United States v. King ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-2047
UNITED STATES OF AMERICA,
Appellee,
v.
THOMAS KING,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Torruella, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
Alexandra Deal, with whom Stern, Shapiro, Weissberg & Garin,
LLP was on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
January 31, 2014
________
* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
SELYA, Circuit Judge. The federal sentencing guidelines
are designed to serve as tools to assist judges in performing one
of their most consequential tasks. They are not meant to dictate
robotic sentencing outcomes. In this single-issue appeal,
defendant-appellant Thomas King challenges his 72-month term of
immurement as substantively unreasonable. As framed, his challenge
both distorts the function of the federal sentencing guidelines and
undervalues the district court's broader appraisal of the
seriousness of the offense of conviction. After setting the record
straight, we affirm.
Inasmuch as this appeal follows a guilty plea, we draw
the factual background from the plea agreement, the change-of-plea
colloquy, the presentence investigation report (PSI Report), and
the transcript of the disposition hearing. See United States v.
Fernández-Cabrera, 625 F.3d 48, 50 (1st Cir. 2010). For present
purposes, a brief synopsis suffices.
In July of 2011, a federal grand jury sitting in the
District of Maine returned an indictment charging the defendant
with possessing a computer that held child pornography. See 18
U.S.C. § 2252A(a)(5)(B). The charge arose out of a forensic
examination of the defendant's computer, which revealed
surreptitiously recorded videos of the defendant's minor
stepdaughter masturbating in her bathroom. The defendant initially
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maintained his innocence but, within a matter of months, entered a
guilty plea.
When the PSI Report was prepared, it recommended a base
offense level of 18. It further recommended the application of a
series of enhancements: five levels for a pattern of abuse, see
USSG §2G2.2(b)(5); two levels for the use of a computer in the
commission of the offense, see id. §2G2.2(b)(6); and three levels
for possessing 150 to 300 offending images, see id.
§2G2.2(b)(7)(B).1 Assuming a three-level decrease for acceptance
of responsibility, see id. §3E1.1, the PSI Report projected the
total offense level as 25. Based on this projection and the
absence of any prior criminal history, the report suggested a
guideline sentencing range (GSR) of 57 to 71 months.
The district court convened the disposition hearing on
August 21, 2012. The defendant challenged the application of the
computer enhancement, arguing that it overstated the gravity of his
offense because it was meant to target child pornography
trafficking on the Internet (an activity in which he had not
engaged). He also challenged the number-of-images enhancement,
arguing that it unfairly lumped his small cache of videos with
larger collections of child pornography.
1
For sentencing purposes, each video clip is deemed to
contain 75 images. See USSG §2G2.2, comment. (n.4(B)(ii)).
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The district court rejected both arguments. It explained
that the computer enhancement was not pegged to Internet use but,
rather, to computer use and therefore applied. The court further
explained that the number-of-images enhancement, though
"imperfect," applied and represented "a very rough proxy for
seriousness." Similarly, the court found the five-level
enhancement for a pattern of abuse to be warranted. And, finally,
the court disagreed with the PSI Report and discerned no
justification for an acceptance-of-responsibility discount. These
determinations produced a total offense level of 28 which, when
combined with the absence of any prior criminal record, yielded a
GSR of 78 to 97 months.
The court then heard the defendant's allocution. After
considering the statutory sentencing factors, see 18 U.S.C.
§ 3553(a), and "concentrat[ing] on the history and characteristics
of the defendant and the nature and circumstances of the offense,"
it varied downward and imposed a 72-month sentence. This timely
appeal ensued.
In this venue the defendant, represented by new counsel,
consolidates his arguments against the computer and number-of-
images enhancements. In his repackaged claim of error, he strives
to convince us that, due mainly to the combined effect of these
enhancements, his sentence is substantively unreasonable. We are
not persuaded.
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We review challenges to the reasonableness of a sentence
for abuse of discretion and proceed according to a two-step pavane.
See Gall v. United States, 552 U.S. 38, 51 (2007). First, we
resolve any claims of procedural error. See id.; United States v.
Rodríguez, 527 F.3d 221, 224 (1st Cir. 2008). Second — and only if
the sentence passes procedural muster — we inquire whether the
sentence is substantively reasonable. See Gall, 552 U.S. at 51.
In this appeal, the defendant has not preserved any claim
of procedural error. Refined to bare essence, his lone assignment
of error reduces to a plaint that the district court's downward
variance did not go far enough, resulting in a sentence that is
substantively unreasonable.
The "linchpin" of our review for substantive
reasonableness is a determination about whether the sentence
reflects "a plausible . . . rationale and a defensible result."
United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008). In
making this determination, considerable deference is owed to the
sentencing court; and a reviewing court cannot simply substitute
its judgment for that of the sentencing court. See id. at 92.
Consequently, we limit our review to the question of whether the
sentence, in light of the totality of the circumstances, resides
within the expansive universe of reasonable sentences. See id.
The core of the defendant's argument is his insistence
that the computer and number-of-images enhancements
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indiscriminately sweep up conduct of widely divergent culpability,
and that sentences embodying these enhancements necessarily fail to
"guard against unwarranted similarities among sentences for
defendants who have been found guilty of dissimilar conduct."
United States v. Dorvee, 616 F.3d 174, 187 (2d Cir. 2010). In his
view, such sentences contravene the spirit of Congress's admonition
"to avoid unwarranted sentence disparities," 18 U.S.C.
§ 3553(a)(6), and are therefore substantively unreasonable.
This argument fundamentally misapprehends the role of the
guidelines in the sentencing process. The guidelines are not
intended to fashion sentences with the precision of a Savile Row
tailor. To the contrary, they represent a "wholesale" approach to
sentencing, offering only "a rough approximation of sentences that
might achieve § 3553(a)'s objectives." Rita v. United States, 551
U.S. 338, 348, 350 (2007). As such, the guidelines are simply "the
starting point and . . . initial benchmark" for crafting a
sentence. Gall, 552 U.S. at 49.
This starting point is merely a step along the path.
After arriving at an appropriate GSR, the court must proceed to
"make an individualized assessment based on the facts presented"
and the statutory sentencing factors in order to shape the actual
sentence. Id. at 50.
Given the function of the sentencing guidelines and the
methodology that they contemplate, a frontal assault on the
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guidelines cannot, without more, afford a persuasive basis for a
claim of sentencing disparity, much less for a claim of substantive
unreasonableness. After all, such an assault takes aim at a
fragment of an inchoate sentence, but a court's inquiry into
substantive reasonableness must examine more: "the totality of the
circumstances" surrounding the final product. Id. at 51.
By definition, such an inquiry does not allow a reviewing
court to examine guideline enhancements in isolation. Rather, a
reviewing court must account for the whole of the various integers
that comprise the sentencing calculus, including the sentencing
court's overall appraisal of the GSR, its evaluation of the
offender and the offense conduct, and its case-specific synthesis
of the statutory sentencing factors.
Seen in this light, the defendant's argument is
unsupportable. The defendant beseeches us to look at two
enhancements to the exclusion of everything else. Honoring such an
entreaty would undermine our consistent directive that sentencing
courts must refrain from adopting "a narrow focus on a particular
[sentencing] factor in isolation." Rodríguez, 527 F.3d at 228.
Appellate courts — like district courts — are not at liberty to
engage in such a faulty practice.
Sentencing requires a broader focus because "section
3553(a) is more than a laundry list of discrete sentencing factors;
it is, rather, a tapestry of factors, through which runs the thread
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of an overarching principle": that a sentencing court ought "to
'impose a sentence sufficient, but not greater than necessary' to
accomplish the goals of sentencing." Id. (quoting 18 U.S.C.
§ 3553(a)). The defendant's entreaty, which invites us to ignore
the forest and glimpse only a couple of trees, perfectly
exemplifies the folly of such a single-minded approach.2
The court below did not view the guidelines as
conclusive; instead, it appropriately treated them as a starting
point. The defendant's pedantic railings against the severity of
specific guideline enhancements overlook this reality. Those
railings likewise overlook the district court's cogent statement of
its reasoning as to why a "harsh and severe" sentence was warranted
in this instance.
The sentencing court's reasoning does not exhibit any
lockstep deference to the guidelines. Far from it: the court's
rationale recognizes that a defendant's past actions often may be
the architects of an appropriate sentencing outcome. This
rationale draws primarily upon the "appalling" nature of the
defendant's conduct. In support, the court patiently explained the
details that made the offense conduct especially reprehensible,
including the tender age of the victim, the gross invasion of
2
For much the same reasons, the defendant's forlorn attempt
to illustrate the putative unreasonableness of his sentence by
comparing his GSR with a hypothetical GSR for sexual abuse of a
minor is an exercise in futility.
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privacy associated with a surreptitious recording made in the
victim's bathroom, the defendant's deviant self-gratification
(masturbating while watching the videos), and the "betrayal of
trust" stemming from the defendant's relationship with the victim.
This lucid explanation fully justified the sentence that the
district court imposed.
In an effort to derail this train of thought, the
defendant relies heavily on the decision in United States v.
Dorvee, 616 F.3d 174 (2d Cir. 2010). This reliance is misplaced.
In Dorvee, the Second Circuit found a 233-month sentence
substantively unreasonable because, among other things, the
sentencing court "offered no clear reason" for the lengthy sentence
and relied unthinkingly on the guidelines in determining that the
sentence was reasonable. Id. at 184. The court below was not
guilty of any such bevues; as we have explained, it examined the
totality of the circumstances, appropriately treated the various
guideline provisions as rough proxies, fashioned a sentence that
responded to the nature and circumstances of the offense, and gave
a plausible reason for the sentence. No more was exigible.
Let us be perfectly clear. We are not unsympathetic to
concerns about perceived harshness in the child pornography
guidelines. See, e.g., United States v. Stone, 575 F.3d 83, 97
(1st Cir. 2009). Here, however, the defendant's challenge focuses
myopically on certain guidelines to the exclusion of all else and,
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thus, fails to account for the actual reasons that support the
imposition of his sentence. Those reasons are fully sufficient to
justify the sentence imposed.
To cinch matters, the fact that a sentence falls within
a properly constructed GSR typically affords some basis for
concluding that the sentence is substantively reasonable. See
United States v. Pelletier, 469 F.3d 194, 204 (1st Cir. 2006).
Here, the sentence actually imposed was below the bottom of a
properly constructed GSR. It is a rare below-the-range sentence
that will prove vulnerable to a defendant's claim of substantive
unreasonableness. See United States v. Floyd, ___ F.3d ___, ___
(1st Cir. 2014) [Nos. 12-2229, 12-2231, slip op. at 36]. This case
plainly falls within the general rule, not within the long-odds
exception to it.
There is one loose end. In his reply brief, the
defendant suggests for the first time that his trial counsel
rendered ineffective assistance by failing to challenge the
district court's refusal to credit him for acceptance of
responsibility. We decline to address this suggestion for two
reasons. First, arguments that make their debut in an appellant's
reply brief are ordinarily deemed waived. See United States v.
Eirby, 515 F.3d 31, 37 n.4 (1st Cir. 2008). Second — with only
limited exceptions (none of which is applicable here) — we will not
address ineffective assistance of counsel claims that are raised
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for the first time on direct review.3 See United States v.
Maldonado-García, 446 F.3d 227, 233 (1st Cir. 2006); United States
v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).
We need go no further. For the reasons elucidated above,
we deem the defendant's sentence to be well within the universe of
condign punishment for a particularly repellent crime. The
sentence is, therefore,
Affirmed.
3
The defendant may, of course, pursue such a claim through a
petition for collateral relief under 28 U.S.C. § 2255. See United
States v. Mala, 7 F.3d 1058, 1064 (1st Cir. 1993).
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