United States v. Grossman

disputing credibility determinations used. the court of the word choices

some in these reviewed evidence Having opinions, we court’s the district cases merit. challenge is without conclude CONCLUSION IV. reasons, judgment foregoing For court is REVERSED re- Amendment regard to Jenkins’s First and is AF- against claim Evans taliation on all other claims. FIRMED America, UNITED STATES Plaintiff-Appellant,

v. GROSSMAN, Russell Kurt Defendant-Appellee.

No. 06-2310. Appeals, Court of United States Circuit. Sixth 11, 2007. Argued: Sept. 18, 2008. and Filed: Jan. Decided Hagen Frank,

ARGUED: W. Assistant United Attorney, States Grand Rapids, Michigan, for Appellant. Gary Voshell, K. Law Gary Voshell, Office of Kalamazoo, K. Michigan, for Appellee. ON BRIEF: Ha- gen Frank, W. Assistant United States Attorney, Grand Rapids, Michigan, for Ap- pellant. Voshell, Gary K. Law Office of Gary Voshell, Kalamazoo, K. Michigan, for Appellee. BOGGS,

Before: Judge; Chief MARTIN SUTTON, Judges. Circuit SUTTON, J., opinion delivered the court, MARTIN, J., joined. BOGGS, 599), (p. C.J. a separate delivered dissenting opinion.

OPINION

SUTTON, Judge. Circuit Kurt Grossman guilty pleaded pos- sessing images of engaged minors in sexu- activity. al Because Grossman’s sentence of 66 months in prison and 10 release, supervised a substantial down- id. images, sadistic levels recom- from the ward variance using a com- 2G2.2(b)(4); two levels guidelines, by the mended 2G2.2(b)(6); and five lev- and reasonable puter, see sound procedurally im- involving over 600 els for an offense length, we affirm. 2G2.2(b)(7)(D). Grossman § ages, see id. I. downward for a three-level qualified also 2004, responsibili- the National Center accepting for September adjustment both began 3El.l(a), entering Children a Exploited Missing § and and for for id. ty, see old, 3El.l(b). Grossman—35 investigating § These plea, see guilty daughter— married, two-year-old awith an offense with left Grossman adjustments he had en- report a receiving after history category criminal and a level of 33 children for of enticement gaged “online range I, at a which intersect reported 42. The tip, sexual acts.” JA Because Grossman’s months. of 135-168 communicated who had an individual count of just one agreement included plea room, chat said in an online Grossman reduced, in ac- conviction, range was inter- to chat about “loved Grossman 5Gl.l(c)(l), to § U.S.S.G. cordance with abuse, kinky inelud[ing] child ... ests months. of 120 statutory maximum younger women.” kids, men for and older 2252A(b)(2). § See 18 U.S.C. 2005, re- investigation May By probation acknowledging that the After mem- was an active vealed Grossman “correctly” calculated department shared child group that of an online ber sentencing judge not- range, the later discover- agent A case pornography. “shocked” “troubled” and that he was ed multiple emails had sent ed that Grossman In his JA 26-27. by the enhancements. from Novem- pornography containing child calculation view, guidelines produced 2005. January to ber 2004 fair” and “not reflective that was “not visited Grossman’s agents When case 27. Concerned did.” JA what [Grossman] He home, talk them. agreed to to he an offense guidelines “[break] out physical con- inappropriate having denied almost re- tiny increments that very into possessing but admitted tact with minors id., another,” that some of and peat one “for more pornography trading illicit and “knock[ed] should be the enhancements con- years.” JA 43. Grossman than five off,” 28, complained “want[ed] JA he which computer, of his to a search sented reflect,” 27, that “[t]his to JA the record including images, revealed thousands you judging, when take happens pornography. child and adult you give it to judge’s job, which is 2006, arrested 14, case April agents On mathematical say, [a]dd commission and Grossman, pleaded guilty he after up presumed come with calculations and engaged in images minors possessing that,” id. activity. 18 U.S.C. See sexual hand, judge task at Returning 2252(a)(4)(B). level for § The base offense duty impose a sentence recognized his is 18. See U.S.S.G. of this law a violation necessary” greater than “sufficient but 2G2.2(a)(l). report presentence The § 3553(a) § factors. 18 comply with to Gross- several increases recommended 3553(a). appreciated § The U.S.C. images two level: levels man’s offense “thoroughly disgust- was that the offense minors, see id. involving prepubescent aspects and that certain ing antisocial” distributing 2G2.2(b)(2); five levels for § (more psychological evaluation of Grossman’s value things images in return 29; troubling.” JA 2G2.2(b)(3)(B); “indeed four were § see id. images), 3553(a)(1). (6th U.S.C. Cir.2007). under- We thus have stood that the sentence must “reflect the required only courts provide enough ... seriousness of this offense and [afford] detail to allow an appellate court to con- adequate deterrence to criminal conduct duct “meaningful appellate review” and to ... protect the public from further conclude that the district court adequately crimes that might be committed considered the statutory relevant factors. 29; defendant.” see 18 U.S.C. Id. at 556. 3553(a)(2)(A)-(C). He noted that Gross- Consistent with require these man was an “educated man” who knew his ments, the sentencing judge correctly against actions innocent children were “le- calculated the guidelines range. He rec gally morally wrong” and commended ognized that “duty is to impose a Grossman for appreciating that the true sentence sufficient but greater not than victims of his crime were the innocent necessary to comply the purposes 29; children. JA see 18 U.S.C. that Congress has set forth (7). for sentenc 3553(a)(1), § The also consid- 3553(a).” ing in 29; JA see Kimbrough ered Grossman’s need for “correctional — States, v. United —, treatment and U.S. 128 potentially educational 558, 570, 29; medical S.Ct. (2007). treatment.” 169 JA L.Ed.2d 481 18 U.S.C. 3553(a)(2)(D). § 3553(a) § He then After applying factors, sentenced he Grossman to a prison 66-month term fol- an “ma[d]e individualized assessment years lowed 10 supervised of release. based on the facts presented” as to what sentence Gall, Grossman should receive. II. 128 S.Ct. at 597. Weighing these indi In reviewing sentences after Book considerations, vidualized er, we “first ensure district court judge concluded pro significant procedural committed no er duced “a sentence that’s not reflective of — States, ror.” Gall v. U.S. —, United did,” [Grossman] and thus 586, 597, (2007). 128 S.Ct. 169 L.Ed.2d 445 exercised his discretion to reduce Gross- thenWe consider “the substantive reason man’s sentence from 120 months to 66 ableness of the imposed.” sentence Id. months. question The in the is end whether the government The concedes that “the dis- district court abused its discretion in sen clearly trict court § did consider the 3553

tencing the defendant. Id. factors.” Br. at 14. And the plainly explained sentence,

A. the basis for his in- cluding his substantial variance below the courts, District aas matter of guidelines range. See JA 27-30. On this process, must properly calculate the record, procedural no error occurred. guidelines range, treat 3553(a) advisory, consider the factors B. adequately explain the chosen sen question more difficult is including explanation an any for tence— whether length of this sentence is rea variance from the range. sonable. guide Grossman’s recommended In applying Congress’s mandate that sen (after lines sentence tencing accounting courts must “consider” 3553(a) maximum) factors, statutory we was 120 months sight have not lost of years release, the fact that supervised the district court of judges are and the involved judgment, exercise of district court not a varied toit 66 months and 10 McGee, ritual. United States v. 494 F.3d supervised release. This consid- the sen- ance,” id., and due deference Supreme implicates variance erable assessment judge’s on-the-scene tencing v. United Gall decision recent Court’s considerations, appellate at 597- permits competing Gall While States. reasonableness courts, reviewing say, just abuse-of- “[i]n 98—which the Guidelines outside a sentence the reasonableness review to discretion degree of “take the to continue range,” review but abuse-of-discretion sentence ex- consider account and variance into court’s determination the district Guidelines,” it of a tent deviation between legitimate correlation is a there important qualifications. offers two and the reasons the variance the size of appel- ... an “reject[s] It at 594-95. S.Ct. (“We now hold it, at 591 see id. given for ‘extraordinary’ cir- requires rule late difference while the extent outside cumstances rec- and the particular between And it “re- range.” the Guidelines surely rele- range is ommended mathematical rigid ject[s] use of all vant, must review appeals courts of a de- percentage uses the formula that outside, inside, just or sentences —whether determining as the standard parture the Guidelines significantly outside justifications required the strength a abuse-of-dis- range deferential —under Id. sentence.” specific for a (“[I]t standard.”); at 602 is cretion bars a that Gall same time At the novo to decide de Appeals for the Court reviewing formula” “rigid mathematical is for a variance justification the whether sentences, permits it outside-guidelines reasonable.”). or the sentence sufficient require courts appellate district and and by requirements Measured Gall’s of a the extent between correlation some district deference to by all Gall’s above In it. Id. justification for variance and sentencing, at judges court judge, duty of describing the in error reversible court did not commit decides that says: “If he the Court from sentence reducing Grossman’s warranted, sentence outside-Guidelines Although the court to 66 months. months of the devia the extent he must consider “thoroughly dis- crime found Grossman’s justification is that tion and ensure way, shape every in and gusting antisocial de support the compelling sufficiently that the fashion,” it believed and it find uncontr variance. gree of the We was recommended be major departure should oversial that did,” [Grossman] reflective “not justifica by significant a more supported Initial that evidence JA 27. In at 597. Id. than a minor one.” tion offense comes overstated Grossman’s court, appellate duty of an describing the thought so. itself Congress fact ex says: may “It consider the Court guidelines recom- in mind Keep deviation, give due must but tent of the months, while range 135-168 mended court’s decision to the district deference on placed a maximum Congress whole, 3553(a) factors, on a § of 120 this crime months. variance.” extent of the years why and a half explaining five importantly, Gall Perhaps most super- together with prison, in sentencing process involves shows that “sufficient, release, but not be would vised not a mathemati judgment, in an exercise respect necessary,” to than greater result, courts appellate proof. cal As 3553(a) factors, gave court several to the district due deference “give must is an that Grossman It observed 3553(a) factors, reasons. court’s decision he is a suggested man” “educated the vari- whole, justify the extent on a promising candidate for rehabilitation. JA treatment and an period extensive of su- It 29. noted that Grossman appreciated pervised release, itself contains sub- magnitude of his crime and that Gross- stantial limitations on an individual’s free- man “correctly [understood Gall, the vic- that] dom. See 128 S.Ct. at 595-96. Nor in tims this matter really were the children was this sentencing hearing inconsistent matter, who no made choices but with Gal! s mandate when a district put who were into” a terrible situation. court judge “decides that an outside- Id. It weighed the need to reflect the Guidelines warranted, sentence is he must “seriousness ... of this put offense consider the extent of the deviation and adequate deterrence to criminal conduct ensure that justification is sufficiently and to protect the public from further compelling to support the degree of the crimes that might be by committed [Gross- variance.” Id. at 597. The district court man]” and found factors support those a never sight lost of the sentence recom- substantial reduction the sentence. mended the guidelines gave ample reasons for reducing the sentence as far as In response government’s to the princi- he did. pal arguments for a sentence— specific and general deterrence —the court government questions the rea recognized “troubling” aspects of Gross- sons offered the sentencing judge for man’s psychological evaluations but found lowering the namely, that he sentence— that “providing [Grossman] with needed seemed to think that some of the enhance correctional treatment educational and ments bordered on double counting and potentially medical treatment is in fact a that he categorically disagreed with some component that this Court believes is es- of the enhancements. To the extent the sential purposes for providing of what this court guidelines viewed the as duplicative, Court believes to an be adequate sentence that itself would not a downward under the facts and circumstances.” variance. But the defendant did argue not end, To this the court recommended that the amount imper enhancements while Grossman prison term, served his he missible double counting, and record the should “receive psychological counseling contains no evidence they that do. That is reside a facility [should] in as near as presumably why the court said the that possible family to his ... in Michigan west enhancements repeat “almost anoth one they so that might visit with him and he case, er” in this JA (emphasis added), 27 might retain those family marital and ties speaks which not problem to a of double as closely possible.” JA 30. Consistent counting to a perception but the with the court’s concerns about Gross- guidelines higher sentence is than this con man’s “troubling” psychological profile duct deserves —a apt concern Booker the need for serious it sen- counseling, ly allows a court to consider in applying tenced Grossman to a serve ten-year term advisory guidelines. supervised of release, which includes a re- Also unavailing government’s is the con- quirement that Grossman have continued cern premised his sentence

psychological counseling. JA 29. on an objection across-the-board to certain Accordingly, while the court accounted guidelines enhancements. The extent 3553(a)’s concerns that sentence the a may district court offer whole- protect society and deter future criminal sale disagreement guideline awith as the conduct, opted it pursue goals, those not basis for a variance remains after unclear through longer of imprisonment, term Kimbrough. See 128 at S.Ct. 574-75. We through but counseling extensive and need not however, decide question, the guidelines He started guidelines. suggest- at times because, while was calculation and noted that range guidelines to certain objected ed that he applied He then 27. “correctly done.” JA in he system general, guidelinés and to the indi range to calculated that properly aon number his decision ultimately rested crime, of Grossman’s See, circumstances vidual e.g., considerations. individualized found, sentence “a which, produced he cir- nature and (accounting for the what [Grossman] not reflective crime); (accounting that’s id. cumstances explain begin he Only then did did.” history and char- personal for Grossman’s sen reducing Grossman’s reasons for deterrence (accounting acteristics); included among things other needs). tence—which view protective and societal im “knoek[ing] off’ enhancements that Gall standard the abuse-of-discretion sen Grossman’s exaggerated properly reviewing in apply must we emphasizes any doubt Eliminating JA 28. tence. and rational- sentence, individualized those he was judge thought trial about uphold suffice ly based considerations statement the formal judge, doing, sentence. this com judges must that all trial reasons C. individual, each plete indicating “[t]he “that agrees box colleague dissenting checked Our advi outside given imposed . have court could court the district JA 36. system.” properly sentencing guideline of a sory means same sentence post-Booker Supreme the correct Court’s variance Because articulated give dis hot courts to require appellate that he did says eases range” but when colleague of the doubt As our the benefit at 599. trict courts do so. Dissent length of the a within- imposed to the substantive it, court it comes sees Gall, 128 S.Ct. sentence, they impose, vari- see a downward they improper 597, procedures as to ance, on at as well did so based sentences, Rita range imposing those use in calculation —im- — U.S. —, States, 127 S.Ct. agree that parties v. United proper because (2007), it 2465, months and 168 L.Ed.2d range was 135-168 judge trial take the to statutory appropriate maximum was seems the court months, the seemed at word. yet and by a 66-month impose to reducing the risk does this sentence Nor upward en- off a bunch” “knock[ing] By basing “nullity.” to a guidelines at a 63-78 month arriving hancements court’s part on a variance downward 28). (quoting JA range. cer- application the disagreement with fears, will “re- the dissent approach, This individual, a to this enhancements tain nulli- to a the the Guidelines duce role In- guidelines. the does not forsake court calculation making the ty[ by [Guidelines] ] respect for deed, show his judge would irrelevant.” respect too much guidelines perhaps the — in sen- linking col- reductions for our sympathy have some We them — transcript judge perceives the solely to what The point. tences league’s the trial enhancements clarity, unduly high guidelines to be is not model linking those escalating case, as opposed with in this judge’s frustrations of the may of all application adjustments calculation features 3553(a) of him. But factors. the best gotten have judge ultimately confirms record III. vari- a downward on based this reasons, affirm. we these For calculation ance, improper on BOGGS, Judge, dissenting. Chief statements of a Guidelines calculation. Possessing material involving minors un- agree I completely Judge Sutton’s der age of twelve is transparently not analysis of cases, the Gall and Kimbrough same, or even same, close to the as general and their application to cases such trading child pornography, use of However, as this one. I read the record a computer is not the same as possessing differently does, than the court and there- more than six images. hundred If I could fore reluctantly dissent. read the district court’s just statements as The agrees court the sentencing a hyperbolic shorthand for believing that properly “must calculate guide- Mr. Grossman’s Guidelines range was sim- range” 595) lines (Op. at and then states ply high, too I would However, do so. that “the sentencing correctly calcu- transcript and the judge’s calculations, lated the (ibid.), range” but to leading ultimately to his explicit statement me, the record shows to contrary. At that “I find that the total offense level is 27, begins the court by saying that “the (JA more correctly 28), 26” simply do not nature of way the calculations are done allow me to hold that the clear mandate of designed [is] to exacerbate the high num- Gall has been followed. ” bers that up we come with here.... itWhile could argued be my point court then on goes say, at JA “I’m simply here is a distinction without a dif- going to knock off a bunch of ... these I’m case, ference I think it important going to strike the calculation in 37.... emphasize that a correct Guidelines cal- I’m going to strike the ones in 41 as well.” culation continues to be First, essential. (referring to the two-level enhancement the Supreme explicitly Court has stated involving material children under Gall, this is so. the court stated: twelve and the five-level enhancement for “A district court begin should all sentenc- possessing more than six images.) hundred ing proceedings by correctly calculating The judge then follows logical import applicable range.” Gall, Guidelines of “striking these enhancements” cor- 128 S.Ct. at 596. It also emphasized that rectly computing as he then says, “the appellate court ... must first insure “the total offense level is more correctly that the district court signif- committed no 26, and obviously we have criminal histo- icant procedural error, such failing ry level of I in this matter.” JA 28. (or calculate improperly calculating) the The Guidelines table shows that range....” Id. at 597. We do range for an offense level of 26 and a not enforce these important statements if criminal history of I months, is 63-78 we allow a clearly improper calculation to the court proceeds give then a sentence be rescued a proper statement of rea- months, (incor- exactly within this sons that could a variance. When rect) range. Thus, agree while fully I we allow we reduce the role of the the court that the district court could have nullity, Guidelines to a by making the cal- given this same sentence means of a because, culation irrelevant right whether properly articulated variance from the cor- or wrong, those calculations are subsumed rect range, I cannot read judge’s ultimate reasoning. record to say that is the judge did I therefore respectfully dissent. this case. The court does really defend, be- cannot,

cause it the district court’s state- ments, if, I argue, they clearly are

Case Details

Case Name: United States v. Grossman

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 18, 2008

Citation: 513 F.3d 592

Docket Number: 06-2310

Court Abbreviation: 6th Cir.