United States v. Gonzalez ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED APRIL 25, 2006
April 7, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-40950
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR M. GONZALEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
--------------------
Before JONES, Chief Judge, WIENER and PRADO, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Victor M. Gonzalez pleaded guilty to
knowingly possessing a computer containing ten or more images of
child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B),
2252A(b)(2), and 2256(8)(A). Based on the timing of his offense,
the district court sentenced Gonzalez in accordance with the 2002
Sentencing Manual, as amended in April 2003.1 Gonzalez’s base
offense level under U.S.S.G. § 2G2.4(a) was 15, and the presentence
report (“PSR”) calculated a total offense level of 27 after various
enhancements. Among the sentencing enhancements recommended in the
1
Gonzalez was indicted by the grand jury on May 13, 2004,
pleaded guilty on March 8, 2005, and was sentenced on June 10,
2005.
PSR were (1) a two-level enhancement under § 2G2.4(b)(2) for
possession of ten or more items depicting the sexual exploitation
of minors, and (2) a five-level enhancement under § 2G2.4(b)(5)
because the offense involved 600 or more images. Combined with a
criminal history category of I, Gonzalez’s total offense level of
27 resulted in a Guideline imprisonment range of 70 to 87 months.
The district court adopted the PSR and sentenced Gonzalez to 87
months’ imprisonment. It also ordered a lifetime term of
supervised release — the statutory maximum and an upward departure
from the Guidelines term of three years — as recommended by the
PSR. This appeal followed.
I. STANDARD OF REVIEW
We review the district court’s interpretation and application
of the Sentencing Guidelines de novo and its factual findings for
clear error.2 We review upward departures in sentencing for
reasonableness, which requires us to review “the district court’s
decision to depart upwardly and the extent of that departure for
abuse of discretion.”3
II. ANALYSIS
A. Double Counting for Number of Images
2
United States v. Villanueva, 408 F.3d 193, 202-03 (5th
Cir. 2005).
3
United States v. Saldana, 427 F.3d 298, 308 (5th Cir.
2005) (citations omitted).
2
Gonzalez’s offense level was increased twice on the basis of
the number of child pornography images he possessed: a two-level
enhancement under § 2G2.4(b)(2) for possession of “ten or more”
such images4 and a five-level enhancement under § 2G2.4(b)(5) for
possession of “600 or more” images.5 The latter provision, §
2G2.4(b)(5), was enacted in the 2003 PROTECT Act, which failed to
address, and thus left undisturbed, its predecessor from 1991, §
2G2.4(b)(2). At least technically, then, the two provisions were
“on the books” at the time of Gonzalez’s offense and at the time he
was sentenced, while the 2002 edition of the Sentencing Manual was
in effect.
We are satisfied that the PROTECT Act, which became effective
on April 30, 2003, and includes the new, graduated scale of
enhancements inserted as § 2G2.4(b)(5) of the Guidelines,
superseded § 2G2.4(b)(2). There is a distinguishing difference
between the routine tweakings of the Guidelines scheme by the
Sentencing Commission acting on its own and changes expressly
wrought by a direct congressional amendment with an effective date
4
U.S.S.G. § 2G2.4(b)(2), adopted by Congress in 1991,
directed an increase of two levels “[i]f the offense involved
possessing ten or more books, magazines, periodicals, films,
videotapes, or other items, containing a visual depiction
involving the sexual exploitation of a minor ....”
5
§ 2G2.4(b)(5), effective April 30, 2003, comprises a
graduated schedule of enhancements based on the number of images
involved: (A) If at least 10 but fewer than 150, increase by 2
levels; (B) at least 150 but fewer than 300, 3 levels; (C) at
least 300 but fewer than 600, 4 levels; (D) 600 or more, 5
levels.
3
set by Congress. And, the Sentencing Commission itself
subsequently recognized that the PROTECT Act’s insertion of §
2G2.4(b)(5) “superceded” § 2G2.4(b)(2).6
From the effective date of the PROTECT Act forward, therefore,
only the graduated scale of § 2G2.4(b)(5) applied, mandating in
Gonzalez’s case only a single, five-level enhancement. We thus
conclude that the district court erred as a matter of law in
cumulatively applying both the two-level enhancement under the
superseded provision of § 2G2.4(b)(2) and the five-level
enhancement under § 2G2.4(b)(5)(D), which superseded it.7
6
Effective November 1, 2004, after Gonzalez was sentenced,
the Sentencing Commission eliminated the apparently inadvertent
coexistence of the two provisions by excising § 2G2.4(b)(2) from
the Guidelines, and clarifying that
The PROTECT Act directly amended §§ 2G2.2 and 2G2.4 to
create a specific offense characteristic related to the
number of child pornography images. That specific
offense characteristic provides a graduated enhancement
of two to five levels, depending on the number of images.
... Because the image specific offense characteristic
created directly by Congress in the PROTECT Act
essentially supersedes an earlier directive regarding a
specific offense characteristic relating to the number of
items (see Pub. L. 102-141 and Amendment 436), the
Commission deleted the specific offense characteristic
for possessing ten or more child pornography items
(formerly § 2G2.4(b)(3)).
U.S.S.G. app. C (hereafter, “Amendment 664”) (emphasis added).
7
We are aware of the Eleventh Circuit’s decision in United
States v. Lebovitz, 401 F.3d 1263 (11th Cir. 2005), which in
rejecting the “double counting” argument, stated that “[t]here is
no evidence at all that Congress meant to repeal § 2G2.4(b)(2)
when it enacted § 2G2.4(b)(5)(D),” 401 F.3d at 1272. We find
that decision unpersuasive, particularly given that court’s
failure to consider Amendment 664 at all in reaching its
4
B. Lifetime Term of Supervised Release
In departing upward to the statutory maximum lifetime term of
supervised release, the district court followed the recommendation
of U.S.S.G. § 5D1.2 pertaining to “sex offense[s].”8 Gonzalez
challenges this upward departure, arguing that (1) § 5D1.2 does not
apply because the offense of which he was convicted is not a “sex
offense,” (2) the court failed to include specific reasons for the
upward departure in the judgment, as required by 18 U.S.C. §
3553(c)(2), and (3) the extent of the upward departure was
unreasonable.
1. Violation of § 2252A Is A “Sex Offense”
For purposes of the recommended upward departure under
U.S.S.G. § 5D1.2, a “sex offense” is “an offense, perpetrated
against a minor ....”9 Gonzalez contends that mere consumption —
as opposed to production — of child pornography does not qualify
because it is not an offense perpetrated directly against a minor.
We recognize no such fine distinction. In fact, we have previously
rejected the argument that the consumption of child pornography is
only an indirect offense, observing that “there is no sense in
distinguishing ... between the producers and the consumers of child
conclusion.
8
§ 5D1.2(c) provided: “(Policy Statement) If the instant
offense of conviction is a sex offense, the statutory maximum
term of supervised release is recommended.” U.S.S.G. § 5D1.2(c)
(2002).
9
Id. cmt. n.1.
5
pornography. Neither could exist without the other. The consumers
of child pornography therefore victimize the children ... by
enabling and supporting the continued production of child
pornography, which entails continuous direct abuse and
victimization of child subjects.”10 Gonzalez’s possession of child
pornography in violation of 18 U.S.C. § 2252A is a “sex offense”
within the meaning of U.S.S.G. § 5D1.2, qualifying him for upward
departure.11 In addition, our holding that Gonzalez’s offense is
a “sex offense” and is therefore covered by § 5D1.2 nullifies his
argument that he did not receive the notice required by FED. R.
CRIM. P. 32(h), as the PSR directly cited § 5D1.2 in recommending
an upward departure.12
2. Statement of Specific Reasons for Sentence
Gonzalez complains that the district court failed to state,
either in its written order or in open court, specific reasons for
imposing a sentence outside the Guidelines range, as required by 18
U.S.C. § 3553(c)(2).13 This contention is meritless. The district
10
United States v. Norris, 159 F.3d 926, 930 (5th Cir.
1998).
11
The Tenth Circuit has also so held. See United States v.
Kimler, 335 F.3d 1132, 1147 (10th Cir. 2003).
12
See United States v. Davenport, 286 F.3d 217, 219 (5th
Cir. 2002) (holding separate notice of intent to depart
unnecessary where grounds for departure stated in PSR); FED. R.
CRIM. P. 32(h).
13
18 U.S.C. § 3553(c)(2) provides in relevant part: “The
court, at the time of sentencing, shall state in open court the
reasons for its imposition of the particular sentence, and, if
6
court provided written reasons for its departure in its “Statement
of Reasons” filed with the written judgment. The court stated,
under the heading “DEPARTURE,” that
[T]he Court departs upward to life, as provided by
statute and encouraged under the policy statement at
U.S.S.G. § 5D1.2(c). The Court finds a supervised
release term of life will benefit society and reflects
the Court’s experience that persons rarely get better in
these types of cases. The Court must ensure the
defendant cannot continue to create a lifeline to this
type of industry.14
The district court also explained, in open court, that
This Court’s experience with these sorts of folks is that
they never get better. Sex offenders have the lowest
rate of recovery and the highest rate of recidivism of
any criminal defendant. This is an addiction that is
almost impossible to overcome. And I think for the
benefit of society and for the benefit of the protection
of those who are victimized by these sorts of crimes to
prevent this individual being a proven consumer of this
creating a lifeline, as it were, to this kind of
insidious industry requires a lifetime of supervision.
On that basis and because I think it’s justified under
the facts and the applicable law, I’m varying to provide
life supervision.
The district court’s statements, made both orally in open court and
in writing in its Statement of Reasons, satisfied the requirements
of § 3553(c)(2).
3. The Extent of the Upward Departure Was Not Unreasonable
the sentence ... is outside the [Guidelines] range, ... the
specific reason for the imposition of a sentence different from
that described, which reasons must also be stated with
specificity in the written order of judgment and commitment ....”
14
Statement of Reasons at 2 (sealed).
7
The extent of the departure in Gonzalez’s term of supervised
release — from the Guidelines term of three years to the statutory
maximum term of life — was within the district court’s discretion
and was not unreasonable. “A sentencing court does not abuse its
discretion in deciding to upwardly depart when its reasons for
doing so (1) advance the objectives set forth in 18 U.S.C. §
3553(a)(2); (2) are authorized by 18 U.S.C. § 3553(b); and (3) are
justified by the facts of the case.”15 The district court’s stated
reasons for upward departure satisfy these requirements. As
already noted, the court expressly adopted the § 5D1.2 policy
statement recommended by the PSR. At sentencing and in its
Statement of Reasons, the court addressed the nature and
circumstances of the offense, including specifically the need for
the sentence imposed to reflect the seriousness of the offense, to
promote respect for the law, to afford adequate deterrence to
criminal conduct, and to protect the public from further crimes of
the defendant.16 Further, the court at sentencing stated its view
that life supervision was “justified under the facts and applicable
law.” The extent of the upward departure in Gonzalez’s term of
supervised release was not an abuse of discretion and was not
unreasonable.
III. CONCLUSION
15
Saldana, 427 F.3d at 310 (citing 18 U.S.C. § 3742(j)(1)).
16
See 18 U.S.C. § 3553(b) (listing factors to be considered
in imposing a sentence).
8
Gonzalez’s lifetime term of supervised release was not
unreasonable. The district court erred as a matter of law,
however, in applying the two-level enhancement under § 2G2.4(b)(2),
which, prior to sentencing, was superseded by a specific provision
of the PROTECT Act of 2003. The court should have applied only the
five-level enhancement under the graduated scale of §
2G2.4(b)(5)(D). We therefore vacate Gonzalez’s sentence and remand
for resentencing.
SENTENCE VACATED and CASE REMANDED for resentencing.
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