*1 433 one-year grounds, the is of statute of limitations limitations jurisdictional and when may not be tolled address the did not issue in dismiss- ‘“(1) petitioner that he the demonstrates untimely. Jefferson’s claims as Ac- been pursuing rights diligently, has his cordingly, remand for the we district court (2) extraordinary circum and some to the consider in first instance to whether prevented stood in way stance his apply equitable tolling to permit Jefferson Florida, timely filing.” 549 Lawrence v. pursue the claims raised in his March 327, 336, 1079, 127 L.Ed.2d U.S. S.Ct. 166 2005 motions. (2007) (quoting DiGuglielmo, Pace v. Accordingly, we REVERSE the dis- 408, 418, 1807, 544 U.S. missal of Jefferson’s 2255 motion and (2005)). L.Ed.2d 669 have also cau We REMAND further consideration of the “equitable tioned that should be tolling limitations statute' applicability of and the sparingly.” v. granted Solomon United equitable tolling. of
States, (6th Cir.2006) States, (citing Dunlap v. (6th Cir.2001)). 1008-09 A district equitable
court’s decision on the issue of
tolling is reviewed de the facts novo when undisputed.
are Id. at 932. determining equita
In apply whether to tolling, following
ble the are consid factors “(1) petitioner’s
ered: the lack of notice of (2) filing requirement; the petitioner’s of filing
lack constructive of the knowledge (3) pursuing requirement; diligence America, of UNITED STATES (4) rights; prejudice one’s absence of Plaintiff-Appellee, (5) respondent; petitioner’s v. ignorant reasonableness in remaining legal requirement his claim.” filing Stephen PRITCHARD, Allan Solomon, 467 (citing Dunlap, F.3d at 933 Defendant-Appellant. 1008). F.3d at are These factors No. 08-4402. necessarily comprehensive, nor is each fac Id; in every tor relevant case. see also Appeals, United States Court of Bell, King Cir. Sixth Circuit. (cid:127) 2004). When petitioner does not claim Aug. ignorance filing requirement, inquiry diligence focus of the on his ignorance
the reasonableness of his delay.
effect of his at 553. King, 378 F.3d argues diligently pur-
Jefferson that he claims, his
sued but did not have access to support allegations
the facts because prosecutor’s conduct concealed supported prosecu-
facts his claims equita-
torial misconduct. Jefferson raised tolling opposing
ble dismissal statute
OPINION CLAY, Judge. Circuit Pritchard, Defendant, Stephen ap- Allan imposing an a sentence of peals from order Defendant fifty months’ incarceration. convicted of one count pled guilty and was in interstate com- knowingly traveling engaging in illicit purpose merce for the person, conduct with another sexual 2423(f), in 18 violation defined U.S.C. 2423(b). appeal, In this of 18 U.S.C. a claim of ineffective as- Defendant raises counsel, evidentiary claim sistance of an sentencing hearing, and sev- related to the regarding procedural eral claims reasonableness of the sentence substantive below, set forth imposed. For the reasons we VACATE the sentence on REMAND for re- grounds, reasonableness AFFIRM the court’s sentencing, district DEFER the inef- evidentiary ruling, and of counsel claim for col- fective assistance complete lateral review so that a more can generated. record be
BACKGROUND corresponded Defendant in an internet agents FBI chat room with undercover mother, “Lorie,” posing as a and her four- daughter, “Kayla.” He ar- teen-year-old ranged to travel from his home Indiana engage in a pair to Ohio to meet the and to of them. De- sexual encounter with both meeting to cancel the first fendant decided day he before it was to occur arranged of his about whether he because concerns actually participate willing would be the encounter. Defendant then decided “Kayla” meet “Lorie” and in a restaurant them, parking lot and have dinner with supposedly to become more comfortable committing. De- with the situation before 7, 2008, arranged fendant called on March the location where meeting, and drove to CLAY, KEITH, BEFORE: the two thought meeting he he would be GRIFFIN, custody by females. He was taken into Judges. Circuit FBI agents upon his arrival at the restau- on a four-hour session with Defendant. Massillon, parking First, rant lot in Ohio. Dr. Orlando administered two com- mon psychological tests used in diagnosing charged April Defendant was in an *3 personality disorders —the Minnesota Mul- 2008 indictment for the sole count of know- tiphasic Personality Inventory and the Mil- ingly traveling in interstate commerce for Ion Clinical Inventory. Multiaxial From purpose the engaging illicit sexual Defendant, those tests and his session with person, conduct with another as defined in Dr. Orlando concluded that Defendant had 2423(f), 18 U.S.C. in violation of 18 very low risk of recidivism and was not 2423(b). U.S.C. Defendant entered a Instead, suffering pedophilia.1 from Dr. plea 21, 2008, guilty April of not and Orlando described particular sexual then entered a plea guilty May in a paraphilia2 that Defendant suppos- has as 2008 change plea hearing. edly being sexually interested in the moth- 3, 2008, On September Defendant filed a er-daughter relationship, not about being sentencing memorandum that included a sexually interested in a young prepu- or request psychological leave to file a daughter. bescent Dr. Orlando further report under seal. report, prepared The testified, upon court, questioning from the Orlando, Ph.D., by James was not included that allegedly Defendant showed he was attachment, as an allegedly because the concerned about young age clerk of the court would not allow it to be daughter by cancelling the first meeting, filed under seal without a prior ruling by which Dr. thought Orlando further bol- the court. At the sentencing hearing on stered the conclusion that Defendant 10, 2008, September the district court had unlikely would be to re-offend. Dr. Orlan- not ruled on Defendant’s request for leave do concluded that Defendant had 6-7% and stated that it had not seen Dr. Orlan- chance of re-offending in the next five to report. do’s Defendant given op- was years, fifteen which thought he quite tion of either admitting report or hav- Orlando, low. According to Dr. Defendant ing testify. Dr. Orlando Defense counsel would also be psychological amenable to chose to have the psychologist testify and counsel, treatment. Defense counsel for report use the to refresh his recollections the government, and the sentencing judge necessary having lieu of the report questioned length Dr. Orlando at during admitted. However, sentencing hearing. the dis- Dr. Orlando testified at the findings trict court made no regard- of fact hearing to several findings he made based Dr. Orlando’s testimony on the record. 1. testify, Again, Dr. Orlando did not testify and was not Dr. Orlando did not However, questioned, paraphilia. definition of pedophilia. as to the definition of we take judicial paraphilia general notice that is the According accepted psy- definition in psychology psychiatry term in and for abnor- chiatry psychology, pedophilia and is charac- preferences. mal sexual "The essential fea- sexually arousing terized either intense recurrent, Paraphilia tures of a are intense fantasies, urges, involving or behaviors "sexu- fantastic, sexually arousing urges, sexual or activity prepubescent al (general- with a child 1) generally involving behaviors nonhuman Diagnostic ly age years younger).” or and 2) objects, suffering or humiliation of one- Text Disorders, Statistical Manual of Mental 3) partner, self or one’s children or other Revision, (4th ed.2000). at To be consid- nonconsenting persons peri- that occur over a diagnosis, ered for this the "individual with Diagnostic od of at least 6 months." Pedophilia years be at must least 16 or older Text Disorders, Statistical Manual of Mental years and at least older than the child." Id. Revision, (4th ed.2000). at 566 your history own introduced evi- I also consider also government Especially your work to characteristics. previ- had admitted that Defendant
dence life, benefit, you’ve had a stable pro- to a conduct with children ous sexual education, level of you’ve higher had a messaging and in an instant bation officer important, you don’t perhaps most disputed Defendant conversation. have criminal record. Somewhat prior messaging characterization of instant conversation, sugges- this is the—some ameliorating he in which had claimed yourself tion in the—the e-mails eleven-year-old had sex with an be- you engage in this conduct before. did eleven at alleged he that he was also cause denied, princi- and it’s not a That’s been *4 transcript of the conversa- the time. The factor, I think pal both of those also allegation that he tion did not include his give cause for concern to the some person other that he was also told the you in of where to place Court terms time, government at and the eleven ranges. sentencing within the only argued that it was told of this addi- I also consider the need for the sen- change plea tional information after the of just punishment, tence to reflect afford hearing. Defendant was unable to re- deterrence, adequate protect public, transcript messag- trieve a of the instant and reflect the seriousness of the of- computer from his that he ing conversation potential fense. This conduct involved alleged would have shown that when he somebody victimization of that’s 14 with having boasted of an encounter years old. There’s—there was testimo- eleven-year-old, he also noted that he was ny and kind of intimation that that eleven at the time. significantly should be different than a imposed The district court a sentence of But, prepubescent minor. find it I’d fifty sentencing months and concluded the make difficult to that distinction. To hearing following explanation with the of engage 14-year- this conduct with a the sentence: I think much near old reeks as much a younger as to victim as case, THE In this I have set COURT: I think child. So there is a need to 23, level the criminal the offense protect public type from this of con- history category at 1. I also considered reflect the duct and to seriousness of the 3553(a) the nature —Section factors. conduct. those, among First I consider the na- I the types also consider of sentences
ture and the circumstances of the of- available. Probation’s not available. fense. This did involve the Defendant’s months, range The Guideline is 46 to 57 attempt prepubes- to solicit sex with together supervised release follow- through minor an Internet chat cent ing. There’s no issue of dis- room. Conversations associated with parities. No issue restitution. over a place large took number going So it’s to be the conclusion of dates, place relatively signif- took over a you be sentenced to a Court time, period icant also involved de- within the range sentence Guideline that, scriptions you and solicitations somewhat above the lower end of it. know, completely were offensive. you I’m going What to do is sentence months, And so I find the nature and the a term of incarceration of 50 suggest circumstances of the offense which above the lower end. is somewhat Guidelines, that, perhaps pick mostly sentence I because of the nature itself. And I reduce it higher range. the Guideline offense 382, from what it have been somewhat would United States 516 F.3d (6th Cir.2008) (en banc). you the fact that had no to reflect have 390-91 Defen- any dant did make prior objections criminal conduct. thus, imposed, sentence once this Court 45-47). (Dist.Ct.Doc. 47, No. Sen. De- Tr. reviews for error. Plain re- error objections fense counsel made no “[requires] view that the error affect imposed, asking sentence after was defendant’s substantial rights[, which] particular for the court to recommend a ‘usually means that the error must imprisonment. timely ap- location for This affected the outcome of the district peal followed. ” McFalls, proceedings.’ United States v. (6th 707, Cir.2010) (quot- 711-12 DISCUSSION Cotton, States v. 535 U.S. I. of Review Standard 122 S.Ct. L.Ed.2d (2002)); Davis, Ineffective assistance of claims see also United counsel States v. Cir.2005). appeal raised in direct are de- To find a typically “(1) plain error, this Court must error ferred to collateral review the con- find unless *5 (2) (3) clear, obvious or af- infirmity the rec- was apparent stitutional is States, fected defendant’s rights v. 538 substantial ord below. Massaro United (4) 500, fairness, 504-06, 1690, the integrity, affected or U.S. 123 S.Ct. 155 (2003); Hill, public reputation judicial proceed- 714 v. L.Ed.2d United States (internal 48, (6th Cir.1994). ings.” 516 51 F.3d at 386 30 F.3d the “Where omitted). quotations adequately developed, is not record usual course is to defer of consideration This reviews sentences sub Court to post proceedings the claim conviction using stantive of reasonableness abuse under 28 U.S.C. 2255.” States v. United discretion standard. is a presump There Watkins, Cir.2007) 277, (6th 509 F.3d 283 tion of reasonableness for a within Guide Gardner, 417 (citing States v. F.3d United Circuit, lines sentence but there is (6th Cir.2005)). 541, 545 corresponding “presumption against no range.” sentence that falls outside of this
This Court reviews district court order v. 571 Herrera-Zuniga, United States or admit an abuse exclude evidence for (6th Cir.2009). 568, Accordingly, F.3d 590 Young, of discretion. United v. 533 States “while the extent of the difference between 453, (6th Cir.2008). 460 F.3d An abuse of particular sentence and the recom discretion occurs when “the lower rele range surely mended Guidelines fact, clearly findings relies on erroneous vant, appeals must all courts review- it improperly applies or when the law or outside, inside, just sentences —whether legal uses an erroneous standard.” Unit significantly outside the Guidelines Heavrin, 723, 727 ed States a deferential range abuse-of-dis (6th Cir.2003) (quoting States v. —under cretion Id. at 590-91 (quoting standard.” True, 410, 422 n. 9 Cir. States, 41, Gall v. United U.S. 2001)). (2007)). 586, 169L.Ed.2d 445 objections explicitly Procedural must be raised in district court in order to Analysis II. preserve them for review reasonableness A. Ineffective Assistance of Counsel standard, under an abuse-of-discretion properly if then the “In to establish assis- they preserved are order ineffective counsel, sentence is reviewed for error. tance of a defendant must demon- none, that it is an abuse suggesting fell found representation strate that ‘counsel’s testimony expert of reasonable- discretion to allow objective standard below an admitting expert report. ness,’ performance ‘the deficient without also and that ” testimony lengthy and defense.’ Johnson v. Dr. Orlando’s prejudiced [his] (6th Cir.2009) argues that Defendant topics covered the Sherry, 586 report: in the Washington, Strickland v. would have been discussed (quoting 687-88, state, risk of “psychological 104 S.Ct. Defendant’s U.S. (1984)). amenability for treat- re-offending, L.Ed.2d 22.) (Appellant’s Br. at Addition- ment.” as Defendant’s claim of ineffective report on the ally, Dr. Orlando had on his coun of counsel is based sistance him in order to refresh his stand with deficiency failing alleged sel’s therefore recollection if needed and was report admitted into evi psychological testify to the entire content of able to First, argues that coun dence. Defendant if counsel elicited such tes- report defense late, sentencing memorandum sel filed the timony. inadequate which left time for the district admitting note that both the We should Second, De court to rule on the motion. have been report and the would that it was deficient to argues fendant also court, for the district practice better report under psychological seek to file the psychological of this given importance admitting it as an simply seal rather than primary argu- evidence to Defendant’s sentencing memoran attachment However, for a lower sentence. ments However, report is not in dum. since *6 for the was not an abuse discretion record, possible it is not for this Court only court to admit the district to review whether counsel’s efforts were of Dr. Orlando. argues Defendant prejudicial. deficient or would have offered “de report Procedural Reasonableness of De- C. greatly tailed information that could fendant’s Sentence understanding assisted the District Court’s (Appellant’s situation.” [Defendant’s] necessarily abuses district “A 21). report, Br. at But without the these its discretion if it ‘commit[s][a] allegations support, are without and the error, failing such as significant procedural part of report would be available as (or improperly calculating) to calculate the record in a collateral attack as it was range, treating the Guidelines Guidelines We, therefore, not admitted below. defer mandatory, failing to consider coun the issue of ineffective assistance of 3553(a) factors, selecting a sentence review because the record sel to collateral facts, clearly failing erroneous based complete psychological without the is not the chosen sen adequately explain report at issue. tence—including explanation any an ” range.’ from the Guidelines deviation Psychological Evi- B. Admission of Bolds, 568, States v. United dence Cir.2007) (6th Gall, (quoting 552 U.S. 586). proce A sentence is argues
Defendant that the district S.Ct. durally if the district court report court should have admitted the unreasonable argument to address a nonfrivolous alongside testimony, Dr. Orlando’s rather fails of a by support than to choose one or the made the defendant asking counsel v. Black other form of evidence. Defendant has lower sentence. United States (6th Cir.2006) (“the well, 739, 774 pointed authority, to no and this Court has 459 F.3d requires sentences, black letter law of this Circuit reasonableness of their which district courts to consider all factors can only be vindicated if the record in the brought by to their attention a defen clearly district court reflects the district dant”). judge’s consideration of all nonfrivolous ar
Failure to
argu
address
nonfrivolous
Id. Under the
guments.
logic
of Wallace
ment
is a reversible error even on plain
guidance
and the
from the Supreme Court
review. See United States v. Wal
error
in Rita v. United States that a within-
lace,
(6th Cir.2010)
802-08
guidelines sentence requires less detailed
(explaining how all
prongs
plain
four
see
explanation,
338, 356-57,
U.S.
error analysis are satisfied once the Court
(2007),
remand 46). (Dist. 47, Sen. Tr. at Ct. Doc. No. er- alleges procedural Defendant two However, appear not explanation does First, alleges rors. he addressing psychologist’s to be testi- psychologist’s court failed to address concerning lack of sexu- mony Defendant’s argu- testimony supporting Defendant’s particular al attraction to minors in diagnosed pedo- ment that he was re-offending, Defendant’s lower risk of and has a low risk of recidivism. philia that the rather discusses whether the fact Second, that the district court alleges he hypothetical victim was fourteen is less in engaged that Defendant had presumed if serious offense than Defendant was support activities without past pedophilic younger meet a child.5 in record. This second finding for that error, findings The district court made no may be a substantive error also such, testimony prior fact regarding expert the extent it is it will be following section. Defen- during explanation addressed to or his of the sen- procedural challenge no other imposed. dant makes tence While the district court did appeal, in his and this Court has found no engage questioning psychologist, reviewing error in other in. explanation there is no reference record. testimony the sentence to that and wheth- testimony given weight er the any court did not make
The district
crafting
sentence. Defen-
Defendant’s
specific
presented
mention of the evidence
arguments that he
not suffer
dant’s
does
testimony
De-
regarding
in Dr. Orlando’s
pedophilia,
specifically
from
is not
attract-
re-offending.
likelihood of
There
fendant’s
unlikely
underage daughters,
ed to
and is
mention of whether Defendant is
was some
arguments.
are not frivolous
re-offend
pedophile
when the district court stated:
arguments go
These
to the core of the
victim-
potential
This conduct involved
3553(a) factors,
history
especially the
somebody
years
that’s 14
old.
ization
and characteristics of the Defendant. He
There’s—there was
and kind
was entitled to have the district court
be signifi-
of intimation that
should
clearly,
briefly, explain
even if
on the rec-
than a
mi-
cantly
prepubescent
different
*8
argument for a lower
primary
ord how his
But,
nor.
find it difficult to make
I’d
affected the district court’s deci-
engage
that distinction. To
this con-
sentence
14-year-old
impose
within-guidelines
I think reeks
sion to
sen-
duct with
as
that victim tence of 50 months.
much or near as much as to
apparently
cursory
directly
5. The dissent
finds this
was
related to a lower likelihood of
age
mention of
about
of the
recidivism. Dr. Orlando testified that Defen-
explanation
victim to be an
of how the district
wary
daughter’s young age
dant was
of the
weighed
testimony.
Dr. Orlando’s
But
meeting,
and cancelled the first
which further
way
it clear from
no
this statement
bolstered the conclusion that Defendant was
addressing
expert’s
the court was
tire
full ar-
unlikely to re-offend. The district court does
that,
gument
age
hypothet-
not
of the
any
pri-
aspect of Defendant’s
not address
victim,
fact that Defendant
ical
but also the
mary argument beyond
age
hypo-
particularly
attracted to minors so
was
thetical victim.
mother-daughter
relationship,
much as to the
is no evidence in the record
There
that which is not available here because of the
the district court
argu-
“listened to each
sentencing judge’s failure to address the
ment,
evidence,
considered the supporting
psychological
Blackie,
evidence. See
fully
was
aware of the defendant’s circum- F.3d at 402 (finding failure to address
stances and took them into account in sen- Defendant’s
arguments
nonfrivolous
to im-
him,”
tencing
regard
to Dr. Orlando’s plicate a
right,
substantial
being
therefore
testimony.
Gapinski,
United States v.
error).
Therefore,
the sentence
(6th Cir.2009)
F.3d
(citing
should be vacated and remanded for resen-
387; Rita,
at
U.S.
tencing due to
this
error.
2456) (internal
omitted).
quotations
Defendant’s
argument
second
regarding
primary argument
Defendant’s
for a lower
alleged
court’s
presumption
sentence
Dr.
finding
Orlando’s
that he
that he had
prior
committed
pedophilic
recidivism,
had a low risk of
which is relat-
acts is unsupported by the record. The
ed to Dr. Orlando’s opinion that Defendant
pertinent section of
judge’s
does not suffer from pedophilia and that
comments is as follows:
he is
mother-daughter
attracted to
pairs,
Somewhat ameliorating this is the—
not specifically
underage1
victims. The
some suggestion in the—the e-mails
any
record is devoid of
evidence that the
yourself
you
engage
did
in this con-
district court
responded
understood and
denied,
duct before. That’s been
the crux
testimony,
of Dr. Orlando’s
espe-
factor,
it’s not a principal
I
think
cially
questions
since the
by
asked
both of
give
those also
some cause for
explanation
court and the
offered
concern to the Court in
terms where
district court both
age
focused
place you
within the sentencing
hypothetical
victim
being
outside
ranges.
the norm rather
than the psychologist’s
(Dist.
46).
Ct. Doc.
type
focus on the
No.
Sen. Tr. at
relationship targeted
by Defendant as being outside the norm. These comments refer to the Defendant’s
alleged statement in an internet chat room
Failure to address
primary
Defendant’s
that he had a sexual encounter with an
sentence,
argument for a lower
especially
eleven-year-old, which he later claimed
the connection between
lack
of sexual
was when he
appears
also was eleven.
It
specifically
attraction
targeting underage
from the sentencing judge’s comments that
recidivism,
victims to his low risk of
is a
it concerned the district court that Defen-
Wallace,
plain error. See
sitates development of a full record (judicial finding fact pro- Because we vacate the sentence preponder- requires sentencing purposes evidence). Therefore, declines to grounds, the dis- this Court of the cedural ance procedural not commit a arguments regarding trict court did Defendant’s address state- alleged Defendant’s regarding error of his sen- reasonableness thé substantive engaged previously that he had ments tence. activities.
pedophilic
any
to make
court’s failure
The district
CONCLUSION
testi-
regarding
psychologist’s
findings
De-
failure to address
mony, and therefore
above, we
For the reasons set forth
pedo-
not a
arguments that he is
fendant’s
ineffective assistance
DEFER the issue of
re-offend,
unlikely to
was a
and is
phile
to habeas or other collateral
of counsel
reasonably likely
It is
error.
review, AFFIRM the district court’s rul-
addressed the
had the district court
admissibility
ex-
ing regarding the
testimony, the result of the
psychologist’s
report
in lieu of both the
pert
Re-
may have been different.
sentencing
testimony,
and the
the sentence
VACATE
the law of the
gardless,
it is clear
argu-
Defendant’s
for failure to address
judges
respond
to
requires district
Circuit
sentence,
a lower
and REMAND
ment for
arguments,
implicating
to all nonfrivolous
re-sentencing.
right meaning-
Defendant’s substantial
Therefore,
it was
appellate review.
ful
GRIFFIN,
dissenting.
Judge,
Circuit
so,
since
especially
error to fail to do
plain
mere mo-
psychologist
had testified
join
Judge
I
in Sections II. A. and B. of
began explaining
the court
ments before
respectfully
dissent
Clay’s opinion,
its sentence.
remand for resentenc-
majority’s
from the
“[fjailure to
holding
address
Reasonableness
D. Substantive
er
nonfrivolous
is
reversible
[ ]
Defendant’s Sentence
plain
ror even on
error review.”
ma
may be considered substan-
“A sentence
Wallace,
v.
jority relies on United States
the district court
tively unreasonable when
(6th Cir.2010),
propo
for the
443
law);
change
the state of the
6th
R.
soning
Cir.
a manner sufficient to allow for
206(c).
meaningful
by
reasonableness review
ap-
pellate courts. See United States v. Fer-
I
would affirm the
and sub-
(6th
660,
guson,
Cir.2006);
456 F.3d
665
stantive
reasonableness
of defendant
Jones,
865,
United States v.
445 F.3d
869
Pritchard’s
sentence and therefore re-
(6th Cir.2006); see also United States v.
spectfully dissent.
Brissett,
473,
(6th
375 Fed.Appx.
476-77
Cir.2010). Our review is
I.
constrained be-
clear,
cause “the
overriding import of
First, the record reveals that the district
[Rita,
338,
2456,
U.S. at
127 S.Ct.
adequately
considered Pritchard’s
States,
Kimbrough
85,
v. United
552 U.S.
low-risk-of-recidivism
and ex-
558,
(2007),
S.Ct.
Time
again,
we have stated that a
sive. And so I find the nature and the
district court need
articulate its rea-
suggest
circumstances of the offense
Table)
(2007).
pt.
(Sentencing
See U.S.S.G. ch.
A
*11
with,
months,
Guidelines,
super-
together
perhaps
46 to
in the
sentence
range. I also
following.
in the
There’s no is-
higher
Guideline[s]
vised release
your
history
own
and charac-
consider
No issue
sentencing disparities.
sue of
your
work to
bene-
Especially
teristics.
going
it’s
to be the
of restitution.
So
life,
fit,
you’ve
and
you’ve had
stable
you
sen-
conclusion of the Court that
be
education,
per-
level of
but
higher
had a
tenced to a sentence within the Guide-
you
important,
[a]
most
don’t
haps
the lower
range somewhat above
line[s]
Somewhat ame-
criminal record.
prior
I’m
to do is
going
end of it. What
in
suggestion
is the—some
liorating this
you
a term of incarceration
sentence
to
yourself
you
did
the—the e-mails
months,
of
which is somewhat above
That’s
in this conduct before.
engage
that,
pick
mostly
the lower end.
I
be-
denied,
principal
and it’s not a
been
the
cause
the nature of
offense itself.
of
factor,
give
I think both of those also
I
what it
And
reduce
somewhat from
concern to the Court
some cause for
the
would have been to reflect
fact
place you
of
to
within the
terms where
pnor criminal con-
you have had no
the
sentencing ranges.
I also consider
you’re
duct. After
released from incar-
just
for the sentence to reflect
need
ceration,
put you
supervised
I’ll
re-
deterrence,
adequate
punishment, afford
five years.
lease for a term of
and
the seri-
protect
public,
the
reflect
ousness
the
added;
offense.
original para-
of
(Emphasis
some
potential
involved
victim-
This conduct
removed.)
graph separation
somebody
years
that’s 14
old.
ization of
correctly
The district court
calculated
testimony and kind
There’s—there was
range,
range
the
treated the
Guidelines
signifi-
that that should be
of intimation
the
advisory,
considered
18 U.S.C.
mi-
cantly
prepubescent
different than a
3553(a)
(specifically touching
factors
But, I’d find it difficult to make
nor.
factors),2
upon
weighed
six of the seven
con-
engage
that distinction. To
this
rea-
expert’s testimony,
the
and stated its
14-year-old
with a
I think reeks as
duct
imposing within-the-guidelines
sons for
much or near as much as to that victim
Nevertheless,
majority
sentence.
the
younger
as a
child. So I think there is a
plainly
claims that the district court
erred
type
protect
public
need to
the
from
is no evidence in the rec-
because “[t]here
of conduct and to reflect the seriousness
“
to
ord” that
the district court
‘listened
types
I
the conduct.
also consider
considered
[Pritchard’s]
[and]
available. Probation’s [sic]
sentences
”
range
supporting
regarding
evidence’
not available. The
Guideline[s]
manner;
(a)
(3)
avail-
imposing
to be considered in
the kinds of sentences
Factors
(1)
able;
(4)
and
a sentence.- —-...
nature
circum-
the kinds of sentence and the
history
(A)
of the offense and the
stances
range
[]
established
defendant;
(2)
characteristics
category
applicable
of offense committed
imposed (A)
need for the sentence
to re-
category
applicable
—
of defendant as set
offense,
pro-
flect the
of the
to
seriousness
(5) any
guidelines
pertinent
...
forth
law,
respect
provide
mote
for the
and to
(6)
policy
...
the need to
statement
[ ]
offense;
(B)
just punishment
to af-
for the
disparities
avoid unwarranted
sentence
adequate deterrence to criminal con-
ford
among defendants with similar records who
duct; (C)
protect
public
further
from
conduct;
guilty of similar
have been found
defendant;
(D)
provide
crimes
(7)
provide
the need
restitution to
the defendant with needed educational or
any victims of the offense.
care,
training, medical
or other
vocational
3553(a).
18 U.S.C.
treatment
in the most effective
correctional
*12
recidivism,
“low risk of
which is related to
[Expert
A:
fair
Witness]
It’s
that that’s
Dr.
opinion
Orlando’s
that Defendant
one
does
of the characteristics we look at.
not suffer from pedophilia and that he is
case,
Q: In
[Government]
this
it was
not specifically
underage
attracted to
vic-
more than just
engaging
sex with a
I respectfully disagree.
tims.”
mother/daughter that Mr. Pritchard was
in;
interested
is that
true? He was
We need only review the district judge’s
interested in giving an enema to the 14-
exchange
witness,
expert
with the
Dr. Or-
year-old girl and engaging in anal sex
lando, to learn that the trial judge listened
14-year-old
with the
girl. Wouldn’t
and considered Pritchard’s lower-risk-of-
those be further deviations from the
argument:
recidivism
norm than normal sexual activity?
[Cross-Examination,
Witness,
Expert
[Expert
A:
Witness]
Those—the sexual
Orlando,
James
A: In
partic-
Ph.D.]
has,
interest
that he
those particular
case,
ular
all indications are that Mr.
sexual interests that he has would not
likely
Pritchard is
to have a lower risk of
lend that
higher
he has a
likelihood to
Why
recidivism.
it is relevant
again
recidivate
in the future. They are
question, of the age of this particular
certainly issues to consider in treatment.
victim is
following:
In sex offending,
they—
Are
norm,
the greater the
signifi-
more
Q: Wait a
[Government]
minute.
cant the
norm that’s broken
a poten-
[Expert
practices?
Witness]
Yes.
A:—
offender,
tial or an
higher
the likeli-
But, are they indicators
likely
he’s
hood of the
they’re
chances
going to
recidivate? No.
again
reoffend
in the future. So most
Q: Even if
willing
[Government]
he’s
pedophilias,
example,
are sexually
engage in those?
powerfully
narrow,
effected to a
usually
THE COURT: How would that be?
eight
years
to ten
of age, whether it’s
Wouldn’t those be further
from the
girls. And those
very
folks have a
norm?
high
greater
social
they’re
norm
—it’s
[Expert
A: The—
Witness]
breaking,
they
very
are
powerfully
THE COURT: Wouldn’t that conduct
attracted to the physical characteristics
be
thought
the norm?
I
further from
of the victim.
likely
That is less
to be
your
testimony was that
the further
amenable in treatment.
norm,
the more
it is to
from
difficult
case,
In this
his sexual attraction was
treat,
greater
danger
recidi-
physical
not to the
characteristics of the
vism.
particular victim. So that would indi-
[Expert
A: In
Witness]
terms of the
cate that he has a lower likelihood of
victim,
is,
Honor,
your
it
but the fact of
recidivism in the future.
I’mSo
the matter is that there are many, many
sure if I’m answering your question but
people who are
engaging
those sexual
what I’m trying to do is show you the
in non-illegal ways.
behaviors
Remem-
methodology of making a determination
recidivism,
ber
I’m looking at the likeli-
in this case.
they’re going
hood
to be reconvicted for
Sullivan,
A.
[Michael
Counsel for the
case,
a crime.
In Mr. Pritchard’s
even
Q:
right.
All
you
Government]
So
said
though those
are striking
behaviors
greater
from,
you
them,
norm
deviate
when we
atypi-
hear
we think how
recidivate],
likely you
is,
more
are
[to
cal it
the fact of the matter is from a
fair;
things you
Honor,
one of the
look at?
treatment perspective, your
so,
above-quoted
he referenced the
him maintain
possible
would be
Dr. Orlan-
disagreed
and attractions
sexual interests
those
in them in
engage
opinion:
do’s
and to
them —
*13
illegal
not
behavior.
the need for the sentence
I also consider
from the
Isn’t it further
THE COURT:
afford ade-
just punishment,
to reflect
norm?
deterrence,
protect
public,
the
quate
of the offense.
A: It was
reflect
the seriousness
[Expert Witness]
further from
actual sexual
potential
in terms
the
victim-
the norm
This conduct involved
of
activities,
he
years
it’s not in—what
did
old.
somebody
that’s
ization
II
of
in terms of
from the norm
not further
was
There’s—there
victim,
victim.
potential
the
the actual
be
kind of intimation that
should
to do
wanting
significantly
prepu-
if he was
example,
For
than a
different
But,
three-year-old,
that would be
this to a
it diffi-
minor.
I’d find
bescent
12-year-old.
a concern than a
more of
to make that distinction. To en-
cult
to a five-
wanting
14-year-
If he
to do this
gage
in this conduct with a
more,
know,
year-old,
you
that would be
I think reeks as much or near as
old
it in terms of deviation
younger
we would look at
much as to that victim as
17-year-
more so than a
from the norm
child. So I think there is a need to
old.
public
type
the
from this
of con-
protect
and to reflect the seriousness of
the test
duct
guess
THE
I
wouldn’t
COURT:
conduct.
engage
he wants to
more
be whether
14-year-
sexual conduct with a
normal
added.)
(Emphasis
type
to this
of conduct
opposed
old as
statements,
it is clear that
From these
isn’t the fact that
14-year-old;
with a
judge rejected Dr. Orlando’s
the district
talking
type
he’s
about this
of conduct
as a non-
opinion
diagnosis
that Pritchard’s
that he’s further
from the
suggestive
predictor
was an accurate
of his
pedophile
14-year-old
opposed
norm? Isn’t a
all,
After
Pritch-
lower risk of recidivism.
14-year-old
type
with this
of activi-
to a
violating
plead guilty
ard
U.S.C.
ty?
(f)
“[tjravel
2423(b),
(2008),
intent
guess
A: I
[Expert Witness]
....
in illicit sexual conduct
engage
is that I’m not
way I can answer it
age[.]”
of
person
years
with a
under 18
literature,
any
my
nor do I in
aware of
added). Thus, the district court
(emphasis
experience
any
clinical
indication
persons
attraction to
assessed defendant’s
greater
likeli-
that that would indicate
age
majority, specifically,
of
under
again
him to recidivate
in the
hood for
age,
“prepubes-
girls
years
fourteen
that he
future. The actual behavior
only.
confronted
cent
When
minor[s]”
engage
wanted to
in with her is his
majority
that the
logic,
with this
claims
orientation,
it doesn’t—
sexual
sentencing judge
“failed
address”
there’s no reason to believe that he’s
in-
“underage”
ambivalence to
Pritchard’s
likely
more
to act out
going to be
efforts, however,
dividuals as well.
In its
again
an
or a child
against
adolescent
Dr. Orlando
majority
overlooks that
of that behavior.
the future because
solely
that Pritchard was
never testified
added;
original para-
some
(Emphasis
age major-
persons
attracted to
over
removed.)
graph separation
criminal
ity;
fortiori,
his conduct was
fourteen-
later,
potential
it involved a
A few minutes
the district
because
year-old victim.
imposed Pritchard’s sentence. Before do-
In
Dr.
regard,
Orlando testified that
failure to address a leniency argument
Pritchard
suffered from “paraphilia[,]” during its statement of reasons does not
“ ‘recurrent,
which
involves
intense
render the
procedur-
defendant’s sentence
fantastic,
sexually arousing
urges,
ally
sexual
unreasonable.
Id. at 611.
In the
1)
generally involving
case,
or behaviors
present
nonhu-
the transcript
from Pritch-
2)
objects
man
or
suffering
humiliation ard’s sentencing hearing
that the
confirms
3)
partner,
oneself or one’s
children
district court considered his leniency argu-
”
nonconsenting
or other
persons.’ Dr. Or-
fashioning
ment when
his within-Guide-
opined
lando
offending,
view,
sex
lines sentence.
In my
“[i]n
*14
norm,
greater
significant
the more
“enough”
court said
to demonstrate that
norm that’s broken
potential
weighed
a
or an
he
Dr. Orlando’s
offender,
higher
the likelihood of the
a reasoned basis for exercising
“ha[d]
his
they’re
chances
going
again
legal
to reoffend
in own
decisionmaking authority.” See
Rita,
356,
(em-
future.”
It’s clear from the record
dence to the Under the a judge
trial is presumption afforded with a II.
that he listened and considered the evi- A. Gale,
dence before him.
In United States v.
sentencing
such an error was not
(6th Cir.2008),
we held that
“plain
majority
when
error.” The
relies on
Wallace,
“[t]he broader ‘context and record’ of the United States v.
ror was
brought”
“not
to the district
3553(c)
§
18 U.S.C.
within-Guidelines
—a
courts,
court’s “attention.” Lower
months,
sentence that
twenty-four
exceeds
course,
apply
must
the Rule as this
3553(c)(1),
governed
§by
an
and
outside-
has interpreted
Court
it. And the cases
sentence,
Guidelines
which
governed by
is
that set
interpretation
forth our
hold
3553(c)(2).
§
18 U.S.C.
Specifically, the
appellate
that an
may,
court
in its dis-
provides:
statute
cretion, correct an error not raised at
(c) Statement
imposing
trial
of reasons for
appellant
where the
demon-
(1)
(2)
“error”;
court,
strates that
a
there is an
sentence. —The
at the time of
obvious,
the error is “clear or
rather
shall
sentencing,
open
state in
court the
3553(a)(6)
§
3. 18
requires
U.S.C.
ed his view that "[e]ven under the deferential
standard,
to consider "the need to avoid unwar-
plain-error
district
[a]
court’s utter
disparities among
ranted sentence
defendants
failure to
patently
[a
address
defendant’s]
with similar
records who have been found
leniency]
nonfrivolous
[for
consti-
guilty
fashioning
of similar conduct” when
tutes reversible error.”
Id. at 371. Neverthe-
the defendant’s sentence.
less,
despite
panel’s rejection
of that
view,
dissenting opinion
in Simmons be-
Judge
4.
Clay
I note that
wrote a detailed
came the rationale of the Wallace decision.
Simmons,
dissent in United
States
Wallace,
See
short, requires sen- U.S.C. detail, when to length, conciseness adequate court to an ex- tencing provide *17 write, say, depends upon what to cir- statement of its reasons —for planation —a judicial opin- cumstances. Sometimes a imposing particular plain a sentence. The every argument; some- responds ion to second, raises a language of this statute not; judge times it does sometimes a is a dis- equally important, question: “granted,” the word or simply writes statutory obligation pursuant court’s trict on the face of a motion while “denied” 3553(c)(1) § in open to 18 state U.S.C. —to relying upon parties’ context and the imposing court its reason for an inside- arguments to make the reasons prior exceeding Guidelines sentence much, The leaves in this re- clear. law duty may it any months —distinct from spect, judge’s professional to the own record, articulate, for the its rea- to judgment. rejecting son for a defendant’s nonfrivo- leniency? lous for I conclude Id.
that it is. The Rita nonetheless observed Court Vonner,
Indeed, impor- is a that “a statement of reasons explained as we tante,]” “set sentencing judge and a must sentencing court’s statement of reasons 3553(c)(1) enough satisfy appellate may overlap § with its forth to under parties’ court that he has considered the explanation rejecting particular for le- ble, 3553(a)(4) range. applica- § recommended Guidelines 5. 18 U.S.C. refers Blackie, arguments and has reasoned basis for In the district court sentenced exercising legal decisionmaking his own the defendant to 42 imprison- months of However, authority.” ment, Id. the Court delib- an outside-Guidelines sentence un- erately stopped short of imposing 3553(c)(2), § der indicating “without [ever] precise obligation now mandated that the sentence was outside the Guide- majority in requiring a district lines range [explaining] spe- court’s Wallace — court “explicitly address each nonfrivo- cific for variance.” [its] reasons argument” lous imposing when a within- Accordingly, 401. we held that the “ Guidelines sentence to show it ‘lis- sentencing court’s failure comply tened’” to the arguments defendant’s 3553(c)(2) § was clear “[g]iv- error because (or leniency its error “plain.”). is Wal- en clarity 3553(c)(2), the district lace, added) (emphasis at 804 plainly erred when it did not refer (citation omitted). effect, In the Wallace to the applicable range Guidelines majority upon [sentencing] a full “insist[s] provide failed to specific its reasons for opinion Rita, in every case.” 551 U.S. at upward departure or [the] variance at the 356, 127 We have re- never sentencing[.]” (first, time of Id. at 401 quired such rote sentencing procedure, second, and third alterations in original). especially when viewed through the lens Our holding in Blackie required the dis- plain error. trict court to comply with its statutory obligation provide specific reason for that,
In
recognized
we
consis-
imposition
its
of an outside-Guidelines sen-
3553(c)(1)
(2),
tent with
the Rita
tence.
did not
We
hold that
decision acknowledges a distinction be-
court’s error was clear because it failed to
tween within-Guidelines
and outside-
explain why
rejected
it
any and all of the
Guidelines cases:
defendant’s arguments
leniency.
Where the
prosecutor
defendant or
type
error committed in
presents nonfrivolous
impos-
reasons for
(nor
present
Blackie was not
in Wallace
sentence,
ing a
different
]the
will
[
case).
present
in the instant
normally go further
explain why
he
rejected
has
arguments.
those
Some-
must
We
be mindful that we are apply-
times the circumstances will call for a
ing a deferential standard of review and
explanation;
brief
they
sometimes
will may reverse an otherwise
sen-
reasonable
lengthier
call for a
explanation. Where
tence
under “exceptional circum-
the judge imposes a sentence outside the
...
stances
where the error is
so
*18
Guidelines,
judge
explain
will
why that
judge
the trial
...
derelict in
[was]
he has done so.
countenancing it.” United States v. Car-
Rita,
357,
(em-
551
U.S.
452 Rita, “plainly court erred when it did controlling law of this district in or the
sion
Petrus,
(Vonner,
Lapsins, Mayber-
to the
Guidelines
applicable
circuit
not refer
Madden), but, nonetheless,
specific
its
ry,
range
provide
and failed to
majority proclaims
proce-
clear
Wallace
or var
upward departure
reasons for an
clarity
where there is no such
dural error
sentencing”);
iance at the time of
Unit
law.
in our case
Barahona-Montenegro,
ed States v.
(6th Cir.2009)
(remanding
F.3d
According
Supreme
Court’s deci-
resentencing
where the “district
Marcus,
an error is not
when
sion
to calculate
fail[ed]
court’s oral sentence
In
subject to reasonable débate.
it is
range,
clearly
appropriate
Guidelines
majority
acknowl-
regard,
Wallace
explain the
adequately
but also [did not]
error
purported procedural
that the
edged
sentence”);
chosen
United States v.
at all:
not so clear or obvious
was
(6th
Thomas,
498 F.3d
Cir.
acknowledge that this issue is fre
We
2007) (remanding
resentencing
on
litigated, and we have often re
quently
review for reasonableness where Court
challenges.
general
A
jected similar
was “unsure as to whether the district
sense of deference to district courts
adequately
reject
court
considered and
to affirm sentences
sentencing leads us
arguments regarding
ed
judge
[Defendant’s]
has failed to
where the district
3553(a)
proper application of the
fac
fully explain the reason for the sentence.
(affirm
See,
Petrus,
misconstrued,
ig
e.g.,
for the ‘nature and circumstances’ of the B. history the charac offense and the [Defendant]”); Finally, majority the erred Wallace [] teristics see Blackie, to a expanding holding the our Blackie de- (finding 548 F.3d [at 401] rights fendant’s substantial regarding sidering [], a a within-Guidelines sentence within-Guidelines sentence: both the sentencing judge and the Sentenc ing Commission [ ] reached the
The
same
Court
Blackie held that a viola-
conclusion as to
proper
the
3553(c)(2),
§
sentence
the
tion of
which deals with
particular case. That double determination
guidelines,
sentences outside the
affect-
significantly increases the likelihood
ed a defendant’s
that
rights.
substantial
Rita,
sentence is a
logic applies
reasonable one.”
equal
force to
347, 127
district court (citation simple. The record ent, conceptually was favorable sentence.” more omitted)). the ar- marks that the court listened to quotation and internal shows Wallace, majority nor the supporting In neither the the gument and considered any evidence, factors to over- put fully defendant forth and was aware Wal- of reason- appellate presumption the come and history and characteristics lace’s by afforded her within-Guidelines ableness such them into account. Under took The defendant failed to show sentence. circumstances, lengthy explanation error, any, if af- court’s that the district if required. finally, not And even was rights because there fected her substantial were so deficient as to explanation nothing in the record to indicate meaningful review and there- frustrate imposed court would have the district error, procedural constitute Wallace fore Thus, al- although she different sentence. carrying her bur- has fallen far short of error, legedly demonstrated the error demonstrating den of of a substan- she did not show a violation rights her substantial and prejudiced right. tive sentencing proceeding fun- rendered damentally unfair. concurring part Judge McKeague, Wallace, reached dissenting part and
the same conclusion: ex-
Although judge did not There is no manifest reason to believe (as sympathetic with plain why rights opposed he was not substantial Wallace’s argument apart disparity Wallace’s were procedural rights) to her technical — represent that it not an saying from did affected the district court’s failure to depar- reasonable basis for objectively obviously im- explicit make what was so can range ture from the Guidelines attorney her did plicit that Wallace and —it hardly argued be that he was oblivious object, despite having not even bother to inadvertently or over- to do so. given opportunities been two it, im- likely looked such that he would Moreover, inasmuch as Wallace has not if pose a different sentence he were rights that her substantial were shown remand. There required explain affected, it follows that she has also suggestion no that the district explana- that the lack of failed show left bench, asleep, or was otherwise “fairness, impugned integrity tion fell hearing argument. distracted sentencing pro- public reputation” from Considering simplicity straight- ceeding. argument,
forwardness of it is Wallace’s court considered it
clear that the district intentionally rejected it. the en supported by This conclusion is Vonner, reasoning in where
banc court’s
noted that the district court did
we
imposed
The district court
a sentence
argu-
address all of
specifically
Vonner’s
range. By
within the Guidelines
observ-
ments and thus failed
ensure
presented
that it had been
with no
Vonner,
the court of
public,
objectively
depart-
reasonable basis for
range,
appeals
why
picked
the dis-
understood
it
ing from the Guidelines
516 F.3d at
implied
agreement
trict court
its
sentence
did.
Nevertheless, this was held not to
Sentencing
determina-
Commission’s
error.”
“plain
constitute remediable
appropriate
tion of the
sentence.
*21
Wallace,
added) (first and origi- third alterations in
nal) (some removed). internal citations
I agree Judge McKeague’s dissent
and would hold that Vonner controls the
present case and should have controlled
Wallace.
III. reasons,
For these I respectfully dissent.
I would affirm the and substan-
tive reasonableness of Pritchard’s sen-
tence.7 LUTZE,
Todd Petitioner-Appellant, SHERRY,
Jeri-Ann Respondent-
Appellee.
No. 08-2104.
United States Appeals, Court of
Sixth Circuit.
Aug. 2010. manner, argu- Pritchard has not raised perfunctory a colorable in a unaccompanied attacking ment the substantive reasonableness developed argumentation, some effort at are of his within-Guidelines sentence. See In re waived[.]”) Phinazee, (citing deemed Agent Travel Litig., Comm’n Antitrust 520). (6th Cir.2009) ("[I]ssues adverted to