United States v. Ray ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
April 28, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 08-4163
v. (D.C. No. 2:07-CR-00073-DB-1)
(D. Utah)
KRISTOPHER RAY,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and BRISCOE, Circuit Judges. **
Defendant-Appellant Kristopher Ray pled guilty to transportation of child
pornography in violation of 18 U.S.C. § 2252A(a)(1). 1 R. Doc. 12 at 1; 1 R.
Doc. 44 at 1. As part of the agreement, Mr. Ray agreed to participate in a
psychosexual evaluation. 1 R. Doc. 34 at 5. The evaluation report stated that Mr.
Ray “represent[s] a poor prognosis for sex offender treatment” and that he “is also
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
a very high risk to sexually offend in the future.” 1 Supp. R. at 13. The report
also stated that “the only method by which children and adults can be protected
from [Mr. Ray’s] potential sexual violence is if he is incarcerated for as long as
the law allows.” Id. In addition to the psychosexual evaluation, a presentence
report (“PSR”) was prepared prior to sentencing. According to the PSR, Mr. Ray
had a total offense level of 31 and a criminal history category of V, which led to a
Guideline range of 168 to 210 months. 3 R. at 16, ¶ 58. However, because Mr.
Ray was subject to a statutory mandatory minimum 180-month sentence, his
Guideline range was effectively 180 to 210 months. Id. After deliberation, and
despite Mr. Ray’s offer to undergo chemical castration, the court varied upward
from the Sentencing Guidelines and sentenced Mr. Ray to 270 months’
imprisonment. 1 R. Doc. 44 at 2; 2 R. Doc. 53 at 10, 12. On appeal, Mr. Ray
argues that the district court imposed an unreasonable sentence by varying
upward by 60 months. Our jurisdiction arises under 28 U.S.C. § 1291, and we
affirm.
Discussion
This court reviews all “sentences for reasonableness under a deferential
abuse-of-discretion standard.” United States v. Alapizco-Valenzuela, 546 F.3d
1208, 1214 (10th Cir. 2008). In conducting an inquiry into the reasonableness of
the sentence, we consider both the procedural and substantive components.
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United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008); United States
v. Kristl, 437 F.3d 1050, 1054-55 (10th Cir. 2006) (per curiam). “Procedural
review asks whether the sentencing court committed any error in calculating or
explaining the sentence.” 1 Alapizco-Valenzuela, 546 F.3d at 1214. On the other
hand, “[s]ubstantive review involves whether the length of the sentence is
reasonable given all the circumstances of the case in light of the factors set forth
in 18 U.S.C. § 3553(a).” Id. (internal quotation marks omitted).
I. Substantive Reasonableness
Mr. Ray’s primary claim is that his sentence was substantively
unreasonable because it was “outside the limits of [the court’s] discretion.” Aplt.
Br. 7. To support his claim, Mr. Ray argues that “there was no reasonable
justification to support the degree of variance” from the Guidelines, given that the
court put Mr. Ray on lifetime supervised release following his incarceration and
that Mr. Ray was willing to undergo chemical castration. Aplt. Br. 7-8; see
United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (discussing
substantive reasonableness).
However, we cannot conclude that the sentence was outside the range of
1
Procedural errors include “failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence–including an explanation for any
deviation from the Guidelines range.” Gall v. United States, 128 S. Ct. 586, 597
(2007).
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reasonableness. The sentence was the product of the district court’s belief that
Mr. Ray posed a significant risk to the public. 18 U.S.C. § 3553(a)(2)(C).
Indeed, the court’s discussion and the record demonstrate that Mr. Ray has an
extensive and violent sexual criminal history, and that he has been and most
likely will continue to present a serious risk to minor children. The district court
clearly explained that Mr. Ray’s prior criminal conduct involving violent sexual
assaults, his prior sexual abuse of minor boys and girls, the results of his
psychosexual evaluation (which showed his continuing propensity to abuse young
children), and his high risk of recidivism led the court to conclude that the 270-
month sentence was justified. 2 R. Doc. 53 at 12-15. These considerations,
viewed in light of the fact that this court “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance,” United States v. Smart, 518 F.3d 800, 818 (10th Cir. 2008) (internal
quotation marks omitted), convince us that the sentence is substantively
reasonable.
II. Procedural Reasonableness
To the extent that Mr. Ray’s argument implicates procedural
reasonableness, we conclude that the sentence was procedurally reasonable.
Under 18 U.S.C. § 3553(c), a district court must provide a sufficient explanation
for the sentence. United States v. Pinson, 542 F.3d 822, 834 (10th Cir. 2008).
We have held that the court must state the “reasons for its imposition of the
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particular sentence,” and, if the sentence varies from the Guidelines range, “the
specific reason for the imposition of a sentence different from [the Guideline
range].” United States v. Angel-Guzman, 506 F.3d 1007, 1016 (10th Cir. 2007)
(internal quotation marks omitted). “The court must also address, in its statement
of reasons, the material, non-frivolous arguments made by the defendant.”
Pinson, 542 F.3d at 833. Assuming that the chemical castration suggestion was
non-frivolous, we conclude that the district court thoroughly explained its reasons
for varying from the Guidelines range and, in so doing, adequately addressed Mr.
Ray’s argument. As the discussion above demonstrates, the district court’s
explanation clearly showed that it believed, based on Mr. Ray’s considerable
history of sexual misconduct, that Mr. Ray presented a risk to the public that
could not be deterred by anything other than lengthy incarceration. No more
thorough explanation is necessary. See Pinson, 542 F.3d at 835.
Moreover, the fact that the district court cited public safety as the reason
for its decision does not mean that the court did not take into consideration Mr.
Ray’s willingness to accept chemical castration. “We have never held . . . that the
district court must list the reasons why it could have chosen a different sentence
and then explain why it rejected them.” United States v. Jarrillo-Luna, 478 F.3d
1226, 1230 (10th Cir. 2007). Here, the district court’s thorough explanation
clearly showed that the court had decided that lengthy incarceration was the only
measure sufficient to protect the public. The obvious corollary is that the court
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had concluded that chemical castration was not adequate. Under these
circumstances, the court did not need to expressly reject Mr. Ray’s suggestion.
See id. at 1228-30; see also Pinson, 542 F.3d at 834-36.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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