United States v. Michael Debaere , 596 F. App'x 206 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4291
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL SHANE DEBAERE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:13-cr-00329-JAB-1)
Submitted: December 8, 2014 Decided: January 8, 2015
Before NIEMEYER and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Anand P. Ramaswamy, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On October 7, 2013, Michael Shane Debaere (Debaere) pled
guilty to one count of accessing images of child pornography by
computer with the intent to view, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2). On February 25, 2014, the district
court sentenced him to 70 months’ imprisonment. On appeal,
Debaere does not challenge his conviction, but challenges his
sentence as procedurally unreasonable. We affirm. ∗
I.
Debaere’s presentence report, prepared prior to his
sentencing hearing on February 25, 2014, calculated his advisory
sentencing range under the United States Sentencing Guidelines
(the Guidelines) as 97 to 120 months’ imprisonment, based upon a
total offense level of 30 and a criminal history category of I.
Debaere did not dispute that the presentence report
correctly calculated his advisory sentencing range. However, he
∗
Debaere’s written plea agreement provides that he waives
his right to appeal whatever sentence he receives on any ground.
In his brief, Debaere contends that such appeal waiver provision
is unenforceable because, during his guilty plea hearing, the
district court failed to discuss it with him to ascertain his
understanding of its operation. Because the government has
expressly declined to seek enforcement of the appeal waiver
provision in Debaere’s plea agreement, we decline to enforce it.
United States v. Jones, 667 F.3d 477, 486 (4th Cir. 2012).
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requested a downward variance to a short sentence to be served
in a community correction center, followed by an extended term
of supervised release. Debaere based his request upon the
following two arguments: (1) without application of “technical”
Guidelines’ enhancements based upon specific offense
characteristics, his advisory sentencing range would only have
been 18 to 24 months’ imprisonment; and (2) his requested
sentence is sufficient, but not greater than necessary, to
comply with the sentencing factors under 18 U.S.C. § 3553(a).
The government opposed Debaere’s requested sentence of
confinement in a community correction center on the basis that
the totality of relevant factors in his case do not justify such
extraordinary relief and such sentence would constitute an
unwarranted sentencing disparity among defendants with similar
records who have been found guilty of similar conduct, as
disfavored in 18 U.S.C. § 3553(a)(6). However, expressly
recognizing and verifying that every possessor of child
pornography sentenced in the United States District Court for
the Middle District of North Carolina received a downward
variance in 2013, the government took the position that if the
district court chose to vary downward from Debaere’s advisory
sentencing range, it should select its sentence from level 24,
resulting in an advisory sentencing range of 51 to 63 months’
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imprisonment, “which is half of what the guideline range is in
this matter, and consider a sentence in that range to be
sufficient . . . .” (J.A. 38).
In pronouncing Debaere’s sentence, the district court first
stated that it had considered the calculations resulting from
application of the Guidelines and found they were appropriately
determined. The district court then expressly rejected
Debaere’s argument regarding the technical nature of the
Guidelines’ offense level enhancements for specific offense
characteristics, “not[ing] that although [Debaere] has presented
the special offense characteristics as being technical in
nature, they’re technical in nature because they cover the types
of conduct that would be involved in criminal activity of this
kind.” (J.A. 41). The district court continued to explain its
rationale for rejecting Debaere’s argument as follows:
With respect to the nature and circumstances of
the offense, as the Court has noted and is known with
respect to these type of cases, that is, the victims —
— innocent victims who are truly at risk of harm in
order for the types of videos, pictures that are being
made available to those who seek them, that actual
children, for the most part, are being used and being
subject to such abuse.
The Defendant’s attitude about the technical
nature does not diminish in any way the seriousness
with which the Court or Congress took in developing
the crimes for this offense. While it’s true that the
Sentencing Commission has had some concern with
respect to the types of sentences that have been
imposed and even the Government in this case
suggesting a downward departure so there would not be
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a disparity amongst the various defendants, the Court
nevertheless finds that the activity in this case is
serious and harmful both to society and to the
children involved.
(J.A. 41-42).
With respect to Debaere’s history and characteristics, the
district court stated that it found Debaere has family support
and does not have a substantial criminal history. The district
court then went on to state that it has noted in similar cases
that in order to avoid sentencing disparity it will sentence
outside of Debaere’s advisory sentencing range. However, the
district court declared,
[it] will impose a sentence in this case that is
sufficient, but not greater than necessary, to meet
the sentencing objectives of 3553 taking into account
the need for punishment and deterrence, particularly
deterrence as to other individuals who would choose to
engage in such criminal activity that’s harmful to
society and to the children involved. The Court will
take into account the need for any psychological
assistance this Defendant may have to help him address
the conduct that he’s engaged in in this case.
(J.A. 42-43).
The district court then announced that, for reasons
previously stated, it would depart from the advisory sentencing
range as a variance and sentence Debaere to 70 months’
imprisonment, followed by 15 years of supervised release, which
sentence the district court expressly found to be appropriate
and sufficient, but not greater than necessary.
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II.
On appeal, Debaere challenges only his sentence and does so
on the single ground that the district court failed to
adequately explain its reasons for sentencing him to 70 months’
imprisonment, and therefore, his sentence is procedurally
unreasonable. As relief, Debaere seeks to have his sentence
vacated and his case remanded for a new sentencing hearing.
We review the procedural reasonableness of a sentence for
abuse of discretion. Gall v. United States, 552 U.S. 38, 52
(2007). Of relevance in the present appeal, a sentence is
procedurally unreasonable, and therefore an abuse of discretion,
if the district court “fail[s] to adequately explain the chosen
sentence——including an explanation for any deviation from the
Guidelines range.” Id. at 51. In order to adequately explain
its chosen sentence, the district court “must place on the
record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted). As
we explained in Carter, the explanation need not be elaborate or
lengthy but must be adequate to permit meaningful appellate
review. Id. The sentencing “court must demonstrate that it
considered the parties’ arguments and had a reasoned basis for
exercising its own legal decisionmaking authority.” United
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States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (internal
quotation marks and alteration marks omitted).
Our careful review of the record discloses that the
district court adequately explained its chosen sentence of 70
months’ imprisonment. There is no dispute that the district
court correctly calculated Debaere’s advisory sentencing range
under the Guidelines as 97 to 120 months’ imprisonment.
Moreover, the record makes clear that in determining Debaere’s
downward variant sentence of 70 months’ imprisonment from that
range, the district court considered: (1) his advisory
sentencing range; (2) the parties’ arguments for a downward
variant sentence from that range; (3) the need to avoid
unwarranted sentencing disparities among defendants with similar
records who have been found guilty of similar conduct; (4) the
particular facts of Debaere’s case; and (5) the sentencing
factors under § 3553(a). In sum, the district court placed on
the record an individualized assessment of Debaere’s case based
upon the particular facts of his case which provides a rationale
tailored to Debaere’s case and is adequate to permit meaningful
appellate review. Accordingly, we reject Debaere’s contention
that his sentence is procedurally unreasonable and affirm his
sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
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this court and oral argument would not aid the decisional
process.
AFFIRMED
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