United States v. Robinson

778 F.3d 515

UNITED STATES of America, Plaintiff–Appellant,

v.Rufus ROBINSON, Defendant–Appellee.

No. 13–2308.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 2, 2014.

Decided and Filed: Feb. 18, 2015.

Recognized as Invalid

18 U.S.C.A. § 3742(e)

ARGUED:Kevin M. Mulcahy, United States Attorney's Office, Detroit, Michigan, for Appellant. Kimberly W. Stout, Birmingham, Michigan, for Appellee. ON BRIEF:Kevin M. Mulcahy, United States Attorney's Office, Detroit, Michigan, for Appellant. Kimberly W. Stout, Birmingham, Michigan, for Appellee.

Before: SILER, CLAY, and GRIFFIN, Circuit Judges.

OPINION

CLAY, Circuit Judge.

The government appeals, for the second time, from the noncustodial sentence imposed on Rufus Robinson (“Defendant”) for the possession of more than seven thousand images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Defendant's previous sentence of one day of incarceration and five years of supervised release was held substantively unreasonable by this Court in United States v. Robinson, 669 F.3d 767 (6th Cir.2012) (“ Robinson I ”). On remand, the district court again sentenced Defendant to one day of incarceration, with credit for time served. The district court also lengthened the period of supervised release and imposed additional conditions of release. The government's second appeal raises the question of whether this second sentence is substantively reasonable.

For the reasons set forth below, we VACATE Defendant's sentence and REMAND the case for reassignment and resentencing.

BACKGROUND

Defendant pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) on March 9, 2009, without entering into a plea agreement. His prosecution arose from his paid subscription, in April 2006, to a website that allowed him access to large amounts of child pornography. This website became the subject of a national investigation by the Bureau of Immigration and Customs Enforcement (“ICE”), which gathered credit card information of subscribers to the site. ICE agents identified Defendant through his credit card information and subsequently interviewed him at his home. Defendant provided written consent for the search of his home and examination of his two computers. Defendant also voluntarily turned over to the ICE agents approximately 100 optical discs (CDs and DVDs) containing child pornography.

A forensic examination of Defendant's computers and only fifty of the hundred-or-so discs revealed at least 7,100 images of child pornography. These images included depictions of appalling abuse of children, including child bondage and torture, and the rape of children and infants. One close-up image showed an adult penis anally penetrating a very young female child or infant. Other images showed adults engaging in oral sex with infants. The collection also included images of young girls, unclothed, in sexually explicit poses.

Defendant did not dispute the calculation of an adjusted offense level of twenty-eight under the Sentencing Guidelines, yielding a guidelines range of seventy-eight to ninety-seven months based on his Category I criminal history. Defendant's adjusted offense level reflected a base level of eighteen. Enhancements totaling thirteen levels were applied for material depicting prepubescent juveniles (two levels), material portraying sadomasochistic or violent content (four levels), the use of the computer (two levels), and the possession of more than six hundred images (five levels). Finally, a reduction by three levels was applied based on Defendant's acceptance of responsibility.

At the first sentencing hearing, the government requested a within-guidelines sentence, noting the serious nature of the crime and emphasizing that Defendant's affirmative purchase of child pornography contributed to the creation or expansion of a market for child pornography. Defense counsel sought lengthy probation, citing the conclusion of a psychologist retained by Defendant that he was neither dangerous nor a pedophile, as well as his cooperation with investigating agents and his attendance at counseling. The district court sentenced Defendant to one day of incarceration, with credit for time served, to be followed by five years of supervised release with enumerated conditions. Due to Defendant's indigent status, no fine was imposed.

This Court vacated that sentence as substantively unreasonable in light of the sentencing factors recited in 18 U.S.C. § 3553(a). Briefly summarized, we first held that the sentence did not “reflect the seriousness of [Defendant's] crime, promote respect for the law, or provide just punishment for his offense.” 669 F.3d at 776. In regard to the seriousness of the crime, we emphasized the violent nature of the images Defendant possessed, the youth of the children involved, the enormous volume of Defendant's child pornography collection, and his paid subscription to the child pornography website. Second, we held that the extraordinarily light sentence imposed by the district court “undermine[d] the purpose of general deterrence.” Id. at 776–77. Third, noting again the facts that made Defendant's crime comparatively serious, we held that the sentence did not adequately reflect the need to avoid “sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Id. at 777 (quoting § 3553(a)(6)). Ultimately concluding that “the factors that the district court relied on, as articulated in the record, [did] not justify” the sizeable variance from the guidelines range, this Court remanded the case with instructions that the district court resentence Defendant after appropriate consideration of the sentencing factors under § 3553(a). 669 F.3d at 779–80.

We are dismayed to discover that the district court did not heed our instructions. After some delay occasioned by Defendant's petition for writ of certiorari to the United States Supreme Court, which was denied, the district court rejected both the government's below-guidelines request for three years of incarceration and Defendant's own suggestion of a lengthy period of home confinement. Instead, the court re-imposed the sentence of one day of incarceration, lengthened the period of supervised release to ten years, and added several new conditions of release restricting Defendant's potential to interact with minors and requiring him to continue his therapy and medication. As discussed below, the district court's second sentencing decision failed to adequately address the three factors that we previously held were given insufficient weight. Although it is true that the district court was presented with new evidence regarding Defendant's mental health condition and his alleged post-sentence rehabilitation, both of which it could properly take into account under Pepper v. United States, 562 U.S. 476, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), this mitigating evidence could not overcome the fundamental deficiencies in the district court's reasoning resulting in the district court's sentencing decision.

DISCUSSION

I. Standard of Review

We review a criminal sentence imposed by a district court for abuse of discretion. United States v. Bistline, 720 F.3d 631, 633 (6th Cir.2013); Rita v. U.S., 551 U.S. 338, 362, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (“[United States v.] Booker [, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) ] replaced the de novo standard of review required by 18 U.S.C. § 3742(e) with an abuse-of-discretion standard that we called ‘reasonableness' review.”) (Stevens, J., concurring). Sentences are reviewed for procedural as well as substantive reasonableness. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The present case only requires us to review the substantive reasonableness of Defendant's sentence.

Our substantive reasonableness inquiry is governed by the factors set out in 18 U.S.C. § 3553(a). A sentence is substantively reasonable if it is “proportionate to the seriousness of the circumstances of the offense and offender, and sufficient but not greater than necessary, to comply with the purposes of § 3553(a).” United States v. Vowell, 516 F.3d 503, 512 (6th Cir.2008) (quotation marks omitted). Conversely, “[a] sentence may be considered substantively unreasonable when the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” Robinson I, 669 F.3d at 774 (quoting United States v. Conatser, 514 F.3d 508, 520 (6th Cir.2008)).

“[T]he Guidelines should be the starting point and the initial benchmark” for determining a substantively reasonable sentence. Gall, 552 U.S. at 49, 128 S.Ct. 586. The district court “may not presume that the Guidelines range is reasonable,” but must rather “make an individualized assessment based on the facts presented.” Id. at 50, 128 S.Ct. 586. A court must take into account, however, “the extent of the deviation” from the Guidelines to ensure that “the justification is sufficiently compelling to support the degree of the variance.” Id. It is “uncontroversial that a major departure should be supported by a more significant justification than a minor one.” Id., cited in Robinson I, 669 F.3d at 775.

II. AnalysisA. The District Court's Inadequate Consideration of the Seriousness of the Crime, the Need for Deterrence, and the Need to Avoid Sentencing Disparities

The district court's sentencing colloquy and later written opinion reflect the same flaws we identified in overturning Defendant's first sentence: a failure to take into account the seriousness of Defendant's particular crime, the lack of serious consideration for the need for deterrence, and a failure to appropriately analyze the need to avoid unwarranted sentencing disparities.

1. Seriousness of the Offense

In addressing the sentencing factor...