United States v. Robert Clarke , 440 F. App'x 701 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12743 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 2, 2011
________________________ JOHN LEY
CLERK
D.C Docket No. 09-00019-CR-T-33-EAJ
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff–Appellee,
versus
ROBERT CLARKE,
lllllllllllllllllllll Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 2, 2011)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Robert Clarke appeals his sentence of 78 months’ imprisonment and a
lifetime of supervised release for possession of child pornography, in violation of
18 U.S.C. § 2252(a)(5)(A)-(B). The issue on appeal is whether this sentence is
cruel and unusual in violation of the Eight Amendment.1 After a thorough review
of the record, we conclude that it is not and affirm.
I.
Clarke was stationed in Japan as a civilian employee of the Department of
Defense, where he worked as a middle school teacher on a military base. While in
Japan,2 agents of the United States Air Force Office of Special Investigations
found child pornography on Clarke’s computer; he admitted the images were his.
Clarke returned to the United States, waived his indictment, and pleaded guilty to
one count of possession of child pornography. The plea agreement included a
1
Clarke initially raised four issues on appeal. One of those issues, whether the sentence
was procedurally reasonable, was dismissed on the government’s motion based on a sentence-
appeal waiver in the plea agreement. The other two issues Clarke explicitly abandoned in his
reply brief. Therefore, only this one issue remains before us.
2
Although Clarke argues that this court should consider that his crime took place in Japan
and “look at the climate of international opinion,” Clarke is punishable for his conduct regardless
of the fact that it occurred in Japan. See 18 U.S.C. § 3261(a).
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sentence-appeal waiver, in which Clarke expressly waived his right to appeal the
sentence imposed, except on the ground that the sentence exceeded the applicable
guidelines range, the statutory maximum penalty, or violated the Eighth
Amendment.
Based upon his offense level and criminal history category, the applicable
guidelines range was 78 to 97 months. The district judge sentenced Clarke at the
low-end of the guidelines range to 78 months’ imprisonment. Additionally,
pursuant to 18 U.S.C. § 3583(k), the district court imposed a lifetime of
supervised release. When asked whether the supervised release was appropriate,
particularly in light of the low-end of the guidelines sentence that the district court
was preparing to impose, Clarke’s counsel responded, “We completely understand
the court’s judgment that a lifetime of supervised release is appropriate, and very
frankly we agree with that.” Clarke then argued for a downward variance in the
term of imprisonment, which the district court denied. Clarke now appeals.
II.
A.
We first turn to Clarke’s claim that the district court plainly erred when it
imposed a lifetime of supervised release. We are precluded from reviewing an
issue on appeal if it has been waived via the invited error doctrine. United States
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v. Brannen, 562 F.3d 1300, 1306 (11th Cir. 2009). “The doctrine of invited error
is implicated when a party induces or invites the district court into making an
error.” Id. Thus, where a defendant invites the district court to impose a term of
supervised release, this court may not review the term imposed, even for plain
error. United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005).
Here, Clarke invited the district court’s alleged error. Although Clarke
argues that his statement was made only in the context of his request for a
downward variance, this does not negate his support for a lifetime of supervised
release. Moreover, instead of objecting to the term of supervised release,
subjecting the district court’s determination to plain error review, he affirmatively
supported it, inviting any alleged error. See e.g., United States v. Fulford, 267
F.3d 1241, 1247 (11th Cir. 2001) (finding invited error precluded defendant from
challenging a jury instruction when, instead of objecting to the instruction, the
defendant said it was acceptable.) After inviting such error, Clarke is not
permitted to “cry foul on appeal.” Brannen, 562 F.3d at 1306.
B.
We now turn to Clarke’s remaining claim that his 78 month sentence
violates the Eighth Amendment. We typically review de novo a constitutional
challenge to a sentence; however, when the appellant fails to raise the argument
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before the district court, we review only for plain error. United States v. Raad,
406 F.3d 1322, 1323 (11th Cir. 2005). To establish plain error, the appellant must
show that there was: (1) an error; (2) that was plain; and (3) that affects a
substantial right. United States v. Bacon, 598 F.3d 772, 777 (11th Cir. 2005). If
these elements are present, we may exercise our discretion to notice an
unpreserved error, only if “the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. For error to be plain, it must be
clear under controlling precedent or statute. United States v. Schmitz, 634 F.3d
1247, 1270-71 (11th Cir. 2011).
Clarke argues that the district court plainly erred when it sentenced him to
78 months’ imprisonment. The Eighth Amendment provides that “excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. Const. amend. VII. The Eighth Amendment
“contains a narrow proportionality principle that applies to noncapital sentences.”
United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006). “Outside the
context of capital punishment, successful challenges to the proportionality of
sentences [are] exceedingly rare.” Raad, 406 F.3d at 1323-24 (citing Solem v.
Helm, 463 U.S. 277, 289 (1983)) (emphasis in the original).
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Here, the district court sentenced Clarke at the bottom of the guidelines
range–well below the ten-year statutory maximum and within statutory limits.
Further, this court, outside of a special category of juvenile offenders, has “never
found a term of imprisonment to violate the Eighth Amendment . . . .” United
States v. Farley, 607 F.3d 1294, 1343 (11th Cir. 2010). Because the district court
sentenced Clarke within the limits imposed by the relevant statutes and guidelines,
“he has not made the threshold showing of disproportionality with respect to his
sentence.” Johnson, 451 F.3d at 1243. Accordingly, Clarke’s sentence of 78
months’ imprisonment and a lifetime of supervised release is AFFIRMED.
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