United States v. Kretser ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 15, 2009
No. 07-30698 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KARL DAVID KRETSER, JR
Defendant-Appellant
Appeal from the United States District Court for the
Western District of Louisiana
USDC No. 2:06-CR-20062-1
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant David Kretser appeals his sentence of 30 years’
imprisonment—the statutory maximum—for using a facility of interstate
commerce to entice a minor to engage in illegal sexual acts, in violation of
18 U.S.C. § 2422(b) (2003). Kretser contends that the district court failed
adequately to consider and take into account certain mitigating considerations,
thus rendering the sentence unreasonable. For the following reasons, we affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 07-30698
1. In reviewing a sentence for reasonableness, we first examine “whether the
district court committed a significant procedural error, such as failing to
calculate or incorrectly calculating the Guidelines range, treating the Guidelines
as mandatory, or failing to consider the Section 3553 sentencing factors.” United
States v. Simmons, 568 F.3d 564, 566 (5th Cir. 2009) (citing Gall v. United
States, 128 S. Ct. 586, 597 (2007)). According to Kretser, the district court failed
to impose an individualized sentence because it viewed all violators of 18 U.S.C.
§ 2422(b) as categorically deserving of the maximum sentence. We disagree. A
review of the sentencing transcript reflects that the district court based its
sentence on Kretser’s sending of pornography to the targeted minor, use of his
own daughter as “bait” to encourage the minor to correspond and meet with him,
and his exemplification of an “extremely dangerous new breed” of predator for
whom a severe sentence was warranted. These considerations directly relate
to the facts and circumstances surrounding Kretser’s offense, the seriousness of
his conduct, and the need to deter other similar conduct, all of which are factors
prescribed in 18 U.S.C. § 3553(a). See § 3553(a)(1), (a)(2)(A), (a)(2)(B). In
addition to this fully adequate explanation, the district court stated that it had
considered the § 3553(a) factors and, at the first sentencing hearing, heard and
considered Kretser’s arguments for a lesser sentence. Thus, even assuming that
Kretser preserved this issue for appellate review, we find no procedural error
here.
2. Because the sentence imposed by the district court did not amount to an
abuse of discretion, see United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008) (quoting the standard of review in Gall, 128 S. Ct. at 597), we
likewise find it unnecessary to resolve whether Kretser’s failure to object after
the sentence was pronounced preserved his challenge to its substantive
reasonableness. Notably, we have affirmed far greater departures or variances
from the Guidelines than the 2-level or 23% increase in this case. See, e.g.,
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No. 07-30698
United States v. Brantley, 537 F.3d 347, 348–50 (5th Cir. 2008) (253%); United
States v. Herrera-Garduno, 519 F.3d 526, 531–32 (5th Cir. 2008) (222%); United
States v. Peltier, 505 F.3d 389, 390, 392–93 (5th Cir. 2007) (210%). The district
court took into account facts not covered by the Guidelines calculation, namely,
that Kretser enticed his intended victim to have sex with him by sending her
four images containing what is arguably child pornography and repeatedly
inviting her to swim with his daughter. Although Kretser characterizes his
conduct as unextraordinary, no extraordinary circumstances need exist to justify
a sentence outside the Guidelines range. United States v. Lopez-Velasquez, 526
F.3d 804, 807 (5th Cir. 2008). That Kretser’s intended victim fortuitously turned
out to be an undercover police officer was also properly rejected by the district
court as a circumstance that merited a lighter sentence. Cf. United States v.
Cherer, 513 F.3d 1150, 1160 (9th Cir. 2008). Finally, Kretser’s reliance on lesser
sentences imposed in cases involving different Guidelines calculations and
different underlying conduct is unavailing. The record reflects that the district
court acted within its discretion in concluding that Kretser’s conduct and the
need for deterrence of others outweighed other mitigating considerations and
warranted the harsh sentence.
AFFIRMED.
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