UNITED STATES of America, Plaintiff-Appellee, v. John E. GLEASON, Defendant-Appellant.
No. 07-3038.
United States Court of Appeals, Sixth Circuit.
May 5, 2008.
OPINION
KAREN NELSON MOORE, Circuit Judge.
Defendant-Appellant John E. Gleason (Gleason) appeals his sentence of seventy-eight months in prison, three years of supervised release, a fine of $2,500, and a $100 assessment following his plea of guilty to one count of traveling in interstate commerce with intent to engage in illicit sexual contact with a minor in violation of
I. BACKGROUND
Beginning on May 11, 2005, Gleason engaged in internet сhats with an individual using the screen name gwenoh who claimed to be a fourteen-year-old girl from Columbus, Ohio, but who was in fact a Detective in the Dublin, Ohio Police Department. In their chats, Gleason described himself as a thirty-seven-year-old soldier in the Army, discussed various sexual activities, explained that because he had a vasectomy they could have sex with her becoming pregnant, and provided his phone number. A female employee of the Dublin Police Department called the provided number and confirmed plans to meet on May 27 at a park in Dublin, Ohio, and Gleason mentioned that he could bring some Blackberry Merlot wine. Joint Appendix (J.A.) at 11 (Aff. in Support of Complaint at 3). On May 27, 2005, Gleason was arrested in Dublin after traveling to the specified park from Ft. Knox, Kentucky.
On May 31, 2005, Gleason was released on house arrest with electronic monitoring. Gleason, then a 49 year-old active-duty Sergeant First Class in the United States Army, was stationed at Ft. Knox, Kentucky, and his Bond Order required him to remain on the military base in Kentucky (except for court appearances or meetings with counsel), to report frequently to Pretrial Services, to refrain from using computers or accessing the internet. Gleason also agreed to pay for the costs of the electronic monitoring if he was financially able to do so after supporting his family. In May 2005, Gleason was married with two male children, ages sixteen and ten, who resided with their mother in Bowling Green, Ohio. Although stationed in Kentucky, Gleason considered Bowling Green his residence.
Investigation into Gleason revealed that he had previously chatted online with other female minors, discussed sexual activities with them, and offered to meet some of them. Gleason’s computer contained images of nude or partially nude female minors, and a few images depicted underage females engaging in sexual acts. Gleason explained that his online correspondence with young girls began as a fantasy but became too real and that it started as something to do, while he was away from his family serving in the Army. J.A. аt 157 (Presentence Investigation Report (PSR) at ¶¶ 27, 25). According to testimony presented at Gleason’s sentencing hearing by Special Agent James Olmstead of the Defense Criminal Investigative Service of the Department of Defense, on two occasions Gleason had previously traveled to Akron, Ohio, to meet a girl who claimed to be nineteen years old but was in fact sixteen or seventeen years old. The two had been communicating for a couple of years. J.A. at 91 (Sent. Hr’g Tr. at 25).
In August 2005, a grand jury indicted Gleаson on two counts, the first count charging Gleason with traveling in interstate commerce with intent to engage in illicit sexual contact with a minor in violation of
On January 23, 2006, Gleason changed his plea and pleaded guilty to the first count in the indictment pursuant to a plea agreement and agreed to the forfeiture in the second count. At the change-of-plea hearing, the parties agreed to schedule the sentencing for sometime after July 31, 2006, so that Gleason could retire from the Army and so that his family could receive his retirement benefits. During this time, Gleason remained free on his original bond conditions.
In February 2006, the Probation Office completed Gleason’s PSR. Using the 2005 edition of the United States Sentencing Commission Guidelines Manual, the probation officer arrived at a Total Offense Level of 23 for Gleasоn. An offense level of 23 combined with Gleason’s criminal history category of I produced a Guidelines range of 46 to 57 months in prison. The probation officer recommended a sentence of 46 months, the bottom of the Guidelines range, because Gleason has no prior record of arrest and has a good record of military service. J.A. at 166 (Sentencing Recommendation).
As of October 2006, the district court had not set a date for sentencing. On October 24, 2006, pre-trial services sought an arrest warrant for Glеason based on alleged bond violations regarding Gleason leaving his home without permission on the night of October 13 and lying twice about his activities on that night. Two days later, on October 26, the district court set a sentencing date for the morning of November 8, 2006. On October 31, 2006, a magistrate judge issued notice of a proceeding related to Gleason’s alleged bond violation scheduled for the afternoon of November 8.
On November 2, 2006, Gleason filed a sentencing memorandum in which he argued for a sentence lower than the 46 months recommended by the Probation Office. Gleason argued that his offense did not involve a victim, J.A. at 40-41 (Def.’s Sent. Mem. at 4-5), he was unlikely to be a recidivist, he had a good employment record with the U.S. military, and the seventeen months he had spent on home detention since his arrest constituted some measure of punishment already.
On November 6, the Government filed a sentencing memorandum in which it argued against any sentence lower than the Guidelines range. The government highlighted aspects of Gleason’s сonversation with the undercover officer, the images of nude teen and underage girls on his computer that it claimed were actually child pornography, J.A. at 48 (Gov’t Sent. Mem. at 3), and that Gleason had previously met a minor whom he had contacted on the internet. The government also detailed Gleason’s extraordinarily poor behavior while on bond, J.A. at 51 (Gov’t Sent. Mem. at 6), which included spending the night of October 13, 2006, off base with a woman he met through an expensive phone based dating service and with whom he had communicated on the Internet with the help of his friends, and lying several times to his pre-trial services officer about the incident, J.A. at 50 (Gov’t Sent. Mem. at 5). The government also pointed out that although Gleason’s bond order committed him to paying for the cost of his electronic monitoring, he had only paid $100 toward that cost while paying approximately $300 per month to a telephone dating service.
In its sentencing memorandum, the government did not specifically request an upward variance, but the govеrnment did
At the sentencing hearing, the government presented testimony from Jennifer Chadwick, a pre-trial services officer, regarding her reports on Gleason’s alleged bond violation. Special Agent James Olmstead of the Defense Criminal Investigative Service of the Department of Defense also testified, describing Gleason’s prior online communication with a minor from Akron, whom he traveled to meet and groped in his car. Olmstead testified about Gleason using his friends and his son to send and receive emails to a thirty-two-year-old woman whom he had met using a telephone dating service.
Gleason’s attorney cross-examined both government witnesses and established that no evidence showed that Gleason had contacted or communicated with any underage girls while on bond. Gleason then testified that he never had sexual intercourse with any person under eighteen years of age, that he took full responsibility for his bond violations, and that he had panicked and lied to his pre-trial services officer when confronted about his avoidance of electronic monitoring in October. J.A. at 113 (Sent. Hr’g Tr. at 47).
After verifying that Gleason had no objections to the PSR and that he had received it at least ten days in advance of the hearing and reviewed it with his attorney, the district court found that under the applicable advisory guidelines, the total offense level is 23. J.A. at 115 (Sent. Hr’g Tr. at 49). The district court thеn invited Gleason’s attorney to argue for a lower sentence under the factors contained in
The district court then sought the government’s views on the
The district court then asked again whether there’s a basis for an upward departure in this case and the government responded that [b]ased upon the bond violations . . . I think that there could
The district court then expressed concern about the offense level in this ease and suggested that Gleason’s case might be appropriate for an upward departure because the court was unsure whether [Gleason’s] post-offense behavior shows respect for the law or whether his post-offense behavior convinces me that this sentence adequately protects the public from further crimes of the defendant. J.A. at 127-28 (Sent. Hr’g Tr. at 61-62). The district court also queried whether a sentence of 46 to 57 months will afford adequate deterrence and stated a belief that the testimony of [the government’s witnesses] lead[s] me to believe that this case is a candidate for an upward departure because [ ] it appears to me that Mr. Gleason was continuing the same pattern that led to this underlying offense. J.A. at 128 (Sent. Hr’g Tr. at 62). Noting that I have certainly departed downward when people have shown extraordinary post-offense or post-conviction rehabilitation, the district court suggested that an increased sentence might be appropriate if someone displayed behavior that was inconsistent with any type of—not remorse so much as respect for the law or understanding of what he had done and the consequences of what he had done in the first instance. J.A. at 129 (Sent. Hr’g Tr. at 63).
At this point, the district court announced that I disagree with the U.S. attorney that [the recommended sentence] is adequate in light of my analysis of
Gleason began his allocution by expressing remorse over his attempted meeting with an underage girl and stated that in his telephone dating activities he had scrupulously avoided any kind of contact with underage girls and that his telephone dating activities began only after his wife filed for divorce in August 2006. J.A. at 131-32 (Sent. Hr’g Tr. at 65-66). The district court interrupted and expressed concern that, because Gleason had reacted to a crisis like his wife’s filing for divorce by going outside the law and obligations of his bond order, with Gleason’s history, your next step would be to go outside the letter of the law because you seem to have a penchant for underage young ladies. J.A. at 132 (Sent. Hr’g Tr. at 66). The district court continued, stating that my view of [your offense] is that that’s the most heinous of crimes, elaborating that when someone of your age and maturity decides to deprive someone like a 14 year old of their innocence, to me that’s a heinous crime, and there’s very little worse in my view that you can do. J.A. at 132-33 (Sent. Hr’g Tr. at 66-67). Stating that I’m not concerned about whether you would be embarrassed on the stand because no one was concerned about whether the 14 year old girl was going to be robbed of her youth, the district court then remarked that if no one else proteсts those children, I will. So that’s why I believe, in addition to the factors that I outlined, that this is a heinous offense, and that’s why I have a real concern because of your post-conviction behavior that you can easily lapse back into that behavior. J.A. at 133-34 (Sent. Hr’g Tr. at 67-68). The district court then asked Gleason to continue with his allocution, and Gleason simply asked for the court’s mercy.
Prior to announcing Gleason’s sentence, the district court stated that counsel will have a final opportunity to make any legal objections before the sentence actually is imposed. J.A. at 135 (Sent. Hr’g Tr. at 69). The district court then announced Gleason’s sentence of seventy-eight months of imprisonment. J.A. at 135 (Sent. Hr’g Tr. at 69). After stating the sentence, the district court asked [i]s there any objection to the sentence as stated. J.A. at 138 (Sent. Hr’g Tr. at 72). Gleason’s attorney asked the Court to note my objection to the Court’s upward departure. Id. The government requested the court to clarify any findings it made in imposing the sentence, and the district court stated thаt I accepted the factual statements set forth not only in the PSI but also based on the testimony of the government witnesses. J.A. at 140-41 (Sent. Hr’g Tr. at 74-75).
On December 8, 2006, Gleason filed a motion for reconsideration of the sentence. Gleason asked the district court to consider reducing [the] term of imprisonment to 57 months, which is at the high end of [Gleason’s] acknowledged Sentencing Guideline range of 46 to 57 months . . . and which was originally requested by the Government. J.A. at 54 (Mot. to Reconsider Sent. at 1). Gleason acknowledged that violаt[ing] the Court’s trust by disregarding the terms of his release meant that he may no longer merit much consideration for a downward departure. J.A. at 55 (Mot. to Reconsider Sent. at 2). Gleason also stated that his counsel was provided with no notice to indicate that the Court was even considering an upward departure. J.A. at 56 (Mot. to Reconsider Sent. at 3). Gleason then filed his notice of appeal on January 3, 2007. Finally, on February 22, 2007, the district court filed the Judgment in this case, the final page of which was a Statement of Reasons explaining the sentence imposed.
II. ANALYSIS
A. Whether Gleason Received Notice of a Possible Upward Variance as Required by Rule 32(h)
1. Legal Standards
Before the court may deрart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.
In United States v. Cousins, 469 F.3d 572, 580 (6th Cir.2006), we held that
Finally, we observed in Tate that the Supreme Court has recently granted certiorari on the question of whether
2. Analysis
Gleason’s
First, as noted above, the government’s sentencing memorandum described Gleason’s conduct that gave rise to the alleged bond violations, stated that the government would present evidence on these issues at the hearing, and even suggested that extraordinarily bad behavior after the offense should be considered as a basis of an upward departure. J.A. at 50 (Gov’t Sent. Mem. at 5). The district court explicitly based Gleason’s sentence on Gleason’s bad post-offense behavior, citing this conduct both in the Statement of Reasons, J.A. at 170, and at the sentencing hearing, J.A. at 134 (Sent. Hr’g Tr. at 68) (I have a real concern because of your post-conviction behavior that you can easily lapse back into that behavior.). Therefore, by its own terms,
Second, even if we did not view the government’s sentencing memorandum as providing Gleason with notice that his post-offense conduct might warrant an upward variance, Gleason’s claim fails under plain-еrror review. In Meeker, we held that [a] sentencing court that fails to provide reasonable notice of its intention to depart from the Guidelines range [ ] commits plain error. 411 F.3d at 744. Having demonstrated obvious error, [Gleason] must establish an effect on his substantial rights, and a serious impact to the fairness, integrity or public reputation of the judicial proceeding, to fulfill the further requirements of the plain error test. Cousins, 469 F.3d at 580 (quoting United States v. Lopez-Medina, 461 F.3d 724, 745 (6th Cir.2006)). In Cousins, we noted that prior decisions have examined whether a defendant could show prejudice and declined to grant relief where the evidence supporting an upward departure was essentially irrebuttable. 469 F.3d at 581 (quoting Meeker, 411 F.3d at 746). The evidence of Gleason’s post-offense behavior and bond violations is essentially undisputed in this case, and the government rightly notes that [a]t sentencing, in the motion for reconsideration and in his opening brief, Gleason had three opportunities to explain how the alleged lack of notice prejudiced him, but failed to do so. Appellee Br. at 22; see also Reply Br. at 1 (again failing to show prejudice).
We therefore hold that Gleason’s
B. Whether Gleason’s Sentence Was Substantively Unreasonable?
1. Legal Standards
We review Gleason’s substantive-reasonableness2 challenge to his sentence using an abuse-of-discretion standard that take[s] into account the totality of the circumstances, including the extent of any variance from the Guidelines range. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597 (2007). We may not apply a presumption of unreasonableness to sentences outside the Guidelines range, nor may we apply a proportional review that uses the percentage of a
2. Analysis
Under the deferential abuse-of-discretion standard that the Supreme Court has established for reviewing the substantive reasonableness of sentences, we affirm Gleason’s sentence.
The record in this case contains ample evidence that the district court imposed Gleason’s sentence after carefully considering the facts and circumstances in this case and after devoting particular attention to the values contained in
III. CONCLUSION
For the reasons discussed above, we AFFIRM Gleason’s sentence.
Notes
upward departure,J.A. at 129 (Sent. Hr’g Tr. at 63), the district court’s analysis focused on the
variancesor
Non-Guideline departures,whereas sentences outside the Guidelines based on Chapter 5 of the Guidelines are
departuresor
Guideline departures).