like Cherer’s because defense, overwhelming evidence roleplaying raised for proves the first See, time on appeal. Cherer believed “Susie” was e.g., Highland Music, Inc., fourteen, Peterson the court’s give failure to a clear (9th Cir.1998) (applying instruction was harmless. “ ‘general against rule’ entertaining ar- guments on appeal that were present- (2.) ed or court”). before developed the district Evidence of Cherer’s Prior Conviction

Nonetheless, even if we were to consider Complaints AOL defense, roleplaying it is unper- suasive. only evidence Cherer in- Cherer was convicted in Neva- vokes to prove that thought he he was da state court of lewdness with a child roleplaying post-arrest are his own state- under fourteen, annoyance minor, of a ments, many of which undercut rather contributing to the delinquency and ne- support than his claim. After being ar- glect of children. He committed this rested, (1) Cherer told the FBI that: he crime by meeting two girls ages eleven — thought eighteen “Susie” was years old and twelve—in an room, AOL chat arrang- because of way (2) talked; she girl ing a meeting them, bringing them to in the photograph “Susie” sent to him house, his and touching one of them sexu- (3) looked to be twenties; in her he did not ally. When began Cherer his relationship recall the in chats which “Susie” told him “Susie,” he was serving probation for (4) fourteen; she was and if he had known the 2001 conviction. “Susie” was fourteen he would not have wanted to meet her. At no point did Moreover, 2, 2005, on April again and say Cherer or even indicate that he be- July 9, 2005, AOL complaints received lieved he had been roleplaying with an (“AOL complaints”) from users alleging Moreover, adult. Cherer’s statements sug- that user, another screen name gest that thought he “Susie” was a real “G8rwith8nGV” —Cherer’s screen name— person, but that he did not know age. her had communicated with them using inap- example, For he said he did not recall propriate sexual language. After each “Susie” telling him three times that she complaint, AOL blocked access, Cherer’s was fourteen. Roleplaying, on the other and each time Cherer called AOL to have hand, would have required Cherer to know it restored. that “Susie” was a fiction created an Indeed, adult. if Cherer After a hearing, believed he the district court admit- roleplaying, it would have ted been evidence unneces- of prior Cherer’s conviction sary for him deny to being told and the “Susie’s” AOL complaints pursuant to FRE age being told her “age” 404(b). would have been —

1157 motive, intent, knowledge. it Once a district Court reviews This evidence, including the of admission has been established that evidence court’s un value exceeds probative decision purposes of ... offered serves one these abuse of discretion. prejudice, fair “only” justifying conditions the ex Curtin, 489 F.3d States v. See United evidence are those de clusion Cir.2007) banc) (9th (en (citing United prejudice, 403: unfair scribed Rule (9th Romero, F.3d States v. issues, misleading confusion of the Cir.2002)). not war Harmless errors do time, delay, undue waste of or jury, Romero, F.3d at rant reversal. See presentation of evi needless cumulative Derington, (citing United States . dence (9th Cir.2000)). 1243, 1247 Curtin, 489 F.3d at 944. According Federal Rule of Evi to argues that 404 or 403 Rule 404(b): dence of his prior should have barred evidence crimes, wrongs, or Evidence other complaints. conviction and the AOL We prove the char- acts is not admissible disagree. properly The district court ex- action in order to show person acter of a pieces its to admit both ercised discretion may, conformity It howev- therewith. of evidence. er, purposes, for other be admissible motive, opportunity, proof such as First, prior conviction Cherer’s intent, plan, knowledge, preparation, prove his intent and his modus tends to or acci- identity, or absence of mistake argued that he operandi. Cherer dent. requisite he did lacked the intent because 404(b). The Circuit Ninth Fed.R.Evid. not believe “Susie” was fourteen. More may be admitted has held evidence arrest, over, following his Cherer told “(1) 404(b) if the evidence pursuant FBI if had “Susie” was he known (2) the point; a material prove tends to not have wanted to he would fourteen (3) time; act is not too remote other helps prior conviction meet her.2 finding support evidence is sufficient previous prove Cherer was otherwise. act; the other that defendant committed girls— meeting minor ly convicted two cases) (4) (in the act is similar certain chat ages twelve—in an online eleven and Romero, charged.” to the offense home, and en room, enticing them his (quoting States v. F.3d at 688 kissing, touching, one of them gaging Cir.2000)). Chea, If 231 F.3d prior convic The facts his petting. 404(b), “the court satisfies Rule evidence his similar to those of strikingly tion are probative whether the must then decide case, analogous In an conviction. current by the substantially outweighed value is that, this held court impact under Rule 403.” prejudicial factually sim- evidence described [that] Chea, Romero, (quoting at 688 282 F.3d on in- that center the ilar incidents 534). Indeed, Ninth as the at highly ... was of a minor ducement articulated, recently Circuit intent probative defendant’s] of [the 404(b) is rule of inclusion—not Rule respect to operandi and modus least references exclusion—which instances, act. both present “acts” encom- categories of other three ... contacted a minor workings [the defendant] of the mind: passing the inner however, rely in clos- Cherer's statements were on to the FBI ad- 2. Cherer’s statements testimony through prove intent. ing argument trial to lack of mitted at did, prosecution Defense counsel witness. purpose soliciting plaints prove over IM for the tend to Cherer’s intent and activity, arranged sexual to plan [and] to use to enticing, sexually AOL make factual meet.... The difference be- graphic ages communications. That the that, tween the acts is two AOL users with whom Cherer commu- case, followed his in- [the defendant] offensively nicated are unknown diminish- completion; this difference tentions evidentiary weight es the of the com- not warrant exclusion does under Rule plaints, not admissibility. their 404(b). complaints The AOL also to prove tend Dhingra, 371 F.3d States identity, although court chose not to Cir.2004) 404(b) (applying 566-67 Rule rely on this basis for The admission.3 2422(b) the context of 18 U.S.C. complaints allege that Cherer used offen case). Similarly, prior Cherer’s conviction language sive language similar to the used likely makes it more that he harbored the trial, with “Susie.” At Cherer based his requisite intent -with regard to “Susie.” defense, in part, theory some See, 404(b) (noting e.g., id. at 565 one else had used his screen name given evidence “was all the more relevant communicate with “Susie.” Evidence that denial of criminal [defendant’s his inten- language Cherer used similar with other tions”). only difference between Thus, AOL users undercuts that defense. prior present Cherer’s conviction even were we to find that the court erred case prior is that the conviction involved by admitting complaints the AOL prove targeting an actual minor rather than an or plan, Cherer’s intent the error would be decoy. Dhingra, adult inAs this differ- harmless because the court could have ence does warrant exclusion under properly complaints prove admitted the 404(b). Rule identity. See, e.g., United States v. McCol Second, properly the court admit lum, (9th Cir.1984) 732 F.2d complaints. ted complaint the AOL Each (finding that the trial court’s error in ad alleges that Cherer communicated in a mitting evidence for the purpose stated sexually graphic language manner. The was harmless because the evidence could used in these offensive communications have been purpose); admitted for another closely enticing resembles used Mehrmanesh, United States v. 689 F.2d example, communications to “Susie.” For (9th Cir.1982) (same). n. complaints allege AOL Cherer asked Additionally, argument that the user, job?” given one AOL “[E]ver blow engage district court did not in the proper and offered another two hundred dollars in balancing a pre-trial lacks merit. At exchange Similarly, oral sex. 404(b) “Susie,” hearing, the court given asked considered all the BJ?” and “[E]ver Government buy thong offered to her evidence the underwear offered. The Thus, exchange for oral sex. the com- the prior admitted conviction and argued, pre-trial 3. The itly identity at a permis- eliminated from the list hearing appeal, and on that the AOL com- purposes. government agreed sible plaints probative identity, were of but the limiting the final formulation the instruc- explicitly identity court never named as a tion, identity, which did not reference but Instead, proper purpose of admission. the provided may jury instead that the consider complaints court stated that the AOL tend to 404(b) "only the evidence as it bears on the Moreover, prove plan. Cherer's intent and intent, preparation, plan, defendant's knowl- nineteen, jury crafting instruction which ex- edge, absence of mistake and for no other plained purposes jury for which the could purpose." evidence, 404(b) explic- the consider the court

1159 facts, failing adequately or erroneous evi barred other but complaints, AOL If it Id. chosen sentence....” explain dem the prejudicial, too it because was dence the court’s deci- the bal that district it conducted 403 is determined onstrating that sound, See, Rrapi, v. we must then procedurally States was e.g., United sion ancing. Cir.1999) (“In 742, (9th allow reasonableness 749 “consider the substantive F.3d 175 404(b) evidence, is a court district an abuse of imposed Rule ing of the sentence corresponding recite the required not Id. discretion standard.” the record. analysis for balancing Rule case, district court the conclude, court can enough that this It error. significant no procedural committed record, the the that a review of on based within, though at the sentence is 403’s re Rule court considered district of, range of 235 to 293 top the Guidelines (internal quota citations quirements”) challenged the has months. Cherer not omitted). court did evidence the tions sentencing calculation. At the Guidelines intent, plan, and probative admit noted that the judge properly the hearing, by de relevant the identity made —issues advisory, that the fac are Guidelines Moreover, preju unfair the risk of fense. 3553(a) § would provided by 18 U.S.C. tors by delivering dice, reduced the court which reflects analysis. his record guide substantially instruction, did not limiting a relevant sen the considered each judge evi value the outweigh probative the refer explicitly He did not tencing factor. also, 403; e.g., see Fed.R.Evid. dence. all, require the law ence them but does (affirming the at 566-67 Dhingra, 371 F.3d v. Knows him to so. See United States do of the of evidence court’s admission district Cir.2006) Gun, 913, His other girls online chats with defendant’s to consider requirement the (noting that danger “the intent, noting that prove 3553(a) not necessitate § factors the “does The district is low. prejudice undue sepa factor articulation of specific each ... prejudice potential cabined court showing that the dis rately, rather a jury the to consider instructing explicitly statutorily-desig the trict considered court the it bears on testimony ‘only as the ’ sentence”); see imposing nated factors ”). ... intent defendant’s — States, also, Kimbrough v. United e.g., 558, 575, U.S. -, 169 L.Ed.2d (3.) 128 S.Ct. (2007) district (stating the Cherer’s Sentence 3553(a) § the relevant “addressed properly within- review Cherer’s We added). factors”) (emphasis rea months for of 293 sentence Guidelines judge re sentencing that the argued Booker, sonableness, States are satis we facts. And lied on erroneous 220, 261, 160 L.Ed.2d S.Ct. U.S. judge provided sentencing the fied that (2005), Supreme Court which, as the sentence. explanation adequate declared, two-step requires recently court com — Since district States, U.S. analysis. v. United Gall error, only ques procedural mitted no L.Ed.2d 445 -, 128 S.Ct. the sentence is “whether remaining tion (2007). First, must “ensure that we i.e., the District whether pro- reasonable — significant no court committed district determining his discretion Judge abused error, failing as calculate such cedural 3553(a) supported” factors (or calculating) the Guidelines improperly the Guidelines top of sentence as mandato- treating Guidelines range, This re 128 S.Ct. at 3553(a) range. fac- failing to consider ry, the district deference clearly requires view tors, based selecting a sentence decision, and circumstance, court’s should resemble a tunate it did not make Cher- though de novo review. Even Id. Gall er’s conduct less blameworthy. Even sentence, dealt with a below-Guidelines though it would been impossible have clearly Court stated that this deferential complete Cherer to attempted his crime applies standard of review to “all sentenc target because his decoy, was a he still ing inside or decisions—whether outside exhibited a to commit proclivity this sort of the Guidelines Id. at range.” crime, inability and an to control his crimi- addition, the sentence is within “[i]f nal, impulses sexual that a sen- —factors range, appellate may, Guidelines tencing judge may reasonably take into to, required apply but is not a presumption account. The court also considered the (citing reasonableness.” Id. at 597 Rita crime, which, facts of prior Cherer’s like — States, U.S. -, v. United 127 S.Ct. crime, his current involved Cherer’s use of (2007)). 2456, 2462, 168 L.Ed.2d The the internet to entice a minor into an Ninth applied pre Circuit has not illegal sexual relationship. prior For his see, sumption, e.g., United States v. Zava crime, at the request of the par- victims’ la, Cir.2006), 443 F.3d 1170-71 ents, the Nevada court sentenced Cherer case, but we note that “in ordinary probation. argues dissent that the Commission’s recommendation of a sen district court should have given more con- tencing range rough approxi will ‘reflect a why sideration to the state court sentenced mation might of sentences that achieve probation Cherer to because state courts ” 3553(a)’s objectives.’ Kimbrough, 128 have experience more dealing with sex Rita, (quoting S.Ct. at 562-63 S.Ct. crimes than do federal courts. But neither 2464-65). the relative dearth of federal sex crime Nevertheless, presuming even without prosecutions nor leniency of Cherer’s that within-Guidelines sentence is rea- require state sentence the district court to sonable, say we cannot that Cherer’s with- discount the weight of prior in-Guidelines sentence is unreasonable. crime when determining his current sen- The district court appropri- considered the Rather, tence. because Cherer committed factors, ate assigned reasonable his current crime serving probation while weight to Supreme each. As the Court for a prior, similar crime—and thus did noted in sentencing judge “[t]he is in advantage take of the state court’s superior position find facts and judge leniency was reasonable for the district —it 3553(a) import their in the indi- court to lengthy conclude that a prison vidual case. judge sees and hears the necessary sentence was protect pub- evidence, determinations, makes credibility lic. has full knowledge gains of the facts and The dissent relies on Kimbrough to crit- insights not conveyed by the record.” icize the district court’s failure to consider Gall, 128 S.Ct. at (quoting Brief for that Cherer’s sentence of twenty- almost Federal Public and Community Defenders years five for an attempt significantly ex- 16). et al. as Amici Specifically, Curiae many ceeds violent, sentences available for clearly the record establishes that completed sex rape. crimes like In Kim- judge considered the circumstances of brough, the Supreme Court held that a Cherer’s crime and the nature of prior his judge may district reasonably impose offense for which serving proba- he was tion. below-Guidelines The court sentence for an properly considered offense Cher- er’s argument involving crack the lack of a victim cocaine because of the weigh should long-criticized of a disparity, favor shorter sen- impli- -with racial tence, rejected because, cations, it while a for- between sentences involving crack that the sentence do not conclude co- involving powder those and cocaine But at 576. unreasonable. Kimbrough, 128 S.Ct. caine. require such be read to

Kimbrough cannot are The conviction and sentence in a case certainly not and comparison, a AFFIRMED. drug a not involve that does like Cherer’s for Indeed, out that points Gall offense. NOONAN, Judge, concurring Circuit are not tied the Guidelines drug offenses dissenting: and evidence, instead but are empirical to convic- affirming in I concur mini- mandatory statutory keyed to “the sentencing. to his tion. I dissent as Congress established that mum sentences — States, U.S. -, v. Gall United Gall, n. at 594 crimes.” S.Ct. for such (2007), and 169 L.Ed.2d S.Ct. of this the effect Kimbrough addressed 2. — States, U.S. authority Kimbrough judge’s a district “on distinction L.Ed.2d 481 -, in range 128 S.Ct. from the Guidelines to deviate Accordingly, (2007), certain uncertainties Id. have clarified drug case.” particular role crystal clear the judge doing who sentenced so made the district the much to consider the re- Sentencing Guidelines and required was not of the other available for sentences more lenient spect owed them. sex of- more heinous arguably

violent starting point are Guidelines fenses, disparity render Cher- nor does deciding on sentence. judge the district did, a If it unreasonable. er’s sentence 596; Gall, Kimbrough, 128 at 128 S.Ct. have would of the Guidelines large number a bench- Guidelines are at 574. The S.Ct. many of because to found unreasonable be Id. The sentencing judge. mark for the punish- more recommend severe them taken into must be account. Guidelines than for offenses for non-violent ments time, are At the same Guidelines Moreover, respect violent ones. Gall, mandatory. advisory, not completely i.e., using the internet Cherer’s crime — at 594; Kimbrough, S.Ct. S.Ct. at illegal an a minor into attempt entice an judge should The district 569. is not unreasonable relationship sexual —it range is reasonable. presume their a sentence advise for the Guidelines the sen- Gall, at 596-97. For 128 S.Ct. exceeding sen- with or even commensurate only one Guidelines are tencing judge, the violent, when completed crimes tences weighing wheth- to be considered factor a similar committed previously he has by set goals achieve the will er sentence attempted sexual crime. And whether 3553(a)(2). Kimbrough, 128 18 U.S.C. by a thir- fourteen-year-old girl of a abuse be “indi- is to 564. The sentence S.Ct. at morally repre- is less ty-five-year-old man Gall, at 597. 128 S.Ct. vidualized.” rape of adult completed hensible than judgment about circumstance is a every comprehensive. are These clarifications can minds differ. which reasonable holds Kimbrough particularly, More right in that case was judge the district almost- sum, although we believe in sen disparity take into account unduly may be twenty-five sentence year and those crack cocaine involving tences sentencing judges. harsh, not the we are com such cocaine involving powder Indeed, appellate fact that the “[t]he the Guidelines parison to determine that a reasonably have concluded might Kim reasonable. crack were is in- appropriate different sentence By analogy, at 564. brough, S.Ct. the district justify reversal of sufficient may be of sentences Thus, comparison kind we 128 S.Ct. court.” applied other cases where the “individualized,” reason- tence is to be see ableness of the sentence is at issue. 128 S.Ct. at the sentence is to be shaped to specific the details of the offense sentence,

On of the principal review the of specific conviction and the characteris- question is its Id. reasonableness. tics of the defendant. The defendant reviewing only court will reverse for abuse not a discretion, convenient abstraction such as “a disagreement not for pedophile” the district court’s but a human being considered conclusion. who cannot Gall, 128 S.Ct. at 597. be so reviewing summarily categorized. may It take may but need not consider the sentencing judge effort empathy range Guidelines reasonable. Id. the person address before him. The judge has no if choice he is to follow Apart holdings from these as to the law. place Guidelines, Gall and Kim- brough are procedural instructive on the In respects, two sentencing court did steps that the sentencing judge must take. not do what required. First, the law it did giving parties After both an opportunity to at all that responded consider argue for they whatever sentence deem temptation to a up by set appropriate, judge the district should then response and that his to the temptation 3553(a) all of the consider factors to course, was ineffective. Of Cherer was not they determine support whether the sen- entrapped in a legal sense: he ready was requested by party. tence Id. at 596. willing to commit the crime. Of In doing, may presume so he that the course, permits the law an attempt to be range Guidelines is reasonable. Id. at punished severely as as a completed crime. 596-97. He must make an individualized Nonetheless, in weighing sentence, it presented. assessment based on the facts would be unreasonable for the sentencing Id. at 597. court not to take some account of these hand, To turn to the case at Cherer was facts. convicted of the crime of attempting to Cherer, In sentencing the district court seduce a minor on the Although internet. declared its indifference to state sentences the statute under which he was convicted and, for the same offense particular, its among enumerates “coercion” pro- the acts indifference to what Cherer’s state crime it, by hibited by no coercion Cherer was why consisted of or the state court had shown. His crime was committed probation sentenced him for it. That he imaginary

words in the of a world chat was a probation violator of enough was room. the court. But Cherer’s federal sentence The district court in the sentencing gave was increased not for violation of probation counsel and the defendant opportunity he categorized because aas sex address the court on the sentence. The offender under state law. The state crime district court stated that the Sentencing increased his score on the Guidelines’ advisory. Guidelines were The district by eight chart materially and so increased court stated that purpose the court’s range of the federal sentence when sentencing was to achieve the purposes that chart was the judge’s guide. 3553(a)(2). 18 U.S.C. On the face of the proceedings, they conformed to the law. The Sentencing Commission collects sta- They, however, did not. tistics on sentencing the federal courts. It all may

Tension collects cases involving seem to exist between the sexual of- table points provided by they fenses whether Guidelines rape, involved sex and an individualized sentence. If a sen- with a minor or solicitation of a minor. clumsy effort to obtain forbidden sex er’s grouping must be of this The rationale that are offenses over three times more heinous than are few sexual that there were, there federally prosecuted. that of James. circuit, 256; there in this were

nationally, may be made that the The observation Sentencing Commis- 61. United States provide sentencing ranges for Guidelines Dataf- sion, Analysis, 2006 Policy Office greater that are several nonviolent crimes (which prosecution paucity The ile. ranges than its for violent crimes. Two too) years, is account- characterizes earlier One, may answers be offered. the com- places number of by the limited ed in case is made between parison jurisdiction where sex federal general category punishments within the has in- The number crimes could occur. Second, the of sex offense. Guidelines the inter- only the arrival of creased instances, in may be unreasonable other for its use. prosecutions net and federal to determine that is not our business it is the states and the That means that here. experi- courts that have substantial state in Specifically this case district court offenses. De- dealing in with sex ence looking in not at the circumstances erred case, in was done a on the what pending taking in into account of the crime and relevant to the will be proceeding state the nature of the offense which Cherer federal sentence. of the reasonableness probation. was on court here needed to know sentencing state why majority judges appear agree had A of the what Cherer done probation. “unduly him on Without put court had sentence was that Cherer’s information, eight the addition of But court finds the sentence harsh.” act point score was an to Cherer’s points That such a fine not “unreasonable.” is by a ma- performed that could have been readily comprehen- as not to be distinction chine; judicial a assessment of it was not sible. the court.

the individual before judge “always superior is The trial enhancement, two plus eight point facts. to know the position” computer, gave for his use of points not make position That does S.Ct. Rape score of 34. within point Cherer the sentence he presumptively reasonable yield a score of jurisdiction would federal normally be judge The trial will gives. years. range of 8-17.5 30 and sentence That, rules. procedural follow the able to just under twen was sentenced too, presump- make his sentence doesn’t Sentencing or ty-five years. Guidelines tively reasonable. they if of them are not rational application this court to re- obligation It is greater crime yield a sentence for Cherer’s reason- for “substantive view a sentence a concrete rape. To take than that for Id. How is such reasonableness ableness.” with, in that I am example familiar by comparing way One determined? James, 980 F.2d 1314 Cir. v. States falling roughly of crimes sentences 1992), early morning in the defendant exem- Kimbrough is generic same area. raped the home of the victim entered showing how such not exclusive plary her; sanctity the home and comparison works. violently were both chastity of the victim of the survival Dissenting from the sentence was The defendant’s violated. Booker, States Guidelines United imprison and three months’ years seven 220, 312, 160 L.Ed.2d 125 S.Ct. years. U.S. release for five supervised ment (2005), observed: Justice Scalia that Cher- for me to believe It is difficult extreme, At the other a court of appeals

might the new ap- handle workload

proving virtually any sentence within the

statutory range that the sentencing imposes, long so as the district

judge goes through the appropriate for-

malities, expressing such as his consid- disagreement

eration of and with the

Guidelines sentence.

If such becomes the course of review in appeals, court of we will have aban- attempt

doned all to determine “substan-

tive reasonableness.” S.Ct.' I

597. would reverse and remand. America,

UNITED STATES

Plaintiff-Appellee, CARR,

Marco Delano Defendant-

Appellant.

No. 07-30133. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted Nov. 2007.

Filed Jan.

Case Details

Case Name: United States v. Cherer

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 25, 2008

Citation: 513 F.3d 1150

Docket Number: 12-30337

Court Abbreviation: 9th Cir.