UNITED STATES of America, Plaintiff-Appellee v. Marcus S. CLARKE, Defendant-Appellant.
No. 15-3730
United States Court of Appeals, Eighth Circuit.
August 5, 2016
Submitted: June 13, 2016
less, we have a “special obligation” to satisfy ourselves that we actually possess the authority to decide this case. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986).
The Supreme Court has long held that a party subject to an order of production must refuse and be held in contempt before seeking appellate review. United States v. Ryan, 402 U.S. 530, 532-33, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); see also In re Grand Jury Proceedings (Malone), 655 F.2d 882, 884 (8th Cir. 1981). However, immediate review is available “in the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual‘s claims.” Ryan, 402 U.S. at 533, 91 S.Ct. 1580. Perlman is one example. Id. But the Perlman exception applies when the appellant seeks to quash a subpoena directed to a disinterested third-party custodian of information over which the appellant has asserted a privilege. Id.; see also Church of Scientology of Cal. v. United States, 506 U.S. 9, 18 n.11, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992). The exception is limited to an appeal by the privilege holder. In re Grand Jury, 705 F.3d 133, 144 (3d Cir. 2012). It does nоt swallow the general rule, which dictates that the target of the subpoena—the third-party custodian—can appeal only after hе has been held in contempt. Id.
In this case, the FPD, on behalf of McAtee, moved the district court to quash the subpoena and then immediately appealed the district court‘s denial. McAtee—the target of the subpoena—has yet to refuse compliance.3 And the district court has not held him in contempt, a final judgment that McAtee has the right to appeal. Accordingly, subsequent appellate review is not impоssible. We therefore dismiss this
Anita L. Burns, Asst. Fed. Public Defender, Kansas City, MO (Laine Cardarella, Fed. Public Defender, on the brief), for appellant.
Teresa A. Mоore, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
Before SMITH, MELLOY, and GRUENDER, Circuit Judges.
PER CURIAM.
Marcus Clarke appeals his sentence of 360 months in prison for the production and attempted production of child pornography, alleging that the district court1 imposed an unreasonable sentence. We affirm.
I. Background
Clarke became the subject of a Prairie Village (Kansas) Police Department investigation after a woman reported finding a text conversation between Clarke and her fifteen-year-old daughter (Victim 1) on her cell phone. Clarke and Victim 1 exchanged text messages about arranging a photo shoot. Following an initial photo shoot, Clarke continued to message Victim 1 to schedule additional photo shoots.
Victim 1 told officers that, following thе text conversation, Clarke picked her up at a park in Kansas and drove her to his apartment in Missouri. Clarke took nude digital photos and videos of Victim 1. During one of the video recordings, Clarke rubbed his penis on Victim 1‘s vagina. Victim 1 was able to identify a photo of Clarke and the location of his apartment.
Officers also learned that Clarke had physically abused his biological daughter (Victim 2). Victim 2 told officers that, when she was eleven years old, Clarke began taking photos of her undressing and videos of him sexually abusing her. Officers found three videos of Victim 2 recorded when she was thirteen years old. In addition, Clarke‘s ex-girlfriend had reported sexual abuse against Victim 2 several years earlier, but investigators did not find sufficient evidence to bring charges at that time.
Following the current investigation, Clarke was indicted on one count of production of child pornography and one count of attempted production of child pornography, in violation of
At sentencing, Clarke argued to the district court that he should receive a below-guidelines sentence of fifteen years because of his lack of criminal history, his mental condition, his lack of illegаl drug use, and his employment. The district court determined that a sentence of 360 months in prison was appropriate. Specifically, the distriсt court noted that Clarke victimized two girls, including his biological daughter and that the
II. Discussion
On appeal, Clarke argues that the sentence is substantively unrеasonable. We review the substantive reasonableness of a sentence “under a deferential abuse-of-discretion standard.” United States v. Webster, 820 F.3d 944, 945 (8th Cir. 2016). A sentence is substantively unreasonable when the district court: “(1) fails to consider a relevant factor that should have received significant weight; (2) gives significant weight to an improper or irrelevant factor; or (3) considers only the appropriate factors but in weighing those factors commits a clear error of judgment.” United States v. Sigsbury, 817 F.3d 1114, 1115 (8th Cir. 2016) (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). Further, “[i]f the defendant‘s sentence is within the Guidelines range, then we may ... apply a presumption of reasonableness.” Id. (quoting Feemster, 572 F.3d at 461).
Clarke argues that the district court imposed an unreasonable sentence that was greater than necessary to satisfy the statutory goals of sentencing. In particular, Clarke contends that the district court gave undue weight to the fact that Victim 2 was Clarke‘s biological daughter. Further, he argues that the district court did not consider Clarke‘s lack of criminal history, his strong employment history, or his mental difficulties as mitigating factors.
Having reviewed the record, we conclude the sentenced imposed by the district court was substantively reasonаble. First, Clarke was sentenced within the advisory guidelines range of 360 months to life in prison. Second, the district court specifically noted that it had considered the
ther,
III. Conclusion
Based on the foregoing analysis, we conclude that the district court did not abuse its disсretion by imposing a sentence of 360 months in prison. The judgment of the district court is affirmed.