United States v. Croucher ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 30, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 11-3196
v. (D.C. No. 6:10-CR-10090-JAR-1)
(D. Kansas)
JASON DALE CROUCHER,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and BRORBY, Senior Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and appellant Jason Croucher pled guilty to three counts relating
to the receipt, distribution and possession of child pornography, in violation of 18
U.S.C. § 2252(a)(2) and (a)(4)(B). He was sentenced to 210 months’
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
imprisonment, after the district court denied his motion for a variance for a lower
sentence. Mr. Croucher appeals his sentence, arguing it is unreasonable and that
the district court erred in denying his motion for a variance. We affirm.
BACKGROUND
Much of Mr. Croucher’s brief is devoted to an explanation of his exemplary
childhood and early adulthood, prior to his being arrested on the child
pornography charges involved in this case. For example, Mr. Croucher finished
in second place in the National Geography Bee in grade school. In high school,
Mr. Croucher participated in speech, debate and the high school play for four
years. He was also a student newspaper editor, staffed the student web page, was
an officer in the National Honor Society, and participated in student government,
the Key Club, the Art Club and the Spanish Club. Mr. Croucher was also a
trainer for the track and volleyball teams. He obtained good grades while in high
school and was selected to serve in Washington, D.C. as a Kansas representative
in the United States Senate Youth Program.
Following graduation from high school, Mr. Croucher attended Emporia
State University and received scholarships from the Hearst Foundation, the
Kiwanis Club, the American Legion and the Lions Club. He achieved good
grades in college.
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Following college, Mr. Croucher worked for a United States Senator, as
well as two state representatives and a United States’ Congressman’s campaign.
He also served as the chairman of the Osage County Democratic Party, sat on the
Osage City Council, and worked for a local newspaper.
Mr. Croucher concedes that his advisory Guidelines sentencing range under
the United States Sentencing Commission, Guidelines Manual (2010) (“USSG”),
was correctly calculated to be 210 to 262 months’ imprisonment. 1 On May 16,
2011, he filed a motion for a sentencing variance, requesting a sentence of 105
months. The government opposed this motion. At Mr. Croucher’s sentencing
hearing, the district court ultimately rejected his request for a variance, making
the following findings:
This is a very difficult case. It’s probably an understatement
for me to even say that. Mr. Croucher was raised in a small town
whereby in all accounts he flourished. He was an avid student in
high school, with good grades, and in many extracurricular activities,
including debate.
1
As calculated by his presentence report (“PSR”), Mr. Croucher’s adjusted
total offense level was 40, based upon a base offense level of 22, along with the
following enhancements for: (1) material involving a prepubescent minor under
USSG §2G2.2(b)(2); (2) distribution for the receipt or expectation of receipt of a
thing of value, but not for pecuniary gain under §2G2.2(b)(3)(B); (3) including
material involving sadistic or masochistic conduct or other depictions of violence
under §2G2.2(b)(4); (4) use of a computer under §2G2.2(b)(6); and (5) possession
of more than 600 images under §2G2.2(b)(7)(D). Following a three-level
reduction for acceptance of responsibility, the PSR calculated a total offense level
of 37. With his criminal history category of I, Mr. Croucher faced an advisory
Guidelines range of 210 to 262 months.
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Since high school, Mr. Croucher has attended college. He’s
worked for the local newspaper. He was employed by two political
campaigns. He was on the Osage City Council. He has been the
author of a political blog here in Kansas.
Mr. Croucher chose to delve into the world of child
pornography. The Court understands to some extent, despite outward
appearances that Mr. Croucher in his formative years had a
wonderful life and was fully engaged and accepted in his school, that
as a gay teen in the town of Osage City there was some oppressive
effect in that.
....
Tr. of Sentencing Hr’g at 199-202, R. Vol. 3 at 244-47.
The district court then focused on the particulars of the crime committed by
Mr. Croucher:
For many reasons, this is not a normal case in terms of the
offense itself. If indeed there’s a spectrum of child pornography, . . .
this is the worst.
....
[I]f one can measure the degree of depravity, there’s no
question that this case presents at the extreme of that spectrum in
terms of the degree of depravity because it involved the most
vulnerable children, the youngest children, toddlers, and even in one
instance an 18-month-old infant. It involved videos in which
children cried out in pain and registered their own abhorrence of
what is the most despicable and depraved act one person can commit
towards another person of that age.
Id. at 201-02. After going through the requisite statutory sentencing factors
applicable to selecting a sentence, the court concluded that in its experience, “this
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particular pornography in this particular case is the worst the Court has ever been
exposed to.” Id. at 210.
In addition, the court considered Mr. Croucher’s statements that he was
really only interested in the men engaging in sexual abuse of children, not the
children themselves. The court discounted those statements:
The Court does not find it credible that Mr. Croucher engaged
in this because he was interested in the men who engaged in this
depraved kind of sex. . . .
. . . . He not only engaged in discussions about his interests in
children of certain age groups and what he wanted to do with them,
but to go further and suggest that he preferred it when the children
exhibited pain, and talked about discarding children in dumpsters
when they’re done with them and that sort of thing, in the Court’s
mind is more indicative of something that Mr. Croucher had
fantasized about.
This was not a creative writing class. This was not something
that the Court believes he clinically thought of just in terms of
acquiring pornography. It was part of his fantasy life, just as these
types of pornographic material that he procured were things that he
actually wanted to observe and to have in his collection.
All of this means that Mr. Croucher was sexually stimulated by
this, desired this, wanted this, procured it, consumed it. The Court
does not buy at all that he somehow compartmentalized this and only
focused on the men.
Id. at 207-09.
The court particularly expressed its concern about the need to protect the
community:
But the thing that concerns me is if this is apparently a
progression of pushing the limits of an addiction to sex and an
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addiction to child pornography, and that’s all there is, and you’re
able to acquire the very worst of the worst as part of your game and
part of what you want as your collection, then the only way that
progresses beyond that, in the Court’s mind, is by going out and
acting on it further.
Id. at 210. The court accordingly imposed the 210-month sentence, at the bottom
of the advisory Guidelines range.
As indicated, Mr. Croucher appeals his sentence, arguing that the court
erred in failing to grant his request for a downward variance and arguing that his
210-month sentence is unreasonable.
DISCUSSION
As the government observes, Mr. Croucher makes a procedural challenge to
his sentence because he argues the district court based its sentence on an
erroneous finding of fact (i.e., that Mr. Croucher is likely to act out sexually
against children). “Procedural reasonableness addresses whether the district court
incorrectly calculated or failed to calculate the Guidelines sentence, treated the
Guidelines as mandatory, failed to consider the § 3553(a) factors, relied on
clearly erroneous facts, or failed to adequately explain the sentence.” United
States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008). Mr. Croucher did not
raise this procedural objection before the district court, so we would ordinarily
review the issue for plain error. See United States v. Steele, 603 F.3d 803, 808
(10th Cir. 2010); see also United States v. Poe, 556 F.3d 1113, 1128 (10th Cir.
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2009) (“When a party fails to object contemporaneously to the district court’s
sentencing procedure, we review procedural reasonableness challenges for plain
error.”)
We will find plain error “only when there is (1) error, (2) that is plain, (3)
which affects substantial rights, and (4) which seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Romero,
491 F.3d 1173, 1178 (10th Cir. 2007). We typically do not, however, apply plain
error review to the district court’s factual findings. See United States v. Heredia-
Cruz, 328 F.3d 1283, 1288 (10th Cir. 2003) (“Under the plain error standard, we
will not review the district court’s factual findings relating to sentencing, but will
review for particularly egregious or obvious and substantial legal error, which our
failure to consider would result in a miscarriage of justice.”) (further quotation
omitted).
There is no such egregious or obvious error here. To the contrary, the
district court’s decision was based on “substantial record evidence and was a
reasonable inference based on that evidence.” Appellee’s Br. at 18. Mr.
Croucher testified that his viewing of pornography had increased dramatically
since he was in high school, and had graduated to viewing violent and cruel child
pornography. He conceded that images of men having sex with children were
“extreme” and “tremendously perverted sex.” Tr. of Sentencing Hr’g at 64, R.
Vol. 3 at 109. Thus, the court expressed concern that Mr. Croucher would act
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upon his addiction to child pornography: “But the thing that concerns me is if
this is apparently a progression of pushing the limits of an addiction to sex and an
addiction to child pornography. . . . But what the Court does know is that what
the Court has been told is that Mr. Croucher’s conduct, by his own admission,
was a progression, or a regression. . . . It was a change. It was a transition over
time.” Id. at 210. The district court reasonably concluded Mr. Croucher was at
risk of preying on children.
Mr. Croucher also suggests his 210-month sentence is substantively
unreasonable. “[S]ubstantive reasonableness addresses 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).” Huckins, 529 F.3d at 1317.
Furthermore, “[b]ecause his sentence falls within (at the bottom of) the properly-
calculated guidelines range, . . . it is entitled to a rebuttable presumption of
reasonableness or rationality on review in this circuit.” United States v. Soto, 660
F.3d 1264, 1269 (10th Cir. 2011). Mr. Croucher offers no real argument as to
why his sentence is too long, or which of the § 3553(a) factors was not adequately
considered. He simply argues that, aside from his pornography usage, he was a
productive, involved, and outstanding person and citizen. That does not convince
us that Mr. Croucher’s sentence is substantively unreasonable.
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CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the district court
denying Mr. Croucher’s request for a downward variance and imposing a 210-
month sentence.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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