United States v. Goergen , 683 F.3d 1 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1092
UNITED STATES OF AMERICA,
Appellee,
v.
RONALD GOERGEN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr. Senior U.S. District Judge]
Before
Boudin, Circuit Judge,
Souter,* Associate Justice,
and Thompson, Circuit Judge.
Bjorn Lange, Assistant Federal Public Defender, Federal
Defender Office, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief for appellee.
June 1, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
BOUDIN, Circuit Judge. In September 2010, Ronald Goergen
pled guilty to four counts of sexual exploitation of children, 18
U.S.C. § 2251(a). The charges were that over a period of several
years, Goergen arranged for and took still pictures and videos of
three minor girls engaged in explicit sexual activities or poses
and then distributed the material. Georgen received a sentence of
60 years in prison, and he now appeals to challenge only his
sentence. The relevant background follows.
The government charged Goergen in an information with
four counts, three covering two videos and one image, each one
depicting a different one of the three minors in a sexually
explicit pose or activity; the fourth count was based on a still
image that, in the same manner, depicted two of the minor victims
together. At the plea hearing, the government stated that images
of the girls have featured in over a thousand investigations of
child pornography worldwide. In September 2010, Goergen waived
indictment and pled guilty to all counts without a plea agreement.
The pre-sentence report, prepared in November 2010,
described yet another video depicting one of the children engaged
in oral sex with the defendant at his behest. The report also
described numerous other images and a handful of videos depicting
Goergen's extensive, continued sexual abuse of the three minor
victims. The report, using the 2008 edition of the federal
sentencing guidelines (see note 1, below) computed the total
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offense level, after applying required adjustments, as 51. At
level 43 or above, the recommended guideline sentence is life in
prison regardless of criminal history. U.S.S.G. ch. 5, pt. A,
sentencing table (2008).
Goergen's very high offense level reflected the facts
that multiple children were abused over a significant period; that
two of the victims were under twelve years old; that one video
involved sadistic or masochistic conduct; and that Goergen
distributed the images. The recommended guideline sentence of life
imprisonment exceeded the statutory maximum of 90 years, 18 U.S.C.
2251(e), making 90 years Goergen's maximum possible sentence,
U.S.S.G. § 5G1.1(a).
At the sentencing hearing on January 13, 2011, Goergen's
counsel urged a sentence of 15 years; the government, 60 years.
The district court, explaining its reasons in detail, sentenced
Goergen to 60 years. As Goergen was then age 47, he is likely to
spend the rest of his life in prison. He now appeals, urging two
points: a claim under the Ex Post Facto Clause, U.S. Const., art.
I, § 9, cl. 3, that an earlier, more lenient guideline edition
should have been used, and a set of claims that the sentence is
unreasonable in premises and result.
The Ex Post Facto issue presents an issue of law reviewed
de novo. United States v. Neto, 659 F.3d 194, 200 (1st Cir. 2011),
cert. denied, 132 S. Ct. 1611 (2012). Goergen's predicate is that
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the offense levels for Counts 2, 3 and 4, which contributed to the
final offense level, were computed under the 2008 guidelines which
were in turn made more severe by the Protect Act of 2003 ("the
Act"), Pub. L. No. 108-21 § 401, 117 Stat. 650, 667-76. The
related guideline changes became effective on November 1, 2004.
U.S.S.G. app. C, amend. 664 (2006).
Goergen then argues that his conduct under those three
counts occurred prior to the Act's effective date of April 30,
2003; that the post-Act changes raised the base offense level for
his crimes from 27 to 32; U.S.S.G. app. C, amend. 664, at 39
(2006); and that they added new enhancements, including a four-
level enhancement applied to Count 2 (for material portraying
sadistic or masochistic conduct). Id. If the pre-Act guidelines
were employed, he says his adjusted offense level would have been
only 45.
Under the instructions provided in the guidelines
themselves, the court must ordinarily use the guideline manual in
effect at the time of sentencing, U.S.S.G. § 1B1.11(a), unless this
would violate the Ex Post Facto Clause, in which event the manual
in force "on the date that the offense was committed" is ordinarily
used, U.S.S.G. § 1B1.11(b); only one edition of the manual is to be
used for all of the crimes, id. § 1B1.11(b)(2) (the "one book"
rule); and where the defendant is convicted of multiple offenses,
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some before but one or more after a guidelines revision, the latter
manual governs all of the offenses. Id. § 1B1.11(b)(3).
Here, Goergen concedes that his Count 1 offense took
place in 2004 after the post-Act guidelines change. If the one
book rule and multiple offense instructions prevail, the use of the
post-Act guidelines was permissible for all counts. Why the court
used the 2008 guidelines rather than some other post-Act edition is
unclear but Goergen makes no issue as to that; possibly the 2008
edition was the one closest to sentencing that raised no Ex Post
Facto issue.1
In all events, Goergen's brief--although opaque on this
issue--may be arguing that the guidelines instructions themselves
(particularly the one book and multiple offense rules) violate the
Ex Post Facto Clause insofar as they authorized use of level 51.
But even assuming such an argument for using level 45 could be
considered by the panel in the teeth of contrary circuit precedent,
e.g., United States v. Silva, 554 F.3d 13, 22 (1st Cir. 2009), any
such mistake would be harmless error. United States v. Gerhard,
615 F.3d 7, 34 (1st Cir. 2010).
1
Possibly the 2008 edition was used instead of the 2010
edition because two new statutes--the Effective Child Pornography
Prosecution Act of 2007, Pub. L. No. 110-358, 122 Stat. 4001; and
the PROTECT Our Children Act of 2008, Pub. L. No. 110-401, 122
Stat. 4229--prompted further changes to the guidelines in 2009.
See U.S.S.G. app. C, amends. 733, 736-37 (2011).
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As Goergen concedes, the difference between a total
offense level of 45 and 51 is immaterial to the recommendation made
by the guidelines: it is a life sentence in either instance. In
fact, because the guidelines sentencing table only goes up to
offense level 43, the application notes go on to say (emphasis
supplied):
In rare cases, a total offense level of . . .
more than 43 may result from application of
the guidelines. . . . An offense level of
more than 43 is to be treated as an offense
level of 43.
U.S.S.G. ch. 5, pt. A, cmt. n.2 (2002). The government-endorsed
offense level of 51 and Goergen's preferred offense level of 45 are
both treated as an offense level of 43.
A colloquy between the judge and the probation officer at
sentencing confirms that the judge focused on the life sentence
recommendation and not the raw guideline number underpinning it.
The probation officer noted that
when you have a Level 51, the highest level
you can have in the book is a 43, so that's
what we use. It directs you to use that. But
it is a Total Offense Level of 51.
The court then responded (emphasis supplied)
All right. 51. 43. Criminal History
Category is I . . . [s]o the guideline
provisions yield a sentence of life. The
statutory maximum for these offenses would be
90 years.
This is not a case of a computational error leading to an
incorrect sentencing range, see United States v. Rodriguez, 630
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F.3d 39, 43 (1st Cir. 2010), nor is there any hint that the judge
was influenced by the proposed level of 51 rather than 45. Most
important, the district judge's own detailed substantive
explanation for choosing 60 years as the sentence (discussed below)
relies on factors independent of the offense level.
Goergen next contends that his sentence was unreasonable
because the district court improperly assessed his risk of
recidivism. Among the reasons given by the district court when it
imposed the 60-year sentence was the finding that
the defendant is very much at risk for
recidivism, and the likely potential victims
of such recidivism would be underage females.
Goergen claims that this finding was improper because the only
record evidence on this issue was an expert's psycho-sexual
evaluation concluding that he fell in a "moderate risk category to
reoffend."
Ordinarily, review of factual determinations at
sentencing is for clear error. United States v. Rivera Calderón,
578 F.3d 78, 99-100 (1st Cir. 2009), cert. denied, 130 S. Ct. 1107
(2010). Where, as here, the defendant did not preserve any
objection to the determination, our review is for plain error,
United States v. González-Castillo, 562 F.3d 80, 82 (1st Cir.
2009), a more demanding standard. However, our conclusion would be
the same in this case under the clear error test.
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The expert evaluation identified factors suggesting a low
risk of reoffense and other factors suggesting a high risk of
reoffense. While the expert's conclusion was that Goergen
presented a "moderate" risk, the district judge was entitled to
make his judgment based on the report and the evidence before him
as to Goergen's conduct. The report itself pointed to factors at
both ends of the spectrum. The judge had authority to make his own
evaluation that we may overturn only if persuaded that he was
clearly wrong.
The risk of recidivism was just one of many reasons given
by the district court for imposing the 60-year sentence. It is
highly unlikely that eliminating the "very much" from "very much at
risk for recidivism"--essentially, what Goergen asks us to do--
would have changed the sentence imposed. However, given the length
of the sentence, we do not rely on lack of prejudice but rather on
the lack of any clear error in the district judge's evaluation of
the risk.
Finally, Goergen contends that the district court did not
properly assess "the totality of the circumstances" relating to his
crimes when imposing the 60-year sentence, and that the sentence is
substantively unreasonable. Our review here is for an abuse of
discretion, taking into account the district court's explanation of
the sentence, the parties' arguments, and the contents of the pre-
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sentence investigation report. United States v. Leahy, 668 F.3d
18, 24 (1st Cir. 2012).
Goergen points to factors that he argues should have
resulted in a lesser sentence, including his military service;
psychological evaluation; life history (including abuse); mental
and physical disabilities; remorse; and statements of the victims.
The district court acknowledged all of these mitigating factors at
sentencing, so it cannot be claimed the district court failed to
consider them. See United States v. Beatty, 538 F.3d 8, 17 (1st
Cir. 2008), cert. denied, 129 S. Ct. 1364 (2009).
For example, the district court acknowledged Goergen's
"difficult upbringing which included abuse, neglect, and
isolation"; that "[h]e has been a career United States Navy
enlisted man"; that he has been "deemed . . . to be both physically
and mentally disabled"; that he "has expressed his remorse for
these actions"; and the court also noted its consideration of "the
input which it received from the victims and others."
Against these mitigating factors, the district court had
to weigh aggravating factors, many of which have been identified
above and of which more extensive description in this decision
would serve no one's interest. The district court provided a
detailed, thoughtful explanation of its sentence and chose to weigh
the aggravating factors heavily. No one who reads the explanation
would call it hasty, unbalanced or lacking in force.
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Goergen also argues that other courts have been more
lenient in child abuse cases. To the extent that it is relevant,
we have identified a number of other cases in which similarly
severe sentences were imposed:
- United States v. Sarras, 575 F.3d 1191,
1219-21 (11th Cir. 2009) (upholding 100-year
sentence for sexual abuse of one victim);
- United States v. Betcher, 534 F.3d 820, 826-
27 (8th Cir. 2008), cert. denied, 555 U.S.
1123 (2009) (upholding 750-year sentence for
sexual abuse of five victims);
- United States v. Wilcox, 666 F.3d 1154,
1156-58 (8th Cir. 2012) (upholding 40-year
sentence for sexual abuse of one victim)
In the end, the 60-year sentence is under the statutory
maximum and--fairly viewed as effectively a life sentence--is what
the guidelines recommended. This is a very grave sentence but, so
too were the crimes and their consequences for the victims. Absent
a mistaken legal or factual premise, a faulty analysis or an
unreasonable result, the district judge's judgment must prevail.
Affirmed.
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