United States v. Mark Todd Rader , 241 F. App'x 591 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 31, 2007
No. 06-11348 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 05-14047-CR-JEM & 05-14077 CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK TODD RADER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 31, 2007)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Pursuant to a plea agreement, Mark Todd Rader pleaded guilty to one count
of transporting or mailing a visual depiction the production of which involves the
use of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C.
§ 2252(a)(1), one count of using a facility and means of interstate commerce to
persuade, induce, entice, or coerce a minor to engage in sexual activity, in violation
of 18 U.S.C. § 2422(b), and one count of possession of child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B). Rader appeals his 151-month sentence,
which consists of concurrent 151-month terms on the first two offenses and a 120-
month term for possession of child pornography. Rader argues that his sentence
was not reasonable because the record does not demonstrate that the court
considered the factors in 18 U.S.C. § 3553(a) and the meritorious sentencing
arguments. He further challenges the reasonableness of his sentence on the ground
that the district court did not adequately consider his history and characteristics.
Rader also appeals the district court’s imposition of a $17,500 fine, arguing that the
court did not make any specific findings concerning his ability to pay a fine and the
record does not contain sufficient evidence to support the $ 17,500 fine imposed,
as the court only stated that he could pay while working in prison and there was no
evidence that a prisoner’s rate of pay could satisfy this fine. For the reasons set
forth more fully below, we affirm.
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We review the final sentence imposed by the district court for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).
Unreasonableness may be procedural, when the court’s procedure does not follow
Booker’s1 requirements, or substantive. See United States v. Hunt, 459 F.3d 1180,
1182 n.3 (11th Cir. 2006). When evaluating the reasonableness of a sentence, we
consider the factors outlined in 18 U.S.C. § 3553(a) and the district court’s reasons
for imposing the particular sentence. United States v. Williams, 456 F.3d 1353,
1360-61 (11th Cir. 2006), pet. for cert. filed, (U.S. Oct. 19, 2006) (No. 06-7352).
When imposing a sentence, the district court must first correctly calculate the
Guidelines. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Second,
the district court must consider the following factors to determine a reasonable
sentence:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Id. (citing 18 U.S.C. § 3553(a)). While the district court must consider the
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United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
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§ 3553(a) factors, it is not required to discuss each factor. Id. “[A]n
acknowledgment by the district court that it has considered the defendant’s
arguments and the factors in section 3553(a) is sufficient under Booker.” Id.
“[T]here is a range of reasonable sentences from which the district court may
choose” and the burden of establishing that the sentence is unreasonable in light of
the record and the § 3553(a) factors lies with the party challenging the sentence.
Id. at 788. “The weight to be accorded any given § 3553(a) factor is a matter
committed to the sound discretion of the district court[,]” and we will not
“substitute our judgment in weighing the relevant factors because our review is not
de novo.” Williams, 456 F.3d at 1363 (citation, quotation marks, and alteration
omitted). Although a sentence within the Guidelines range is not per se
reasonable, the use of the Guidelines remains central to the sentencing process and
we ordinarily expect a sentence within the Guidelines range to be reasonable.
Talley, 431 F.3d at 787-88. However, the district court’s choice of a sentence is
not unfettered. Williams, 456 F.3d at 1363. “When reviewing the length of a
sentence for reasonableness, we will remand for resentencing if we are left with the
definite and firm conviction that the district court 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.” Id.
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With regard to the procedural reasonableness of Rader’s sentence, the
district court stated that it considered the statements of the parties, the presentence
investigation report (“PSI”), the objections, the matters discussed at sentencing,
Dr. Susan Bollinger’s evaluation and her testimony regarding Rader, the advisory
Guidelines, which the court believed must be given great weight, and the § 3553(a)
factors. The district court’s analysis of the § 3553(a) factors was sufficient. See
Talley, 431 F.3d at 786 (“[A]n acknowledgment by the district court that it has
considered the defendant’s arguments and the factors in section 3553(a) is
sufficient under Booker.”).
Rader has not met his burden of establishing that his sentence is
substantively unreasonable. On appeal, Rader points to his military and civilian
careers, his mental and physical conditions, and the evidence he presented that his
conduct in committing these offenses was an aberration from his character. The
district court was presented with arguments and evidence in support of Rader’s
good character and the problems he experienced, which he claimed contributed to
his aberrant behavior in this offense. Although presented with this evidence, the
court was entitled to give greater weight to other § 3553(a) factors. See Williams,
456 F.3d at 1363 (“The weight to be accorded any given § 3553(a) factor is a
matter committed to the sound discretion of the district court.”). The court rejected
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the government’s request for a sentence at the middle of the 151 to 188-month
Guidelines range. Instead, Rader received a sentence at the low end of the
Guidelines. The court explicitly discussed the advisory Guidelines and the need to
deter Rader from future criminal conduct. Moreover, despite evidence of Rader’s
good character, the “aberrant” behavior does not consist solely of a few days of
conversation with an undercover officer. The evidence includes several links to
the video Rader sent to the undercover officer, a video of an adult male having
sexual contact with a child who appeared to be between two and four years’ old,
and 84 images of child pornography that were recovered from Rader’s computer.
In this case, we are not “left with the definite and firm conviction” that the district
court’s decision to impose a sentence at the low end of the Guidelines was
unreasonable. Williams, 456 F.3d at 1363.
We review the district court’s finding that a defendant is able to pay a fine
for clear error. United States v. McGuinness, 451 F.3d 1302, 1307 (11th Cir.
2006). The defendant has the burden of proving an inability to pay. Id.The Guidelines state that “[t]he court shall impose a fine in all cases, except
where the defendant establishes that he is unable to pay and is not likely to become
able to pay any fine.” U.S.S.G. § 5E1.2(a). The court may waive or reduce a fine
if the defendant establishes either “that (1) he is not able and, even with the use of
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a reasonable installment schedule, is not likely to become able to pay all or part of
the fine required by the preceding provisions, or (2) imposition of a fine would
unduly burden the defendant’s dependents . . . .” Id. § 5E1.2(e). In determining
the amount of the fine, the district court must consider the factors in § 5E1.2(d).
These factors include: the defendant’s ability to pay, in light of his earning capacity
and financial resources; the burden on the defendant and his dependents; whether
restitution is ordered; and the need to reflect the seriousness of the offense,
promote respect for the law, and provide just punishment and adequate deterrence.
Id. § 5E1.2(d). The district court is not required to make express specific findings
as to each of these factors. United States v. Hunerlach, 258 F.3d 1282, 1288 (11th
Cir. 2001). We will not reverse for failure to make specific findings so long as
“the record contains sufficient information with respect to the [§ 5E1.2(d)] factors
to permit us to find that the district court did not clearly err in imposing or in
setting the amount of the fine . . . .” United States v. Lombardo, 35 F.3d 526, 530
(11th Cir. 1994).
Before imposing a fine, the district court found that Rader was able to pay a
fine and the record contains sufficient information to permit our review of the
court’s finding. In this case, the PSI contained information regarding Rader’s
financial resources and obligations. Rader provided additional financial
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information in his sentencing memorandum and, following imposition of the fine,
objected on the ground that he owed a substantial debt to his father. At the
beginning of the sentencing hearing, the court indicated that it reviewed the PSI
and Rader’s sentencing memorandum. Before imposing Rader’s sentence, the
court stated that it had considered the PSI and Rader’s objections. This
information is sufficient to permit our review.
After the court imposed a fine, Rader objected and inquired as to whether the
court would alter its imposition of a fine based on his “substantial debt” to his
father. The court responded: “No. If he can’t pay it, he can’t pay it. That’s a
different thing. He pays or he doesn’t pay. He’s going to be in prison. He’s going
to be earning minimal, if he wants to work. So he can pay it from what he has.”
Rader interprets this comment to refer to his ability to pay a fine based on his
prison earnings. Although the court’s statement is ambiguous, given the context in
which it was made, it appears that the court was explaining why Rader’s debt to his
father did not alter its decision to impose a fine. In any event, Rader’s reliance on
this comment does not establish that the court clearly erred in imposing a fine. The
probation officer concluded that Rader appeared to have the present ability to pay a
fine based on his current financial situation. On appeal, Rader makes no
arguments as to his ability to pay based on that situation. We have reviewed the
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PSI, the information Rader provided regarding his finances in his sentencing
memorandum, and his general assertion that he owed a “substantial debt” to his
father. The evidence supports the finding that there were assets available for the
payment of a fine and that Rader did not meet his burden of establishing his
inability to pay. Accordingly, we hold that the district court did not clearly err in
finding that Rader was able to pay a fine.
In light of the foregoing, Rader’s sentences are
AFFIRMED.
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