UNITED STATES OF AMERICA, Plaintiff - Appellant, v. DAVID VINCENT DUHON, Defendant - Appellee.
No. 05-30387
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
February 17, 2006
REVISED FEBRUARY 21, 2006
United States Court of Appeals Fifth Circuit FILED February 17, 2006 Charles R. Fulbruge III Clerk
Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
The Government appeals the district court‘s post-Booker, non-Guideline sentence. We hold that the sentence is unreasonable with regard to the sentencing factors enumerated in
I. BACKGROUND
Appellee David Duhon pleaded guilty to one count of possessing child pornography in violation of
A. THE PRESENTENCE REPORT AND FIRST SENTENCING HEARING
The presentence report (PSR) determined a base offense level of fifteen.
Duhon objected to the PSR‘s suggested enhancements for the age of the children and number of images involved, citing Blakely v. Washington, 542 U.S. 296 (2004). He argued that these facts had neither been admitted to nor found by a jury beyond a reasonable doubt. He also moved for a downward departure, claiming that a back injury he suffered in 1987 was an extraordinary physical
At a sentencing hearing on August 25, 2004, the district court denied Duhon‘s motion for a downward departure. Considering Duhon‘s Blakely motion, the court decided to stay sentencing until the Supreme Court issued its ruling in United States v. Booker, 125 S. Ct. 738 (2005). Before adjourning, the court expressed hostility toward the Sentencing Guidelines, lamented Congress‘s criminalization of possessing child pornography, and promised that he would give Duhon the lowest sentence I can give consistent with my oath.
B. THE POST-BOOKER SENTENCING HEARING
Following the Booker ruling, the sentencing was reconvened on February 28, 2005. Over the Government‘s objection, the district court ruled that Booker precluded it from using facts not admitted by Duhon to enhance his sentence, even under an advisory regime. The court calculated a Guideline range without using the enhancements for the age of the children or the number of images involved in the offense. This calculation resulted in an offense level of fourteen and an advisory term of imprisonment of fifteen to twenty-one months. The court announced, however, that it would not follow the Guidelines, characterizing them as totally discretionary. It stated that it would use the discretion granted
The Government reiterated its objection to the court‘s calculation of the Guideline range. The court responded that it would have imposed the same sentence regardless of which advisory Guideline range was correct. The Government claims on appeal that the probationary sentence imposed by the district court is unreasonable.
II. STANDARD OF REVIEW
The district court‘s interpretation of the Guidelines, even after Booker, is reviewed de novo. See United States v. Smith, F.3d , No. 05-30313, slip op. at n.2 (5th Cir. filed Feb. 17, 2006). We accept the district court‘s findings of fact unless clearly erroneous. United States v. Creech, 408 F.3d 264, 270 n.2 (5th Cir. 2005). The ultimate sentence is reviewed for unreasonableness with regard to the statutory sentencing factors enumerated in section 3553(a). Booker, 125 S. Ct. at 765.3
In an opinion filed concurrently with this one, we address non-Guideline sentences like that at issue here. See Smith, F.3d . Before imposing a non-Guideline sentence, a district court must consider the Sentencing Guidelines. Id. at 5; United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005). This consideration requires that the court calculate the appropriate Guideline range. E.g., Smith, F.3d at , at 5. Additionally, the court should articulate fact-specific reasons for its sentence. Mares, 402 F.3d at 519. Those reasons should be consistent with the sentencing factors enumerated in section 3553(a). Smith, F.3d at , at 5-6. The court need not make a checklist recitation of the section 3553(a) factors. Id. at 6. However, the farther a sentence varies from the applicable Guideline
In reviewing for reasonableness, we assess whether the statutory sentencing factors support the sentence. Id. at 6; see United States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005). A non-Guideline sentence is unreasonable where it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors. Smith, F.3d at , at 6-7; see Long Soldier, 431 F.3d at 1123; United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005).
III. DISCUSSION
The sentence at issue does properly take into account two section 3553(a) factors. First, under subsection (1), the sentence reflects the history and characteristics of the defendant. In imposing its sentence, the court emphasized Duhon‘s lack of criminal record and letters on his behalf from family and friends. It explained its belief that Duhon was unlikely to reoffend. Second, the court reasoned that Duhon‘s psychiatric rehabilitation would be best served with a probationary sentence that would allow him to continue treatment with his current psychologist. This was consistent with subsection (2)(D)‘s mandate to consider the need to
Under section 3553(a), however, a sentence must be supported by the totality of the relevant statutory factors. United States v. McBride, F.3d , No. 04-4347, slip op. at 5 (6th Cir. Jan. 17, 2006). The sentence at issue fails to account for factors that should have received significant weight and accords significant weight to an improper or irrelevant factor. Specifically, the sentence (1) does not adequately take into account the Sentencing Guidelines, (2) fails to sufficiently reflect the seriousness of Duhon‘s offense, and (3) improperly gives weight to the Guideline sentence of a differently-situated codefendant. As a result, the sentence is unreasonable.
A. FAILURE TO ADEQUATELY ACCOUNT FOR FACTORS
1. The Sentencing Guidelines
a. The Guideline Range
It is undisputed that the district court failed to determine the correct Guideline range. We have held that the applicable range should be determined in the same manner as before Booker/Fanfan and that a judge may still find all the facts supporting a sentence. Mares, 402 F.3d at 519. Thus, the court‘s conclusion that it could not adjust Duhon‘s Guideline range upwardly based on facts neither admitted by Duhon nor proven beyond
Duhon argues that this error was harmless because the court stated that it would have imposed the same non-Guideline sentence regardless of the Guideline range. Duhon is correct that the sentence was imposed in spite of rather than as a result of an incorrect application of the sentencing guidelines.
But it does not follow from this that the error in calculating the Guideline range is irrelevant to our second-step review for reasonableness. Mares recognized that if the district court commits a legal error in required sentencing procedures, the sentence may not merit the great deference ordinarily accorded on reasonableness review. 402 F.3d at 520. Among those sentencing procedures required by Mares is that the district court calculate the Guideline range before imposing a non-Guideline sentence. Id. at 519; United States v. Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir. 2005).
This requirement reflects Booker‘s mandate that sentencing courts take account of the Guidelines along with other sentencing goals. Booker, 125 S. Ct. at 764-65 (emphasis added). In light of its duty to account for the Guidelines, the court‘s statement that it would impose the same sentence regardless of which range applied, makes the sentence more, rather than less, problematic. The court cannot reasonably impose the same sentence regardless of the correct advisory range anymore than it could reasonably impose the same sentence regardless of the seriousness of the offense. Both are sentencing factors that must be taken into account under section 3553(a). See Smith, F.3d at , at 5-6 (holding that the Guideline range must be a frame of reference for a non-Guideline sentence). A sentencing court cannot evade its duty under Booker and Mares to correctly calculate the Guideline range with the expedient of saying the Guidelines would not affect the result. Accordingly, the miscalculation deprives the sentence of great deference and is a factor to be considered in assessing the reasonableness of the sentence.
b. Other Guidelines Provisions
Under Booker, a sentence must account for more than just the applicable Guideline range. Section 3553(a) requires the court to consider the kinds of sentence available under the Guidelines as well as any pertinent policy statement. In the case at bar, the
First, the sentence deviates from a relevant advisory Guideline disallowing probation in Duhon‘s case. The Guidelines do not authorize a sentence of probation where the applicable Guideline range is in Zone C or D of the Sentencing Table. See
Second, the sentence diverges from a policy statement prohibiting the consideration of physical condition. The district court considered Duhon‘s back injury in imposing its sentence. Section 5H1.4 of the Sentencing Guidelines states that [p]hysical condition . . . is not ordinarily relevant in determining whether a departure may be warranted. At the pre-Booker sentencing hearing, the court acknowledged that the Guidelines would not permit a downward departure for Duhon‘s physical condition. At the post-Booker hearing, however, the district court relied on Duhon‘s
The court‘s failure to appropriately take into account the Sentencing Guidelines is significant. It is not necessary for us to decide, however, whether this alone is sufficient to render Duhon‘s sentence unreasonable. The sentence also fails to adequately reflect the seriousness of Duhon‘s offense and inappropriately gives weight to the Guideline sentence of Duhon‘s
2. Seriousness of the Offense
Under section 3553(a)(2)(A)-(B), the sentence imposed must reflect the seriousness of the offense, promote respect for the law, and afford adequate deterrence. Our review of the sentencing transcript convinces us that the district court severely misjudged the seriousness of Duhon‘s possession of child pornography. As a result, the sentence fails to advance adequately the objectives of subsections (a)(2)(A)-(B).
The court‘s comments at Duhon‘s hearings are replete with criticism of child pornography laws and suggest that the court believed Duhon‘s offense was not harmful to children because Duhon himself did not physically molest anyone. At Duhon‘s plea hearing, the district court stated:
There are those who think that the way Congress has reacted to child pornography is pretty much one size fits all. . . . [T]hey‘ve got a lot of folks out there that . . . will take advantage of young people in their day life [sic] or try to make contact with them. That‘s on the one hand. On the other hand, its my belief . . . that everybody that does what you have admitted to doing here today doesn‘t fall in that category, but the law doesn‘t make much of a distinction, frankly, and that‘s unfortunate.
Similarly, at the first sentencing hearing, the court minimized the offense and suggested that prosecuting child pornography cases was a waste of time and resources:
[The Assistant United States Attorneys] work very hard for all of us. They do stuff like get really bad guys
that are killing our society with drugs. They protect us against terrorists. And sometimes, because the Congress dictated to them, they go out and get people who get on the Internet and just screw up like what happened in this case in my view. . . . .
It would amaze you-all as taxpayers if you really understood what‘s going on inside the judiciary, inside all the government agencies right now. . . .
Mr. Duhon knows what I am going to do . . . . I am going to give him as little as I can because I think that‘s what it merits.
The Assistant United States Attorney objected, stating that he did not want to give the impression that he believed these cases should not be prosecuted. The court responded that they had philosophical differences on the issue:
They‘ve got people that ought to go to jail because they might be dangerous and they‘ve got people that do stupid things. If we had a federal statute that says you‘re guilty of being stupid, Mr. Duhon might be guilty of that, but that‘s not the point.
At the close of hearing, the court explained to those in attendance that the prosecutors were just doing their duty under the oath. We‘re all in this together, and usually these are the good guys putting away the bad guys. (Emphasis added).
At the post-Booker sentencing hearing, the court similarly stated,
If there was a federal statute that made it illegal to do dumb things, you would be guilty. I can only imagine how embarrassing this is for you today . . . . Nothing in this record indicates to me that you‘re one of those guys who are going out and trying to hurt young boys or girls, but we‘ve got some sickos out there that are.
Congress established a series of distinctly separate offenses respecting child pornography, with higher sentences for offenses involving conduct more likely to be, or more directly, harmful to minors than the mere possession offense. Similarly, the guidelines clearly reflect consideration of whether and the degree to which harm to minors is or has been involved.
United States v. Grosenheider, 200 F.3d 321, 332-334 (5th Cir. 2000) (collecting cases rejecting departures based on rationale that defendant had not abused any child, and had no inclination, predisposition or tendency to do so). Indeed, the applicable Sentencing Guidelines provide an offense level of thirty-three for soliciting minors under twelve for prohibited sexual conduct using a computer. See
More importantly, the court‘s judgment that Duhon‘s offense was just a dumb thing, a stupid thing, and merely a screw up understates the harm caused by possessing child pornography. In United States v. Norris, 159 F.3d 926, 929 (5th Cir. 1998). Norris recognized that possessing the images is itself a form of abuse because it inva[des] the privacy of the child depicted. Id. at 930. The possession perpetuates a permanent record of the original abuse that can haunt[] those children in future years. Id. at 929-30. Additionally, the consumer of child pornography instigates the original production of child pornography by providing an economic motive for creating [it]. Id. at 930. [P]ossession of child pornography is not a victimless crime. A
The severe molestation and young children involved in the images suggest that Duhon‘s offense could instigate violent abuse. According to the PSR, the pictures which Duhon downloaded were of prepubescent girls aged eight to ten years. These pictures included photographs of a girl being raped by an adult man, forced to perform oral sex and placing foreign objects into her vagina. The PSR also states that Duhon distributed child pornography to at least one other individual, his codefendant Berne Life.6
Under the circumstances, the district court misjudged the seriousness of Duhon‘s offense. As a result, the sentence imposed fails to advance sufficiently the sentencing objectives enumerated in section 3553(a)(2)(A)-(B).
In imposing its non-Guideline sentence of sixty months probation, the district court took into account that Duhon‘s codefendant Berne Life had received a Guideline sentence of sixty months probation. The court acknowledged that Life had obtained the benefit of a downward departure for substantial assistance to the Government under
We agree with the First and Eighth Circuits that a sentencing disparity intended by Congress is not unwarranted. See United States v. Pho, 433 F.3d 53, 2006 WL 20574, *11 (1st Cir. Jan. 5, 2006); United States v. Sebastian, 436 F.3d 913, 2006 WL 265507, *2-3 (8th Cir. Feb. 6, 2006) (holding that it is the province of the policymaking branches of government to determine that certain disparities are warranted, and thus need not be avoided). In other words, what counts is the uniformity in sentencing sought by Congress. Pho, 433 F.3d at , 2006 WL 20574, at *11 (emphasis in original).
Several statutory provisions convince us that Congress believes that defendants who provide substantial assistance should generally receive lower sentences than otherwise similarly-situated
Accordingly, we hold that sentencing disparity produced by substantial assistance departures was intended by Congress and is thus not a proper sentencing consideration under section 3553(a)(6). We note that this conclusion is consistent both with our pre-Booker jurisprudence and with the Seventh and Second Circuits’ interpretation of section 3553(a)(6). See United States v. Nichols, 376 F.3d 440, 443 (5th Cir. 2004) (holding that disparities resulting from departures for substantial assistance are justified); United States v. Boscarino, F.3d , No. 05-2657, slip op. at 7 (7th Cir. Feb. 8, 2006) (holding that a sentencing difference based on one culprit‘s assistance to the prosecution is legally appropriate); United States v. Joyner, 924 F.2d 454, 460-61 (2d Cir. 1991) (explaining that Congress intended disparities caused by application of the Sentencing Guidelines); United States v. Toohey, 132 Fed. Appx. 883 (2d Cir. May 23, 2005) (unpublished) (holding that Joyner‘s construction of the role the Guidelines play in § 3553(a)(6) consideration remains essentially unchanged in the wake of Booker). Because Life rendered substantial assistance, he was differently situated from Duhon in a way that Congress has deemed material. The district court should have considered the need to avoid disparity among similarly-situated defendants nationwide rather than disparity with Duhon‘s differently-situated codefendant.
We emphasize the limits of this holding. We hold only that the disparity at issue here-that between a codefendant who rendered substantial assistance and a defendant who did not-is warranted. A judge may still properly reduce a defendant‘s sentence for appropriate mitigating circumstances particular to that defendant.
IV. CONCLUSION
The district court miscalculated the Guideline range. The
I agree with the majority opinion except with respect to subsection III.A.2. I would avoid answering the difficult question of when a district court makes a clear error of judgment in assessing the seriousness of an offense. Nor do I agree that the district court erred in its observation that the 2003 version of the Guidelines do not distinguish between possessors of child pornography who engage in a pattern of non-internet based, intrastate molestation of children and those who do not. The Sentencing Commission subsequently remedied this oversight by providing for a five level enhancement where the possessor of child pornography engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.
I concur in the judgment, however, because the district court unreasonably failed to consider the need for the sentence imposed to afford adequate deterrence to criminal conduct.