United States v. Harrison , 899 F.3d 49 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-2088
UNITED STATES OF AMERICA,
Appellee,
v.
JOSHUA HARRISON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Kayatta, and Barron,
Circuit Judges.
Lawrence D. Gerzog on brief for appellant.
Renée M. Bunker, Assistant United States Attorney, Appellate
Chief, and Halsey B. Frank, United States Attorney, on brief for
appellee.
August 10, 2018
LYNCH, Circuit Judge. This sentencing appeal follows
Joshua Harrison's plea of guilty to possession of child
pornography. Harrison kept on his computer and tablet over 300
child pornography images, many of prepubescent minors, toddlers,
and infants. Harrison's criminal history includes a juvenile
adjudication and adult criminal conviction for abuse of, or
misconduct with, boys as young as eight years old.
The district court sentenced Harrison to 120 months'
imprisonment followed by lifetime supervised release. The court
reasoned that the condition of lifetime supervised release was
justified because Harrison posed a "danger to young boys."
On appeal, Harrison asks us to vacate and remand for
resentencing. He argues that the district court inadequately
explained why it imposed a condition of lifetime supervised release
and that the condition is substantively unreasonable. He next
challenges his 10-year imprisonment sentence as substantively
unreasonable. We disagree and so we affirm.
I.
In August 2015, authorities detected child pornography
in an email account they traced to Harrison. Further inquiry
turned up a 2012 report that Harrison had offered to exchange
sexual photographs for money with two young boys. With this,
police got a warrant to search Harrison's email account and his
residence.
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Harrison spoke with police during the search. He denied
involvement with child pornography, but said that if his computer
contained child pornography it was for him to "self-medicate" so
that he did not do anything to a child. The officers seized
Harrison's laptop and tablet, which between them held 320 images
of child pornography. The probation office said that number, 320,
was "a conservative accounting." The images involved prepubescent
minors, toddlers, and infants as young as one year old. And some
depicted "sadistic or masochistic conduct" including penetration
and bondage.
Harrison was charged with one count of possession of
child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and
(b)(2). He pleaded guilty, with no plea agreement, in December
2016.
We recount the following from the presentence report
(PSR) and the sentencing transcript. Harrison, from at least the
age of sixteen, "engaged in a pattern of activity involving the
sexual abuse or exploitation of a minor." In 1998, when Harrison
was sixteen, he received a juvenile adjudication for the gross
sexual assault of an eight-year-old boy. While in juvenile
detention, Harrison collected over 100 disciplinary infractions.
Corrections officials deemed him a "treatment resister." At
discharge, he was an "untreated sex offender," having completed
only two credits of a 120-credit sex offender treatment program.
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Clinical reviews conducted during Harrison's juvenile
detention revealed a lack of empathy and "total absence of
remorse." The reviews found it "highly probabl[e]" that Harrison
had more victims. And, importantly, they concluded that Harrison's
"risk of sexual re-offense [was] higher than the baseline risk."
That conclusion proved prophetic when, soon after his release,
Harrison offered to exchange sexual pictures for money with two
boys, sending them a picture of his "lower half."
At twenty, Harrison was convicted of visual sexual
aggression against a minor. He spent two weeks in Maine state
prison, followed by a year of probation. Then, at twenty-nine,
Harrison chatted with young boys on Facebook, sending and receiving
sexually explicit images. He tried to get one of the boys, aged
thirteen years, to meet him in person for a sexual encounter.
During these chats, Harrison made sexual statements including "I
cant believe im gonna do it with a 13yr old boy." He was not
charged for this conduct. Harrison also had past convictions for
theft and criminal trespass.
Authorities have identified several of Harrison's
victims -- children depicted in the images on his computer and
tablet. Between them, they have filed several Victim Impact
Statements; one victim has requested restitution of $25,000. The
government and Harrison agreed that Harrison should pay $3,000 in
restitution to an identified victim.
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Harrison was 35 years old at time of sentencing. There,
the district court calculated a criminal history category of II
and a total offense level of 32,1 putting Harrison's guideline
sentencing range at 135 to 168 months' imprisonment. See U.S.S.G.
ch. 5, pt. A (sentencing table). The statutory maximum brought
Harrison's guideline term of imprisonment down to 120 months.
Defense counsel made no objection to these calculations.2
The district court acknowledged Harrison's "tragic
history of sexual abuse" as a victim. When Harrison was thirteen,
two older men used alcohol, drugs, gifts, money, and pornography
to lure, groom, and abuse him and two other young boys. Further,
Harrison's mother physically abused him when he was very young.
Despite this history of abuse, Harrison has received minimal victim
counseling.
The district court also noted Harrison's "host of
psychiatric diagnoses." The PSR lists PTSD, borderline bipolar,
depression, and anxiety. Because of this, Harrison has received
Social Security disability benefits since he was eighteen.
1 The PSR calculated a total offense level of 34. Unlike
the PSR, the district court did not apply a two-level enhancement
for child pornography distribution under U.S.S.G.
§ 2G2.2(b)(3)(F). The government had earlier decided not to pursue
that enhancement.
2 Defense counsel did preserve an objection to a two-point
enhancement for use of a computer. Harrison raises no objection
to that enhancement on appeal, so we do not address it.
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At sentencing, defense counsel cited three child
pornography possession cases said to be similar to Harrison's. In
each case, the defendant received either a 60- or 72-month
sentence. In one, United States v. King, No. 1:11–cr–00121–JAW,
the district court judge had been the sentencing judge. He found
"marked differences between" Harrison's case and King's:
This is a very different situation than was
presented in King. Mr. King did something
very violative of his stepdaughter and he
invaded her privacy, but there was no real
suggestion that he represented an ongoing
concern for the court of recidivism, and
unfortunately for this defendant [Harrison],
I can't say the same thing.
Further, Harrison presented a "very different and individualized
history." The "most problematic part" for the district court was
Harrison's "very disturbing . . . series of sexual encounters
with . . . underage boys," his "prior convictions for two sexual
offenses," and his history of "hands-on sexual contact" with boys.
This last feature -- Harrison's history of "hands-on contact with
minors" -- rendered defense counsel's cases inapposite.
Harrison's experience with the "dark side of the
Internet" also troubled the district court. Harrison had not only
used the internet to find images of child exploitation, but also
had used it to contact and "seduce[]" "young people," which the
court found to be "an extremely dangerous thing." The court
observed that Harrison's "compulsion" seemed likely, at least in
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part, to have come from his "own experience of sexual abuse." But
it was a "mystery" for the court how Harrison could then "want to
visit that same kind of suffering on other young men." Mindful of
his "overriding obligation" to "protect the people in society who
cannot protect themselves," the district judge imposed supervised
release for life.
The court also noted that Harrison could later ask to
revisit this portion of the sentence:
[I]f you go out [of confinement] for an
extended period of time, if you accept
treatment, and you demonstrate to the
satisfaction of the supervising officer that
you really do not bear a risk to children, you
can always come and ask me to revisit this.
But from what I see now, given the track record
here, I want you to be controlled.
The court further sentenced Harrison to 120 months' imprisonment
and recommended that Harrison receive sex-offender treatment.
II.
The parties dispute the applicable standard of review.
We need not address this disagreement. Even assuming, favorably
to Harrison, that the abuse of discretion standard applies,
Harrison has failed to establish any such abuse. Cf. United States
v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015).
A.
Harrison argues that the district court committed
procedural error by failing to explain why it imposed lifetime
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supervised release, and then argues that lifetime supervised
release is substantively unreasonable.3
A sentencing judge satisfies his duty to explain the
sentence when he "set[s] forth enough to satisfy the appellate
court that he has considered the parties' arguments and has a
reasoned basis for exercising his own legal decisionmaking
authority." Rita v. United States, 551 U.S. 338, 356 (2007). We
"'allow a good deal of leeway' in reviewing the adequacy of a
district court's explanation." United States v. Ofray-Campos, 534
F.3d 1, 38-39 (1st Cir. 2008) (quoting United States v. Gilman,
478 F.3d 440, 446 (1st Cir. 2007)).
Harrison argues that the district court nonetheless
committed procedural error by "fail[ing] to supply a shred of
reasoning for imposing the maximum possible sentence." But that
argument is simply not credible in light of the record. Our
earlier discussion highlights some of the judge's stated reasons.
In particular, nearly two-and-a-half hours into the hearing, the
district court told Harrison, "given the track record here, I want
you to be controlled." The district court noted Harrison's "awful
lot of close encounters" with minors and his history of
"represent[ing] a danger to young boys." A full review of the
sentencing transcript "satisfies us that the judge 'considered the
3 Harrison has not challenged the conditions associated
with his supervised release, only its lifetime term.
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parties' arguments and ha[d] a reasoned basis for exercising his
own legal decisionmaking authority.'" Chavez-Meza v. United
States, 138 S. Ct. 1959, 1967 (2018) (quoting Rita, 551 U.S. at
356).4
Further, Harrison's within-guidelines sentence of
lifetime supervised release is substantively reasonable. The fact
that a sentence is within the guidelines range "significantly
increases the likelihood that the sentence is a reasonable one."
Rita, 551 U.S. at 347. This sentence falls within the statutory
range, 18 U.S.C. § 3583(k), and the guidelines range, U.S.S.G.
§ 5D1.2(b)(2), for Harrison's offense. In fact, the United States
Sentencing Commission recommends the maximum term of supervised
release -- precisely what the district court imposed -- for sex
4 Harrison is subject to a mandatory minimum of five years'
supervised release. See 18 U.S.C. § 3583(k). Against this
backdrop, he characterizes his lifetime term as an extreme
deviation. He cites four cases: United States v. Ortiz-Rodriguez,
789 F.3d 15 (1st Cir. 2015); Ofray-Campos, 534 F.3d at 1; United
States v. Zapete-Garcia, 447 F.3d 57 (1st Cir. 2006); and United
States v. Smith, 445 F.3d 1 (1st Cir. 2006). In each, we found
that inadequately explained variances from the guidelines range
were grounds for vacating the sentence. See Ortiz-Rodriguez, 789
F.3d at 18-20; Ofray-Campos, 534 F.3d at 43; Zapete-Garcia, 447
F.3d at 60-61; Smith, 445 F.3d at 6.
These cases do not help Harrison. As both parties
acknowledge, the sentence here fell within both the applicable
statutory and guidelines ranges. A within-guidelines sentence
like Harrison's requires less explanation than an outside-the-
range one. United States v. Turbides-Leonardo, 468 F.3d 34, 41
(1st Cir. 2006) (citation omitted). The explanation here passes
muster.
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offenses like possession of child pornography. See U.S.S.G.
§ 5D1.2(b)(2) (policy statement).
And lifetime supervised release is amply reasonable
given the seriousness of Harrison's offense and the likelihood
that he will offend again. We recently affirmed a district court's
upward variance from a defendant's sentencing range because "the
chances of recidivism [were] extremely high" in light of that
defendant's criminal history. See United States v. Benítez-
Beltrán, 892 F.3d 462, 470 (1st Cir. 2018). Here, the district
court found that Harrison represents an "ongoing concern" of
recidivism. The court did not vary upward as in Benítez-Beltrán;
it instead applied the guidelines punishment. This sentence is
substantively reasonable.
In upholding the sentence in the circumstances of this
case, we join several other circuits which have upheld lifetime
terms of supervised release in child-pornography cases. See, e.g.
United States v. Gooch, 703 F. App'x 159, 160, 161 (4th Cir. 2017)
(per curiam) (unpublished) (affirming lifetime supervised release
in child-pornography case); United States v. Cubero, 754 F.3d 888,
891, 898 (11th Cir. 2014) (same); United States v. Burnette, 414
F. App'x 795, 796, 801-02 (6th Cir. 2011) (unpublished) (same);
United States v. Williams, 636 F.3d 1229, 1231, 1234-35 (9th Cir.
2011) (same).
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B.
Harrison next argues that his ten-year sentence of
imprisonment is substantively unreasonable. Here, he "must make
the difficult showing that the District Court abused its discretion
in not imposing a below-guidelines sentence." United States v.
Gall, 829 F.3d 64, 75 (1st Cir. 2016).
Harrison cannot make this showing. The judge considered
the information in the PSR, what he heard at the sentencing
proceedings, the statutory factors, the advisory guideline
sentencing range, Harrison's history and characteristics, the
nature of his offense, the need to protect the public, and the
need to provide restitution to Harrison's victims. These
considerations gave the district court a solid foundation for
imposing the statutory maximum punishment.
Sentencing represents a "'judgment call' involving an
intricate array of factors." United States v. Flores-Machicote,
706 F.3d 16, 21 (1st Cir. 2013) (quoting United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008)). The district court weighed those
factors, providing a "plausible sentencing rationale and a
defensible result." Martin, 520 F.3d at 96. As such, Harrison's
sentence is substantively reasonable.
III.
Harrison's sentence and term of supervision stands.
Affirmed.
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