United States v. Ronald George Stark ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
__________________________ ELEVENTH CIRCUIT
JANUARY 16, 2008
No. 07-10224 THOMAS K. KAHN
__________________________ CLERK
D. C. Docket No. 06-00300-CR-T-30-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD GEORGE STARK,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Middle District of Florida
____________________________
(January 16, 2008)
Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and ALTONAGA,*
District Judge.
PER CURIAM:
*
Honorable Cecilia M. Altonaga, United States District Judge for the Southern District of
Florida, sitting by designation.
On March 3, 2006, acting on evidence obtained through an investigation of
sources of online child pornography, officers executed a search warrant at the
home of Appellant, Ronald Stark (“Stark”). During their search, officers seized,
among other things, Stark’s laptop and desktop computers, on which they
identified over 1,000 images of child pornography. During the course of their
investigation, officers determined that in January of 2001, Stark had molested and
taken nude photographs of his then-girlfriend’s nine-year-old daughter (“Victim
One”).
Stark subsequently pleaded guilty to all counts in a three-count indictment
charging him with: Count I, enticing a minor to engage in sexually explicit
conduct for purposes of producing visual depictions (18 U.S.C. § 2251(a)); Count
II, possessing child pornography (18 U.S.C. § 2252A(a)(5)(B)); and Count III,
transporting visual depictions of minors engaged in sexually explicit conduct (18
U.S.C. § 2252A(a)(1)). Count I related solely to the time period “[o]n or about
January 29, 2001[,]” the date on which Stark was charged with enticing and
coercing a minor, Victim One, to engage in sexually explicit conduct for the
purpose of producing a visual depiction of the conduct. Count II charged Stark
with knowingly possessing, “from at least August 29, 2003, through on or about
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March 3, 2006,” child pornography. Count III charged Stark with knowingly
transporting child pornography in interstate and foreign commerce “[o]n or about
August 27, 2003[.]”
The Pre Sentence Investigation Report (“PSI”) prepared by the Probation
Office, in describing the Offense Conduct, stated that Stark had posted on Yahoo!
Groups pornography depicting prepubescent subjects, including Victim One. The
PSI also stated that on April 19, 2006, Stark admitted he had downloaded images
of Victim One to his computer and disks, and that he may have traded these
images on the Internet. The PSI further explained that Victim One advised that
Stark had put some of the pictures of her on the Internet and put some of the
pictures on his computer wall paper and screen saver. In his Objections, Stark did
not challenge these assertions. The trial court accepted the information contained
in the PSI.
In a sentencing memorandum filed before his sentencing hearing, and at his
January 2007 sentencing hearing, Stark requested a sentence of 120 months’
imprisonment to be followed by 120 months’ supervised release. The sentencing
court sentenced Stark to 120 months as to Count I (the statutory minimum for that
count), 108 months as to Count II, and 84 months as to Count III, all sentences to
run consecutively, for a total sentence of 312 months, to be followed by five years
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of supervised release. The range under the 2006 Guidelines Manual had been
calculated as 324 to 405 months.1
Stark asserts on appeal that: (1) application of the 2006 Guidelines Manual
in calculating his sentence violated the Ex Post Facto Clause of the United States
Constitution; (2) the sentence imposed was unreasonable; and (3) the district court
committed reversible error by failing to comply with 18 U.S.C. § 3553(c).
A.
The Court reviews de novo properly-preserved questions of law regarding
application of the Guidelines. See United States v. Crawford, 407 F.3d 1174,
1178 (11th Cir. 2005).
Stark’s Count I was completed in January 2001. The offenses charged in
Counts II and III included conduct spanning from at least as early as 2003 through
March 2006. In the PSI, pursuant to U.S.S.G. § 1B1.11(b)(3), the Probation
Office calculated Stark’s advisory Guidelines range under the 2006 Guidelines
Manual, the Manual in effect at the time of sentencing. In his sentencing
memorandum and at the sentencing hearing, Stark asserted that the court’s use of
the 2006 Guidelines Manual in selecting his sentence would violate the Ex Post
1
Neither party challenges the calculation of the 2006 Guidelines range.
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Facto Clause of the United States Constitution2 by providing a recommended
Guidelines sentence range higher than that which would have been recommended
under the Guidelines in effect at the time of Stark’s completion of Count I.3
The Guidelines themselves provide that the sentencing court should use the
Guidelines Manual in effect on the date the defendant is sentenced. See U.S.S.G.
§ 1B1.11(a). Should the sentencing court determine that the use of those
Guidelines would violate the Ex Post Facto Clause, however, the court is
instructed to use the Guidelines Manual in effect on the date the offense of
conviction was committed. See id. at § 1B1.11(b)(1). Where the defendant has
been found guilty of two or more offenses committed while different versions of
the Guidelines were in effect, as in this case, the Guidelines instruct the sentencing
court to apply the more recent Guidelines to both offenses, even if the use of the
more recent Guidelines results in a more severe sentence than the use of
2
The Ex Post Facto Clause, U.S. Const. Art. I, § 9, cl. 10, protects people from, among
other things, being subjected to a punishment more severe than that prescribed when the crime
was committed. See United States v. De La Mata, 266 F.3d 1275, 1286 (11th Cir. 2001). The
United States Supreme Court has held that the application of a mandatory sentencing Guidelines
scheme may implicate the Ex Post Facto Clause where the sentence prescribed in the applicable
Guidelines Manual is more severe than the sentence prescribed at the time the crime was
committed. See Miller v. Florida, 482 U.S. 423, 431-33 (1987). While the parties agree that the
advisory nature of the Guidelines post-Booker does not change the Ex Post Facto analysis, this is
an issue we need not decide here. See United States v. Booker, 543 U.S. 220 (2005).
3
The parties agree that Stark’s recommended sentencing range would have been
significantly lower if calculated pursuant to the 2000 Guidelines Manual.
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Guidelines in effect at the time of the earlier crime. See id. at § 1B1.11(b)(3); §
1B1.11, cmt. 2. The purpose of this provision is to give effect to the Guidelines’
“one-book rule,” which requires any Guidelines Manual to be applied in its
entirety (as opposed to applying some sections from one version of the Guidelines
and another section from another version of the Guidelines). See id. at §
1B1.11(b)(2).
In United States v. Bailey, 123 F.3d 1381, 1406-07 (11th Cir. 1997), this
Court held that, where a defendant has been convicted of multiple counts, use of
the one-book rule to sentence all related counts under the Guidelines Manual in
effect at the completion date of the latest count does not violate the Ex Post Facto
Clause. In 2005, this Court reaffirmed Bailey, affirming the application of the
2000 Guidelines to a series of crimes, some of which were concluded in 1993. See
United States v. York, 428 F.3d 1325, 1337 (11th Cir. 2005).
The information provided in the PSI, and Stark’s failure to object before the
trial court, demonstrate that the images of Victim One produced by Stark in Count
I were among those found and posted on the Internet by Stark as part of the
conduct charged in Counts II and III. Accordingly, Stark’s charged offenses were
indeed related, notwithstanding the passage of time between Counts I and Counts
II and III. Thus, under Bailey, the one-book rule was properly applied in this case
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and no Ex Post Facto violation occurred as a result of the sentencing court’s use of
the 2006 Guidelines Manual.
B.
The Court reviews sentences imposed by district courts for reasonableness.
See United States v. Booker, 543 U.S. 220, 261 (2005). In reviewing a sentence
for reasonableness, the Court must consider the final sentence imposed, in its
entirety, in light of the 18 U.S.C. § 3553(a) factors. See United States v. Thomas,
446 F.3d 1348, 1350 (11th Cir. 2006). The Court’s “review for reasonableness is
deferential.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
At his sentencing hearing, Stark argued for a variance from the
recommended 324- to 405- month Guidelines range based on his assertions that,
among other things: (1) his crimes were isolated incidents and he lacked a
significant criminal history, (2) he had shown remorse, (3) he was of advanced age
(in his fifties), (4) he had a successful employment history and academic
background, (5) his crimes were non-violent and did not involve guns or drugs,
and (6) he had completed military service. Stark argues that his 312-month
sentence is greater than necessary to achieve the goals of sentencing because,
taking all of the 18 U.S.C. § 3553(a) factors into consideration, a reasonable
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sentence would have been within the 121- to 151-month range that would have
resulted from the application of the 2000 Guidelines.
The government argues that Stark’s sentence was reasonable because it was:
(1) 12 months lower than the low end of the applicable Guidelines range; (2) low
in relation to the statutory maxima for the crimes (10 years, 15 years, and 20 years,
respectively); and (3) appropriate in light of Stark’s history and characteristics,
and the need to afford deterrence, protect the public, and provide correctional
treatment.
The sentencing court properly considered the section 3553(a) factors
because it had the benefit of Stark’s sentencing memorandum and the parties’
arguments at the sentencing hearing, both of which addressed the factors. In
addition, the court acknowledged, both at sentencing and in the order of judgment,
that it had considered the appropriate factors. We cannot say that a 312-month
sentence, for crimes involving the direct abuse of one child and the indirect abuse
of hundreds of others, spanning several years,4 is unreasonable.
C.
4
Some of the images contained on Stark’s computer depicted very young children in violent
or humiliating poses.
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Stark asserts the sentencing court erred in not complying with 18 U.S.C. §
3553(c)(2) in that it imposed a sentence outside the recommended Guidelines
range without explaining its reasons for doing so. Section 3553(c)(2) requires,
where the court imposes a sentence outside the Guidelines range, that the court
state in open court the reasons for its imposition of the particular sentence, and in
its written order of judgment and commitment state its specific reasons for
sentencing outside the recommended Guidelines range. 18 U.S.C. § 3553(c)(2).
A sentencing court’s compliance with section 3553(c) is reviewed de novo, even
where the issue is not preserved for appeal. See United States v. Bonilla, 463 F.3d
1176, 1181 (11th Cir. 2006).
In this case, the sentencing court accepted the 324- to 405- month
recommended Guidelines range, and sentenced Stark to a total sentence of 312
months. The court did not specifically state its reasons, either in open court or in
the written order of judgment and commitment, for sentencing outside the
Guidelines range, instead stating only that it had “reviewed the presentence report
and considered the factors in 18 U.S.C. § 3553 and the Sentencing Reform Act of
1984. . . .”
The government contends, among other things, that remand for a statement
of more particularized reasons would serve no purpose. We agree. The sentence
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challenged is a below-the-Guidelines sentence. It is not the government, the party
who advocated a greater sentence than that which was imposed, who has raised
this issue. Furthermore, it is not apparent how any non-compliance with section
3553(c)(2) may have harmed Stark, the recipient of a sentence below the advisory
Guidelines range.
AFFIRMED.
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