United States v. Kane

any warranting plain error relief. “error” - Marcus, America, at -, UNITED STATES

See Appellant, 2164. it generally,

More is not so “clear or v. government’s obvious” that notice KANE, Appellee. Ruth 851(a) § comply

failed to such that No. 06-1103. plain error relief is warranted. See id. 851(a) § Apart timing, from its terms Appeals, United States Court of only requires government’s notice Eighth Circuit. writing previous “statfe] convictions April Submitted: 2011. 851(a) upon.” to be relied Section does require government expressly April Filed: count(s) which in the car state indictment ry mandatory the enhanced minimum sen Thompson,

tence. F.3d 1146- Severino, also United States (9th Cir.2003) (en banc) 939, 943 851(a)

(remarking require has four identifying specification

ments and not four). enhancing one counts as of the government fact the

The mere went be 851(a)’s

yond § requirements bare identify

Booker’s case and endeavored to

the count in the indictment that would

carry mandatory the enhanced minimum 851(a)’s plainly

sentence does not violate Williams,

terms. See United States v. (7th Cir.2009) (recalling

F.3d the notice contains “[s]ometimes offense,” wrong telling U.S. Attor

ney’s “get together,” urg Office to its act Department of Justice to curb “the

problem noncompliance sloppy com 851(a),

pliance” with declining “when it

reverse does not confuse the de lawyer”).

fendant or his

III. CONCLUSION

We affirm.

RILEY, Judge. Chief $20, For Ruth repeatedly (the strained nine-year-old child)1 while a pedophile molested and raped the child. Kane approximate- did so ly twice a week for a total of more than 200 sexual molestations. After a jury guilty found Kane of various federal sex crimes, the district court sentenced Kane to 120 months in prison. We held Kane’s sentence was unreasonable and reversed. Court now asks us to recon- sider our in holding light of an intervening decision, States, Pepper v. United 562 U.S. -, 179 L.Ed.2d 196 (2011). Having considered Pepper’s im- pact again reverse and remand for resentencing. I. BACKGROUND2

A. Facts gave birth to the in early child 1987. The grew up Louis, child in St. Missouri, with Kane and with Kane’s live- in boyfriend James Grote3 youn- and two ger siblings. early 1990s, Kane befriended a Sauer, Atty.,

Dean J. Asst. U.S. 300-pound St. pedophile, Joe Champion. Louis, MO, appellant. Champion for born 1948 and lived City, alcoholic, Granite Illinois. An Cham- Schriener, Schriener, Kevin L. Law & pion typically drank as much aas case of Louis, MO, appellee. St. day. beer a Champion later served time RILEY, Before Judge, Chief HANSEN prison in federal possession of child MURPHY, Judges. Circuit pornography.4 (8th Cir.2010). 1. We refer to Kane’s as "the comprehen- child” 451 n. 2 A safeguard identity. understanding The district court sive of the case is essential to understanding disclosing identity why found that the child’s we hold Kane's sentence is unreasonable. would be "rather United States v. Cana- detrimental” to the child nia, (8th Cir.2008). 532 F.3d partially also closed the courtroom dur- testimony the child’s to avoid "substantial 3. "stepdad.” The child referred to Grote as psychological harm to the child.” See 18 Kane and Grote were unmarried. Kane and U.S.C. 3509. separated the child’s father but never divorced. recite the evidence in the most jury’s Champion favorable to the verdicts and the district was convicted and sentenced for findings, setting possession court’s relevant conduct pornography forth of child in the United background greater this case’s detail than States District Court for the Southern District previous Zebley in our decisions. of Illinois in after the over 200 sexual Dawson, Inc., giving Heartland Indus. appeal. molestations rise to this the child down lap, pinning Champion as described Acquaintances As the Claus,” “strange” and in the child’s back. Kane’s arm “like Santa with all the “played cried, then rub his Champion would “weird.” child including “tag” neighborhood,” vagina ejacu- in the kids the child’s penis against and would take games,” “guessing Kane would the child’s stomach. late on Harley Davidson on his for rides children ejaculate. Champion paid up the clean children Champion gave the motorcycle. pres- child’s Kane $20—sometimes soda, candy, toys. including presents, privilege. ence—for “lots of the adults with Champion supplied trial, recalled vivid detail At the child beer.” sexually molested Champion time the first Totten, one of Kane’s Christina day, and the spring her. It was a warm in- “disturbing” a witnessed acquaintances, siblings. with her playing child was outside child, Kane, and involving the cident family the child inside the Kane called Champion watched as Champion. Totten sitting at the Champion, who was home. wrist” to force child’s] [the “twisted table, bath- went into a first-floor kitchen The child was to sit on his knee. the child at the bathroom posted Kane was room. and, Champion fi- when “very frightened” creepy feeling” door. The child “had the child was left nally grip, released his away. pulled run Kane and tried to present fear. Kane was “shaking” with and ordered her to child into the bathroom daughter. her help did not but on the toilet and undress. Kane then sat if day, Totten asked the child The next daughter down onto pinned her nude it makes “touching you and Champion lap. or you right don’t feel you feel bad and suspenders removed his Champion Champion The child said you’re scared.” out of a medicine pants, grabbed Vaseline me,” her messing “pointed with to “was cabinet, daughter approached area,” cry. began to The child crotch The child’s last penis his hand. remarked, my mommy “I don’t want also fainting pain was the of memory before me, money her so get gives mad at he to vagina. on her Champion’s penis pressing present Kane who was that we can eat.” Champion returned to ejaculating, After “[B]aby, you know he wouldn’t interjected, beers, kitchen, couple drank you.” hurt left.5 reported twice Kane and Cham- Totten awoke, she was on the the child When human department local pion to the on the inside of bathroom floor with blood authori- hotline. The services’ child abuse began cry, child to Kane thigh. As the lying Totten of and did noth- ties accused through the door and told “stuck her head the child. protect to up the mess.” The to clean [the child] permission asked Kane for Champion her room. obeyed child and went to daughter. Kane sexually molest her raining outside and day when it was One sexually molested the agreed. Champion siblings go could not outside the child’s approximately child with Kane’s assistance sexually the child play, Champion molested than molesta- for more twice week the door as guarded Kane Kane’s bed. ensuring siblings the child’s tions. After against outside, Champion penis rubbed his held her were Kane and, although remember crying, he does not Champion child lems described the times, recalls molesting the child over 200 having disappointing look ... rather "a pleasurable feeling moments.” memory prob- “the Champion has on her face.” ejaculated on the child’s vagina public child’s television channel ran a service only post grab left her announcement, stomach. which telephone included a wipe Champion’s ejaculate off a towel and number that victims could call help. daughter’s stomach. The child called the number. place the molestations took Sometimes organization, An Help,” “Call for set up Champion’s City. home in Granite (Illi- an appointment City with the Granite Again, actively participated. Kane nois) (GCPD). Department Police strip pants would off the child’s and then “very GCPD was in Champion, interested” lay down on a bed next to the child as who later admitted an interview that he sexually Champion molested the child. On paid had permission sexually Kane for occasion, Champion one asked to molest the child. The GCPD took no ac- the child to a relative’s house in drive tion against Kane. Instead, Champion Illinois. took the child justice Persistent in her efforts for to his home and molested her. protection, the child help enlisted the The child endured other abuse. Once Advocacy the Child Center of St. Louis. spontaneously reached under 2003, In January the Federal Bureau of in the the kitchen table child’s home and (FBI) Investigation began investigating Shortly vagina. touched the child’s there- Kane Champion. What followed was after, at a restaurant with Kane while a by Kane, series of lies and half-truths friends, one of Kane’s the child told Kane apparently designed up to cover the child’s something.” she “had to tell her Kane abuse.6 responded, “anything say could [the child] During post-arrest a interview March [Kane], say front of could [the child] 2003, Kane told law enforcement officers revealed, front of The child [the friend].” she was “aware that allega- there was an “[Champion] touched me the table.” under tion that she accepting had been money Kane like she had no idea that “[a]cted from people to allow them to touch happened ever and said [Champion] [the was never allowed at her house.” and admitted child]” the child had told Kane that Champion sexually had molest- The in approximate- sexual abuse ended ed the child. But Kane “denied she was ly late Champion testified he ever aware that was ever [the child] mo- stopped paying sexually Kane to him help lested” or “accepted money ex- because, just “I molest child decided to change allowing for the molestation to take stop.” began mutilating The child later place.” herself and moved in with her father

Illinois. After law enforcement officers confront- Champion’s ed Kane with confession to the years, largely

For almost five the child GCPD, Kane “admitted that she had made secret, which, kept the sexual abuse as an child,]” some mistakes with [the but con- trial, expert witness testified at is common deny any tinued to involvement in sexual 2002, for young September victims. In Later, fifteen, daughter. abuse of her when the child was Kane ad- she was watch- “Champion mitted “Lifetime for Women” movie about a had said to her that he girl sexually little who was molested had been touching vagina, and [the child’s] movie, grandfather. At the end of the that he wanted to touch his [the child] half-truths, 6. Kane later recanted some of her a liar. and, trial, attempted portray the child as that, Champion on or about June continued to she admitted Kane

penis.” Kane to paid Kane’s home and Champion traveled to after to visit Champion allow sexually molest the child. and knew “she allow him to things these had told her better child] protected [the have should guilty to July Champion pled do so.” failed to and she Champion agreed to testi- 1 and 6. Counts Kane admit- gov- questioning, exchange further fy against After Kane years or eleven ten ted, upward the child was promise when not to seek ernment’s took Champion [the old, and Joe sentencing. “she Champion’s departure She her bedroom.... upstairs child] the district In November disrobe,” $40 child] [the ordered jury trial. At four-day presided over doorway “Champion while in the stood trial, was also a “vic- suggested she her bare and touched knelt before “trage- was a tim” and that her situation Kane said the child hand.” with his vagina a liar and label- dy,” arguing the child was sexually molested crying account of events ing the child’s sworn her. jury finding disagreed, “fiction.” The of Counts and 6. United guilty Proceedings B. Prior (USPO) prepared Office States Probation Proceedings Original District Court (PSR) investigation reports presentence jury returned a grand April Champion based on the then- for Kane and Kane and against indictment twelve-count Sentencing mandatory United States 1 and 6 are rele- Only Counts Champion. Guidelines).8 (U.S.S.G. or charged here.7 Count vant PSR, calculat- Champion’s In the USPO ag- to commit conspiracy Champion with level of 37 and a criminal ed a total offense abuse, in of 18 violation gravated sexual I. After a three-level re- history category 2241(c). grand § The § 371 and U.S.C. see acceptance responsibility, of duction for that, May about 1996 to from jury alleged 3E1.1, figured § U.S.S.G. the USPO 1997, pay Champion “would December to range was 151 Champion’s Guidelines engage money right for the 188 months. Count 6 activity child].” with [the sexual PSR, calculated a the USPO Kane’s Champion aggra- charged Kane and 37,9 of did not rec- total offense level abetting aiding and and vated sexual abuse of re- abuse, acceptance a reduction for of ommend violation 18 aggravated sexual because, 2241(c) Champion, alleged § unlike sponsibility § 2. Count 6 and U.S.C. 30, 3610, (effective Sept. alleged Stat. 7. Counts 2-5 and 7-11 Kane and 2241(c) 1996). jury acquitted of Counts 7- § The Champion 18 U.S.C. violated by in 1996 and 1997 series of discrete dates "knowingly crossing] a line with the state edition engage in a act ... here are to the 2002 [with] sexual 8. All references intent attained the person who at that time had not of the Guidelines. alleged Champi- age years.” Count 12 of 12 27, 2243(a) § As 9. Kane’s base offense 18 U.S.C. in 1997. level was see on violated gov- 2A3.1(a), Champion's plea agreement, § the increase part with a four-level of U.S.S.G. in 18 U.S.C. agreed to dismiss Counts 2-5 and for use of means set forth ernment 2A3.1(b)(1), 2241(a), § government § four- Champion. The vol- see U.S.S.G. 7-12 as to Kane, was under the increase because the child untarily Counts 2-5 as to level dismissed twelve, 2A3.1(b)(2), 2241(c) § age U.S.S.G. portion be- see the because relevant the child was alleged a two-level increase because the conduct oc- came effective after care, supervisory custody, or control Hagerman Protec- the Amber Child curred. See defendant, 2A3.1(b)(3)(A). 104-208, the see U.S.S.G. No. 110 tion Act of Pub.L. guilt coop- grounds her did not its narrow for departure, Kane contested the dis- government. the The erate with USPO trict court sentenced Kane months history determined Kane had a criminal imprisonment, bottom the of her Guide- prior II on account of convic- category her range. lines resisting a officer police tions for discussing Kane’s the dis- driving. drunk The USPO recommended trict court found “was the worst the district court find Guidelines actor with planning the and the premedita- months, range to be to 293 but identi- this,” tion thinking and serious about “the fied a of factors warrant- possibly number here,” main actor society and “the one that upward departure. Specifically, from,” needs protection but concluded might USPO indicated fail Champion’s “physical condition is such that (1) to account for “the duration and extent don’t I think that he’ll be a further threat abuse,” (2) 5K2.0; of the see U.S.S.G. to society in terms of his condition and the “Champion the fact that abused child time that he going to serve.” The dis- mother while her held her down and then trict court also remarked “[t]he [Guide- of watching suffered humiliation are, they lines are what and so the Court Champion pay mother for abuse on has to Ms. sentence Kane appropriately occasion,” (3) id.; each see “[t]he abuse of within those The [Guidelines.” responsibility the defendant’s as a mother court did not award the child restitution. protect preda- her child from sexual id.; tors,” fact see the child 2. Kane I physically “was restrained mother In September we affirmed her,” [Champion] so could molest sexually convictions, but vacated her §see sentence. See 5K2.4. USPO recommended the Kane, order United Fed.Appx. district court Kane to make restitu- States (8th Cir.2005) tion, curiam) because child “has been (unpub. per involved I). periodically may counseling be able {Kane resentencing We remanded for counseling to benefit future from services.” Booker, of United States v. 160 L.Ed.2d 621 In December district the court (2005) (invalidating mandatory the provi Champion sentenced to months in pris- Guidelines), of sions the because the dis on, top near of range. the his Guidelines trict plainly court erred when it held the Champion did not appeal. mandatory. Guidelines were See id. at At sentencing February her reasoned, 567-68. We for a departure moved downward Although the district court not ex- did allegedly over-represented based on an plicitly say it preferred give to Kane a history, 4A1.3, criminal see U.S.S.G. as lower the court con- expressed well a as for number of other reasons.10 cern about factors not relevant under The court granted district Kane’s motion then-mandatory the Specifi- Guidelines. in part and reduced Kane’s criminal histo- cally, the court believed Kane’s use of ry category to I. Kane’s resultant Guide- drugs susceptible alcohol and made range impris- lines was to 262 months influence, Champion’s onment. to expressing After dissatisfaction but observed then-mandatory with the Guidelines and Kane’s sentence under the Guide- example, campaign 10. a cunningly supplied For Kane moved for downward of coercion al- duress,” departure "coercion see gifts distracting Kane] cohol and ... from 5K2.12, U.S.S.G. trial because the evidence parental duties.” purportedly “made clear ... in a future, Kane to ly, in should remember the indi- the subject to court’s lines was somebody gifts” court also judgment. bringing The district “beware of vidual culpable less that Kane the rules life “[o]ne believed bear in mind that of society to than threat less of a presented free.” court rea- nothing is is The district by the Champion, who was sentenced soned, imprisonment. 180 months court to my know, I used talk to son You to court’s of grant combined with When free, about, this is free. daddy, this is criminal-history departure, downward listen, son, say, I’d I have master’s a sentence at the imposition its of administration, degree they in business range, con- of the bottom Guidelines marketing a call of these in loss some give to a these statements rise clude leader, get your happy to so and just so probability that the court reasonable they you’re know up joint in the because favor- have sentenced more would money. spend mo’ So going to some advisory ably under this, this, they you give you because give gime. jack you they they going up know omitted). (citations said at 567 Nothing And is free. as otherwise. ... the existence of “the record reveals that, know, you long you understand ‘a that could form basis within facts you you get got pay whatever one 3553(a) factors for the 18 U.S.C. I way another. think that this sen- or a lower still impose court but district pur- public is sufficient to serve tence advisory sentence under Guide- reasonable poses, there it is. ” so lines,’ cautioned, express “We no ten-year The court indicated district toas what a reasonable sentence opinion necessary prison sentence was because be, in this nothing opinion

would responsi- Kane “somewhat abdicated [her] an indication that should be construed as bility.” district found The a more sentence war- we think lenient any posed danger public risk Id. at no ranted.” referring to Apparently of recidivism. Resentencing GED, fact that Kane had earned her taken In December the district court classes, and 624 parenting hours 120 months in prison. resentenced Kane to training origi- hours since her of vocational hearing, At the outset district sentencing, nal district court found Kane, have an improved court told “You postsentencing rehabilitation see, I apparent so it’s appearance weighed leniency. in favor something positive happening there is resentencing hearing court closed Kane’s then conveyed The district court here.” following observation: the that, light prior of Kane’s its estimation you did You look much better than be- abuse, drug and alcohol Kane was “like an know, you here fore. You because are waiting happen” “predator accident your age, you looking were substan- advantage take of.” individuals [to] Keep You tially older. look better. on district court found was the The your physical and mental going with culpable in this case” and person “most okay. yourself, luck. care of Good by far the The district court “was worst.” experienced an compared Champion sum, In district indicated its the court past a winner a be- player “hitting tennis varying 90 months downward reasons ginner.” from of Kane’s Guidelines the bottom (1) Kane low risk range posed a were

The district court indicated Kane should (2) recidivism; history of Kane had a sub- a lesson from her convictions: name- learn

1129 (3) Kane III issues; and mental health 5. stance abuse vulnerable, participated Kane was 2008, In January Supreme the abuse she was in- daughter’s because summarily granted petition Kane’s for a (4) Champion; post- Kane’s by fluenced certiorari, II, writ of vacated Kane (5) rehabilitation; and the sentencing dis- light remanded for reconsideration in Champion, who trict court’s belief that States, 38, Gall v. 552 United 128 was more ceived 180-month 586, (2007). S.Ct. 169 L.Ed.2d 445 Kane. culpable than States, 1088, Kane v. United 552 U.S. 128 169 L.Ed.2d S.Ct. 4. Kane II (2008). government appealed, arguing Gall, Supreme the Court held our Kane’s 120-month sentence was “not rea- ‘proportional’ rule “requiring justifications of the factors set forth in sonable for departures from the range Guidelines 3553(a).” Kane, United v. States [was] consistent with [the (Kane Cir.2006) (8th II). F.3d opinion Court’s] remedial in [Booker].” In December we vacated Kane’s sen- Gall, 552 U.S. at S.Ct. We tence a second time and remanded for have impact summarized Gall’s our on sen- resentencing. another Id. at 1282. tencing jurisprudence as follows: reversing, we relied on the principle Gall, may Under longer require no that the court farther district varies “[t]he extraordinary justify circumstances advisory range, from the sentence range. outside the Guidelines justification compelling more based on Gall, However, at 595. S.Ct. “a 3553(a) factors be.” should Id. at must judge give serious consid- then held 120-month eration to extent any departure sentence for six was “unreasonable” rea- from explain the Guidelines and must (1) sons: there was no to support evidence unusually his that an conclusion lenient finding the district court’s Kane would not unusually or an appro- harsh sentence (2) recidivate; there was no evidence to priate particular in a case with sufficient support finding the district court’s justifications.” If, Id. at 594. after Kane’s mental health or abuse drug caused “individualized assessment based on the (3) crimes; there was no evidence presented,” facts the district court “de- indicating Champion influenced Kane to cides an outside-Guidelines sen- (4) crimes; commit her a variance based warranted, tence is [the district court] post-sentence rehabilitation ef- must consider the extent of deviation (5) inappropriate; forts was the district justification ensure that is suffi- sufficiently failed to consider the ser- ciently compelling support degree offenses; iousness of Kane’s of the variance.” Id. at 597. It is “un- Kane’s sentence reflected an unwarranted that a major departure controversial disparity. sentencing See id. 1280-82. should be supported signifi- more Kane, See also United States F.3d justification cant than a minor one.” Id. (8th Cir.2009) (Kane III) (sum- 748, 752 II). may of “[A]n abuse discretion occur marizing Kane We concluded rever- (1) when a court fails to a rele- consider sal required was because “Kane’s 120- vant factor that should month have received quite simply propor- sentence is not (2) weight; significant gives sig- a court tional to the of the circumstances crimes II, weight and the Kane nificant to an or irrele- persons improper involved.” 470 (3) factor; at only F.3d vant a court considers II, “procedural in able” in Kane amounted to weighing factors but appropriate the a clear of commits error in III. See id. those factors error” under Gall Kane at Haack, United States judgment.” 753-56. Cir.2005) (8th (internal 997, 1004 F.3d Supreme the teach- Adhering to Court’s omitted). and citation marks quotation Gall, court ings in we held the district did Gall, at 597. also 128 S.Ct.

See by procedural allegedly not commit error “Assuming that the district court’s (5) to ensure Kane’s sentence failing procedurally sentencing decision flected the seriousness of her offenses. sound, court then appellate the should 755; at see See id. also U.S.C. the substantive reasonableness consider 3553(a)(2)(A). Likewise, we held the under an imposed of the sentence abuse- procedural did not district court commit tak[ing] standard into of-discretion (6) merely by concluding error under Gall totality of the account the circum- culpable was more than Kane. stances, of including any the extent vari- III, 755-56; see See Kane at also Gall, range.” from the ance 3553(a)(6). But we cautioned that “may at 597. We consider in greater culpability the ab- “Champion’s deviation, of the must extent [we] itself, not, by justifica- stract is sufficient give due deference to the district court’s unusually tion the extent of Kane’s 3553(a) factors, on a decision sentence,” consequently lenient and held whole, justify the extent of the vari- (6*) proce- district court committed ance.” Id. “the by failing explain to adequately dural error III, 552 at Kane F.3d 752-53. support to failing chosen sentence and II, remand Kane the govern On after justi- degree of variance with sufficient 120-month argued ment Kane’s sentence to avoid unwarranted sentencing fications” substantively procedurally was both III, disparity. Kane F.3d at See January at 753. In unreasonable. See id. agreed we sentence pro Kane’s was Because the district court committed cedurally reexamining, after unreasonable procedural respects error under in Gall Gall, why reasons light the six we (l)-(4) (6*), we Kane’s vacated 120- “un had determined Kane’s sentence be month for a sentence remanded sec- II. id. at reasonable” Kane 753-56. resentencing. ond See id. 753-57. We we Specifically, determined Gall did expressed “serious concerns about sub- underlying affect our conclusions that the stantive of Kane’s 120- reasonableness (1) clearly court erred in finding district sentence,” month but declined reach (2) recidivate; no posed risk district issue court’s Kane’s clearly finding erred crimes procedural “substantially errors in basing past were linked to Kane’s substance clearly erroneous Kane’s sentence fac- issues; abuse mental health findings, relying post-sen- tual on Kane’s clearly finding erred committed rehabilitation, failing tence and otherwise crimes was because she influenced unusually adequately explain Kane’s le- Champion. See at 753-54. Applying id. justifica- nient sentence with sufficient precedent, then-governing United States v. III, tions.” at 757. F.3d (8th Pepper, F.3d Cir. 2008) III), held the (Pepper 6. Kane IV (4) impermissibly relied on Kane’s sum- March postsentencing rehabilitation. id. marily granted petition for writ errors, 754-55. These which led us to certiorari, judgment vacated the conclude sentence “unreason- III, Kane and remanded for principles reconsidera of federal sentencing law and States, Pepper tion v. United Congress’ contravenes directives -, 562 U. 131 S.Ct. 179 L.Ed.2d 3553(a).” §§ S . 3661 and Pepper, 131 S.Ct. (2011). States, See Kane v. United at 1243. Supreme But the Court cau- - U.S. -, 131 S.Ct. 179 L.Ed.2d tioned, do not imply “[W]e mean to that a (2011). district court must reduce a defendant’s upon any sentence showing postsentenc- II. DISCUSSION ing rehabilitation.” Id. at n. 1249 17. nowWe reconsider Kane III in light of Pepper. B. Procedural Reasonableness Clearly 1. Findings Erroneous Pepper

A. In Pepper, Supreme the Court “h[e]ld a. Likelihood to Recidivate that when defendant’s sentence has been At Kane’s resentencing, the district appeal, set aside on a district court at elaboration, stated without “I don’t resentencing may consider evidence of the you think pose a danger to public defendant’s postsentencing rehabilitation you’ll likelihood that be a recidivist.” may, and that such evidence in appropri- cases, II, support ate Kane we held downward variance Kane’s sentence now-advisory from the [Guidelines] unreasonable because “[n]othing range.” Pepper, 131 S.Ct. at 1236. Em- supports record the district court’s phasizing that limitation “[n]o be conclusion Kane probably will repeat placed on the concerning information type II, this of crime.” Kane 470 F.3d at character, background, and conduct” of a pointed out the Supreme Court defendant that a may district court “re- has said the “risk of recidivism posed by ceive purpose and consider for the of im- sex offenders is frightening and high,” id. posing sentence,” an appropriate 18 U.S.C. Doe, (quoting 84, 103, Smith v. 538 U.S. Supreme Court determined 155 L.Ed.2d 164 categorical “[a] bar the consideration of (internal omitted)) quotation marks postsentencing rehabilitation evidence observed Kane had not shown “she would directly would Congress’ contravene ex- not commit type again this of crime in the pressed intent Pepper, 3661.” money.” name of S.Ct. at Supreme The Court On remand from Supreme Court found “evidence of postsentencing rehabili- III, Kane argue did not that Gall Kane may tation be highly relevant to several of altered our conclusions about recidivism in 3553(a) factors that Congress has III, Kane II. See Kane 552 F.3d at 753. expressly instructed district courts to con- III, In Kane we held “the district court sider at sentencing.” Id. at 1242. procedurally erred basing un- part, Supreme relevant Court usually lenient in significant abrogated our categorical circuit’s bar on part, unsupported on its determination postsentencing evidence, rehabilitation posed a low likelihood of recidivism.” versing Pepper, United States v. Id. Far from demonstrating posed (8th Cir.2009) IV) (Pepper and abro- recidivate, observed, no risk to “The gating Pepper III. facts show repeated her crime over “ruling concluded our prohibiting the [dis- again. and over protecting trict from Instead of considering any [c]ourt evidence Pepper’s postsentencing choosing to stop participat- rehabilitation at resentencing conflicts longstanding daughter’s first, abuse after the molestation, your responsibili- you Kane somewhat abdicated 50th, contin- or or 150th ty.” down or block hold her ued to more than 200 occasions while on the door II, Kane’s sentence Kane we held sexually the child.” Id. violated in “there part was unreasonable because Kane finding court’s held “the district

We linking in the no evidence record Kane’s recidivism, which posed a low likelihood of with substance abuse or mental illness Gall, clearly erroneous before remains daugh- against crimes Kane committed her Id. clearly erroneous after Gall.” II, ter.” 470 F.3d at 1281. We also Kane no in the rec- observed there is “evidence in alters our con Nothing Pepper indicating ord Kane committed [her] respect III Kane’s in Kane clusion to, was susceptible crimes she or contrary, To the because risk to recidivate. emphasized by, Champion.” “the likelihood influenced Id. Pepper Court in engage future that will [the defendant] III, we held had no effect Gall that criminal conduct” is “a central factor validity of our in on determinations when imposing courts must assess district II there was that no evidence (dis at Pepper, sentence.” past Kane’s linking record substance abuse 3553(a)(2)(B)-(C)). cussing 18 U.S.C. or issues Kane’s crimes mental health finding that Kane The district court’s her crimes indicating Kane committed be- recidivism, risk posed a low which was Champion’s cause of influence. See Kane clearly Pepper, erroneous before remains III, Although at F.3d 753-54. we clearly Pepper. erroneous after There Kane had recognized there was evidence fore, again the district court we hold past history of substance abuse and mental procedurally by basing erred sen Kane’s issues, “many people health we observed that determination. unsupported tence on have abuse and mental health substance Gall, S.Ct. issues, few, any, people if those but (“selecting clearly a sentence based on er sell minor child participate their procedural facts” amounts to er roneous Id. exploitation.” for sexual pedophile ror under a deferential abuse-of-discretion repeated the record was devoid standard). supporting of evidence “the district court’s past that Kane’s theories substance abuse Health, Abuse, b. Mental Substance and mental health issues caused Influence, Champion’s and Kane’s Champion, thereby mini- be victimized Responsibility Her Crimes for, mizing responsibility Kane’s or some- resentencing, At Kane’s district against mitigating, how crimes her stated, you “I court believe made Finally, daughter.” pointed Id. we out yourself drugs all these vulnerable with clearly “the court also erred its See, you stuff. and alcohol all that responsibility assessment of Kane’s waiting to happen.” were like accident daughter’s abuse.... Kane did not ‘some- explained, gone The district court “I’ve [parental responsibili- what abdicate’ guidelines your case below because ties,]” “totally her role but abdicated” your prior history of this substance protector. child’s your as well as mental health. That abuse Pepper nothing We discern you particularly susceptible to Mr. made in Kane III. undercuts these conclusions The district court Champion’s influence.” again hold the district Accordingly, big responsibil- “had a acknowledged Kane there,” continued, procedurally by basing erred ity “[a]nd even know, unsup- its you problems, you significant part, had though these

1133 (2)-(3) justify determinations that irrelevant factor to the dramatic ported and mental issues in abuse health downward variance Kane’s substance case.” Kane by III, Champi- Kane to be victimized caused 552 at 754-55. Quoting Pepper F.3d on, thereby responsibili- minimizing III, at we held does “Gall daughter. against her crimes her ty for precedent not alter our circuit ... Gall, 552 at S.Ct. 586. 128 post-sentence imper- rehabilitation is an granting missible factor consider Postsentencing 2. Rehabilitation downward variance.” Id. at 754. The Su- opened district court Kane’s resen- The preme por- Court has now overruled the observation, “You hearing with the tencing Pepper tions of III on which we relied see, so improved appearance have an I it’s Kane III. Pepper, 131 S.Ct. at 1251. something positive apparent there is Pepper expressly The disapproved counsel happening here.” After Kane’s categorical of our circuit’s postsen- ban on to the district that Kane represented court evidence, tencing holding, rehabilitation GED, her hours of had earned taken 84 post “District courts may -Booker consider classes, of voca- parenting hours postsentencing evidence of defendant’s training sentencing, since her tional first at resentencing rehabilitation evi- such arguably court found Kane’s the district may, appropriate cases, dence support a weighed in postsentencing rehabilitation variance advisory downward from the request leniency. favor of range.” Id. at 1249. declared, court “And I’m also look- of Pepper, holdings we disavow our to the at I your at efforts rehabilitation. And contrary in Kane II and Kane III. The job. an you’re doing think admirable And (4) district court did not commit procedur- encourage you I to continue so want relying al error in on Kane’s commendable that vein.” rehabilitation, postsentencing efforts at II, GED, In Kane we held a downward vari- which com- earning included postsentencing on Kane’s reha- ance based pleting parenting classes and vocational See Kane “inappropriate.” bilitation training. remarked,

II, F.3d at 1280-81. We Seriousness Kane’s Offenses commendable, those efforts are “While until not make those efforts after did II, In Kane we held the district sentence was and after imposed her initial to sufficiently failed consider appeal. an reha- she filed Kane’s belated 3553(a)(2)(A), which required the district extraordinary bilitative efforts are not sen court to consider “the need for the support a sentence do not reduction.” imposed tence to reflect the serious Robinson, 454 (citing United States v. F.3d offense, promote respect ness (8th Cir.2006)). deter- law, provide just punishment and to “inappropriately mined district court II, for the offense.” See Kane F.3d history considered and characteristics III, 1280. In Kane on reconsideration (discussing of Kane.” Id. U.S.C. Gall, we light of held the district court did 3553(a)(1)). We concluded Kane’s sen- by proeedurally abuse its discretion part unreasonable in because of tence was 3553(a)(2)(A) failing to and dis consider court’s reliance on postsentenc- the district holding our in Kane II avowed ing rehabilitation. See id. at 1281. III, contrary. See 552 F.3d at III, Pepper not disturb that conclusion does we adhered to Kane here, again once dis and we hold proeedurally II and held “the district court by relying proeedurally its on this trict court did not err abused discretion conclusion that “explain also to his the seriousness account for failing to unusually unusually or an lenient Kane’s offenses. appropriate par- harsh sentence is Sentencing Disparity justifica- ticular case with sufficient Gall, at 594. Gall tions.” resentencing, the district At Kane’s “failing to ade- specifically recognizes reasoned, that “I still believe court the chosen sentence” quately explain your in this case was person culpable most “significant procedural er- constitutes co-defendant, characteriz Champion,” Mr. no doubt ror.” Id. at 597. There is “by far the worst” and as ing Champion “unusu- Kane’s sentence constitutes an any when “I think it’s terrible remarking, ally contemplated as lenient sentence” persons.” advantage of lesser body takes 120-month sen- by .... Kane’s Gall that, far “as as court said The district tence amounts ... to a 90-month down- that Mr. I think sentencing disparity, variance from the bottom of ward because, culpable far more Champion is advisory Kane’s own Guidelines who, see, plot and as to had to think he range.... stating, Other than “I think know, my program I run on.” can you anybody it’s terrible when takes advan- II, held the district In Kane we persons,” “[Champi- tage of lesser un- to avoid wrongly considered the need who, plot you had to think and as to on] disparities among sim- warranted sentence on,” know, my program can I run II, Kane ilarly defendants. See situated no further in- provided district court (discussing at 18 U.S.C. 470 F.3d the reasons for its determina- sight into 3553(a)(6)). Although expressed con- § down- tion Kane deserved a 90-month 3553(a)(6)“may appropriately more cern ' Champion variance because was ward level and apply disparities on national culpable. Though more it was within and did conspiracy” within the same not discretion to deter- district court’s finding district court’s not disturb the culpable than Champion mine was more Kane, than culpable was more Kane, in Champion’s greater culpability an un- “Kane’s sentence reflects we held not, itself, a sufficient the abstract is Id. sentencing disparity.” We warranted of Kane’s un- justification for the extent adviso- emphasized Champion had lower Thus, the dis- usually lenient sentence. ry range accepted because he error procedural trict court committed crimes, Kane for his whereas responsibility the cho- by failing adequately explain challenged guilt.” her “went to trial and failing support sen sentence Id. justifi- degree of variance with sufficient III, our hold- In Kane we reconsidered cations. III, ing in of Gall. See (footnote omitted). Id. We adhere to this As a threshold matter we de- at 755-56. III, is, holding in Kane portion of our termined, “Although argue one could (6*) (6), nothing Pepper not situated, similarly Champion are not analysis. disturbs our comparability of their and our assessment Pepper Congress’s reiterated intent different, through the would be viewed 3553(a)(6) sentenc- to avoid unwarranted Gall, the district lens of we now conclude disparities. Pepper, 131 S.Ct. See court acted within its broad discretion 1248-49. this conundrum in Kane’s favor.” resolving Reasonableness C. Substantive said, That we held: III, govern- requires judge In Kane we declined Gall also 3553(a) factors, invitation to decide whether ment’s only to consider ], cases, substantively subsequent unreasonable. [Gall sentence our court III, generally 552 F.3d at 757. ob- has a procedurally considered guideline correct served: sentence be reason able.”). knowledge, To our this is the first horrifying Given the nature of Kane’s case in which this court has held a sen conduct, repeated the fact Kane her of- substantively tence unreasonable since we against fense over 200 ingested our “bitter medicine” in Spears. times, accept refusal to Spears, 555 U.S. at 129 S.Ct. at sponsibility daugh- for her role (Roberts, Alito, J., C.J. and dissent abuse, ter’s we have serious concerns ing). aptly As the Eleventh Circuit sum about the substantive reasonableness of in a sentencing marized recent federal ap Kane’s 120-month sentence. doubt We peal: “justifica- district remaining court’s may repeating We not—it bears sufficiently compelling support tion is —set aside a merely sentence because we degree of the variance” for the dis- would have decided that another one is trict court’s deviation below the Guide- appropriate. more A district court’s range. lines sentence need not be appropri- the most Gall, 50, (quoting 552 U.S. at 128 S.Ct. one, only ate it need be a reasonable 586). III, Relying in part Pepper may one. set a only We aside sentence procedural reasoned the district court’s determine, if we giving after a full meas- errors alone required reversal. See Id. ure of deference to the sentencing judge, III, 953, (citing Pepper 518 F.3d that the sentence imposed truly is un- “declining to reach the substantive reason- reasonable. of a ableness sentence where the district 1160, Irey, United States v. 612 F.3d 1191 error”). procedural court committed No (11th Cir.2010) (en banc) (citations omit- longer. ted). Supreme Because the Court has The Supreme yet Court has to hold a III, abrogated Pepper we now decide substantively sentence be unreasonable whether Kane’s 120-month sentence is Gall, after but we do infer from this substantively reasonable. hold it is not. We fact that abuse of discretion review is a We do not reach this conclusion hollow Supreme exercise. The Court has States, lightly. Spears v. 555 United stated, unequivocally “The federal courts 261, 840, U.S. 129 172 S.Ct. L.Ed.2d 596 appeals review federal sentences and set ” (8th curiam), (per rev’g 533 F.3d 715 they aside those find ‘unreasonable.’ Cir.2008). cognizant are of our We limited States, 338, 341, Rita v. United 551 U.S. and deferential post role -Booker (2007). 2456, 168 127 S.Ct. L.Ed.2d 203 world. It is indeed “the unusual case Rita, observed, Supreme Court “In when we reverse district court sen areas, sentencing, as other within, above, tence—whether or below the judges at times make mistakes that are applicable range substan times, they substantive. At impose will —as tively unreasonable.” United States v. sentences that are unreasonable. Circuit Feemster, (8th Cir.2009) 572 F.3d 464 courts exist to correct such mistakes when (en banc) (quoting United States v. Gardel they occur.” Id. at 127 S.Ct. 2456. lini, (D.C.Cir.2008)). 545 F.3d 1090 Circuit, Like the Eleventh “[w]e believe Deegan, See also United States Supreme that the it Court meant what said (8th Cir.2010) J., (Murphy, dis opinion in the Rita and elsewhere about banc) senting rehearing from denial of en duty sentencing our to correct mistakes.” (“Following guidance Irey, Court’s 612 F.3d at 1165. recognizing that anoth- though, between procedur what is line between way and usually right has the famously fuzzy er is

al and what is substance post. quit will not see, abandoning one’s e.g., Guaranty Trust margins, at the that we have been ordered to 99, 108, post York, Co. v. U.S. sentencing review and the re- hold in (1945),but, in a such as case L.Ed. 2079 it. The Su- goes sentencing sponsibility one, procedural this where has instructed us that preme “[i]n clearly measure from large error stems areas, district sentencing, as in other findings, procedurally factual erroneous make mistakes that are judges at times be, appear to would unreasonable sentence substantive,” duty that it “to is our substantively unreasonable. ipso facto, they mistakes when occur.” correct such procedural error charge The critic will review than substantive nothing Rita, more Irey, (quoting F.3d at 1225 consequence, disguise. 2456). As cloaked 354, 127 S.Ct. appellate review sen asking “what does nauseating of this case are as The facts un ‘reasonableness’ for substantive tences $20, they are horrific: Kane re- standard an abuse of discretion der nine-year-old daughter peatedly sold her that continues to vex question “a mean?” is restraining the child to pedophile, to a appeals.” Irey, of 612 the nation’s courts pedophile assist the his deviant sexual J., concur (Tjoflat, specially at 1259 F.3d gratification. pedophile sexually mo- dissenting part). We ring part with lested the child more than 200 times comprehen question this cannot answer participation. active Instead of ac- all other circuits to sively today. Like crimes, responsibility for her cepting pres question, address the we believe challenged the truthfulness of her child’s that, say it to “sub purposes ent suffices trial, liar, testimony calling at the child exists, part, in substantial stantive review courage mustered the to con- as the child that are based on to correct sentences front her abusers. Irey, weighing

unreasonable decisions.” every day if to Even Kane were serve cases). (collecting at 612 F.3d spend she would her 120-month us, the dis- Based on the record before prison than three weeks in for each less the trict court’s 120-month sentence is punish- That daughter. violation of her weighing deci- product of unreasonable unreasonably lenient under the ment is, therefore, substantively un- sions case, totality of the circumstances of this many 3553(a) reasonable. review and affirm We all the factors. judged variances, including substantial downward (holding at Irey, involving in cases sex crimes variances years court’s sentence of 17.5 the district the unusual against children. But this is unreasonable, substantively remarking anything If case forecasted Feemster. sentence, “if all that such of it were to be remains of substantive reasonableness re- served, only would amount to 4 months appeals, view in the courts of our court distinguish- and a week for each of the 50 duty ignore cannot its to correct raped, victims that [the defendant] able weighing tortured”). errors in this case. other sodomized, sexually words, totally only parental abdicated long- but also inflicted untold sponsibilities of the substantial deference

Because the child. See New sentencing, suffering upon we term district courts are due Ferber, 9,n. York v. 458 U.S. give their decisions about what is rea- (“It has always 73 L.Ed.2d 1113 sonable and almost S.Ct. wide berth difference, sexually exploited children been found pass. let them There is develop healthy sentencing process, affectionate limited role in the are unable life, relationships dys- in later have sexual the district court’s discretion to consider functions, tendency and have a to become rehabilitation, postsentencing we decline to adults.”) (citations abusers as omit- sexual entry direct the a particular sentence. ted). pat- The district court’s sentence is id.; see Pepper, also 131 S.Ct. at 1250. ently represents unreasonable and a clear Irey, But see (reversing F.3d abuse of discretion on the record and fac- and remanding entry of a Guidelines findings presently tual before us.11 sentence). that, We hold under the totali- ty of the circumstances and on the record Although the district court did not abuse us, presently before Kane’s 120-month in finding Champion its discretion more substantively sentence is unreasonable. culpable conspiracy than Kane in their child, sexually molest the this assessment III. CONCLUSION culpability justify of relative did not again vacate Kane’s 120-month district court’s decision to sentence sen- tence and remand for resentencing years prison Champi- to five less time than consis- indicated, opinion. remand, tent with this Champion pled guilty on. As On cooperated may district court government consider evidence of guilt, postsentencing whereas Kane denied her accused rehabilitation on Kane’s lying, part, to, the child of including, any forced child relive but not limited trial, nightmare by testifying and rehabilitation after her first resentencing. government time put and cost of See Pepper, 131 S.Ct. at 1250. Pursuant 3771(a)(6) significant a trial. has health (b)(1), to 18 U.S.C. memory problems, including problems, order the district court to ensure the child attacks, cancer, gallstones, heart a receives any restitution to which she is hernia, which the district court believed entitled from Kane. Champion’s

made sentence in effect a life MURPHY, Judge, dissenting. Circuit accounting sentence. Even for her lower culpability, any, compared Champi- if respectfully I must dissent for the same on, Kane’s 120-month sentence is exces- reasons I did when this case was last sively comparison. lenient in petition rehearing before us on a for of our Kane III decision. The case should have

Because the district court’s sentence is been reheard then because under the de- unreasonable, substantively we reverse veloping law the district court’s 120 month and remand for a second resentencing proeedurally sentence was neither flawed hearing. Irey, 612 F.3d at 1270 substantively nor unreasonable. United J., (Tjoflat, specially concurring part in Kane, (8th (“If States v. No. 06-1103 Cir. Jan. dissenting part) a sentence 2009) (dissent 3, discretion, denying panel to order constitutes abuse of rehearing). had made simply say should so and return the case court, States, to the district it clear in v. appropriate forum Gall United 552 U.S. event.”). 38, (2007), main In light quite for the of our 128 S.Ct. 169 L.Ed.2d 445 31; Meyer, 11. We note 206 of the Adam Walsh Child F.3d at 1209 n. United States v. cf. (8th Cir.2006) ("While Safety Protection and Act of Pub.L. No. 109-248, (2006), imposed retrospectively apply 120 Stat. our court cannot en thirty-year mandatory hancing guidelines minimum sentence amendments to the in or 2241(c). guidelines for violations of 18 U.S.C. While der to calculate the defendant’s mandatory apply range, this minimum does not such amendments are instructive as to Kane, guidelines it demonstrates whether a unreasonableness sentence outside of reasonableness.”). Irey, range of the district court’s sentence. See falls within the reasons for the district court’s vari- role at tional primary court has that a district reject subsequently it had can include Kane’s consid- sentencing, and ance which now sentencing decisions as a our post sentencing ed one of rehabilitation. erable indigestible.” “smuggled-in dish 1133; Pepper, By 131 S.Ct. at 1241. see States, 555 U.S. v. United Spears resentencing last she the time of Kane’s (2009). 840, 845, 172 L.Ed.2d 596 129 S.Ct. GED, had taken already had earned Now, Ruth Kane’s case has been remand and hundreds of hours of parenting classes of the Court’s decision again ed in a training, vocational and was better - -, States, Pepper United than physical and mental condition before 1229, 1249, 179 196, - L.Ed.2d The district court was also incarceration. (2011), holding post sentencing reha made aware that who had in resentenc may be considered bilitation victimized Kane and been ing proceedings. early her mother’s release be- supported the district court committed my view family. it cause would benefit her Ruth sentencing error procedural no holding the district court’s earlier 120 120 months. Substantial record Kane to substantively unreason- month sentence findings its that Kane’s supported evidence juncture, majority able at this under- abuse, history of men- extensive substance ability cuts the court’s to consider illness, tal and sexual abuse increased her fashioning all appropriate factors susceptibility Champi- to codefendant Joe simply resentencing. We should remand presentence investiga- on’s influence. The resentencing Pepper. under report tion detailed Kane’s former heroin addiction and her abusive husband who drug money. Her

“pimped” her out for place

offenses in this case took while she anxiety depression. therapy

was America, UNITED STATES of supported Substantial evidence the find- Plaintiff-Appellee, unlikely that Kane to recidivate. history Her minimal criminal was over v. place long took before her

represented and Raymond ERIKSEN, Defendant- majority notes current crimes. While the Appellant. generally “high that sex offenders have America, recidivism, United States of frightening” risk of Con- required Plaintiff-Appellee, courts to assess recidi- gress has individually. vism risk 18 U.S.C. 3553(a)(2)(C). The record here reflects Eriksen, Sigmund Defendant-Appellant. likely poses that Kane a lower risk of 10-30056, Nos. 10-30057. typical recidivism than the sex offender. pressuring When ceased Appeals, States Court of United pleasure, for his provide Ninth Circuit. stopped. her crimes 11, 2011. Argued and Submitted Jan. majority also finds error in the dis- Filed March trict court’s downward variance because Rehearing As Amended on Denial of not, “Champion’s greater culpability ... May itself, justification” sufficient Maj. Op. downward variance. added).

(emphasis ignores This the addi-

Case Details

Case Name: United States v. Kane

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Apr 29, 2011

Citation: 639 F.3d 1121

Docket Number: 06-1103

Court Abbreviation: 8th Cir.