United States v. Boland ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4833
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID EDWARD BOLAND,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:07-cr-00261-RJC-1)
Submitted: February 24, 2010 Decided: March 19, 2010
Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Harold M. Vaught, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Edward Boland pled guilty to receiving visual
depictions of a minor engaging in sexually explicit conduct, 18
U.S.C. § 2252(a), (b)(1) (2006) (Count One), and possession of
one or more books, magazines, periodicals, films, video tapes or
other matter containing any visual depiction of a minor engaging
in sexually explicit conduct, 18 U.S.C. § 2252(a)(4)(B), (b)(2)
(2006). The district court granted the Government’s motion for
upward departures and sentenced Boland to 234 months’
imprisonment and a life-term of supervised release. Counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that in his view, there are no meritorious
issues for appeal, but questioning whether Boland’s sentence was
legally imposed. Boland has filed a pro se supplemental brief.
The Government has not filed a brief. We affirm.
We review for reasonableness all sentences, “whether
inside, just outside, or significantly outside the Guidelines
range” under a “deferential abuse-of-discretion standard.” Gall
v. United States, 552 U.S. 38, 41 (2007); United States v.
Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct.
476 (2008). This review requires appellate consideration of
both the procedural and substantive reasonableness of a
sentence. Gall, 552 U.S. at 46. After determining whether the
district court properly calculated the defendant’s advisory
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guidelines range, we must then decide whether the district court
considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any
arguments presented by the parties, and sufficiently explained
the selected sentence. Id. at 49-50. In imposing its 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).
Finally, we review the substantive reasonableness of the
sentence, “taking into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (internal quotation marks and citation omitted).
To determine whether the district court abused its
discretion in imposing Boland’s departure sentence, we consider
“whether the sentencing court acted reasonably both with respect
to its decision to impose such a sentence and with respect to
the extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). We will find a sentence to be unreasonable if the
sentencing “court provides an inadequate statement of reasons or
relies on improper factors in imposing a sentence outside the
properly calculated advisory sentencing range.” Id.
In this case, the district court’s sentence was
procedurally reasonable. The district court properly adopted
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the guidelines sentence calculation in the presentence report,
which the parties did not dispute. However, as the district
court stated on the record, the guidelines calculation did not
take into account many aspects of Boland’s conduct. The
district court listened to the parties’ arguments at length and
ultimately adequately stated its reasons for granting the
Government’s motion for upward departures and in imposing a 234-
month sentence.
Similarly, Boland’s sentence was substantively
reasonable. The district court explained that Boland’s criminal
history category of II substantially under-represented the
seriousness of his past criminal conduct and the likelihood he
will commit other crimes. Boland admitted that shortly after
being paroled on a ten-year federal child pornography sentence,
he returned to the same criminal conduct. Furthermore, Boland
stated that he did not believe his conduct was wrong. The court
therefore departed one criminal history category. See U.S.
Sentencing Guidelines Manual § 4A1.3(a) (2007) (a district court
may depart upward from an applicable guidelines range if
“reliable information indicates that the defendant’s criminal
history category substantially under-represents the seriousness
of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes . . . .”).
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Additionally, the district court found that the length
and quantity of the videos warranted an upward departure under
USSG § 2G2.2. The court found that thirty percent of Boland’s
collection of videos was videos longer than five minutes in
length. See USSG § 2G2.2 & cmt. n.4(B)(ii) (authorizing upward
departure if length of recording is substantially more than five
minutes). The court considered a one-level departure; however,
given the gravity of the criminal conduct, the court departed
two levels, noting the staggering amount of lengthy videos, the
sadistic and masochistic nature of the series, and the repeated
victimization depicted. Furthermore, the court found the number
of images possessed by Boland greatly exceeded the number
required for a guideline enhancement under USSG § 2G2.2(b)(7)(D)
(imposing maximum enhancement of five levels for six hundred
images). The court found the sheer quantity of videos as an
encouraged basis for departure. See USSG § 2G2.2 & cmt.
n.4(B)(i) (“If the number of images under represents the number
of minors depicted, an upward departure may be warranted.”).
Although the district court considered a one-level increase, it
did not believe it was adequate to capture the gravity of the
criminal conduct. The court therefore departed two levels on
this basis, finding Boland’s possession of 854,992 images was
not adequately taken into consideration by the guidelines. See
USSG § 5K2.0(a)(3) (departures based on circumstances present to
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a degree not adequately taken into consideration in determining
the guidelines range).
In considering the § 3553(a) factors, the district
court found that the children, including infants, in the videos
were subject to extensive and extended abuse beyond what was
typical in other cases handled by the court and contemplated in
the guidelines. The court also cited the nature and quantity of
the images. After finding that Boland posed a serious risk of
further crimes, the court stated that the primary purpose of the
sentence was to protect the public from further crimes by
Boland. The court explained that the terms and conditions of
supervised release were insufficient to protect the public and
that “its protective function is best served by enhancing the
sentence.” After establishing a newly calculated advisory
guidelines range of 188 to 235 months’ imprisonment, the
district court deemed a sentence of 234 months appropriate in
this case.
Given the district court’s meaningful articulation of
its consideration of the § 3553(a) factors, and its careful
consideration of reasons warranting departure from the
guidelines range, we find Boland’s departure sentence
reasonable. In accordance with Anders, we have reviewed the
record in this case and have found no meritorious issues for
appeal. We further find Boland’s claims in his pro se
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supplemental brief without merit. We therefore affirm the
district court’s judgment. This court requires that counsel
inform Boland, in writing, of the right to petition the Supreme
Court of the United States for further review. If Boland
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Boland. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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