United States v. Ronald William Brown , 772 F.3d 1262 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13670
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D.C. Docket No. 8:12-cr-00418-JDW-MAP-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONALD WILLIAM BROWN,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 25, 2014)
Before TJOFLAT, JILL PRYOR, and FAY, Circuit Judges.
PER CURIAM:
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Ronald William Brown appeals his 240-month sentence, after pleading
guilty to eight counts of possession and receipt of child pornography. We affirm
his sentence but remand for the limited purpose of correcting a scrivener’s error in
the judgment.
I. BACKGROUND
A. Factual History
United States Immigration and Customs Enforcement (“ICE”) agents
conducted an extensive worldwide investigation into child pornography in 2010.
In the course of that investigation, ICE agents arrested Michael Arnett for the
production of child pornography. The agents examined the computers seized from
Arnett and found he had been communicating with Brown. Brown lived in Largo,
Florida, owned a business called Puppets Plus, and ran a puppet ministry for
children at his church.
Between April and October 2011, Brown and Arnett had discussed the
abduction, murder, and cannibalization of children. They specifically had
discussed “C,” a boy who attended Brown’s church. Brown had photographed C
and sent the image to Arnett. During an online chat session, the two men discussed
eating C. Brown stated he would “love to run [his] hand over” the boy’s legs and
thighs and wanted to “get a hand on [the boy’s] little rump.” Gov’t Am. Mot. for
an Upward Variance Ex. 4 at 2-3. Brown and Arnett also mentioned a two-year-
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old girl, whom Arnett claimed to have eaten. Arnett confirmed the two-year-old
girl had “[tasted] good” and stated she had “made a sweet little oven roast.” Id. at
1. When Arnett said the girl’s “bottom [had been] . . . good” and “her pudgy
thighs [had been] just great,” Brown responded: “You are making me hungry.” Id.
Arnett sent Brown a picture of a three-year-old girl “being snuffed in her
kidnapper’s lap.” 1 Id. at 7. Brown stated the picture was “nice,” he would enjoy
“doing” the boy from his church that way, it would be “hot” to see a video of a
kidnapper strangling a child, and he “would like to know what to expect.” Id. at 8-
9.
During the investigation, ICE agents found a profile for Brown on a website
called “cutedeadguy.net.” Gov’t Am. Mot. for an Upward Variance Ex. 14. The
profile described Brown’s interests: “I love them young and dead. I enjoy them
fresh, but like to see them displayed in their casket too.” Id. It also stated Brown
has had a “[s]trong interest” in necrophilia since his youth. Id.
On July 19, 2012, ICE agents executed a search warrant at Brown’s
residence and seized a computer with multiple media and storage devices. Upon
examination of Brown’s computers, the agents found images of child pornography,
children engaged in bondage, children with their genitals exposed, and children
who appeared to be dead. Agents also found a CD in Brown’s bedroom containing
1
Brown and the men with whom he conversed in chat rooms used the term “snuff” as
slang for “kill.” See, e.g., Gov’t Am. Mot. for an Upward Variance Ex. 12 at 14.
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images of child pornography, images of young boys in their underwear, images
that appeared to be deceased children, and a flyer for a missing child. Agents
found books on serial killers and cannibalism and a blow up sex doll dressed in
little boys’ clothes. Brown told the agents the chats were just fantasies, and he
would never act on them.
After a forensic review, agents found chat logs between Brown and
“Karsten.” Gov’t Am. Mot. for an Upward Variance Ex. 1 at 2. The two men
discussed images of young boys bound with their genitals exposed. “I like the
blond boy. . . . Would love to snuff him. . . . Very hot pics. . . . That boy looks
dead. . . . I like that one. I would love to kill them.” Id. Brown specifically asked
for pictures of “dead boys.” Id. at 4. Chat logs between Brown and Geoffrey
Portway revealed their discussions of murder and cannibalization of boys from
Brown’s church.
The forensic review revealed more than 200 pornographic images of
children as well as hundreds of other images of child bondage and dead children.
Additionally, there were more than 100 images of Andrew, a boy from Brown’s
church who had died from a brain tumor. Brown had pictures of Andrew in the
hospital and at his memorial service; he discussed Andrew with the user name
“fenianfun.” Gov’t Am. Mot. for an Upward Variance Ex. 9. Agents also found
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Brown’s written journals, dating back to 1978. In these journals, Brown recorded
his everyday activities and his obsession with various young boys over the years.
B. Procedural History
In a superseding indictment, a federal grand jury charged Brown with three
counts of possession of child pornography, in violation of 18 U.S.C. §
2252A(a)(5)(B) and (b)(2) (Counts 1-3) and five counts of receipt of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1) (Counts 4-8).
Brown pled guilty to all counts before a magistrate judge; the district judge
accepted his plea.
In the Presentence Investigation Report (“PSI”), the probation officer
calculated Brown had a Sentencing Guidelines range of 78 to 97 months in prison,
based on a total-offense level of 28 and a criminal-history category of I. The
probation officer noted Brown faced statutory-maximum penalties of 10 years in
prison on the three possession counts and at least 5 years, but not more than 20
years, in prison on the five receipt counts. The probation officer also noted an
upward variance might be warranted, because of Brown’s obsession with
neighborhood children and his escalating interest in the sexual molestation,
murder, and cannibalism of children.
Brown filed a sentencing memorandum, asserting his criminal conduct had
been “aberrant,” and his chats had involved “fantasy behavior.” Sentencing Mem.
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at 6, 8. He argued there was “no proof” he had committed a violent act against a
child. Id. at 6. He also contended he was amenable to treatment and presented a
low risk of recidivism, based on a defense expert’s psycho-sexual evaluation of
Brown and various studies.
The government filed a motion for upward variance. The motion included
several excerpts from Brown’s chats; a redacted picture of a boy from Brown’s
church, which Brown had marked to show how he would butcher the boy; a copy
of Brown’s business card for his puppet business and a picture of Brown with
puppets; pictures of the covers of Brown’s books about cannibalism and serial
killers; a copy of Brown’s profile on “cutedeadguys.com”; and a copy of a news
article about Portway’s guilty plea. The government later submitted a substantially
similar amended motion.
At the sentencing hearing, Brown accepted as true the factual allegations
contained in the PSI. The district judge noted the sentencing factors contained in
18 U.S.C. § 3553(a). The judge acknowledged Brown had no criminal history and
had been employed his entire life, but Brown has had an “unhealthy . . . obsession
with young boys for most of his adult life,” which seems to have become “much
more active” in recent years. Sentencing Hr’g Tr. 42, July 29, 2013. The judge
noted he saw little deterrent effect in this case and that “people like . . . Brown,
who will continue to obtain these images . . . [are] creating a market or a demand
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for [them].” Id. at 44. While acknowledging Brown never had “crossed [the] line”
between fantasy and action, and he possessed “a fraction” of the number of
pornographic images he usually viewed, id. at 48, the judge also cited the
government’s evidence of Brown’s interest in dead children, murder, and
cannibalism, id. at 49-50. The judge granted the government’s motion for upward
variance and found “the advisory [G]uideline[s] range of 78 to 97 months does not
adequately represent the offense of conviction, nor satisfy the statutory purposes of
sentencing as set forth in Section 3553(a) of Title 18.” Id. at 52. The judge
sentenced Brown to 240 months of imprisonment, followed by a lifetime term of
supervised release.
On appeal, Brown argues his sentence is substantively unreasonable, and the
district judge’s decision to impose an upward variance was based on his
“unfounded assumption” he would physically harm a child in the future.
Appellant’s Br. at 24-28. Brown also contends the judge placed undue weight on
the “need to protect the public,” an error warranting reversal. Appellant’s Br. at
21-32.
II. DISCUSSION
A. Upward Variance
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
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(2007); United States v. King, 751 F.3d 1268, 1281 (11th Cir. 2014) (per curiam).
The party challenging the sentence bears the burden of establishing the sentence is
unreasonable in light of the record and the factors in 18 U.S.C. § 3553(a). 2 United
States v. Wayerski, 624 F.3d 1342, 1353 (11th Cir. 2010). A district judge abuses
his discretion, when he (1) fails to afford consideration to relevant factors that
merited significant weight, (2) gives significant weight to an improper or irrelevant
factor, or (3) commits a clear error of judgment. United States v. Irey, 612 F.3d
1160, 1189 (11th Cir. 2010) (en banc). The weight to be accorded any given factor
is within the discretion of the sentencing judge. United States v. Amedeo, 487 F.3d
823, 832 (11th Cir. 2007).
In determining a sentence, the judge must calculate the correct Guidelines
range, consider the § 3553(a) factors, and make “an individualized assessment
based on the facts presented.” Gall, 552 U.S. at 49-50, 128 S. Ct. at 596-97. The
judge should consider every defendant “as an individual and every case as a unique
study in the human failings that sometimes mitigate, sometimes magnify, the crime
and the punishment to ensue.” Id. at 52, 128 S. Ct. at 598 (emphasis added). If the
judge decides, after “serious consideration,” a sentence outside the applicable
Guidelines range is warranted, he must explain why the variance is appropriate and
2
The relevant § 3553(a) factors include (1) the nature and circumstances of the crime as
well as the history and characteristics of the defendant; (2) the need to reflect the seriousness of
the crime, to promote respect for the law, and to provide just punishment for the crime; (3) the
need for deterrence; and (4) the need to protect the public. 18 U.S.C. § 3553(a).
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cite “sufficient justifications.” Id. at 46, 128 S. Ct. at 594. Because of a variance,
we may reverse only if we are left with “the definite and firm conviction that the
district [judge] committed a clear error of judgment in weighing the § 3553(a)
factors by arriving at a sentence that lies outside the range of reasonable sentences
dictated by the facts of the case.” United States v. Shaw, 560 F.3d 1230, 1238
(11th Cir. 2009) (internal quotation marks omitted).
The 240-month sentence in this case is a sentence well above the applicable
Guidelines range of 78 to 97 months, but below the statutory maximum. 3 Brown
has failed to meet his burden of showing the upward variance is unreasonable. The
judge discussed four § 3553(a) factors, including (1) Brown’s long history of
obsession with young boys, (2) the seriousness of child-pornography crimes, (3)
the futility of deterrence, and (4) the “self-evident” danger to society posed by
Brown, as demonstrated in his “depraved” online chats and interest in the
abduction, sexual molestation, murder, and cannibalization of children. Sentencing
Hr’g Tr. at 40-52. There was no undue emphasis placed on any single § 3553(a)
factor. While he did state the need to protect the public was “perhaps [the] most
3
While the upward variance was substantial, Brown’s sentence was still well below the
maximum 30 years of imprisonment he could have received under the statute. See 18 U.S.C. §
2252A(b)(1), (2) (authorizing a maximum prison term of 20 years for receipt of child
pornography and a maximum of 10 years for possession of child pornography); 18 U.S.C. § 3584
(authorizing a sentencing judge to impose prison terms “concurrently or consecutively,” if
multiple terms of imprisonment are imposed on a defendant at the same time); United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (comparing the statutory maximum with the
sentence imposed in order to determine reasonableness).
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important aspect,” id. at 46, the judge clearly discussed the other § 3553(a) factors,
and it is within a judge’s discretion to afford one factor greater weight. See
Amedeo, 487 F.3d at 832.
The judge reviewed the PSI, Brown’s sentencing memorandum, and the
government’s motion for an upward variance with its attached exhibits. He
explained his reasons for the variance. See Gall, 552 U.S. at 46, 50, 128 S. Ct. at
594, 597. While Brown presented evidence of statistics regarding recidivism rates
and his voluntary psycho-sexual evaluation, this alone did not establish Brown
would not be a danger to a community. The district judge explained:
It used to be . . . [that] there [were] those who thought this was
a victimless crime, just possessing an image on a computer. It’s not.
One has only to read a letter from an eight or ten-year-old person, a
child who has been victimized and their child-like description of what
they hoped would happen to the person who produced that image to
understand and fully appreciate the damage that’s done.
So let’s not forget in this discussion about necrophilia and
mutilation and all of these terrible, terrible things that we have images
of real-life child victims possessed by this defendant whose lives may
never be returned to normalcy.
Sentencing Hr’g Tr. at 43-44. We agree. “It goes without saying that possession
of child pornography is not a victimless crime. A child somewhere was used to
produce the images downloaded by [defendant], in large part, because individuals
like [defendant] exist to download the images.” United States v. Yuknavich, 419
F.3d 1302, 1309 (11th Cir. 2005). “[R]eceiving and possessing child pornography
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helps create a market for more pornography, encouraging the victimization of more
children.” United States v. Turner, 626 F.3d 566, 574 (11th Cir. 2010) (per
curiam).
Despite Brown’s argument, the judge did not factor in an “assumption”
Brown would commit a violent act against a child in determining his sentence. Cf.
United States v. Dorvee, 616 F.3d 174, 183-84 (2d Cir. 2010) (concluding the
defendant’s sentence was substantively unreasonable, because the district judge
made an unsupported “apparent assumption” that the defendant was likely to
molest a child sexually). The judge upwardly varied after considering Brown’s
“disgusting, depraved, disturbing [and] perverted” conduct, which “serve[s] to
magnify the punishment . . . because it crosses all bounds of human decency.”
Sentencing Hr’g Tr. at 46, 51. Notably, the judge specified Brown would be sent
to prison, because of the conduct to which he had pled guilty, not the content of the
online chats.4
Given the evidence of Brown’s expressed desire to kill and to cannibalize
children, including multiple references to at least one child Brown seemed to
4
The judge additionally noted:
Nothing that I’ve seen here . . . suggests that you crossed that line between
possessing and receiving versus distribution, other than forwarding an image or
images of a young boy to some of these other individuals . . . . That is
problematic. We don't know how that image could be used by someone like that.
Sentencing Hr’g Tr. at 48.
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know, the judge’s conclusion Brown posed a possible danger was not error. See
Wayerski, 624 F.3d at 1353-54 (concluding a sentence was reasonable, and the
judge did not “improperly assume[]” the defendant would pose a risk to children
after his release from prison, when the evidence included videotapes of
neighborhood children, defendant’s diaries, and online postings). Along with the
online chats, the evidence against Brown included numerous journals in which
Brown documented his obsession with various young boys since 1978, a blow-up
sex doll dressed as a little boy, and books about cannibalism and serial killers. The
judge clearly stated his reasons supporting the sentence; the justifications were
sufficiently compelling to support the variance. See United States v. Sarras, 575
F.3d 1191, 1220 (11th Cir. 2009) ( “Child sex crimes are among the most
egregious and despicable of societal and criminal offenses, and courts have upheld
lengthy sentences in these cases as substantively reasonable.”). Based on the
totality of the circumstances, and giving due deference to the judge’s determination
that the § 3553(a) factors justified the upward variance, we conclude the district
judge did not abuse his discretion.
B. Scrivener’s Error
The judgment lists the statutory title and section of the crimes for Counts 4-8
as 18 U.S.C. § 2252(a)(2) and (b)(2). This is a scrivener’s error. Consistent with
the indictment, the counts should have been listed as 18 U.S.C. § 2252A(a)(2) and
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(b)(1). We reverse and remand for the limited purpose of correcting these
typographical errors. United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.
1997) (per curiam).
III. CONCLUSION
Brown’s 240-month sentence, following his guilty plea to possession and
receipt of child pornography, is AFFIRMED. The case is REMANDED for the
limited purpose of correcting the judgment for Counts 4-8 so it properly names the
statutory title and section of the crimes as 18 U.S.C. § 2252A(a)(2) and (b)(1).
AFFIRMED and REMANDED
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