United States v. McBride

In this child pornography case, the government appeals Robert McBride (“Defendant”)’s 84-months’ sentence on the grounds that the district court committed clear error in weighing the § 3558(a) factors and imposed an unreasonable sentence. Because the district court did not commit a clear error in judgment in imposing the sentence, we affirm the sentence.

Background

Defendant pleaded guilty to one count of distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B), following an investigation by United States Immigration and Customs Enforcement (“ICE”). During the investigation, 981 images of child pornography and 45 videos were found in Defendant’s residence. Defendant admitted that the pornography belonged to him.

In preparing the Presentence Investigation Report (“PSI”), the probation officer calculated a base offense level of 22 pursuant to U.S.S.G. § 2G2.2(a)(2). Defendant qualified for enhancements: (1) a two-level enhancement because the material involved a prepubescent minor; (2) a two-level enhancement because the offense involved distribution; (3) a four-level enhancement because the material portrayed sadistic or masochistic conduct; (4) a two-level enhancement because the offense involved a computer; (5) a five-level enhancement because the offense involved more than 600 images. The probation officer also included a three-level reduction for acceptance of responsibility. Defendant’s final adjusted offense level was 34. Taking into account Defendant’s clean criminal record, the sentencing guideline range was 151-188 months’ imprisonment.

The offense carried a statutory maximum sentence of 20 years’ imprisonment and a minimum sentence of 5 years’ imprisonment. 18 U.S.C. § 2252(b)(1). Under 18 U.S.C. § 3583(k), the maximum term of supervised release was life. The minimum term of supervised release was 2 years. U.S.S.G. § 5D1.2(b)(2). The probation officer noted that the “Term of Supervised Release (Policy Statement)” in § 5D1.2(b)(2) recommended the maximum life term for supervised release because the offense was a sex offense.

Defendant was referred for a psychosex-ual evaluation. The report detailed that at age 2, Defendant’s father was murdered. Around the age of 2, Defendant incurred severe injuries — including a severed intestine, burns, bruises, and a broken arm — at the hands of his uncle and mother. Defendant was then sent to live with his grandfather, who sexually abused him until Defendant was removed from the home at age 12. Defendant entered the foster system until he was an adult.

At age 16, Defendant pleaded guilty to two counts of lewd acts on a child. One incident involved a 4-year-old girl; the other a 3-year-old girl. Following the incidents, Defendant underwent a 30-day assessment and was placed in a residential treatment program for adolescents. During his treatment sessions, Defendant failed polygraph exams and admitted to these things: (1) performing oral sex on a 9-year-old boy at age fourteen and having the boy perform oral sex on him; (2) molesting about 5 girls at his church and his workplace at a fast-food restaurant; (3) *1296exposing himself to a 5-year-old boy at age eighteen; (4) watching a 3-year-old girl play naked and later masturbating to the memory; (5) watching a ten-year-old girl play naked and later masturbating to the memory; and (6) placing himself in areas where young children congregated, in violation of a court order. Defendant remained in some form of state custody until the age of 20. In 2003, Defendant was arrested and found to be taking pictures of 3-to-5-year-old girls.

During the pre-sentencing interview with the psychologists, Defendant admitted to being sexually attracted to children 55% of the time. He strongly agreed with the statements, “Some men sexually assaulted children because they really thought the children would enjoy how it felt,” and, “Many men sexually assaulted children because of stress and molesting helped to relieve that stress.” He expressed a desire to be treated in a residential treatment program.

Defendant was diagnosed as a pedophile. The psychologists’ report concluded that Defendant should be sentenced to an extended period of probation so that he could be supervised and receive follow-up treatment. Defendant had no objections to the contents of the letters from the mental health professional who detailed his past history and diagnosed his condition.

The district court adopted the factual findings as contained in the PSI and agreed that 151 to 188 months’ imprisonment was the appropriate guidelines range. The court also listened to statements by defense counsel recounting Defendant’s personal history — namely, that his father was murdered, his mother and uncle physically abused him, his grandfather sexually abused him, and he was transferred around to many foster homes. Defendant claimed he suffers from several health problems, such as anxiety, depression, post-traumatic stress disorder, and conduct disorder. Defendant admitted that he had not always been completely truthful, but contended that his denials were psychological and would be dealt with in treatment.

Defendant said he wanted to receive treatment and pointed out one two-year program, operated by the Bureau of Prisons, that was supposedly very effective. The program only has 120 beds, and several thousand people had asked to enter the program. Defendant requested a sentence below the guideline range and recommended a sentence of 5 to 7 years so that he would have time to wait for and complete the treatment program.

The government pointed out that Defendant had committed a very serious offense and that children and the public needed protection. The government also pointed out that past treatment programs had failed and that protection of children was a “very, very strong factor.” The government also noted that, since Defendant’s latest release from residential treatment, Defendant had rubbed up against several young children at an amusement park and lied to the psychologist about it.

The court sentenced Defendant to 84 months’ imprisonment followed by a ten-year period of supervised release. The court stated that it had considered the advisory guidelines and the 18 U.S.C. § 3553(a) factors and that the sentence would allow sufficient time for Defendant to complete the sexual treatment program. The government objected; Defendant did not. On appeal, the government argues that the district court imposed an unreasonable sentence.

Discussion

Under Booker, this Court must review sentences for reasonableness in the *1297light of the factors listed in 18 U.S.C. § 3553(a). 543 U.S. 220, 125 S.Ct. 738, 765-66, 160 L.Ed.2d 621 (2005).1 The sentence must be sufficient but not greater than necessary to achieve the purposes of 18 U.S.C. § 3553(a)(2). “[T]he party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both [the] record and the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). “Review for reasonableness is deferential.” Id.

This Court has established a two-part process for district courts to determine an appropriate sentence following Booker. The court must consult and correctly determine the sentencing range prescribed by the Sentencing Guidelines. Id. at 786. The court must then impose a reasonable sentence in the light of the factors enumerated in 18 U.S.C. § 3553(a). Id. We have regularly said that a district court need not account for every § 3553(a) factor, nor must it discuss each factor and the role that it played in sentencing. See, e.g., id. at 786; United States v. Robles, 408 F.3d 1324, 1328 (11th Cir.2005).

Here, the government does not allege that the district court committed a procedural error. The government concedes that “the district court correctly calculated [Defendant’s] sentencing guidelines range.” It also acknowledges that the district court considered a number of the § 3553(a) factors. The district court also specifically found that the 84-months sentence “would be sufficient but not greater than necessary to accomplish [the] purposes [of sentencing].”

The government’s challenge rests on the contention that the district court’s order was substantively unreasonable. Although we accept that a sentence may be unreasonable even where the district court followed the proper sentencing procedure,2 an appellate court should not simply substitute its judgment for that of the sentencing court. United States v. Melvin, 187 F.3d 1316, 1323 (11th Cir.1999) (“[I]t is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.” (quoting Williams v. United States, 503 U.S. 193, 112 S.Ct. 1112, 1121, 117 L.Ed.2d 341 (1992) (alteration in original))).

The government argues that, although the district court discussed many of the § 3553(a) factors, it failed to give proper weight to some while overemphasizing others. Even if we were to disagree with the weight that the district court gave to Defendant’s history of abuse, we will only reverse a procedurally proper sentence if we are “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the *1298case.” United States v. Williams, 456 F.3d 1353, 1363 (11th Cir.2006).

Whatever sentence we might have imposed, we do not believe an 84-months’ sentence lies outside the range of reasonable in this case. The sentence exceeds the statutory minimum by some years. The district court explicitly discussed a number of the § 3553(a) factors, including the goal of protecting the public. In announcing Defendant’s sentence, the court stated that the sentence provides for “a significant term of incarceration to account for his misconduct and the seriousness of the offense and, frankly, to keep him off the streets for that period of time so that he will not be in a position to repeat this conduct in society.” About Defendant’s own history, the district court also said that the Defendant “has perhaps one of the worst histories that I have seen since being on the bench, being essentially abandoned by his family and then consistently abused.” We cannot conclude that the district court committed clear error in judgment in determining that a sentence considerably less than the Sentencing Guidelines’ recommended range was appropriate.

Unlike the sentences in Cñsp and Martin, the sentence in this case involves significant time in prison and a 10-year period of supervised release. See United States v. Crisp, 454 F.3d 1285 (11th Cir.2006) (vacating a sentence of 5 years’ probation and 12 months’ home confinement where the Sentencing Guidelines’ range was 24-30 months’ incarceration); United States v. Martin, 455 F.3d 1227 (11th Cir.2006) (vacating a 7-day sentence where the guidelines’ range was 108-135 months’ imprisonment). By the way, the 84-months’ sentence in this case is a year longer than the 72-months’ sentence we affirmed in United States v. Gray, where the Defendant was also charged with distribution of child pornography and was subject to the same Sentencing Guidelines’ range. 453 F.3d 1323, 1325 (11th Cir.2006) (“Although Gray’s sentence is less than half the 151 months that defines the bottom of the guidelines range, under the circumstances and given the district court’s explanation we cannot say that is unreasonable in light of the § 3553(a) factors.”).3

AFFIRMED.