United States v. Daniel Broussard ( 2014 )

Case: 13-30277 Document: 00512501981 Page: 1 Date Filed: 01/15/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-30277
United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA January 15, 2014
Lyle W. Cayce
Plaintiff-Appellee Clerk
v.
DANIEL JAMES BROUSSARD
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:10-CR-217-1
Before JONES, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Daniel James Broussard pled guilty to two counts of using a facility in
interstate commerce to attempt to coerce a minor to engage in criminal sexual
acts. 1 He was sentenced to 240 months of imprisonment on each count, to run
concurrently, and to concurrent 20-year terms of supervised release. He
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
1 In his interview with the police Broussard admitted that he had engaged in sexually
explicit Webcam activities with persons under the age of 18, and that he believed he had
engaged in about one hundred such experiences with girls as young as 12.
Case: 13-30277 Document: 00512501981 Page: 2 Date Filed: 01/15/2014
No. 13-30277
challenges the sentence as substantively unreasonable. Finding no error, we
AFFIRM.
Broussard was initially convicted and sentenced to 40 years
imprisonment. He appealed his conviction and sentence, arguing that the 40-
year sentence was both procedurally and substantively unreasonable. This
court affirmed Broussard’s conviction, but vacated his sentence on the ground
that the district court plainly erred in relying on Broussard’s rehabilitative
needs in lengthening his sentence. United States v. Broussard, 669 F.3d 537,
540-45 (5th Cir. 2012); see Tapia v. United States, 131 S. Ct. 2382 (2011).
The proper guideline range of imprisonment is 87 to 100 months.
Because there is a statutory minimum sentence of 10 years, the guideline
sentence becomes 10 years imprisonment. The statutory maximum sentence
is life.
On remand, the district court reviewed all of the materials submitted
and considered the factors set forth in 18 U.S.C. § 3553. It also heard testimony
from two mental health experts who each testified that Broussard was
amenable to treatment and posed a low risk of recidivism. After hearing the
testimony, the district court noted that it was concerned with the potential that
the experts were wrong. The district court again imposed an upward variance
from the guideline sentence of 10 years, sentencing Broussard to 240 months
of imprisonment on each count, to run concurrently, and to concurrent 20-year
terms of supervised release. The 20-year sentence is 20 years shorter than the
sentence previously vacated.
This court reviews the substantive reasonableness of a sentence under
an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Reasonableness review requires this court to evaluate whether the upward
variance sentence unreasonably fails to reflect the § 3553(a) sentencing factors,
United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006), but this court “may
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No. 13-30277
not reverse the district court’s ruling just because it would have determined
than an alternative sentence was appropriate.” United States v. Brantley, 537
F.3d 347, 349 (5th Cir. 2008).
Broussard argues that the district court failed to properly weigh the
sentencing factors. His argument is without merit. The district court correctly
calculated the guideline range and considered both Broussard’s age and the
testimony from the mental health professionals. The district court was
concerned that one of the mental health professionals had only spent three
hours with Broussard and the other had never examined him. The district
court also considered sexually explicit writings that Broussard had composed
as a teenager. These “fantasies” were written in the first person and described
sexual encounters with minors and incestuous relationships. Furthermore,
the district court explicitly avoided lengthening the sentence for the purposes
of rehabilitative needs, thereby correcting the error that caused this court to
vacate the previous sentence. Broussard, 669 F.3d at 540-45. Ultimately, the
district court felt that any mitigating factors were outweighed by the
seriousness of the crimes and the need to protect the public.
While the upward variance in this case is substantial, we have affirmed
similar variances in other cases. See Brantley, 537 F.3d at 348-50 (upholding
180-month upward variance from guidelines maximum of 51 months based on
the defendant’s characteristics and extensive criminal history, the offenses of
conviction, and the need to deter further criminal conduct and protect the
public); United States v. Jones, 444 F.3d 430, 433, 441-42 (5th Cir. 2006)
(affirming 120-month upward variance from guidelines maximum of 57
months based on the seriousness of the offense and the need to deter further
criminal conduct and protect the public). The district court did not abuse its
discretion in granting the upward variance. The sentence is AFFIRMED.
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