United States v. Kuchler , 285 F. App'x 866 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-12-2008
USA v. Kuchler
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4129
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 07-4129
__________
UNITED STATES OF AMERICA
v.
GEORGE ROBERT KUCHLER,
Appellant.
__________
On Appeal from the United States District Court
for the District of Middle Pennsylvania
(D.C. Crim. No. 07-00034)
District Judge: Honorable Christopher C. Connor
__________
Argued on July 24, 2008
Before: MCKEE, FUENTES and WEIS, Circuit Judges.
(Filed: August 12, 2008)
__________
Gordon A. Zubrod, Esq. [ARGUED]
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Attorney for Appellee
United States of America
(continued)
Ronald A. Krauss, Esq. [ARGUED]
Office of Federal Public Defender
Suite 306
100 Chesnut Street
Harrisburg, PA 17101
__________
OPINION OF THE COURT
__________
FUENTES, Circuit Judge.
George Kuchler pled guilty to receipt of child pornography, and was sentenced to,
inter alia, a lifetime term of supervised release. Kuchler claims that the term is
unreasonable because it is more severe than supervised release terms imposed on other
defendants convicted of the same offense. For the reasons that follow, we find that the
District Court did not abuse its discretion when it imposed a lifetime term of supervised
release, and we will affirm.
I.
Federal agents conducted an investigation in 2001 into credit card verification
services that served websites related to child pornography. A search warrant executed in
connection with that investigation turned up customer lists for the websites in question.
One of the lists indicated that Kuchler had used his credit card a number of times to pay
for websites that sold child pornography.
The federal agents subsequently launched a sting operation. They mailed Kuchler
a solicitation for a mail order video service that sold child pornography. Kuchler sent in a
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request for certain videos and was mailed an order form, which he returned with an order
for five videos – three of which constituted child pornography – and payment. On
November 1, 2006, the agents delivered the videos to Kuchler’s post office box, and then
arrested Kuchler once he had retrieved the videos.
Kuchler waived his Miranda rights and confessed to knowingly possessing and
receiving child pornography. He gave a statement to the police in which he admitted that
he searched the Internet for child pornography; that he often viewed photographs of child
pornography; that he enjoyed reading stories about incest; the he masturbated one to three
times per day to child pornography and/or to stories about incest; and that he had
previously used his credit card to purchase child pornography on the Internet. He
subsequently entered a plea agreement, whereby he agreed to plead guilty to one count of
receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2)(A) in exchange for a
term of imprisonment and supervised release.
At sentencing, the District Court adopted the findings contained in the presentence
report (“PSR”).1 These findings included the fact that Kuchler had at least one picture of
child pornography, and possibly as many as five pictures, on his computer that the time
that his apartment was searched in connection with his arrest. The District Court also
adopted the PSR’s conclusion that Kuchler’s base offense level was a 28 with a criminal
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231.
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history category of I. This combination resulted in an advisory Guidelines sentence of
78-97 months, and a recommended supervised release term of life.
Kuchler sought both a downward departure and a variance for the sentence and
further argued that a supervised release term of life was unreasonable; the District Court
denied the requests and rejected Kuchler’s argument with regard to the supervised release
term. The District Court ultimately sentenced Kuchler to 78 months in prison and a
lifetime term of supervised release.
Kuchler entered a timely appeal; he does not challenge his sentence or the
conditions of his release, but argues only that the District Court’s decision to impose a
supervised release term of life was unreasonable. We have jurisdiction pursuant to 28
U.S.C. § 1291.
II.
We have held that the duration of a term of supervised release imposed by a
District Court is reviewed under the same standard as is a condition of supervised release.
See United States v. Voelker, 489 F.3d 139, 143-44 (3d Cir. 2007) (finding that the
“discussion of the propriety of the conditions imposed on [a] term [of supervised release]
applies to duration of the term with equal force.”). As we review conditions of
supervised release for abuse of discretion, it follows that we review the term of
supervised release for abuse of discretion as well. Id. at 143 n.1 (citing United States v.
Crandon, 173 F.3d 122, 127 (3d Cir. 1999)). To determine whether a district court has
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properly exercised its discretion, we look to see if a condition of supervised release – and
by extension, the term of supervised release – has met two criteria. First, the term must
be “reasonably related” to the factors set forth in 18 U.S.C. § 3553(a)(1) & (2)(B)-(D);
that is, the District Court may consider the “nature and circumstances of the offense and
the history and characteristics of the defendant[] and [] the need for the condition to deter
future criminal conduct, protect the public, and provide the defendant with necessary
training, medical care, or other correctional treatment.” United States v. Smith, 445 F.3d
713, 717-18 (3d Cir. 2006) (quoting United States v. Loy, 237 F.3d 251, 256 (3d Cir.
1999)). Second, the term “must involve no greater deprivation of liberty than is
reasonably necessary to achieve the deterrence, public protection and/or correctional
treatment for which it is imposed.” Id. at 718 (quoting Loy, 237 F.3d at 256).
Moreover, we must be “satisfied” that the District Court “exercised its discretion
by considering the relevant factors.” Id. at 716 (quoting United States v. Cooper, 437 F.3d
324, 329 (3d Cir. 2006)). Such consideration must be “meaningful,” but the District
Court “need not discuss every argument made by a litigant if an argument is clearly
without merit,” nor must a District Court making findings specific to “each of the §
3553(a) factors if the record makes clear the court took the factors into account in
sentencing.” Id. (quoting Cooper, 437 F.3d at 329).
III.
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Kuchler’s conviction carries a mandatory 5-year minimum term of supervised
release pursuant to 18 U.S.C. § 3583(k), and a maximum supervised release term of life.
The Guidelines Policy Statement at U.S.S.G. § 5D1.2(b) states that if the instant offense
of conviction is a sex offense, the statutory maximum term of supervised release is
recommended. Therefore, the advisory Guidelines recommendation for supervised
release in this case was life.
As noted above, Kuchler’s only argument on appeal is that the District Court’s
decision to impose a supervised release term of life was unreasonable. Kuchler contends
that the term is unreasonable because it is a more severe sentence than other defendants
who have also been convicted of possession of child pornography, so that there exists an
“unwarranted sentence disparit[y] among defendants with similar records who have been
found guilty of similar conduct” in violation of 18 U.S.C. § 3553(a)(6). Appellant’s Br.
at 9. Kuchler points specifically to an unpublished opinion, United States v. Kosteniuk,
No. 06-3178, 2007 WL 2980801 (3d Cir. 2007), where we found reasonable the
imposition of a seven-year term of supervised release for a defendant who had plead
guilty to two counts of receipt and possession of child pornography. Kuchler contends
that because his “aggravating factors” are “less severe” than those in Kosteniuk, and
because a seven-year term of supervised release was reasonable in that case, it must
follow that a lifetime term of supervised release here is unreasonable. Appellant’s Br. at
11.
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Kuchler’s argument has two fatal flaws. First, the appeal in Kosteniuk was a
defense appeal, so that the only issue before the Court was whether the seven-year term of
supervised release imposed in that case was reasonable. We did not consider whether a
District Court, on those same facts, would have been within its discretion to impose a
more lengthy term of supervised release.
Second, Kuchler cannot rely on 18 U.S.C. § 3553(a)(6) to contend that his
sentence was unreasonable because a different district court, confronted with a different
defendant in a different case with a different set of facts, decided to impose a different
sentence. As we recently explained, in rejecting a similar argument premised on 18
U.S.C. § 3553(a)(6),
[t]hat [a defendant] can find another case where a defendant charged with a
somewhat similar crime and facing the same advisory sentencing range
received a sentence outside of the applicable sentencing range does not
make [this defendant’s] within-Guidelines sentence unreasonable. If that
were the law, any sentence outside of the Guidelines range would set
precedent for all future similarly convicted defendants. This is not, and
cannot be, the law. Although a similar sentence might also be reasonable
here, that does not make [this defendant’s] sentence unreasonable.
United States v. Jimenez, 513 F.3d 62, 91 (3d Cir. 2008). Here, both Kuchler and
Kosteniuk received terms of supervised release that were within the Guidelines range, but
the same logic applies. That one district court chose to impose a more stringent within-
Guidelines sentence than another in two completely different cases is not problematic; it
is the nature of our system, which provides district courts with the discretion to consider
the § 3553(a) factors in the context of a specific case and to reach a decision based on the
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facts and circumstances of that case. Such a decision is not an abuse of discretion if the
judge followed the proper sentencing procedures and if the resulting sentence is
reasonable.
Consequently, the only analysis we must engage in to determine whether a
lifetime term of supervised release is appropriate in this case is to determine whether the
District Court properly exercised its discretion by giving “meaningful” consideration to
the “relevant factors.” Smith, 445 F.3d at 716 (quoting Cooper, 437 F.3d at 329 (3d Cir.
2006)). As noted above, this analysis involves a determination of whether the District
Court met two criteria for reasonableness that specifically apply to supervised release:
whether the term of supervised release is “reasonably related” to the factors set forth in 18
U.S.C. § 3553(a)(1) & (2)(B)-(D), and whether it involves “no greater deprivation of
liberty than is reasonably necessary to achieve the deterrence, public protection and/or
correctional treatment for which it is imposed.” Id. at 716-18. The legislative history
surrounding the enactment of Section 3583(k) indicates that “Congress explicitly
recognized the high rate of recidivism in convicted sex offenders” and that this concern
motivated the policy decision that the recommended Guidelines supervised release term
for sex offenders be life. United States v. Perrin, 478 F.3d 672, 676 (5th Cir. 2007)
(quoting United States v. Allison, 447 F.3d 402, 406 (5th Cir. 2006) (citing in turn 18
U.S.C. § 3583(k); H.R.Rep. No. 108-66, reprinted in 2003 U.S.C.C.A.N. 683 (2003)
(conf. report))).
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On the “reasonably related” question, we find that the District Court conducted an
appropriate § 3553(a) analysis. It explained the factors played out in this particular case:
Kuchler had admitted to viewing child pornography repeatedly over the previous ten
years; Kuchler had expressed a desire to receive help but had been unable to change his
behavior; Kuchler had four prior convictions for drug and alcohol possession that
suggested that Kuchler had an addictive personality; in addition to the videos Kuchler had
purchased as part of the sting operation, Kuchler had viewed child pornography
extensively online; and Kuchler had admitted to purchasing other child pornography in
the past. (J.A. 72-73.) The District Court also noted the appropriate term of supervised
release by adopting the findings and Guidelines calculations of the presentence report in
their entirety.
On the “not more than necessary ... to achieve [] deterrence [and] public
protection” question, Smith, 445 F.3d at 718, the District Court first emphasized that the
need to protect the public from people who view child pornography “cannot be
understated,” and then explains that it was “very concerned about recidivism” in this case
both because Kuchler appeared unable to change his behavior (which, by his own
admission, stretched over 10 years) despite recognizing it was wrong, and because
Kuchler had four prior convictions for alcohol or drug-related offenses that suggest
Kuchler has an “addictive personality.” (J.A. 72-73.) The District Court also stressed that
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Kuchler used the Internet many times to access child pornography and there was a need to
“afford adequate deterrence to [such] criminal conduct.” (J.A. 73.)
Therefore, we conclude that the District Court’s decision to impose a lifetime term
of supervised release in this case was not an abuse of discretion.2
IV.
For the foregoing reasons, we affirm the judgment of the District Court.
2
We caution that even when a given term of supervised release term is strongly
recommended by the Guidelines, district courts should refrain from imposing that
recommended term blindly and without careful consideration of the specific facts and
circumstances of the case before it. As we have held,
[a] district judge is vested with considerable discretion in the sentencing of
convicted defendants. In order that he [or she] may make an informed use
of this discretion, Fed. R. Crim. P. 32(c) requires a presentence report in
each case. Further, Fed. R. Crim. P. 32(a) requires the court, before
imposing sentence, to permit a defendant to make a statement on his own
behalf and to present information which might give cause for mitigation of
punishment. A fixed view as to sentencing is thus inconsistent with the
discretion vested in the trial judge that he may fulfill his mandate to tailor
the sentence imposed to the circumstances surrounding each individual
defendant, and frustrates the operation of those rules set up to effect such a
result.
United States v. Thompson, 483 F.2d 527, 529 (3d Cir. 1973) (emphasis added).
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