United States v. Elmore

743 F.3d 1068

UNITED STATES of America, Plaintiff–Appellee,

v.William Dallas ELMORE, Defendant–Appellant.

No. 12–6418.

United States Court of Appeals, Sixth Circuit.

Feb. 28, 2014.

ON BRIEF:Dennis G. Terez, Office of the Federal Public Defender, Cleveland, Ohio, for Appellant. Candace G. Hill, United States Attorney's Office, Louisville, Kentucky, for Appellee.

Before DAUGHTREY, GIBBONS, and DONALD, Circuit Judges.

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

Defendant William Dallas Elmore pleaded guilty to two counts of possession of child pornography and received a below-guidelines sentence of 51 months in prison, followed by ten years of supervised release. On appeal, Elmore claims that this sentence is substantively unreasonable because the district judge (1) unfairly treated Elmore's abusive childhood as an aggravating, rather than mitigating, factor in sentencing; (2) placed unreasonable weight on the need to punish and deter Elmore; and (3) skewed the sentence upward by comparing Elmore's sentence to a harsher regional subset of cases, rather than looking to sentencing practices nationally, and relying on his “gut feeling,” rather than informed reason, in doing so. For the reasonsdiscussed below, we conclude that the district court properly weighed the various competing sentencing objectives and, in arriving at the 51–month result, accorded due weight to factors calling for leniency in Elmore's case. It follows that the district court did not abuse its discretion or arrive at a substantively unreasonable sentence.

FACTUAL AND PROCEDURAL BACKGROUND

This case arose when a University of Louisville employee discovered a Memorex flash drive that had been left in a computer lab at the university. Seeking to reunite the drive with its owner, the employee accessed its contents and discovered digital images of what she believed to be child pornography. She then contacted the university police and released the flash drive to the responding officer.

The university police also examined the flash drive in an effort to identify the owner. They found several class writing assignments indicating that the drive belonged to a student named William Dallas Elmore. They also found 20–30 digital images of young female children engaged in explicit sexual activity. Further investigation into university records cemented the flash drive's connection to Elmore; his classes corresponded to the writing assignments on the flash drive, and one of these classes had recently met in the computer lab where the drive was found.

On the basis of this evidence, law enforcement officers obtained four federal search warrants covering Elmore's residence, his person, his vehicle, and the flash drive previously discovered by the university employee. When officers executed the warrants, they found Elmore at home with his live-in girlfriend and their young daughter. After being advised of his constitutional rights and informed that he was not under arrest, Elmore completed a waiver-of-rights form and admitted possessing the flash drive and downloading the pornographic images found on it using his personal computer. He denied any knowledge or participation on the part of his girlfriend. The police removed several computers and digital storage devices from the apartment but did not arrest Elmore.

A later forensic examination of digital materials removed from Elmore's residence revealed a total of 155 digital child-pornography images. Following his indictment, Elmore entered a plea agreement with the government in which he admitted all of the facts described above. In exchange for Elmore's guilty plea, the government agreed to recommend a sentence at the lowest end of the applicable guidelines range, based on an offense level of 26, which was calculated as a base offense level of 18 and increased by the usual enhancements for use of a computer, number of images, sadomasochistic content, and age of the victims, but then reduced as a result of Elmore's acceptance of responsibility under U.S.S.G. § 2G2.2(a)-(b). The presentence report recommended a Category II criminal history on the basis of Elmore's 2008 conviction for fourth-degree domestic violence, a misdemeanor. The conviction resulted from an incident in which he held his girlfriend's arm to prevent her from leaving during an argument. She obtained an emergency order of protection against Elmore following the incident, but they had resumed living together at the time the search warrants were executed.

In advance of sentencing, Elmore underwent evaluations by two different expert psychologists, Dr. Christine Scronce for the prosecution and Dr. John McGregor for the defense. Both expert reports described Elmore as a victim of sexual and physical abuse as a child. Elmore, as well as both the experts who examined him, traced his unwanted sexual interest in young children to this history of childhood abuse. These clinical evaluations further indicated that he suffered from borderline personality disorder and adjustment disorder with depressed mood.

Despite his troubled childhood, Elmore graduated from high school with good grades and, in 2005, joined the United States Navy. Although performing well in some regards, Elmore's obsessive tendencies and substance abuse problems resulted in a series of disciplinary infractions that eventually led to discharge under honorable conditions in 2007, due to failure to complete an alcohol rehabilitation program following an apparent suicide attempt. His unwanted sexual feelings towards children continued after discharge, eventually leading him to seek treatment during a 2007 visit to a Veterans Administration medical center. Although he met with a VA counselor and attended some classes, he eventually dropped out of the program because he felt the program “wasn't doing any work for [him].” The record indicates that after the search of his residence, he again sought therapy for unwanted sexual attraction to children, but again he failed to follow through and complete a program or remain in treatment.

Having pleaded guilty, Elmore waived contention of all issues except the length of his sentence. Pursuant to the terms of the plea agreement, the government recommended imposition of the lowest guidelines-range sentence for a level–26 offense, or 63 months, followed by lifetime supervision. Elmore did not request a specific sentence but argued that federal sentencing objectives listed in 18 U.S.C. § 3553(a) could be satisfied with minimal, if any, prison time. He also presented expert testimony from Dr. McGregor, portraying Elmore as a good candidate for treatment who was unlikely to re-offend generally, and particularly unlikely to engage in a contact-offense with a child. The government presented testimony from the mother of Elmore's then-ex-girlfriend, who described his erratic mannerisms at family dinners, an angry outburst regarding the protective order, and a menacing telephone call she received from him after his arrest.

The district judge admitted feeling “conflicted by all this.” At several points during the sentencing hearing, he recognized that Elmore's childhood “victimization made him who he is,” and expressed misgivings about “punishing him more severely because [of] his victimization.” The district judge also noted Elmore's comparatively minimal criminal record, his efforts to obtain treatment, and the fact that Elmore's pornography collection was “one of the smallest” he had seen. The district judge confessed his frustration with the federal sentencing guidelines, saying that he thought they “have sort of skewed upward these kind[s] of cases,” even for less culpable offenders. Ultimately, the district judge imposed a sentence of 51 months, followed by ten years of supervised release.

In some respects, the 51–month sentence reflects the leniency factors mentioned above—the judge reclassified Elmore's criminal history from Category II to Category I (to reflect what he saw as the relative insignificance of the domestic violence conviction) and removed the two-level enhancement for use of a computer (to avoid “double counting,” although he agreed that there “was a legal basis on that [enhancement]”). The judge also recommended sex-offender treatment, although “[w]hether you get into it or not will be another matter.” But the judge noted that Elmore's history of childhood victimization had left him “a terribly messed-up person” with poor impulse and anger control, and he hypothesized that it could make Elmore a comparatively greaterrisk to the public, while at the same time acknowledging the apparent unfairness of imposing a harsher sentence on the basis of problems resulting from Elmore's childhood. Ultimately the judge was forced to conclude that the punishment, deterrence, and public-protection objectives of § 3553(a)(2)(A)-(C) demanded due consideration. The district judge also stressed the need to “treat [ ] people the same,” which he sought to accomplish in part by “keep[ing] a list of all the child pornography defendants ... [and] figur[ing] out where they are in relation to my gut level of what a reasonable sentence ought to be.” It is unclear whether the judge's informal list of child pornography defendants was drawn from his own docket exclusively, or from other cases within the district or circuit.

DISCUSSION

On appeal, Elmore's sole claim of error concerns the reasonableness of his 51–month sentence. We review sentencing decisions for both procedural and substantive reasonableness under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Benson, 591 F.3d 491, 500 (6th Cir.2010). Elmore challenges his sentence only for substantive unreasonableness. As a result, a remand for resentencing is required if “the district court select[ed] a sentence arbitrarily, base[d] the sentence on impermissible factors, fail[ed] to consider relevant...