United States v. Thomas Rittenhouse ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4379
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS ARTHUR RITTENHOUSE,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Statesville. Kenneth D. Bell, District Judge. (5:18-cr-00056-KDB-DSC-1)
Submitted: August 26, 2021 Decided: September 27, 2021
Before WYNN and RUSHING, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre III, Charlotte, North Carolina, for Appellant. R. Andrew Murray,
United States Attorney, Anthony J. Enright, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Arthur Rittenhouse appeals his convictions following a jury trial for
possession of child pornography involving a prepubescent minor, in violation of 18 U.S.C.
§ 2252A(a)(5)(B), (b)(2), and two counts of knowingly transporting child pornography, in
violation of 18 U.S.C. § 2252A(a)(1). The district court imposed a sentence of 240 months’
imprisonment, which was within the advisory Sentencing Guidelines range. For the
reasons that follow, we affirm.
On appeal, Rittenhouse first argues that the district court erred in permitting a law
enforcement official to testify as to the age of a child depicted in one of the pornographic
videos, based upon his observations of her and his review of her driver’s license, because
the testimony was based on inadmissible hearsay statements. “We review for abuse of
discretion a trial court’s decision concerning the admissibility of evidence.” United States
v. Palacios, 677 F.3d 234, 242 (4th Cir. 2012) (internal quotation marks omitted). “We
will not find that a district court abused its discretion unless its ruling was arbitrary and
irrational.” Id. (internal quotation marks omitted). Moreover, any error “that does not
affect substantial rights must be disregarded.” Fed. R. Crim. P. 52(a); see also Fed. R.
Evid. 103(a) (noting that error may not be predicated upon a ruling which admits or
excludes evidence unless it “affects a substantial right of the party”). Nonconstitutional
error is harmless when “we can say ‘with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the judgment was not
substantially swayed by the error.’” United States v. Nyman, 649 F.2d 208, 211-12 (4th
Cir. 1980) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
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Even assuming that the testimony repeated an out-of-court statement for the truth of
the facts recited and thus contained hearsay, Rittenhouse has failed to show prejudice.
Significant nonhearsay evidence, including the officer’s own personal observations, the
video itself, and the testimony of other officials, supported the conclusion that the child in
the video was prepubescent. Accordingly, we conclude with “fair assurance” that the
testimony regarding the individual’s age on her driver’s license did not affect, let alone
“substantially sway[],” the judgment. Id. (internal quotation marks omitted).
Rittenhouse also claims that the district court’s decision to admit the testimony
violated the Confrontation Clause. The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. CONST. amend. VI. However, “[e]vidence implicates the Confrontation
Clause only if it constitutes a testimonial statement—that is, a statement made with a
primary purpose of creating an out-of-court substitute for trial testimony.” United States
v. Reed, 780 F.3d 260, 269 (4th Cir. 2015) (internal quotation marks omitted). The
Supreme Court has specifically noted that “[b]usiness and public records are generally
admissible absent confrontation . . . because—having been created for the administration
of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—
they are not testimonial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009).
Driver’s licenses, regularly issued by state agencies, are public records routinely
created to administer the states’ highway safety regulations and protect public safety, not
to prove facts at trial. See Reitz v. Mealey, 314 U.S. 33, 36 (1941) (noting states issue
licenses to ensure drivers use “competence and care” and to “protect [motorists] using the
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highways”), overruled on other grounds by Perez v. Campbell, 402 U.S. 637 (1971).
Accordingly, statements on driver’s licenses are not testimonial in nature. We therefore
hold that the district court did not violate the Confrontation Clause in admitting the
testimony.
Lastly, Rittenhouse argues that his sentence is procedurally unreasonable because
the district court did not adequately consider his nonfrivolous arguments for a below-
Guidelines sentence. We review Rittenhouse’s sentence for reasonableness, applying a
deferential “abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 46 (2007).
In crafting an appropriate sentence, the district court must “address the parties’
nonfrivolous arguments in favor of a particular sentence, and if the court rejects those
arguments, it must explain why in a sufficiently detailed manner to allow this [c]ourt to
conduct a meaningful appellate review.” United States v. Blue, 877 F.3d 513, 519 (4th Cir.
2017). “We cannot assume that a sentencing court truly considered a defendant’s
nonfrivolous arguments . . . when the record fails to make it patently obvious,” id. at 521
(internal quotation marks omitted), and the court’s failure to give “specific attention” to
nonfrivolous arguments produces a procedurally unreasonable sentence, United States v.
Lewis, 958 F.3d 240, 245 (4th Cir. 2020) (internal quotation marks omitted).
However, “[t]he sentencing court’s explanation need not be extensive,” United
States v. Harris, 890 F.3d 480, 485 (4th Cir. 2018); where the court addresses the
defendant’s “central thesis” for mitigation, it need not “address separately each supporting
data point marshalled on its behalf,” United States v. Nance, 957 F.3d 204, 214 (4th Cir.),
cert. denied, 141 S. Ct. 687 (2020). Furthermore, “[w]e will not vacate [a] sentence simply
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because the court did not spell out what the context of its explanation made patently
obvious.” United States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir. 2006).
We have reviewed the record and conclude that the district court adequately
addressed Rittenhouse’s nonfrivolous sentencing arguments. Rittenhouse argued that the
district court should impose a sentence of five years, the mandatory minimum for his
offenses, because he was elderly and in poor health, had never created pornography or
molested a child, had cooperated in the Government’s investigation, and had been law-
abiding since his release from prison 40 years ago. The court explicitly acknowledged
Rittenhouse’s age and poor health but found that a within-Guidelines sentence was
necessary to deter other potential offenders and avoid unwarranted sentencing disparities.
In addition, the court emphasized the serious nature of Rittenhouse’s offenses, noted that
the Guidelines range would have been higher had he molested a child or created
pornography, described Rittenhouse’s lack of remorse and “cavalier attitude” toward child
pornography (J.A. 471), * and reviewed Rittenhouse’s criminal history, which included the
murder of a law enforcement officer. The district court’s thorough discussion of
Rittenhouse’s offense, history, and characteristics make it “patently obvious” that the court
considered and rejected Rittenhouse’s arguments. Montes-Pineda, 445 F.3d at 381. We
thus conclude that Rittenhouse’s sentence is procedurally reasonable.
*
“J.A.” refers to the joint appendix filed by the parties in this appeal.
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Therefore, we affirm Rittenhouse’s convictions and sentence. 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
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