UNITED STATES of America, Plaintiff-Appellant, v. John W. PRISEL, Defendant-Appellee.
No. 07-3281.
United States Court of Appeals, Sixth Circuit.
Nov. 13, 2008.
377
Before: MOORE and WHITE, Circuit Judges; and VINSON,* District Judge.
* The Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting by designation.
WHITE, Circuit Judge.
Plaintiff-Appellant United States of America (the government) appeals the judgment of sentence entered on Defendant-Appellee John W. Prisel‘s (Prisel) guilty plea of one count of possession of visual depictions of minors engaged in sexually explicit conduct,
I. BACKGROUND
On May 13, 2002, a United States Postal Inspector in Philadelphia, Pennsylvania, opened a criminal investigation into elviejohermano@yahoo.com, who, since 1999, had been posting advertisements in Internet newsgroups regarding child pornography videos for sale. Acting in an undercover capacity, the Inspector posed as a potential customer and contacted elviejohermano through email. A Special Agent of the U.S. Customs Service, now the Bureau of Immigration and Customs Enforcement (ICE), in San Diego, California, initiated a separate investigation in July 2002, and contacted elviejohermano acting undercover. On September 30, 2002, the Philippine National Bureau of Investigation (NBI) arrested Benjamin Villarcia Garcia, aka elviejohermano, in the Philippines for violations of Philippine law regarding child pornography. When apprehended, Garcia had among his pos-
The NBI executed search warrants and obtained information regarding Garcia‘s email accounts and records of his customers. On October 15, 2002, Garcia signed a consent form granting United States agents full control of four identified email accounts he had used. The Postal Inspector found information that Prisel had sent Garcia a $200 Western Union money order on January 18, 2002, to purchase four videotapes. The Inspector and Agent began contacting persons believed to have ordered videos from Garcia, including Prisel. On November 25, 2002, Prisel responded by email that he had not received the videos he ordered and still wanted them. In December 2002, a Special Agent of the ICE at the Cleveland ICE office was assigned Prisel‘s investigation.
On January 22, 2003, the Customs Agent called the ICE Agent to advise that he had had contact with Prisel through email in the past two days and that Prisel asked when the videotapes would be shipped. On January 31, 2003, a controlled delivery of child pornography videotapes was made to Prisel‘s residence in Parma, Ohio. A few minutes later, ICE agents executed a search warrant and seized the videotapes, among other things. The warrant authorized a search for child pornography. The ICE agents advised Prisel of his rights, he waived his rights and made a statement.
On July 25, 2006, a grand jury returned a one-count indictment charging Prisel with possession of materials involving the sexual exploitation of children,
Prisel‘s counsel requested a below-the-Guidelines-range sentence of probation. The government requested a sentence within the Guidelines range and maintained that there was no basis to go below the Guidelines range.
The presentence investigation report (PSR) stated that the advisory Guidelines range of imprisonment was 27 to 33 months, and “identified grounds that may warrant an upward departure,” i.e., “[p]ursuant to the commentary following
The district court sentenced Prisel to one day of imprisonment, followed by three years of supervised release, the first 18 months of which were under home confinement with electronic monitoring, and ordered that Prisel pay a $6,000 fine and a $100 special assessment. In addition to standard conditions of supervised release and of supervision, the court imposed the following “special conditions of supervised release:”
SPECIAL CONDITIONS OF SUPERVISED RELEASE
The defendant shall participate in a Home Confinement Program with electronic monitoring for a period of 18 months, to commence no later than 30 calendar days from sentencing. The defendant required [sic] to remain at residence unless given written permission to be elsewhere. The defendant may leave his residence to work, to receive medical treatment and to attend religious services. The defendant shall wear an electronic monitoring device, follow electronic monitoring procedures, and submit to random drug/alcohol tests as specified by the probation officer. The defendant may participate in the Earned Leave Program. Further, the defendant will be required to pay for the daily cost of electronic monitoring services. A percentage of this payment may be waived, based on the probation officer‘s evaluation of the defendant‘s financial condition.
The defendant shall allow the probation officer access to his computer including hard and software. The defendant shall provide accurate information about all information regarding his computer system; all passwords used and all internet services and will abide by all the rules of the Computer Restriction and Monitoring Program.
The defendant shall participate in a mental health program at the direction of the probation officer.
The defendant shall be prohibited from incurring any new credit or establishing any additional lines of credit without approval of the probation officer.
The defendant shall provide the probation officer access to all requested financial information.
The defendant shall submit his/her person, residence, place of business, computer, or vehicle to a warrantless search, conducted and controlled by the U.S. Probation Officer at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release; failure to submit to a search may be grounds for revocation; the defendant shall inform any other residents that the premises may be subject to a search pursuant to this condition.
The defendant will comply with all applicable requirements to register as a sexual offender. The defendant shall not seek, obtain or maintain any residence, employment, volunteer work, church or recreational activities involving minors (persons under the age of 18) in any way, without the prior express written approval of the probation officer. At the direction of the probation officer, the defendant shall participate in an outpatient mental health program, including treatment for sexual deviancy, which may include polygraph testing. The provision does not encompass persons under the age of 18, such as waiters, cashiers, ticket vendors, etc., with whom the defendant must deal with in order to obtain ordinary and usual commercial services. The defendant shall not reside within direct view of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facility, or
The defendant‘s residence and employment shall be approved by the probation officer, and any change must be approved by the probation officer. The defendant shall submit any proposed changes to residence and/or employment to the probation officer at least 20 days prior to any changes.
An attachment to the Criminal Judgment sets forth the district court‘s “Statement of Reasons,” with item B checked:
I COURT FINDINGS ON PRESENTENCE INVESTIGATION REPORT
A. The court adopts the presentence investigation without changes.
B. x The court adopts the presentence investigation report with the following changes. (Check all that apply and specify court determination, findings, or comments, referencing paragraph numbers in the presentence report, if applicable.)....
(1) See Presentence Report Page 14-Paragraphs 83-86 on assessment of Specialist, Dean Fazekas, (2) defendant has no prior record; (3) Defendant is not a danger to the community and is seeking to make himself a better person. The court believes incarceration is not the appropriate path for this defendant. This court is instituting a high level of Home Confinement and an above range fine ($6,000.00) with many special conditions to comply with.
Under § V(C), entitled “Reason(s) for Departure,” the district court checked the following categories:
5H1.1 Age
5H.1.2 Education and Vocational Skills
5H1.3 Mental and Emotional Condition
5H1.6 Family Ties and Responsibilities
Section VIII, entitled “ADDITIONAL FACTS JUSTIFYING THE SENTENCE IN THIS CASE,” states:
This is a very unusual case and the probation department has written a very thorough and strong report[,] but this court believes that this defendant will not benefit from incarceration. He has voluntarily sought counseling and from the assessment [,] he does not render [sic?] any recidivism factors for future behavior with children. See Presentence Report—Paragraphs 80-86 and 91. This court feels that this is a one-time offender. The court imposed a high fine and high ends of Home Confinement on three years supervision. Along with the supervision is [sic] many special conditions including a warrantless search, registration for a sex offender and continued mental health treatment.
Paragraphs 80 to 86 and 91 of the 22-page PSR, on which the court heavily relied, include excerpts of letters to defense counsel from Dean Fazekas, MSSA, LISW, of Specialized Assessments and Treatment, who performed a psychological evaluation of Defendant and met with him again at least once thereafter.
Mental and Emotional Health
80. The defendant denies having ever been treated by a psychologist, psychiatrist, or counselor for any reason. His behavior was appropriate and he was cooperative during the presentence interview and investigation.
81. Per instruction of counsel, the defendant was seen by Dean Fazekas, MSSA, LISW, of Specialized Assessments and Treatment, LLC for the purpose of a psychological evaluation. The Abel Assessment for sexual interest tool was used in the [psychological] evaluation ....
82. The Abel Assessment is an objective measure taken beyond the client‘s awareness of sexual interest in 22 slide categories depicting children, teens, and
83. The defendant admitted to Mr. Fazekas that he “spent a fair amount of time looking at age appropriate pornography on the website ....” with his initial interest in “normal pictures of naked women.” He eventually found he desired fetish type websites whose sexual themes were of less conventional sexual behaviors.
84. Mr. Fazekas suggested that the videotapes ordered by the defendant depicting minors engaged in sexual acts and bondage were not motivated by any sexual interest in pre-school or school aged children, but instead was [sic] a response by the defendant to seek “some emotional response” to his own childhood sexual abuse.
85. Mr. Fazekas did find that the defendant “is struggling with some sexual compulsivity issues.” His findings suggest an individual who is “trying to have unmet emotional needs filled through” pornography. Mr. Fazekas explained that individuals with an addiction to internet pornography progress from “soft-core” adult pornography to “more unconventional pictures,” into the “forbidden.” These individuals are generally helpless to stop on their own accord and normally only do so when the secret life they live in is brought to light. Their behavior generally only stops because either they are discovered and confronted or the time they spend in their pursuit becomes so great they begin to ignore personal and work obligations.” Mr. Fazekas related there are no known validated risk instruments that can be used in the case of an individual who has ordered a pornographic video of a child. “Likewise, the Abel Assessment probability values are not valid in this instance as Mr. Prisel‘s situation deals strictly with child pornography.” Mr. Fazekas distinguishes child abusers versus child pornography possessors. He also notes, “We do know however, that sexual interest in children is a risk factor associated with higher recidivism. In Mr. Prisel‘s case, there is no objective measured sexual interest in pre-school and/or school aged children.”
86. Mr. Fazekas made the following recommendations: engage in counseling with an individual knowledgeable about sexually compulsive behaviors and pornography addiction. Explore etiology of problematic sexual behavior. Learn healthier ways to cope. Place computer in a public area of the house. Install internet tracking software by third party. Computer should be subjected to random searches by qualified professionals to monitor use.
*
*
*
91. On October 1, 2006, Dean Fazekas, MSSA, LISW, sent a second letter to defense, which was provided to this officer by defense counsel on October 24, 2006. Mr. Fazekas met with the defen-
By order entered on October 16, 2007, this court granted Prisel‘s motion to stay proceedings pending the Supreme Court‘s decision in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007). After the Supreme Court decided Gall in December 2007, the parties filed supplemental briefs. Later, the government cited supplemental authority in a letter filed under Fed. R. App. P. 28(j), noting that the Supreme Court granted certiorari and vacated the judgments in three of the cases the government‘s proof brief relied on, and that Gall had called into question two other cases the government had cited for the proposition that when the district court grants a large departure or variance from the Guidelines, there must be extraordinary or compelling circumstances justifying such a large departure.
II. ANALYSIS
Under Gall, appellate courts “must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse of discretion standard.” 128 S. Ct. at 591. “[T]he Guidelines are now advisory, and appellate review of sentencing decisions is limited to determining whether they are ‘reasonable.‘” Id. at 594. The Gall Court explained:
In Booker [United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)], we invalidated both the statutory provision,
18 U.S.C. § 3553(b)(1) (2000 ed., Supp. IV), which made the Sentencing Guidelines mandatory, and§ 3742(e) (2000 ed. and Supp. IV), which directed appellate courts to apply a de novo standard of review to departures from the Guidelines. As a result of our decision, the Guidelines are now advisory, and appellate review of sentencing decisions is limited to determining whether they are “reasonable.” Our explanation of “reasonableness” review in the Booker opinion made it pellucidly clear that the familiar abuse-of-discretion standard of review now applies to appellate review of sentencing decisions. See 543 U.S., at 260-262, 125 S. Ct. 738; see also Rita [v. United States], 551 U.S., [338] at —, 127 S. Ct. 2456 [168 L. Ed. 2d 203 (2007)] (STEVENS, J., concurring).
It is also clear that a district judge must give serious consideration to the extent of any departure from the Guidelines and must explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications. For even though the Guidelines are advisory rather than mandatory, they are, as we pointed out in Rita, the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions. Id. at —, 127 S. Ct. 2456.
In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts may therefore take the
*
*
*
As we explained in Rita, a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. See 551 U.S. at —, 127 S. Ct. 2456. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the
*
*
*
Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard. It must 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 as mandatory, failing to consider the
First, although the government cited no comparable case at sentencing, Prisel‘s counsel pointed out a case from the same federal district, involving the same offense, and a sentence that included house arrest. Second, the district court‘s closing remarks at sentencing further evidence that it did consider the need to avoid unwarranted sentence disparities. Third, we do not agree with the government that “the district court articulated no reasoned explanation to differentiate Prisel from any other defendant who was indicted for possessing more than 1,000 child pornography images ....” At sentencing, the district court heard Prisel‘s counsel argue:
Now, therefore, as to Section A of 3553(a)(2)(l), the seriousness of the offense, the Court has to do what it can to promote respect for the law and provide for just punishment. I would like the Court to consider the community standard. I would like the Court to consider this a first offense. I would like the Court to consider that Mr. Prisel waited until July of 2006 to even be charged with this crime....
As far as an adequate deterrence, Your Honor, he has been under apprehension [sic] for the last four years, and he has behaved himself. I don‘t think, according to Dr. Fazekas, he is any danger to the community. It has been indicated clearly that he is not a danger of acting on these, so it would affect people in the community.
After hearing this argument, the district court noted that Prisel has no prior record, that Fazekas opined that Prisel is not a danger to the community and presents little risk of recidivism for future behavior with children, and is seeking to make himself a better person. The district court included in its “Reasons for Departure” Prisel‘s age (44 at sentencing), his mental and emotional condition (as summarized in the PSR ¶¶ 80-86 and 91, quoted supra), and his family ties and responsibilities (PSR states Prisel works out of the home, his wife is a dependent, and they owe $70,000 on mortgage). The court noted that it believed that Prisel is a one-time offender, and that he is unlike many of the other defendants in similar cases the court had seen, in that he would not benefit from incarceration.
In the instant case, as in Gall, the district court correctly calculated and reviewed the Guidelines range. The government did not cite at sentencing a case involving a comparable defendant who received a more severe sentence. The government cites one case in its supplemental appellate brief (filed post-Gall), United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008), which held that a probationary sentence in a child pornography case was unreasonable and that the district court abused its discretion in imposing it. However, the facts in Pugh are distinguishable from the instant case.
In this case, Prisel was charged with one count, while Pugh was charged with three counts: receipt and distribution of pornography by computer under
For these reasons, we find no merit in the government‘s argument that the district judge failed to consider the need-to-avoid-unwarranted-sentencing-disparities sentencing factor.
The government‘s second and final argument is that the district court‘s sentence did not reflect the seriousness of the offense [
The government does not point to any deficiencies in the district court‘s procedural review. Rather, the government takes issue with several of the reasons underlying the district court‘s conclusion that Prisel‘s is “a very unusual case indeed.” First, it contends that the court found that Prisel had voluntarily sought counseling, when the PSR indicated otherwise. Because the government did not raise this specific challenge in the district court, this court‘s review is for plain error that affected substantial rights.
The PSR does, indeed, state:
80. The defendant denies having ever been treated by a psychologist, psychiatrist, or counselor for any reason.
81. Per instruction of counsel, the defendant was seen by Dean Fazekas, MSSA, LISW, of Specialized Assessments and Treatment, LLC for the purpose of a psychological evaluation.... [J.A. 82 (PSR at 13).]
However, the PSR also states that Fazekas “met with the defendant, at the defendant‘s request for the purpose of sharing information he had not shared at the initial
Second, the government asserts that Fazekas administered a test that required Prisel to self-report his sexual arousal to various images, and that the PSR acknowledges that “there are no known validated risk instruments that can be used in the case of an individual who has ordered a pornographic video of a child, thereby rendering the risk probability values invalid in Prisel‘s case.” The government is correct that the PSR so states, however, it is clear from the PSR that Fazekas concluded notwithstanding the shortcomings of the testing, that Prisel was unlikely to act out with children because his addiction to pornography was an attempt to have unmet emotional needs of his filled. The PSR noted that Fazekas suggested that Prisel‘s ordering of the videotapes depicting minors engaged in sexual acts and bondage was not motivated by any sexual interest in pre-school or school-aged children, but instead was a response by Prisel to seek some emotional response to his own childhood sexual abuse. Fazekas opined that Prisel‘s having been sexually abused himself [by an older brother] did not mean that he presented a higher risk of becoming a sex offender, but rather, that “research has shown that ... while many sexual offenders have been sexually abused, the majority of people who are sexually abused do not become sex offenders.” J.A. 84 (PSR at 15).
For these reasons, we find no merit in the government‘s argument that the district judge gave improper weight to the sentencing factors of the need for the sentence imposed 1) to reflect the seriousness of the offense and 2) to afford adequate deterrence to criminal conduct.
As in Gall, the district judge in the instant case correctly calculated the applicable Guidelines range, allowed both parties to present arguments as to what they believed the appropriate sentence should be, considered the
Gall instructs: “[a]ssuming that the district court‘s sentencing decision is procedurally sound, the appellate court should
Notes
At oral argument before this panel, the government relied on an unpublished case, United States v. Camiscione, 207 Fed. Appx. 631 (2006). Camiscione was decided pre-Gall and, like Pugh, supra, is distinguishable.
The defendant‘s Guidelines range in Camiscione was the same as Prisel‘s—27 to 33 months. The district court sentenced Camiscione to one day in the marshal‘s custody, followed by 3 years of supervised release, with 180 hours of community service. Contrary to the government‘s suggestion, however, this court in Camiscione noted that the district court‘s “variance is not impermissible,” and vacated the sentence because “the district court‘s failure to address several pertinent factors does not allow us to determine that Camiscione‘s sentence was justified.” 207 Fed. Appx. at 636. This court concluded that the district court “neglected to consider and articulate how its sentence ... deterred Camiscione from further crimes, and how this sentence avoided sentencing disparities ... If these factors were in fact considered by the district court, the record is devoid of such reasoning.” Id. at 637. We also note that Camiscione‘s sentence, unlike Prisel‘s, did not include 18 months of house arrest, nor did it include a fine.