Case Information
*1 Before: GUY, ROGERS, and GRIFFIN, Circuit Judges.
PER CURIAM. After pleading guilty to eight counts of criminal activity involving child pornography, defendant Royal Raymond Weller was sentenced to 120 months’ imprisonment followed by six years of supervised release. The government claims on appeal that the sentence was an unreasonable variance from the applicable United States Sentencing Guidelines range of 324 to 405 months. Finding the district court did not abuse its discretion in imposing Weller’s sentence, we affirm.
I .
In 2006, federal law enforcement agents who were engaged in a multi-jurisdictional investigation of a child pornography internet “chat room” arrested Weller for possessing and distributing child pornography over the internet. Numerous other individuals, located in different states, were also prosecuted. Weller was identified as the host of the enterprise. Weller was charged with conspiracy to distribute, receive, and possess child pornography in violation of code sections including 18 U.S.C. §§ 2252A(b)(1) and 2252A(b)(2) (Count 1); transportation of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(1) and 2252A(b)(1) (Counts 2-5); receipt of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1) (Counts 6-7); and possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(1) (Count 8). After Weller’s motion to suppress evidence was denied by the district court, he pleaded guilty to all counts in December 2006.
The Presentence Report (PSR) indicated a base offense level of 22 under U.S.S.G. § 2G2.2(a)(2). Twenty-two levels were added to the base because (1) the pornographic material involved prepubescent minors; (2) the offenses included distribution; (3) the material depicted sadistic or masochistic conduct or other violence; (4) the offenses involved use of a computer; (5) over 600 images of child pornography were involved; and (6) Weller was an organizer or leader of the criminal activity. Three levels were subtracted, under U.S.S.G. § 3E1.1(a) and (b), because Weller demonstrated acceptance of responsibility. This resulted in a total offense level of 41. Weller, who had no criminal record, received a criminal history category of I. Accordingly, the advisory sentencing guideline range was between 324 and 405 months. A mandatory minimum sentence of 60 months applied to Counts one through seven.
At the conclusion of the two-session sentencing hearing, involving the testimony of law enforcement and psychologists called by both Weller and the government, the government recommended a sentence at the low end of the guideline range. The district court considered Weller’s cooperation with authorities and the lack of a government motion for downward departure, and the absence of evidence that Weller had any personal involvement in the molestation of children. The district court also considered Weller’s leadership role in the chat room and the seriousness of the crimes. The district court further took into account Weller’s age of 50 and his personal experience and issues, noting he expressed a sincere desire for treatment, and determined that “there are many mitigating factors in the Court’s view in terms of Mr. Weller as a person.” In conclusion, the court found a large variance from the guidelines was appropriate:
However, the Court does not see in this case that a sentence within the guideline range is remotely necessary or sufficient to punish Mr. Weller, reflect the seriousness of his offense, promote respect for the law, protect the public from further crimes or give him treatment.
The Court sees a sentence much below the guideline range as appropriate in this case considering all these factors. And so the sentence for Mr. Weller is going to be 120 months on each of the eight counts to run concurrent with each other.
. . . .
That will promote respect for the law. It certainly will send a message that this is a very serious offense and you will go away for a very long time. The Court considers ten years a very long time especially to a 50 year old man. That is just punishment.
The Court, as Dr. Moore, does not have serious concerns about Mr. Weller reoffending particularly if he is able to get the treatment while he is incarcerated that he needs.
And I am going to impose a six year term of supervised release following that 120 months which will help assure that Mr. Weller stays on the straight and narrow when he gets out.
And I am sure I am not the only judge that in these kinds of cases is not endorsing when the individual situation is appropriate – and here we have my weighing the cooperation given by Mr. Weller that did not result in a motion – I do not believe this result will result in unwarranted sentencing disparities. The government filed a timely appeal, following which Weller cross-appealed the denial of his motion to suppress.
II .
The government appeals the sentence in this case, arguing that it is both procedurally
and substantively unreasonable. “‘Post-
Booker
, we review a district court’s sentencing
determination “under a deferential abuse-of-discretion standard,” for reasonableness.’”
United States v. Presley
,
As stated in
Gall
, in reviewing a sentence for procedural reasonableness, we must
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 § 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.
,
5 Despite the government’s concession that “the sentencing court calculated the guidelines correctly and ultimately discussed the 18 U.S.C. § 3553(a) factors,” it contends that both comparison of the 120-month sentence in this case to the guideline range and consideration of the totality of the circumstances demonstrates that the district court abused its discretion and imposed a procedurally unreasonable sentence. The government focuses on a statement made by the district court near the beginning of the first sentencing hearing, when counsel for Weller argued that the authorized maximum sentence was 12 years pursuant to 18 U.S.C. § 3581(b). The district court stated in response: “I believe in terms [2]
of where I think I’m going with the sentence, I don’t really think I need to rule on [that].”
The government argues that the district court improperly came to a conclusion
regarding the length of sentence
before
considering the § 3553(a) factors. The government
cites no authority in making this argument, however, and we find it lacks merit. As argued
by Weller, disclosure by the district court that it was considering a sentence below the
guidelines certainly caused no prejudice to the government, actually affording it a chance to
confront the issue during sentencing. Although the government did not object to the
disclosure when it was made, it was later granted a sentencing continuance to present an
expert witness, and still made no reference to the court’s disclosure. The district court’s
action comes nowhere close to the “significant procedural error” warned of in , 128 S.
Ct. at 597. Additionally, the simple fact of the variance between the 10-year sentence and
the advisory guidelines range does not, by itself, make for a procedurally unreasonable
sentence.
See United States v. Guthrie
,
B. Substantive Reasonableness
If the sentence is procedurally sound, we then review for substantive reasonableness
under the abuse of discretion standard.
Gall
,
Weller cites
United States v. Grossman
, 513 F.3d 592 (6th Cir. 2008), where the
defendant, who had been involved with child pornography on the internet for five years,
pleaded guilty to possession of child pornography. Despite a recommended guidelines
sentence at the statutory maximum of 120 months in prison, and 10 years of supervised
release, the district court imposed a sentence of five and one-half years, followed by 10 years
of supervised release.
Id
. at 595-96. In
Grossman
, we noted ’s holding that
extraordinary circumstances are no longer required to justify sentences above or below
guidelines ranges, but that “some correlation between the extent of a variance and the
justification for it” may be required.
Grossman
,
In the case at bar, the district court placed emphasis on the cooperation Weller gave
authorities without receiving anything in return. It noted that Weller pleaded guilty, without
a plea agreement, to all eight charges, and that he had no criminal history. Although the
district court found the crimes committed to be “horrific,” and that Weller’s leadership role
in the chat room was “an extremely serious offense,” the court noted a lack of any evidence
that Weller had sold or produced child pornography or engaged in the molestation of
children. The district court considered Weller’s consistent work history and positive family
relationships. It also found that Weller had not previously recognized the extent of the
damage child pornography visits upon children, and that he knew he had serious problems
and sincerely desired treatment for those problems. The district court recommended specific
sex offender treatment programs during Weller’s period of incarceration. It also considered
Weller’s age of 50, and the resultant lower risk of recidivism after ten years. The district
court considered the need to avoid sentence disparities by comparing Weller’s situation to
that of one of the other individuals involved, who had received a 120-month sentence. At
the conclusion of its sentence, the district court denied Weller’s objection to the PSR’s
condition that he receive sex offender treatment following incarceration. The district court
thoroughly applied the 18 U.S.C. § 3553(a) factors, although they were not explicitly named
while imposing the sentence.
See United States v. Pearce
,
Ultimately, much of the government’s argument asserts that the district court’s
discretion was applied incorrectly, rather than abused. However, “[d]istrict courts enjoy
discretion in sentencing based on their ‘ring-side perspective on the sentencing hearing and
[their] experience over time in sentencing other individuals.’”
Guthrie
, 557 F.3d at 256
(quoting
United States v. Poynter
,
AFFIRMED.
Notes
[1] The cross-appeal was abandoned by Weller.
[2] This issue is not a part of this appeal.
[3] Weller cites Irizarry v. United States , 128 S. Ct. 2198, 2203 (2008) for the notion that such a disclosure is actually a sound sentencing practice.
[4] Weller also cites
United States v. Beach
,
[5] The government asserts that the district court exaggerated the extent of Weller’s cooperation, and
that reliance on a lack of criminal history was inappropriate, as it is already taken into account by the
guidelines. Similarly, the government asserts that the finding of an absence of evidence concerning physical
abuse of children was improper, given that he was not charged with that offense. As argued by Weller, in
making these arguments the government relies in part on
United States v. Borho
,
[6] The government asserts that this defendant was convicted only of possession of child pornography, distinguishing the case from Weller’s, but the PSR gave no specifics about any of the other defendants or their histories.