United States v. Spiwak , 377 F. App'x 319 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4289
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC SPIWAK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (4:08-cr-00045-BO-1)
Argued: April 8, 2010 Decided: May 7, 2010
Before TRAXLER, Chief Judge, and DUNCAN and DAVIS, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Joseph Bart Gilbert, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Jennifer P.
May-Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellant Eric Lee Spiwak (“Spiwak”) pleaded guilty
pursuant to a plea agreement to one count of possession of child
pornography, in violation of 18 U.S.C. § 2242(a)(4)(B). The
district court granted the government’s motion for an upward
departure and sentenced Spiwak to 188 months imprisonment, 37
months above the top of his pre-departure advisory guidelines
range of 121 to 151 months imprisonment. Spiwak appeals,
contending that the imposition of his sentence was procedurally
unreasonable. We affirm.
I.
In 2006, state and federal law enforcement agencies
undertook a sting operation in which officers, posing as minors,
participated in Internet online chats with individuals seeking
to engage in sexual acts. On September 6, 2006, while in one of
these chat rooms, a Greensboro, North Carolina, sheriff’s deputy
posing as a 14 year-old girl received an instant message from an
individual using the screen name, “thefixer_2000,” whom police
later identified as Spiwak. Spiwak initially inquired if the
“girl” was truly 14 years old, and when the “girl” said yes,
Spiwak responded “Oh, ok, way too young,” and exited the chat
room. Shortly afterwards, however, Spiwak returned to the chat
room and began discussing sexual matters with the “girl.”
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Specifically, Spiwak told the “girl” that he would like to
“teach” her about sex, inquired about her sexual history, and
said that he would love to visit her. He sent a picture of
himself to the “girl” and noted that, “Teacher is ready, if
you’d like to be my pupil.” He also made plans to meet with the
“girl.” On September 8, 2006, Spiwak drove from his residence in
Newport, North Carolina, to Greensboro. On his way to
Greensboro, Spiwak spoke with the “girl” by phone and continued
to discuss graphic sexual details about their imminent meeting.
When he arrived at the location of the planned meeting,
Spiwak was approached by police. Investigators searched Spiwak’s
vehicle and found rubber gloves, lubricant, and condoms in the
glove box. They then took Spiwak into custody. Spiwak told
investigators that he had indeed had explicit conversations on
the Internet with a person he thought was a 14-year-old female,
but that his intention in traveling to Greensboro was to warn
the girl about the dangers of meeting men on the Internet.
Officers conducted a search of Spiwak’s home and seized two
computers and several zip drive computer diskettes, which
revealed 460 images identified as either child pornography or
child erotica. A majority of the images were of prepubescent
minors younger than age 12. Some images depicted young girls,
ranging in age from five to eight years old, in the nude, bound,
and in various sexual positions. The images also depicted young
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boys, between the ages of eight and 15, in the nude and in
various sexual positions with adult males.
II.
On July 23, 2008, a grand jury indicted Spiwak on one count
of attempting to entice a child to engage in illegal sexual
conduct, in violation of 18 U.S.C. § 2422(b), and one count of
possession of child pornography, in violation of 18 U.S.C. §
2242(a)(4)(B). Pursuant to a plea agreement, Spiwak pled guilty
to the possession charge.
It is undisputed that Spiwak’s advisory sentencing
guidelines offense level was 32 and his criminal history
category was I. Although Spiwak had three previous convictions
for taking indecent liberties with children, he was not assigned
any criminal history points because the convictions were more
than 20 years old. See U.S.S.G. § 4A1.2(e)(3). Thus, Spiwak’s
(pre-departure) advisory sentencing guidelines range was 121 to
151 months.
In advance of the sentencing hearing, the government moved
for an upward departure based on U.S.S.G. § 4A1.3, arguing that
criminal history category I significantly underrepresented “the
seriousness” of Spiwak’s “past criminal conduct” and his
likelihood of recidivism. J.A. 27, 29. Spiwak filed an
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opposition to the government’s motion, seeking a sentence of no
more than the statutory mandatory minimum of 120 months.
On the day of the sentencing hearing, the government
informed Spiwak’s counsel of its intention to present to the
court a statement from Julie Dougherty, who claimed to have been
sexually abused by Spiwak in the late 1980s when she was ten
years old. It is undisputed that Ms. Dougherty was not a
“victim” of any of the crimes for which Spiwak had previously
been convicted or of either of the offenses charged in the
instant indictment. The government offered Ms. Dougherty’s
information in support of both (1) an offense level adjustment
for engaging in a “pattern of activity” involving sexual abuse
of a minor, see U.S.S.G. § 2G2.2(b)(5) (which had been applied
by the probation officer in his preparation of Spiwak’s
Presentence Investigation Report) and (2) the government’s
motion for an upward departure based on inadequate criminal
history under U.S.G.G. § 4A1.3.
When the sentencing hearing commenced, it appears that the
district judge noticed that Ms. Dougherty was standing alongside
the prosecutor. The district judge was thereby prompted to
inquire of the prosecutor, “Do you have victim participation?”
J.A. 53. Without yet having explained Ms. Dougherty’s presence
and in response to the court, the prosecutor stated, “Yes, Your
Honor.” Id. Spiwak then objected that Ms. Dougherty was not
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depicted in any of the images that constituted the offense of
his conviction -- possession of child pornography –- and that
she was “not associated with this case.” J.A. 53. 1
There then followed an extended colloquy among the court,
counsel, and the probation officer, in which the court sought to
determine whether Ms. Dougherty was being “asked to participate
under the victim entitlement [sic] under federal law.” J.A. 56.
Ultimately, as the record conclusively shows, the district court
found and concluded that Ms. Dougherty was not a “victim” within
the contemplation of the Crime Victims Rights Act (“CVRA”), 18
U.S.C. § 3771:
The Court: I am just trying to get a read on
who is a victim.
The Prosecutor: [Ms. Dougherty is offered as
a] victim as well as in support of the
government’s upward departure argument as to
this defendant represents as far as
recidivism.
The Court: So you can put on evidence on
upward departure?
The Prosecutor: I believe I can, Your Honor.
1
In an understandable effort to pretermit the presentation
of Ms. Dougherty’s information to the district court, defense
counsel promptly withdrew Spiwak’s objection to a five level
adjustment in his offense level based on his “pattern of
activity involving the sexual abuse or exploitation of a minor”
under U.S.S.G. § 2G2.2(b)(5). Nevertheless, Ms. Dougherty’s
information was relevant to the issue of criminal history
inadequacy.
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The Court: Well, okay. On that basis I may
allow it, but nevertheless, tell me who the
victims are.
. . .
Probation Officer: Yes, sir. Your Honor, 18
U.S.C. [§] 3661 just basically allows the
court no limitation, to consider any
information regarding the defendant’s
background, character, conduct.
The Court: But what about the victim law?
There is a specific law having to do with
victim participation in sentencing.
Probation Officer: She is not a victim of the
instant offense, but I do believe it’s
relevant to the –
The Court: To the relevant conduct.
Probation Officer: Yes, sir. And the specific
offense characteristics in the case as well
as the government’s motion for upward
departure. It’s very relevant.
The Court: Okay. I don’t disagree with that.
The Prosecutor: Thank you, Your Honor.
The Court: Do you want to say anything?
Defense counsel: Your Honor, I would just note
our objection.
The Court: Okay. I agree that at a minimum
it’s suitable for relevant conduct having to
do with a variance or departure.
J.A. 56-57.
Following this colloquy, the court allowed Ms. Dougherty to
make a statement, and she described in some detail how the
defendant had sexually abused her when she was a child. Ms.
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Dougherty also explained that the abuse has since then “caused
[her] family to fall apart.” J.A. 59.
The district court thereafter questioned the probation
officer as to how many criminal history points Spiwak’s prior
convictions for indecent liberties with children would have
received had they been scored. The probation officer responded
that if the prior convictions had been scored, they would have
resulted in a total of four criminal history points, placing
Spiwak in criminal history category III.
The district court then indicated, in agreement with an
implicit recommendation of the probation officer, that it would
grant the government’s motion for an upward departure pursuant
to U.S.S.G. § 4A1.3, thereby place Spiwak in offense level 32,
criminal history category III, yielding an advisory guidelines
sentencing range of 151 to 188 months imprisonment. Defense
counsel voiced an objection to an upward departure and supported
the objection with specific arguments which the district court
fully entertained. Notably, however, the district court
specifically asked defense counsel whether counsel could say
that the court had employed “improper methodology” in
determining to depart. J.A. 64. Defense counsel stated,
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unequivocally, he did not so contend. 2 Id. Spiwak now appeals his
sentence as procedurally erroneous.
III.
In reviewing any sentence, we apply a “deferential abuse of
discretion standard.” United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009) (internal quotations omitted). We review
questions of law, de novo. United States v. Cardwell, 433 F.3d
378, 384-85 (4th Cir. 2005). Statutory interpretation presents a
legal issue, subject to de novo review. United States v. Myers,
280 F.3d 407, 416 (4th Cir. 2002).
Under the Crime Victims Rights Act (“CVRA”), 18 U.S.C. §
3771, a crime victim has “[t]he right to be reasonably heard at
any public proceeding in the district court involving release,
plea, sentencing, or any parole proceeding.” 18 U.S.C. §
3771(a)(4). A crime victim is defined as “a person directly and
proximately harmed as a result of the commission of a Federal
offense or an offense in the District of Columbia.” 18 U.S.C. §
3771(e). Here, Spiwak argues that, under the CVRA, the district
court should not have allowed Ms. Dougherty to speak during the
2
The district court pressed defense counsel to indicate
whether “the methodology that the court is using [to effect an
upward departure] is a sufficient methodology.” J.A. 65. Defense
counsel sated, “Yes, Sir.” Id.
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sentencing hearing because Ms. Dougherty was not a victim of the
crime charged in the instant offense. In contrast, the
government argues that nothing in the CVRA places restrictions
on the district court’s discretion to consider any reliable
information at sentencing relevant to “the background,
character, and conduct of” an offender before the court for
sentencing. See 18 U.S.C. § 3661 (“No limitation shall be placed
on the information concerning the background, character, and
conduct of a person convicted of an offense which a court of the
United States may receive and consider for the purpose of
imposing an appropriate sentence.”). 3
Contrary to Spiwak’s contentions, it is clear from the
record that the district court did not find that Ms. Dougherty
3
Surprisingly, during oral argument Spiwak’s counsel
conceded that Spiwak would not have cause to appeal if Ms.
Dougherty’s information had been submitted to the district court
in a letter or an affidavit. He thereby seemed to have changed
strategy. So viewed, the challenge here is to the form in which
the district court allowed Ms. Dougherty to be heard rather than
the substance of her statement. As we understand the contention,
counsel seemed to ask us to interpret the CVRA and 18 U.S.C. §
3661 in a manner that would restrict a district court to hear
from a non-victim (such as Ms. Dougherty) only in writing and
not viva voce. According to counsel, the greater impact of a
statement offered in open court militates in favor of a rule
that oral statements should be limited to the defendant and
victim of the instant offense. We find nothing in the proposed
rule to commend itself to us, but in any event, we decline
counsel’s invitation to address this issue, which was not raised
in the brief. See United States v. Williams, 378 F.2d 665, 666
(4th Cir. 1967) (per curiam) (holding issues argued orally but
not addressed in brief were waived).
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was a “victim” under the CVRA. The district court agreed with
the probation officer that Ms. Dougherty was not a victim of the
instant offense and, therefore, did not qualify as a crime
victim under the CVRA. See supra p. 5. Thus, to the extent that
Spiwak assigns error to the district court’s alleged
misapplication of the CVRA, the record simply does not disclose
error at all.
Nor did the court err in allowing the government to proffer
Ms. Dougherty’s statement on the ground that her information
would be probative as to the government’s motion for an upward
departure. Sentencing courts are required to consider “the
nature and circumstances of the offense and the history and
characteristics of the defendant” prior to sentencing. 18 U.S.C.
§ 3553(a)(1). Indeed, there is “[n]o limitation . . . on the
information concerning the background, character, and conduct of
a person convicted of an offense which a court . . . may receive
and consider for the purpose of imposing an appropriate
sentence.” 18 U.S.C. § 3661.
From our careful review of the record in light of the
arguments presented by the parties, we hold that the district
court did not abuse its discretion in considering Ms.
Dougherty’s information. It is clear from the record that the
district court considered the statement in connection with the
government’s motion for an upward departure based on the alleged
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inadequacy of Spiwak’s criminal history category and his risk of
recidivism. The district court stated, “I agree that at a
minimum it’s suitable for relevant conduct having to do with a
variance or departure.” J.A. 57. Bearing in mind the
considerable latitude that district courts enjoy at sentencing,
as authorized by 18 U.S.C. § 3661, see United States v. Seay,
553 F.3d 732, 741-42 (4th Cir. 2009), we cannot say that the
district court abused its discretion.
Important to our holding, Spiwak does not allege or argue
on appeal that he was unduly prejudiced when the government
failed to give prior notice that Ms. Dougherty would be present
at the sentencing hearing. Specifically, after learning that the
government intended to have Ms. Dougherty address the district
court only shortly before sentencing, Spiwak’s counsel did not
ask for a postponement of the sentencing hearing in order to
prepare to question her or to investigate her information.
Notably, as well, Spiwak’s counsel did not request that Ms.
Dougherty be placed under oath and he did not request an
opportunity to cross examine her. Nor has Spiwak suggested at
any time or in any manner that the information provided to the
district court by Ms. Dougherty was unreliable.
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IV.
We discern no abuse of discretion by the district court in
considering the information presented at sentencing and Spiwak
has not otherwise suggested that the sentence is procedurally
unreasonable. Accordingly, we affirm.
AFFIRMED
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