United States v. Jody Smith
795 F.3d 868
8th Cir.
2015
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FALCO v. FARMERS INSURANCE EXCHANGE, et al.

No. 14-2321

United States Court of Appeals, Eighth Circuit

August 3, 2015

795 F.3d 864

court did not rule upon.” (quotation omitted)).

Similarly, Falco argues that because the Credit Union breached its fiduciary duty owed to him, enforcement of the provisions in the Loan Agreement that permitted the breach (i.e., tendering Falco’s resignation for its own benefit) would violate public рolicy and be unenforceable. Because these provisions are unenforceable, the argument goes, none of the defendants—including Farmers, Crossetti, and the Credit Union—were entitled to summary judgment on any of the claims (Counts I–V) against them. Yet this argument is premised solely on the assertion that the Credit Union breached its fiduciary duty to Falco, an argument not properly before us.4

The district court articulated specific reasons for granting summary judgment to Farmers, Crossetti, and the Credit Union on each of the five counts pled. On appeal, Falco does not address these reasons or assert why the district court’s analysis led to an improper result. Instead, Falco relies solely on an allegation that was neither plеd nor argued below, and he offers no additional independent argument that the district court erred in dismissing all claims in the First Amended Complaint. “Questions not raised, briefed or argued will ordinarily be given no consideration by an appellate court.” (quotation omitted).

III. Conclusion

The decision of the district court is affirmed.

UNITED STATES of Amеrica, Plaintiff-Appellee v. Jody Eugene SMITH, Defendant-Appellant.

No. 14-2912.

United States Court of Appeals, Eighth Circuit.

Submitted: May 11, 2015. Filed: Aug. 3, 2015.

795 F.3d 868

Jeffrey A. Goldfarb, Goldfarb Law Group, LLC, Clayton, MO, for appellant.

Robert F. Livergood, Asst. U.S. Atty., St. Louis, MO (Richard G. Callahan, U.S. Atty., on the brief), for appellee.

Before WOLLMAN, SMITH, and BENTON, Circuit Judges.

PER CURIAM.

Jody Eugene Smith appeals the 720-mоnth sentence that the district court1 imposed for child pornography offenses. Smith argues that the district court procedurally erred and that the sentence is substantively unreasonable. We affirm.

I. Background

On August 25, 2013, Smith created an online photo-sharing acсount under the username “Friendofset.” His user profile stated that he was “[a]lways looking for trades. You first of [course]. Also have he. Pics and vids. You first.”

Several law enforcement agencies independently observed Smith’s illicit online activities. On August 29, 2013, Smith traded naked pictures via the internet of his ten-year-old stepdaughter, M.S., with an undercover officer in Australia. On September 12, 2013, Smith offered to trade pornographic pictures of his step-daughter via the internet for purported pornographic pictures of an undercover Homeland Security agent’s daughter. Also on September 12, Smith communicated with an undercover officer from the Florida ‍​‌​​‌‌‌‌​​‌‌​‌‌​​​​‌​​​‌​‌​​‌‌‌‌‌‌​‌​​‌‌​​‌​​‌​​‍Department of Law Enforcement, who represented that he had a 13-year-old daughtеr. Smith told the undercover Florida officer that he wanted to come to Florida during a planned vacation in November 2013 to engage in sexual relations with the officer’s 13-year-old daughter and record the encounter on video. On Septеmber 17, 2013, Smith sent a sexually explicit picture of M.S. to the undercover Florida officer; later that same day, Smith sent another picture of M.S.’s genitals to the undercover Florida officer.

On September 19, 2013, law enforcement executed a valid search warrant for Smith’s residence. During the subsequent search, Smith agreed to exit his residence and wait in a law enforcement vehicle. When informed of the reason for the search, Smith stated that the officers must be there because of “friеndofset.” He admitted that he had an ongoing history of viewing child pornography that started when he was a child and that the police were likely to find several hundred photos of child pornography on his computer. Officers indeed found over 800 рhotos and 144 video files on Smith’s laptop depicting child pornography. Smith also stated that he used the internet to receive and trade child pornography files. Smith further admitted that he had had several sexual encounters with his minor stepdaughter, R.S., since she was five years old, as well as touched the genitals of M.S. Finally, Smith admitted that he had used pen cameras to take pictures and videos of both of his stepdaughters in the shower. Officers found the pen cameras, which had 11 video files and over 600 photos of R.S., M.S., and one of their friends as they were naked in the bathroom.

The government indicted Smith on four counts: Count I charged Smith with production of child pornography, in violation of 18 U.S.C. § 2251(a) and (e); Count II charged Smith with attempted production of child pornography, in violation of 18 U.S.C. § 2251(a) and (e); Count III charged Smith with receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1); and Count IV charged Smith with the transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1). Smith eventually pleaded guilty to all four counts of the indictment pursuant to a plea agreement.

At the sentencing hearing, the district court indicated that it had read and reviewed the presentence investigation report (PSR) in preparation of the hearing. It next calculatеd the Guidelines offense level at 43 and Smith’s criminal history category at II. The court calculated Smith’s Guideline sentence to be life imprisonment. Smith later reminded the court that the parties’ plea agreement stipulated “a [downward] variance of the total offense level by four levels to adequately reflect the seriousness of the offense.” The court acknowledged the stipulation, stating that Smith was “correct in that. And with that, the range would be I think 292 to 365 months.” Next, the parties offered brief oral argument regarding the appropriate sentence for Smith within that Guidelines range. Among other things, Smith argued that the court should consid-er abuses that he suffered as a child and sentence him at the low end of the Guidelines range.

After argument, the court offered its reasoning before for imposing its sentence. It stated that “there are some things, Mr. Smith, that are just so vile and horrendous that the dismay, the disdain, the distastefulness of them is so bad that it’s the same as witnessing it yourself firsthand. This is one of those circumstаnces.” Addressing Smith’s difficult childhood, the court stated that “[i]t’s very difficult, very, very difficult, Mr. Smith, to find anything that excuses such conduct like this.” The court next imposed a sentence on Smith “pursuant to the Sentencing Reform Act of 1984 as well as the provisions of 18 U.S.C. [s]ection 3553(a)” of 360 months for Count I and 360 months for Count II to be served consecutively; the court also imposed sentences of 240 months for both Counts III and IV to ‍​‌​​‌‌‌‌​​‌‌​‌‌​​​​‌​​​‌​‌​​‌‌‌‌‌‌​‌​​‌‌​​‌​​‌​​‍be served concurrently. Thus, the court imposed a total sentence of 720 months’ imprisonment. Smith did not object to this sentence bеfore the district court.

II. Discussion

On appeal, Smith argues that the district court committed procedural error and that the sentence is substantively unreasonable.2 Smith first argues that the district court procedurally erred by “failing to consider the factors of 18 U.S.C. § 3553(a) in reaching an appropriate sentence.” See, e.g., (en banc) (“Procedural error includes . . . failing to consider the § 3553(a) factors. . . .” (quotations and citations omitted)). Smith also argues that the district court did not reference the issues presented in the PSR (likely referring to Smith’s childhood) and failed to provide its reasoning for the sentence.3 “If a defendant fails to timely object to a procedural sentencing error, the error is forfeited and may only be reviewed for plain error. Under plain-error review, the defendant must show: (1) an error; (2) that is plаin; and (3) that affects substantial rights.” (citations omitted).

“A court adequately addresses the factors if it references at least some of the considerations in § 3553(a).” (citations omitted). Here, the court read the PSR, which is one indication of considering § 3553(a) factors. See

(the district court’s reviеw of the PSR was a factor in finding that the court considered § 3553(a) factors). Also, the court’s description of Smith’s actions as being “so vile and horrendous that the dismay, the disdain, the distastefulness of them is so bad that it’s the same as witnessing it yourself firsthand” evinces considеration by the court of the seriousness of Smith’s offense. See 18 U.S.C. § 3553(a)(2). The court’s follow-up statement that “[i]t’s very difficult, very, very difficult, Mr. Smith, to find anything that excuses such ‍​‌​​‌‌‌‌​​‌‌​‌‌​​​​‌​​​‌​‌​​‌‌‌‌‌‌​‌​​‌‌​​‌​​‌​​‍conduct like this” is an indication that the court considered but gave little weight to Smith’s history and charactеristics. See id. § 3553(a)(1). Finally, the court explicitly stated that its sentence was based on “the provisions of 18 U.S.C. [s]ection 3553(a).” Therefore, we find no error, plain or otherwise, because the district court adequately addressed the § 3553(a) factors, addressed the issues prеsented in the PSR, and adequately explained its reasoning for the sentence.

Second, Smith argues that the total punishment of 720 months’ imprisonment is substantively unreasonable because it is greater than necessary to meet the federal sentenсing goals under 18 U.S.C. § 3553(a). We review the substantive reasonableness of a sentence under an abuse-of-discretion standard regardless of the defendant’s failure to raise this objection before the district court. . Smith argues that given the Guidelines range of “292 to 365 months, a sentence of 720 months without any explanation must be deemed unreasonable.” We disagree. “If the defendant’s sentence is within the Guidelines range, then we may . . . apply a presumption of reasonableness.” (quotation and citatiоn omitted). Here, the sentences imposed for Counts I and II of 360 months were both within the Guidelines range of 292 to 365 months. Also, the imposition of consecutive, as opposed to concurrent, sentences for these two counts does not amount to an abuse of discretion given the nature of the offenses. In . This sentence was the result of “within-Guidelines consecutive sentences of 360 months on counts I through VIII and count X, and 240 months on count IX, to be served concurrently with 120-month sentences on counts XI and XII.” . We found that “[t]he district court was entitled, based on the seriousness of Beasley’s crimes, ‍​‌​​‌‌‌‌​​‌‌​‌‌​​​​‌​​​‌​‌​​‌‌‌‌‌‌​‌​​‌‌​​‌​​‌​​‍to impose a within-Guidelines sentence ensuring Beasley remains incarcerated for life.” (citing (affirming а convicted child pornographer’s 750-year sentence, reasoning “[t]he absurdity of a 750 year sentence, or even, a 10,000 year sentence, should not detract from the gravity of [the defendant’s] crimes”)). Given the similarity to and , we find no abuse of discrеtion in the court’s imposition of a 720-month sentence.

III. Conclusion

For the reasons stated herein, we affirm Smith’s sentence.

Notes

1
The Honorable Henry E. Autrey, United States District Judge for the Eastern District of Missouri.
2
As a preliminary matter, the parties both address whether this appeal should be dismissed based on the enforceability of an appeal waiver in the parties’ plea bargain agreement. “[T]he burden of proof is on the Government to demonstrate that a plea agreement clearly and unambiguously waives a defendant’s right to appeal.” (en banc) (citation omitted). “To meet this burden, the government must establish: (1) that the appeal is within the scope of the waiver, (2) that the defendant entered into the waiver knowingly and voluntarily, and (3) that dismissing the aрpeal based on the defendant’s waiver would not result in a miscarriage of justice.” (quotation and citation omitted). The government has conceded that they cannot meet their first burden because the appeal is not within the scope of the appeal waiver. While the parties argue over other elements of the government’s burden, the government’s concession makes this a nonissue.
3
While Smith originally submitted these arguments to show that the sentence is substantively unreasonable, these arguments are better categorized as asserting procedural error. See (applying a plain-error review standard for the defendant’s procedural error arguments that “the district court failed to adequately consider the 18 U.S.C. § 3553(a) factors and failed to sufficiently explain its sentencing ‍​‌​​‌‌‌‌​​‌‌​‌‌​​​​‌​​​‌​‌​​‌‌‌‌‌‌​‌​​‌‌​​‌​​‌​​‍decision.” (citation omitted)); see also .
4
To the extent Falco’s argument that enforcement of the Loan Agreement is against public policy might be construed as separate and distinct from his breach-of-fiduciary-duty argument, we note there is nothing in Falco’s First Amended Complaint alleging any provision of the Loan Agreement violated public policy. As the district court noted, Falco’s first attempt to argue that the contractual rights he gave the Credit Union under the Loan Agreement were void as against public policy was in his response to the Credit Union’s motion for summary judgment. “[W]hile we recognize that the pleading requirements under the Federal Rules are relatively permissive, they do not entitle parties to manufаcture claims, which were not pled, late into the litigation for the purpose of avoiding summary judgment.” .
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