United States v. Richard Chandler , 732 F.3d 428 ( 2013 )


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  •      Case: 12-30410   Document: 00512397382     Page: 1   Date Filed: 10/04/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    October 4, 2013
    No. 12-30410                     Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    RICHARD CHANDLER,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Louisiana
    Before HIGGINBOTHAM, OWEN, and GRAVES, Circuit Judges.
    JAMES E. GRAVES, JR., Circuit Judge:
    Richard Chandler pleaded guilty to engaging in a child exploitation
    enterprise. At sentencing, the district court varied upward by 127 months over
    the recommended Guidelines range to impose 420 months of imprisonment. We
    find that the district court erred by increasing Chandler’s sentence based on the
    fact that he was a police officer. We remand for re-sentencing.
    I. Factual and Procedural Background
    Chandler joined “Dreamboard,” a members-only online bulletin board
    which conditioned membership on posting and sharing child pornography.
    Members of the board would advertise child pornography available for
    distribution by posting a description, “preview” images and information about
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    No. 12-30410
    how to download the material. In order to obtain and retain membership on the
    board, an individual was required to post advertisements for child pornography
    on a regular basis. There were five distinct levels of membership, with each
    level having access to different sections of the bulletin board.                     The
    administrators of the bulletin board were the highest level members and had
    access to all of the advertised child pornography on the bulletin board. The
    second highest level was the “Super VIP.” membership level, which included
    members who were producing child pornography and posting it on the bulletin
    board.1 The other three membership levels were “Super VIP,” “VIP,” and
    “Members.” The members at each of these levels could see the posts on their
    membership level and on any level lower on the bulletin board.
    Chandler joined Dreamboard in February 2010. He was a police officer at
    the time. As a result of his postings, he was raised to VIP status, the second-
    lowest membership level. He posted at least 117 posts, the majority of which
    were children posing or engaging in sexual acts with adults. The pre-sentence
    report (“PSR”) reflected that Chandler published the advertisements and offered
    to distribute the material on April 27, June 7, and June 10, 2010.
    Chandler was indicted in March 2011. A second superseding indictment
    charged him with: (1) engaging in a child exploitation enterprise, 18 U.S.C. §
    2252A(g); (2) conspiring to advertise the distribution of child pornography, 
    id. § 2251(d)(1), (e),
    and; (3) conspiring to distribute child pornography, 
    id. § 2252A(a)(2)(A), (b)(1).
           Chandler pleaded guilty to engaging in a child
    exploitation enterprise, and the remaining counts were dismissed.
    The parties agree that the district court correctly calculated Chandler’s
    Guidelines range as 240-293 months. In the PSR, the probation officer stated
    that he had not identified any factors warranting a departure or variance from
    1
    The name of the level “Super VIP.” included the period in the name.
    2
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    the Guidelines range. Chandler did not file objections to the PSR, but he filed
    a Motion for Deviation from Sentencing Guidelines, arguing that a significant
    downward departure from the Guidelines was justified in his case because the
    sentencing scheme for possession of child pornography is unfair and the
    circumstances of his offense warranted leniency. The district court rejected
    Chandler’s motion, noting that Chandler was not a “mere possessor” because he
    had repeatedly posted child pornography. The district court ultimately imposed
    a sentence of 420 months of imprisonment, an upward variance of 127 months
    from the top of the Guidelines range.         The district court found that the
    non-Guidelines sentence was justified by the nature and circumstances of the
    offense, particularly Chandler’s abuse of his public office as a law enforcement
    officer, his use of other people’s internet connections to attempt to hide his
    participation in the scheme, and the fact that he posted child pornography 117
    times, mostly with children 8 to 14 years of age. Chandler did not object to the
    sentence. Chandler filed a timely notice of appeal.
    II. Discussion
    On appeal, Chandler raises multiple challenges to the substantive
    reasonableness of his sentence. He contends that the district court erroneously
    denied his motion for a downward deviation, improperly considered his status
    as a police officer, improperly considered his use of other people’s wireless
    networks, imposed a sentence disproportionate to his co-defendants’ sentences,
    and imposed a sentence greater than necessary to achieve the aims of
    sentencing. We focus on his contention that the district court improperly relied
    on his status as a police officer.
    “Where, as here, the defendant fails to object to his sentence during
    sentencing, we review the District Court’s sentencing decision for plain error.”
    United States v. Ronquillo, 
    508 F.3d 744
    , 748 (5th Cir. 2007). “We find plain
    error only when (1) there was an error; (2) the error was clear and obvious; and
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    (3) the error affected the defendant’s substantial rights.” 
    Id. (quoting United States
    v. Villegas, 
    404 F.3d 355
    , 358 (5th Cir. 2005)). If all three plain error
    conditions are met, we have “discretion to notice a forfeited error but only if (4)
    the error seriously affects the fairness, integrity, or public reputation of judicial
    proceedings.” 
    Id. (quoting Villegas, 404
    F.3d at 358-59).
    In reviewing a challenge to the substantive reasonableness of a non-
    Guidelines sentence, “[a] non-Guideline sentence unreasonably fails to reflect
    the statutory sentencing factors where it (1) does not account for a factor that
    should have received significant weight, (2) gives significant weight to an
    irrelevant or improper factor, or (3) represents a clear error of judgment in
    balancing the sentencing factors.” United States v. Smith, 
    440 F.3d 704
    , 708
    (5th Cir. 2006). When reviewing a non-Guidelines sentence, we “may consider
    the extent of the deviation [in our review], but must give due deference to the
    district court’s decision that the § 3553(a) factors, on a whole, justify the extent
    of the variance.” United States v. Broussard, 
    669 F.3d 537
    , 551 (5th Cir. 2012)
    (quoting Gall v. United States, 
    552 U.S. 38
    , 51 (2007)).
    In varying upwards by more than ten years over the recommended
    Guidelines sentencing range, the district court relied extensively on the fact that
    Chandler was a police officer at the time of the offense. At sentencing, the court
    made the following remarks:
    •      [A]t the time of the commission of these offenses, . . . the
    defendant was, in fact, a law enforcement officer. And that’s
    one of the aspects that gives me great pause for concern on
    the appropriate sentence.
    •      This defendant is a police officer. Not only did he choose to
    violate that trust that he swore to uphold, he also, in going to
    Dreamboard—he stole Internet access from innocent people,
    and he stole it from them so he could go on the Dreamboard
    and not be caught.
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    •     [P]eople who see this need to know—people who are in a
    position like his need to know that if they choose to violate the
    law in this way, if they choose to violate not just the trust of
    every person that they’ve sworn to uphold but also to put
    them at risk in going to a place where they’re exploiting
    children—and what he was doing was exploiting children . .
    .[—] every other person who is put in a position of trust needs
    to know that if you do this, the consequences are grave.
    •     I am visibly angry over your abuse of the public’s trust, and
    your behavior as a law enforcement officer in committing
    these crimes simply cannot be tolerated.
    •     You have abused your position of trust, you have abused your
    position of responsibility, and then you have violated the oath
    of your office as a law enforcement officer.
    •     As a law enforcement officer, you have placed yourself in a
    different category; and it’s a heightened one, because you took
    an oath of office.
    •     Our own police officer in our own community doing this.
    Some of these comments can be interpreted as comments on Chandler’s
    socioeconomic status, which is clearly an impermissible sentencing factor. It is
    well-established that “[a] defendant’s socio-economic status is never relevant to
    sentencing.” United States v. Burch, 
    873 F.2d 765
    , 769 (5th Cir.1989); see
    United States v. Harrington, 
    82 F.3d 83
    , 87-88 (5th Cir. 1996) (holding that
    defendant’s status as a prosecutor was an element of socioeconomic status);
    United States v. Stout, 
    32 F.3d 901
    , 903-04 (5th Cir. 1994) (holding that the
    defendant’s position as a judge was an unacceptable reason for departure).
    “Under the guidelines, sentencing is to be based upon the crime committed, not
    the offender.   While certain characteristics of the offender, such as prior
    criminal conduct, are relevant to sentencing under the guidelines, it is because
    such characteristics are directly relevant to the crime committed.” Burch, 873
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    F.2d at 768-69 (citations omitted); see 
    Harrington, 82 F.3d at 88
    . In Stout, the
    sentencing court said of a defendant former judge:
    You sat in judgment of your fellow citizens for twenty years. And it
    seems to me, as such, you should be held to a higher standard of
    accountability, and you should have had the legal expertise as well
    as the moral sense as a recipient of the taxpayers’ funds, respect,
    and trust, to know better.
    
    Stout, 32 F.3d at 903
    . We rejected the government’s argument that these
    comments related to the “defendant’s culpability based upon his knowledge of
    the law and his ability to pay the taxes due,” and concluded that “[t]he
    comments clearly relate to Stout’s socioeconomic status.” 
    Stout, 32 F.3d at 904
    n.2. Some of the comments made by the district court here, such as those
    stating that by being a police officer Chandler has placed himself in a different
    category and should be held to a higher standard, are similar to those in Stout
    and could be interpreted to cross the line into impermissible reliance on
    Chandler’s socioeconomic status as a police officer.
    To the extent that the district court’s comments regarding Chandler’s
    position are findings that Chandler abused his position of trust or that the
    offense was more serious because of Chandler’s position, the district court
    likewise erred. Though we are mindful that our review in this case is only for
    plain error, our circuit precedent is clear that a defendant’s status as a police
    officer, standing alone, is not a justifiable reason to increase a sentence. See
    United States v. Wade, 
    931 F.2d 300
    , 307 (5th Cir. 1991); see also United States
    v. Roach, 201 F. App’x 969, 976 (5th Cir. 2006) (distinguishing cases where the
    sentencing court upwardly departed “merely because of [the defendant’s]
    socio-economic status or position in public office” from the circumstances where
    the defendant, a prosecutor, used his position in the commission of the offense).
    If a defendant police officer abuses his position by using it to facilitate the
    offense, his position is an appropriate sentencing factor. 
    Wade, 931 F.2d at 307
    ;
    6
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    see also United States v. Esquival, 407 F. App’x 781, 784 (5th Cir. 2011)
    (affirming within-Guidelines sentence above the statutory minimum where
    border patrol agent, inter alia, abused position of trust by providing information
    to drug traffickers). Further, when law enforcement experience is one factor
    among many relied on by a district court in judging the seriousness of an
    offense, it may be a relevant consideration. See United States v. Pridgen, 
    898 F.2d 1003
    , 1004-05 (5th Cir. 1990) (affirming upward departure where former
    law enforcement officer abducted a bank employee during a robbery for an
    extended period); but see 
    Wade, 931 F.2d at 307
    (noting that “Pridgen does not
    give approval for an upward departure each time a law enforcement officer is
    sentenced”). Here, however, though the district court stated multiple times that
    it was varying upwards because Chandler abused his position, the district court
    did not rely on any facts showing that Chandler acted in his capacity as a police
    officer in posting child pornography on the internet. There is no evidence in the
    record that he used or exploited his position as a police officer, or used any
    knowledge or skills he gained from that position, to commit the offense or
    attempt to hide it.
    The district court’s error was compounded by its mischaracterization of
    the conduct involved in Chandler “stealing” other people’s “identities” or
    “internet addresses.” The only description of this conduct in the record is in a
    sentencing memorandum filed by the government, which states that Chandler
    used other people’s unsecured wireless connections. Though the government
    refers to this as “stealing,” it essentially amounts to logging onto an open
    wireless network. While we agree with the government that such activity could
    have caused innocent people to be subject to investigation, it clearly is not
    equivalent to identity theft or any sort of skilled hacking activity, though the
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    district court discussed it as if it required highly technical knowledge that
    Chandler acquired as a police officer. The court stated:
    I am extremely concerned over a policeman who has the capability
    and the knowledge and the know-how and does steal Internet
    identities of other people in order to hide who the hell you are. You
    are a sneaky thief with enough knowledge to know how to acquire
    those Internet addresses and Internet identities of innocent people
    who didn’t know that their Internet addresses and identities were
    being purloined by you for the purposes that you were putting them
    to.
    There is no evidence in the record supporting the court’s characterizations of
    Chandler’s conduct as stealing “Internet identities,” or connecting Chandler’s
    use of other people’s unsecured wireless connections with his work or skills
    acquired as a police officer.
    In sum, Chandler’s position as a police officer does not justify the
    increased sentence here, where there is no evidence that he used his position
    to facilitate the offense. Although the district court considered other factors at
    sentencing, the record shows that Chandler’s position as a police officer was a
    primary reason for the upwards departure. We thus find that the district court
    erred by placing significant reliance on an improper factor. See 
    Smith, 440 F.3d at 708
    .
    The additional requirements of the plain error standard are satisfied here.
    “To affect the defendant’s substantial rights, the defendant must demonstrate
    that the error affected the outcome of the district court proceedings.” 
    Broussard, 669 F.3d at 553
    . “In the context of sentencing, we ask whether the error
    increased the term of a sentence, such that there is a reasonable probability of
    a lower sentence on remand.” United States v. Escalante-Reyes, 
    689 F.3d 415
    ,
    424 (5th Cir. 2012) (quoting United States v. Garcia-Quintanilla, 
    574 F.3d 295
    ,
    304 (5th Cir. 2009)). Given the extensive reliance by the district court on
    Chandler’s position as a police officer and the 127-month upwards departure,
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    “we cannot confidently say that the district court would have imposed the same
    sentence” without reliance on that factor. 
    Escalante-Reyes; 689 F.3d at 424
    ;
    
    Garcia-Quintanilla, 574 F.3d at 304
    . Further, based on the “degree of the error
    and the particular facts of the case,” including the length of the upwards
    departure, which is not obviously justified by other facts in the record, we find
    it appropriate to exercise our discretion to correct this error on plain error
    review. See United States v. John, 
    597 F.3d 263
    , 287-89 (5th Cir. 2010).
    Because we find that re-sentencing is required based on the district court’s
    reliance on Chandler’s status as police officer, we find it unnecessary to address
    Chandler’s additional arguments.             He may address these arguments as
    necessary to the district court on re-sentencing.
    III. Conclusion
    For the foregoing reasons, we VACATE Chandler’s sentence and REMAND
    for re-sentencing.2
    2
    Chandler’ motion to seal this case is DENIED. He has not demonstrated that his
    interests outweigh the public’s right to access judicial records. See S.E.C. v. Van
    Waeyenberghe, 
    990 F.2d 845
    , 848 (5th Cir. 1993). His motion to use his initials instead of his
    name in our opinion and on docket sheets is likewise DENIED. See 
    id. 9