United States v. Scott Eertmoed ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4495
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SCOTT EERTMOED, a/k/a John Bradford,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:15-cr-00035-JRS-1)
Submitted: March 25, 2016 Decided: June 24, 2016
Before GREGORY, DIAZ, and THACKER, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Elizabeth W. Hanes, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Jessica D. Aber, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Scott Eertmoed appeals his sentence of 151 months in prison
after pleading guilty to distribution of child pornography in
violation of 18 U.S.C. § 2252A(a)(2)(A) (2012). On appeal, he
contends that his sentence is procedurally unreasonable because
the district court failed to adequately explain the chosen
sentence. He also asks us to remand for correction of clerical
error in the record. We affirm Eertmoed’s sentence but remand
for correction of clerical error under Fed. R. Crim. P. 36.
We review the reasonableness of a sentence for abuse of
discretion. United States v. Lymas, 781 F.3d 106, 111 (4th Cir.
2015) (citing Gall v. United States, 552 U.S. 38, 41 (2007)).
First, we consider whether the district court committed a
significant procedural error, such as failing to consider the 18
U.S.C. § 3553(a) (2012) factors or failing to adequately explain
the chosen sentence. Gall, 552 U.S. at 51.
If the sentence is procedurally reasonable, we consider
whether it is substantively reasonable, taking into account the
totality of the circumstances. Id. On appeal, we presume that
a sentence within or below a properly calculated Guidelines
range is substantively reasonable. United States v. Susi, 674
F.3d 278, 289 (4th Cir. 2012); see also United States v.
Strieper, 666 F.3d 288, 295-96 (4th Cir. 2012) (rejecting
argument that presumption should not apply to child pornography
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sentences). The presumption can only be rebutted by showing
that the sentence is unreasonable when measured against the 18
U.S.C. § 3553(a) factors. United States v. Louthian, 756 F.3d
295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
In sentencing, the district court must first correctly
calculate the defendant’s sentencing range under the Sentencing
Guidelines. United States v. Allmendinger, 706 F.3d 330, 340
(4th Cir. 2013). The court is next required to give the parties
an opportunity to argue for what they believe is an appropriate
sentence, and the court must consider those arguments in light
of the factors set forth in 18 U.S.C. § 3553(a). Id.
When rendering a sentence, the district court must make and
place on the record an individualized assessment based on the
particular facts of the case. United States v. Carter, 564 F.3d
325, 328, 330 (4th Cir. 2009). While the sentencing court must
state in open court the particular reasons that support its
chosen sentence, the court’s explanation need not be exhaustive.
United States v. Avila, 770 F.3d 1100, 1107-08 (4th Cir. 2014);
see also United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006) (court need not explicitly reference § 3553(a) or discuss
every factor on the record). The court’s explanation must be
sufficient “to satisfy the appellate court that [it] has
considered the parties’ arguments and has a reasoned basis for
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exercising [its] own legal decisionmaking authority.” Rita v.
United States, 551 U.S. 338, 356 (2007).
“Although every sentence requires an adequate explanation,
a more complete and detailed explanation of a sentence is
required when departing from the advisory Sentencing Guidelines,
and a major departure should be supported by a more significant
justification than a minor one.” United States v. Hernandez,
603 F.3d 267, 271 (4th Cir. 2010) (citations and internal
quotation marks omitted). “When imposing a sentence within the
Guidelines, however, the explanation need not be elaborate or
lengthy.” Id. (citations and internal quotation marks omitted).
Where the defendant properly preserved the issue of whether
the explanation was adequate, we review the issue for abuse of
discretion. United States v. Lynn, 592 F.3d 572, 576 (4th Cir.
2010). If we find abuse, we must reverse unless we conclude
that the error was harmless. Id. The Government must show
“that the error did not have a substantial and injurious effect
or influence on the result and we can say with fair assurance
that the district court’s explicit consideration of the
defendant’s arguments would not have affected the sentence
imposed.” United States v. Boulware, 604 F.3d 832, 838 (4th
Cir. 2010) (alterations and internal quotation marks omitted).
We have reviewed the record and conclude that Eertmoed’s
sentence is procedurally and substantively reasonable. The
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probation officer found that Eertmoed’s Guidelines sentence was
the statutory maximum 240 months in prison. Eertmoed objected
to the application of a five-level enhancement for a pattern of
activity involving the sexual abuse of a minor pursuant to U.S.
Sentencing Guidelines Manual § 2G2.2(b)(5) (2014). The district
court removed the enhancement and found that Eertmoed’s
Guidelines range was 151 to 188 months in prison. The
Government argued that a sentence at the high end of the range —
188 months — was appropriate in this case. Eertmoed argued for
a sentence of 96 months.
Among other things, Eertmoed argued that the child
pornography Guidelines were not based on empirical data and thus
were not entitled to deference. However, we have “instructed
courts to give respectful attention to Congress’[s] view that
[child pornography crimes] are serious offenses deserving
serious sanctions.” United States v. Strieper, 666 F.3d 288,
295-96 (4th Cir. 2012) (citations and internal quotation marks
omitted). Eertmoed also argued that a sentence within the
Guidelines range would create sentencing disparities. The
Government argued that the seriousness of the offense warranted
a sentence at the high end of the range. Among other things,
the Government noted that Eertmoed’s child pornography
collection was extensive, with over 4000 still images and 300
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videos, and he had been charged with contact offenses on a pre-
pubescent girl.
The district court sentenced Eertmoed at the bottom of the
Guidelines range to 151 months in prison and 5 years of
supervised release. The court also recommended to the Bureau of
Prisons that Eertmoed participate in sex offender treatment
programs while in custody. The court explained that it had
considered all of the factors in 18 U.S.C. § 3553(a), “and what
drove this sentence to be within the Guidelines Range was the
nature of the offense.” The court reiterated that it had
considered all of the factors, but that this was “the primary
factor which pushes the sentence into the Guidelines Range.”
Having reviewed the record, we are satisfied that the court
considered Eertmoed’s arguments and had a reasoned basis for
selecting its sentence.
Eertmoed also asks us to remand the case for correction of
clerical error in the record. The district court’s statement of
reasons fails to reflect its determinations at sentencing and is
therefore erroneous. While Eertmoed could file a motion under
Rule 36 to correct the error, we conclude that judicial economy
weighs in favor of a limited remand for correction of the
clerical error. In his reply brief, Eertmoed also asks that we
direct the district court to make the corresponding changes in
the presentence report. Under Fed. R. Crim. P. 32(i)(3)(C), the
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district court is required to “append a copy of the court’s
determinations” at sentencing “to any copy of the presentence
report made available to the Bureau of Prisons.” Therefore, we
direct the district court to comply with Rule 32(i)(3)(C) to the
extent that it has not already done so.
Accordingly, we affirm the district court’s judgment but
remand for correction of clerical error. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED AND REMANDED
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