UNITED STATES of America, Plaintiff-Appellee, v. John Stuart DOWELL, Defendant-Appellant.
No. 13-4576.
United States Court of Appeals, Fourth Circuit.
Argued: Sept. 19, 2014. Decided: Nov. 13, 2014.
771 F.3d 162
Before DIAZ and THACKER, Circuit Judges, and PAUL W. GRIMM, United States District Judge for the District of Maryland, sitting by designation.
Affirmed by published opinion. Judge GRIMM wrote the opinion, in which Judge DIAZ and Judge THACKER joined.
GRIMM, District Judge:
John Stuart Dowell, having pleaded guilty to twelve counts of production of child pornography and one count of transportation of child pornography, appeals his 960-month sentence. On appeal, Dowell argues that his sentence violates the Eighth Amendment‘s prohibition of cruel and unusual punishment and is both procedurally and substantively unreasonable under
We hold that the district court erred in its Guidelines calculation when it incorrectly applied an upward adjustment for a “vulnerable victim” pursuant to
I.
A.
The relevant facts are undisputed. In late 2010 and early 2011, John Stuart Dowell was staying at a residence in Freder-
A forensic examination of Dowell‘s computers uncovered over 70,000 pornographic images and videos, of which approximately seventy-five percent depicted child pornography or child erotica, and an additional ten percent comprised sexually explicit drawings of minors. The examination also revealed several videos of Minor A and Minor B, including depictions of Dowell touching, licking, and kissing the genital area of Minor A and exposing the genitals of Minor B. On December 14, 2011, a federal grand jury initially returned an indictment charging Dowell with one count of production of child pornography in violation of
B.
During a lengthy sentencing hearing lasting over seven and one-half hours and comprising over 250 pages of transcript, the district court heard testimony regarding the quantity and nature of pornographic material on Dowell‘s computer and viewed the videos that he had produced of Minor A and Minor B. The court also heard expert testimony from a psychologist, who expressed the opinion that Dowell is a pedophile, “sexually attracted to females, nonexclusive type“—meaning that he is attracted to adults as well as to children. J.A. 210.1 The psychologist also opined that, although the relevant evaluative measures suggested that Dowell was a relatively low risk to reoffend, those measures often are incomplete and pedophilia nevertheless is a chronic condition that is unlikely to go away as Dowell ages.
The court also heard argument on certain enhancements recommended in Dowell‘s Pre-Sentence Report (the “PSR“). As relates to this appeal, Dowell argued against the PSR‘s recommendation to apply both a five-level enhancement with respect to count thirteen for transportation of child pornography because Dowell “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor” pursuant to
Following the testimony, arguments from counsel, and Dowell‘s allocution, the court calculated Dowell‘s Guidelines range as follows:
With respect to counts one through twelve, the court adopted the recommendations of the PSR, applying a vulnerable victim enhancement to counts one through ten relating to Minor A, as well as several other sentencing enhancements that are not challenged on appeal. This yielded a total offense level of 40 with respect to seven counts (counts one to three, five to seven, and ten); a total offense level of 42 with respect to three counts (counts four, eight, and nine); and a total offense level of 38 with respect to two counts (counts eleven and twelve). For count thirteen, the court rejected the PSR‘s recommendation for an enhancement for distribution of child pornography under § 2G2.2 (b)(3)(F), but otherwise adopted the PSR‘s findings, including a vulnerable victim adjustment because of Minor A‘s extremely young age and an enhancement for a pattern of activity involving the sexual abuse of a minor pursuant to § 2G2.2(b)(5), yielding a final offense level of 42 for that count.
Pursuant to the Sentencing Guidelines’ provisions for multiple counts,
Both the Government and the PSR recommended a total sentence of 4,560 months, calculated by adding the statutory maximum for each count consecutively pursuant to
After considering the Sentencing Guidelines and the factors set forth in
II.
Dowell challenges his sentence as a violation of the Eighth Amendment‘s prohibition of cruel and unusual punishment on the grounds it is disproportionate to the severity of his crimes. We review de novo constitutional claims, including whether a sentence is proportional under the Eighth Amendment. United States v. Myers, 280 F.3d 407, 416 (4th Cir.2002).
The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
[A] court‘s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.
Solem v. Helm, 463 U.S. 277, 292 (1983). A defendant may raise two types of Eighth Amendment challenges to his sentence: He may raise an “as-applied” challenge on the grounds that “the length of a certain term-of-years sentence [is] disproportionate ‘given all the circumstances in a particular case,‘” or he may raise a “categorical” challenge asserting “that an entire class of sentences is disproportionate based on ‘the nature of the offense’ or ‘the characteristics of the offender.‘” United States v. Cobler, 748 F.3d 570, 575 (4th Cir.2014) (quoting Graham, 560 U.S. at 59-60). Dowell raises only an as-applied challenge to his sentence.
In the context of an as-applied challenge, the [Supreme] Court has explained that the “narrow proportionality principle” of the Eighth Amendment “does not require strict proportionality between crime and sentence,” but “forbids only extreme sentences that are
This “‘extensive proportionality analysis’ is required ‘only in those cases involving life sentences without parole,’ or, alternatively, in cases involving ‘terms of years without parole’ that are functionally equivalent to life sentences ‘because of [the defendants‘] ages.‘” Id. at 578 (quoting United States v. Rhodes, 779 F.2d 1019, 1028 (4th Cir.1985) (emendations in original)); cf. Rhodes, 779 F.2d at 1028-29 (requiring only “simple matching” of facts against Solem principles where the sentence is for a term of years). As the First Circuit has observed, “instances of gross disproportionality will be hen‘s-teeth rare,” United States v. Polk, 546 F.3d 74, 76 (1st Cir.2008), and the Supreme Court has held a sentence of life without parole to run afoul of the Eighth Amendment only once, in Solem, where the defendant had pleaded guilty to uttering a “no account” check for $100. 463 U.S. at 281-84, 295 (noting that Helm was convicted of “‘one of the most passive felonies a person could commit‘“); see also Cobler, 748 F.3d at 575-76.
Importantly, we recently addressed and rejected a nearly identical challenge to a lengthy sentence in United States v. Cobler. Cobler, who was twenty-eight years old, pleaded guilty to three counts of production of child pornography, one count of transportation of child pornography, and one count of possession of child pornography. Id. at 574. The district court imposed a Guidelines sentence of 1,440 months, or 120 years. Id. On appeal, this Court began by considering “whether a threshold comparison of the gravity of Cobler‘s offenses and the severity of his sentence leads us to infer that his sentence is grossly disproportionate to his crimes.” Id. at 579-80. We rejected Cobler‘s as-applied proportionality challenge, saying:
Given the shocking and vile conduct underlying these criminal convictions, we hold that Cobler has failed to substantiate the required threshold inference of gross disproportionality. Even assuming, without deciding, that Cobler‘s 120-year term of imprisonment is functionally equivalent to a sentence of life imprisonment without the possibility of parole, we conclude that Cobler‘s multiple child pornography crimes are at least as grave as [possession of 672 grams of cocaine] in Harmelin v. Michigan, which the Supreme Court deemed sufficiently egregious to justify a similar sentence. See 501 U.S. [957] at 996.
Cobler, 748 F.3d at 580 (footnote omitted).
As Dowell‘s counsel acknowledged at argument, this case is indistinguishable from Cobler. In Cobler, we noted that “Cobler possess[ed] large quantities of child pornography“; “created depictions of his own sexual exploitation, molestation, and abuse of a four-year-old child“; and “was aware that his sexual contact with
Moreover, even were we not bound by our recent case law, Dowell has not shown that his sentence is so grossly disproportionate as to run afoul of the Eighth Amendment. As in Cobler, we may assume, without deciding, that Dowell‘s eighty-year sentence—lasting until he is 127 years of age—is the functional equivalent of a life sentence without the possibility of parole.2 However, Dowell has not shown that he can survive even a “threshold comparison” between the severity of his crime and his punishment. See Graham, 560 U.S. at 60.
Dowell argues that his punishment is disproportionate because his crimes were nonviolent. According to Dowell, “the child was never placed in any danger“; was “not physically injured in any way, shape, or form“; and was not penetrated, and therefore Dowell has been given an unduly severe sentence for a nonviolent crime. Appellant‘s Br. 10. We reject out of hand the notion that the sexual abuse of a child can be considered nonviolent mere-ly because it does not lead to physical or life-threatening injuries. Simply put, Dowell‘s acts of abuse inflicted injuries that may run deeper and last longer than any physical injuries, and the notion that, in abusing his victims, he did not expose them to danger lacks any rational basis. This particularly is so where, as here, the videos Dowell made of his young victims were posted on the Internet, exposing them to future embarrassment, humiliation, and psychological injury. “It has been found that sexually exploited children are unable to develop healthy affectionate relationships in later life, have sexual dysfunctions, and have a tendency to become sexual abusers as adults.” New York v. Ferber, 458 U.S. 747, 758 n. 9 (1982) (citations omitted). The mere fact that Dowell‘s acts of abuse did not inflict immediate physical injury does not render his sentence disproportionate. Because Dowell has not raised an inference of gross disproportionality—and because he likely could not do so in light of Cobler—we conclude that his 960-month sentence does not constitute cruel and unusual punishment under the Eighth Amendment.
III.
The reasonableness of a sentence under
first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines range as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range. Assuming that the district court‘s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.
Gall, 552 U.S. at 51. In reviewing the application of the Sentencing Guidelines, “[i]f the issue turns primarily on a factual determination, an appellate court should apply the ‘clearly erroneous’ standard.” United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.1989). However, a question relating to the legal interpretation of the Guidelines is subject to de novo review. United States v. Schaal, 340 F.3d 196, 198 (4th Cir.2003).
A.
Dowell first argues that the district court impermissibly double-counted when it applied both
There is no question that the Guidelines provisions in question account for similar conduct. Section 2G2.2(b)(5) provides for a five-level increase above the base offense level for, inter alia, transportation of child pornography where “the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” Section 4B1.5(b) states:
In any case in which the defendant‘s instant offense of conviction is a covered sex crime, ... and the defendant engaged in a pattern of activity involving prohibited sexual conduct:
(1) The offense level shall be 5 plus the offense level determined under Chapters Two and Three.
In United States v. Schellenberger, an unpublished panel opinion, we held that applying both of these provisions to the same conduct was permitted because it was not expressly prohibited by the Guidelines. 246 Fed.Appx. 830, 832 (4th Cir. 2007). Further, we observed that “§ 4B1.5(b)(1) states that the five-level enhancement is to be added to the offense levels determined under Chapters Two and Three. Thus, the guidelines intend the cumulative application of these enhancements.” Id.
Dowell has cited no case law to the contrary, nor has he provided any support for his position other than to argue that both provisions cover the same conduct in this case. But this is not a sufficient basis to find impermissible double-counting. See Hampton, 628 F.3d at 664. And in any event, though covering
B.
Dowell next contends that the application of a “vulnerable victim” enhancement under
Section 2G2.1(b)(1) of the Guidelines provides for a four-level enhancement with respect to, inter alia, the production of child pornography “[i]f the offense involved a minor who had (A) not attained the age of twelve years,” and a lesser enhancement if the victim had “attained the age of twelve years but not attained the age of sixteen years.”
Chapter Three of the Guidelines provides for an additional, two-level upward adjustment with respect to any conviction, not just those involving child pornography, “[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim.”
Do not apply subsection (b) if the factor that makes the person a vulnerable victim is incorporated in the offense guideline. For example, if the offense guideline provides an enhancement for the age of the victim, this subsection would not be applied unless the victim was unusually vulnerable for reasons unrelated to age.
Id.
At sentencing, the district court relied on recent case law from two of our sister circuits, United States v. Wright, 373 F.3d 935 (9th Cir.2004), and United States v. Jenkins, 712 F.3d 209 (5th Cir.2013), and adopted the PSR‘s recommendation to apply the vulnerable victim adjustment to
In Wright, the defendants were convicted of producing child pornography involving their eleven-month-old son, as well as other victims. The district court applied the vulnerable victim adjustment based on “the extremely young age of some of the children involved, the extremely small physical size, the extreme vulnerability of these children, and the fact that they were made available to [another individual] as well.” 373 F.3d at 942 (internal quotation marks omitted). On appeal, the Ninth Circuit held that the vulnerable victim adjustment was appropriate “because the victims’ vulnerability [was] not fully ‘incorporated’ in the victim-under-12 adjustment.” Id. at 943. Specifically, Wright found that whereas “[m]ost children under 12 are well beyond the infancy and toddler stages of childhood,” the under-twelve enhancement does not account for
these especially vulnerable stages of childhood ..., so there is no double-counting of age in considering infancy or the toddler stage as an additional vulnerability. Though the characteristics of being an infant or toddler tend to correlate with age, they can exist independently of age, and are not the same thing as merely not having “attained the age of twelve years.”
Id. According to the court, “[t]he extreme youth and small physical size factors ... account for traits and characteristics—such as an inability to communicate, an inability to walk, and ... increased pain upon sexual penetration—that roughly correlate with age, but are not necessarily related to age,” and “can exist independently of age.” Id. Thus, the Ninth Circuit approved of the application of the vulnerable victim enhancement on the basis of the district court‘s factual findings.
Subsequently, the Ninth Circuit extended the reasoning that applied to infants in Wright to reach toddlers as well, finding that the notion that it “should distinguish Wright on the ground that the victim in Wright was an infant, whereas [ ] a toddler victim could have walked away, [was] so weak as to be frivolous,” as a toddler also has a diminished ability to resist that an older child might possess. United States v. Holt, 510 F.3d 1007, 1011-12 (9th Cir. 2007).
More recently, the Fifth Circuit adopted the holding of Wright in Jenkins. Jenkins was charged with several counts arising out of his possession and distribution of child pornography primarily involving seven- to ten-year-olds but including a number of “infants/toddlers,” some of whom were depicted being penetrated, visibly hurt, or bound. Jenkins, 712 F.3d at 211. Jenkins’ pre-sentence report recommended application of a vulnerable victim adjustment based on the existence of images “depict[ing] sexual abuse and exploitation of young and small children who are unable to resist or object to the abuse or exploit [sic], making them susceptible to abuse and exploitation and thus, vulnerable victims.” Id. (internal quotation marks omitted). The district court agreed with that recommendation over Jenkins‘s objection and applied the adjustment.
The Fifth Circuit upheld the vulnerable victim adjustment, and explained its reasoning as follows:
Consider an enhancement for a victim under the age of twelve: A person who is unable to walk is no doubt especially vulnerable to many crimes. Most children under the age of twelve are able to walk. Some children under twelve, in-
fants, are unable to walk due to extreme young age. Other children may be unable to walk due to paralysis. We see no reason why a “vulnerable victim” enhancement based on inability to walk should be applied to paralyzed children but not to infants. Although an infant‘s inability to walk is “related to age,” it is not accounted for by the “victim under twelve” enhancement.
The Fifth Circuit found no “logical reason why a ‘victim under the age of twelve’ enhancement should bar application of the ‘vulnerable victim’ enhancement when the victim is especially vulnerable, even as compared to most children under twelve.” Id. at 214. Because the extreme youth of the victims was not fully encompassed in the “under twelve” enhancement, the Fifth Circuit found that it therefore was not “incorporated in the offense guideline” as required by
Over the course of the lengthy sentencing hearing, the district court gave careful consideration to the facts of this case, and analyzed them thoroughly in light of Jenkins and Wright. On the applicability of the vulnerable victim adjustment, the court explained as follows:
Now, in this case I watched the video. And it is clear to me—from the video clip that we have seen in evidence in this case, it is clear to me of how vulnerable this child is and how—the [three-year-old] minor victim A, and how her cognitive abilities just do not allow her to appreciate what is going on with her, what is being done to her, and the progression of this vile abuse that was inflicted on her.
From my own viewing of the videos and looking at what happened over the progression, seeing that she plainly doesn‘t understand what is going on here, focusing on her cognitive development, I believe that this victim is particularly vulnerable.
First and foremost, the concern of this Court notes that the psychological effect of this abuse is clear based on the progression of abuse in this case due to the vulnerabilities of minor child A. At first the Court notes that the child is giggling and laughing and saying, “Stop it,” and attempting to put her pants back on, her underpants back on, as the defendant was beginning to groom her and begin his abuse. And due to her cognitive state, she just thought he was just playing with her. He was picking her up, upside down, laughing. She‘s laughing particularly when she‘s held upside down while he was doing other things.
And it is clear from viewing this progression, as depicted in the evidence, throughout the several months that this happened, the child went from telling the defendant “No” to requesting such conduct, demonstrating the particular vulnerability psychologically in this child.
In that regard, the Court notes what I pointed out earlier, the different levels of abuse inflicted on minor victim A and [five-year-old] minor victim B. Both these children are under 12 years old. And 2G2.2(b)(2) treats them the same, treats them the same. And that points up more than anything for me why 2G2.2(b)(2) doesn‘t cover the waterfront here.
There is a stark difference in the abuse inflicted on minor victim A and minor victim B. And that points up the very reason why the under-12 enhancement in 2G2.2(b)(2) paints with too broad a brush. Minor victim A is much less cognitively capable of understanding her abuse. She‘s much more psychologically susceptible to accepting and wel-
coming this conduct than an older child would be. She is, in fact, a more vulnerable victim. And I believe the two-point enhancement is not double counting. The Court is persuaded on the specific facts of this case that the Jenkins and Wright cases got it right, and I‘m going to apply it.
J.A. 172-73.
There is no question that, read alone,
With this in mind, we find that, although the district court made detailed and careful factual findings, its ultimate reasons for applying the vulnerable victim adjustment relied on age-related factors. Most importantly, the court noted that Minor A‘s “cognitive abilities just do not allow her to appreciate what is going on with her, what is being done to her,” J.A. 172, as compared with Minor B, who was better able to understand the abuse to which she was exposed because she was two years older. And it specifically found that Minor A was “much more psychologically susceptible to accepting and welcoming this conduct than an older child would be.” Id. at 173. This justification unavoidably rests on the extremely young age of Minor A, because the record is devoid of any facts that would suggest that Minor A‘s cognitive ability and psychological state was a product of anything other than her age. These reasons simply are not “unrelated to age,” but focus closely on the differences between a three-year-old and an older child under twelve. Accordingly, it was error to apply the vulnerable victim adjustment on the basis of these findings.
To the extent that Wright and Jenkins can be read to approve of applying the adjustment for conditions that, like Minor A‘s cognitive development or psychological susceptibility, necessarily are related to her age, we respectfully disagree with those cases. Because Minor A‘s characteristics were “related to [her] age,” we find that their consideration is foreclosed by the application note to § 3A1.1.
This is not to say that conditions that make a three-year-old more vulnerable than an eleven-year-old cannot support the application of the vulnerable victim adjustment allowed by § 3A1.1(b)(1), provided that they are unrelated to age. See, e.g., United States v. Grubbs, 585 F.3d 793, 805-06 (4th Cir.2009) (upholding adjustment based on defendant giving higher grades, gifts, and promises of a scholarship to certain children and gaining the trust of another victim‘s ill single mother); see also United States v. Willoughby, 742 F.3d 229, 241 (6th Cir.2014) (approving of adjustment for sixteen-year-old based on her status as “a homeless runaway with a his-
Our view is buttressed further by the fact that, although the Guidelines provisions relating to production of child pornography provide offense-specific enhancements for victims under the age of sixteen,
Although the vulnerable victim enhancement should not have been applied, “sentencing error is subject to harmlessness review. Sentencing ‘error is harmless if the resulting sentence [is] not longer than that to which [the defendant] would otherwise be subject.‘” United States v. McManus, 734 F.3d 315, 318 (4th Cir.2013) (quoting United States v. Mehta, 594 F.3d 277, 283 (4th Cir.2010) (alterations in original)). A review of the record shows that the application of the vulnerable victim adjustment did not affect the ultimate Guidelines range or Dowell‘s sentence.
C.
Finally, Dowell argues that his sentence is substantively unreasonable and “failed to comply with the objectives of the Federal Sentencing Statute,”
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; [and]
. . . .
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct....
“A sentence that does not serve the announced purposes of
Dowell primarily argues that a sentence of 960 months necessarily is unreasonable for a first offense that is not a homicide. See Appellant‘s Br. 15-20. But
Further, the record in this case demonstrates that the district court meticulously considered the
Accordingly, we conclude that the district court‘s sentence properly considered the applicable Guidelines range, the nature and the circumstances of the offenses, and the other necessary factors under
IV.
For these reasons, we affirm the district court‘s judgment.
AFFIRMED