United States v. Adelbert Warner, II , 399 F. App'x 88 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0657n.06
No. 08-2134 FILED
Oct 27, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ADELBERT H. WARNER II, ) WESTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
)
Before: GIBBONS, GRIFFIN, Circuit Judges; and DOWD, District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Adelbert Warner II
appeals the 360-month sentence imposed by the district court upon Warner’s guilty plea to the
production and distribution of child pornography. Warner challenges the procedural and substantive
reasonableness of the district court’s within-Guidelines sentence. He also challenges the
reasonableness of certain special conditions of supervised release involving the possibility of
physiological testing.
For the following reasons, we affirm Warner’s conviction and sentence.
*
The Honorable David D. Dowd, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 08-2134
United States v. Warner
I.
On September 27, 2007, Warner, a Michigan resident, began a series of explicit internet chats
with an undercover FBI agent who was posing as a fourteen-year-old boy named Colin. Between
September 27 and November 20, 2007, Warner sent the agent via the Internet nude photographs of
minor boys and nude photographs of himself. On October 9, 2007, Warner mailed a package to the
agent containing men’s underwear, a digital camera, camera software, and a compact disc containing
photographs of child pornography and two video clips.
On February 12, 2008, members of the Michigan State Police and the FBI executed a search
warrant at Warner’s address. After waiving his Miranda rights and agreeing to speak with a police
detective, Warner revealed his criminal conduct in detail. He confessed that he mailed the package
to the undercover agent, possessed pornographic images of prepubescent boys, and emailed some
of the images to other people. Warner then disclosed that he twice had engaged in sexual relations
with a twelve-year-old boy, N.S., whom he knew during a period of time when he lived with N.S.’s
parents. Warner also admitted that he took nude photographs of N.S., who later confirmed these
details when interviewed by detectives. Warner further admitted to taking nude photographs of his
fifteen-year-old step-cousin, M.S. A forensic examination of Warner’s computer showed that he
placed the nude photographs of N.S. and M.S. in a shared folder where they could be accessed by
other peer-to-peer computer users. Warner’s computer contained more than 600 still images and at
least five video clips of child pornography. After detailing his conduct to the agents, Warner wrote
and signed a confession statement.
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United States v. Warner
On April 24, 2008, pursuant to a written agreement, Warner pled guilty to a two-count
indictment charging him with the production of child pornography, in violation of 18 U.S.C.
§§ 2251(a) and (e), and distribution of child pornography in violation of 18 U.S.C. §§ 2252A(a)(1)
and (b)(1). The Presentence Report (PSR) calculated Warner’s total offense level at 42 and his
criminal history as category I. This yielded an advisory guideline range of 360 months to life. At
sentencing, Warner objected to the base offense level calculation on the basis of a double counting
argument. The district court resolved the objection in Warner’s favor, resulting in a base offense
level of 40. The district court then applied a three-level increase pursuant to U.S.S.G. § 2G2.1(d)(1),
and a three-level decrease for acceptance of responsibility. After applying a criminal history
category of I, the district court calculated an advisory guideline range of 292 to 365 months.
After hearing from both parties on sentencing, the district court discussed the 18 U.S.C.
§ 3553(a) factors and the mitigating factors raised by defense counsel. The district court then
sentenced Warner to 360 months on count one and 240 months on count two, to be served
concurrently. Warner was also sentenced to supervised release for life, with special conditions that
included participation in sex offender assessment and/or other treatment. The district court stated
that this treatment “may include physiological testing such as plethysmograph and ABEL
assessment.” When asked by the district court if he had “any legal objections to the sentence
imposed,” Warner’s counsel indicated he did not.
II.
A sentence is procedurally inadequate if the district court fails to calculate properly the
Guidelines range, treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, selects
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United States v. Warner
the sentence based upon clearly erroneous facts, or fails to adequately explain the chosen sentence.
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Houston, 529 F.3d 743, 753 (6th Cir.
2008). While a district court must state its reasons for imposing a particular sentence, see United
States v. Grams, 566 F.3d 683, 686 (6th Cir. 2009) (per curiam), it need not “give the reasons for
rejecting any and all arguments by the parties for alternative sentences.” United States v. Vonner,
516 F.3d 382, 387 (6th Cir. 2008) (en banc); see also United States v. Smith, 510 F.3d 603, 608 (6th
Cir. 2007) (“[A] district court need not explain its reasons for rejecting each argument made by the
defendant.”).
Where, as here, the defendant did not object to the district court’s explanation of the
§ 3553(a) factors, this court reviews a challenge to the sufficiency of that explanation for plain error.
United States v. Lapsins, 570 F.3d 758, 772 (6th Cir. 2009) (citing Vonner, 516 F.3d at 386). “Under
plain error review, relief is granted only under ‘exceptional circumstances.’” Houston, 529 F.3d at
750 (quoting Vonner, 516 F.3d at 386). The plain error standard requires Warner to show “(1) error
(2) that was ‘obvious or clear,’ (3) that ‘affected defendant’s substantial rights,’ and (4) that ‘affected
the fairness, integrity, or public reputation of the judicial proceedings.’” Vonner, 516 F.3d at 386(quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).
Warner argues that the district court failed to address and adequately explain its rationale for
rejecting several of his arguments for leniency. He first contends that the district court expressly
declined to address his argument that his cooperation with the government reflects his potential for
rehabilitation. According to Warner, while the district court could and should have considered his
cooperation as a mitigating factor under § 3553(a), it instead stated that it would not consider the
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United States v. Warner
cooperation at all because there had been no U.S.S.G. § 5K1.1 motion filed by the government.
Warner further argues that it was error under United States v. Recla, 560 F.3d 539, 545 (6th Cir.
2009), for the district court to consider the possibility of a later sentence reduction under Federal
Rule Criminal Procedure 35(b) in deciding his sentence.
In considering these challenges, we begin with the district court’s statements at sentencing.
After hearing from both counsel and Warner, the district court discussed its sentencing rationale
beginning with statements on the advisory nature of the Sentencing Guidelines and the factors to be
considered by the court under § 3553(a). The district court then began a discussion of Warner’s
history and characteristics, describing Warner’s “history of . . . mental health issues,” his lack of a
prior record, his history of sexual abuse as a young child, and the evidence of Warner’s remorse.
The district court continued:
I also recognize that he proffered with the government. The government has
chose[n], in its discretion, not to file a [§ 5K1.1] motion. The Court believes that the
remarks of counsel as it relates to his cooperation with the government are better
addressed in a Rule 35 [motion] should the government at some time find itself in a
position to file a Rule 35 as to Mr. Warner. So at this point I am giving that, because
it is contingent in nature, I am giving that proffer no weight. I will, however,
consider it should the government find itself in a position to file a Rule 35 at a later
date.
The district court thereafter described the facts and circumstances of the case, concluding that they
were “egregious in the extreme” due to Warner’s assault and victimization of minors and the
irretrievable placing of images of one of those minors on the Internet. The court then discussed the
remaining factors in § 3553(a) before announcing its sentence.
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United States v. Warner
A review of the sentencing transcript indicates that Warner’s argument that the district court
“expressly declined to address” his cooperation during its discussion of the § 3553(a) factors is
misplaced. The transcript shows that the district court considered Warner’s cooperation within the
context of its discussion of his history and characteristics and the nature and circumstances of his
offense. Because the district court acknowledged that the government had not filed a § 5K1.1
motion, the district court could have weighed Warner’s cooperation only in its consideration of his
history and characteristics under § 3553(a). Upon a reading of the totality of the transcript, it appears
that the district court considered the cooperation but concluded that it should not affect the sentence
due to its limited usefulness. The use of the word “contingent” simply seems to reflect the court’s
recognition that at some future point the defendant might be deemed to have rendered assistance
sufficient to warrant a government motion. See United States v. Rosenbaum, 585 F.3d 259, 265 (6th
Cir. 2009) (noting that the district court’s use of the word “contingent” under similar circumstances
meant “incomplete” or “not yet . . . sufficiently substantial to warrant a reduction”). Because a
review of the full context of the record indicates that the district court considered Warner’s argument
for leniency based on his cooperation with the government, it did not plainly err.
Warner next challenges the district court’s sua sponte reference to the possibility of the
government’s filing a Rule 35 motion during its sentencing discussion. Warner contends that
because it is improper for a district court to consider the possibility of a Rule 35(b) sentence
reduction in deciding a sentence pursuant to Recla, 560 F.3d at 545, the district court’s “refus[al] to
consider defendant’s argument of cooperation until a possible Rule 35(b) motion [might be] filed”
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United States v. Warner
was error. He further argues that the district court improperly blurred the distinction between
considering past cooperation under § 3553(a) and post-sentencing cooperation under Rule 35(b).
In Recla, this court stated that “sentencing courts cannot consider the potential for a future
sentence reduction in imposing sentence” even where the government had not filed a U.S.S.G.
§ 5K1.1 motion. 560 F.3d at 545. Therefore, if “the district court . . . consider[s] the government’s
intention to file a Rule 35(b) motion in imposing sentence—by, for example, imposing a higher
sentence than it would have in the absence of the government’s stated intention—[a defendant’s]
sentence is unreasonable, and we must remand for sentencing.” Id. at 546. The “mere mention of
possible future cooperation or the possibility of filing a Rule 35 motion alone will not invalidate the
district court’s” sentencing determination. Rosenbaum, 585 F.3d at 265 (quoting United States v.
Ridge, 329 F.3d 535, 542 (6th Cir. 2003)). Rather, this court “must review the sentencing transcript
and the context of the record to determine if the prospect of a future Rule 35(b) motion ‘altered or
influenced’ the sentencing judge’s” decision making on sentencing. Id. (quoting Ridge, 329 F.3d
at 542); see Recla, 560 F.3d at 546–47 (remanding because the “record [was] ambiguous as to
whether, in imposing sentence, the district court considered the government’s intention to file” a
Rule 35(b) motion).
Recla and Rosenbaum make clear that the concern they address is that an original sentence
might be determined by the possibility that the court could have a later opportunity to reduce it.
Here, while the district court mentioned the possibility of a Rule 35(b) motion, there is no indication
that this belief influenced the district court’s sentencing rationale. See Rosenbaum, 585 F.3d at 266;
United States v. Carlton, 356 F. App’x 864, 870 (6th Cir. 2009) (unpublished opinion). The district
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No. 08-2134
United States v. Warner
court raised the possibility of a Rule 35(b) motion sua sponte, presumably to signify to Warner that
future cooperation with tangible results to the government would be considered by the court if raised
on motion by the government.1 There is no evidence that “the speculative prospect of a future
motion by the government” altered or influenced the district court’s sentencing deliberations in this
case. Id. Taken in the full context of the parties’ sentencing arguments and the language’s
placement within district court’s § 3553(a) discussion, the district court’s Rule 35 language is most
properly viewed “merely [as] a statement to [Warner] that there was a mechanism for further
sentence reduction, not an indication that the district court was trying to preserve any portion of its
discretion . . . until after sentencing.” Id.; see also Ridge, 329 F.3d at 542. The district court
therefore did not plainly err in referring to the possibility of a future Rule 35(b) motion.
Warner next argues that the district court did not sufficiently explain its consideration of his
other mitigating arguments, including his extreme remorse, mental health issues, and the sexual
abuse he suffered as a child. Warner contends that it is not clear whether the court accepted or
rejected his arguments or how they were taken into consideration. The district court, however, “need
not explain its reasons for rejecting each argument made by a defendant.” Smith, 510 F.3d at 608.
Where, as here, “the district court agrees with the Sentencing Commission’s recommendations . . .
the question is whether the record makes clear that the sentencing judge listened to each argument,
considered the supporting evidence, was fully aware of the defendant’s circumstances and took them
1
Warner suggests that the district court stated that it would consider his presentence co-
operation in connection with a Rule 35(b) motion. Although Warner is correct that the granting of
a Rule 35(b) motion is based on post-sentencing co-operation, we see no reason to suppose that the
district court was unaware of that. The district court’s comments more likely refer to considering
any Rule 35 motion at a later time, rather than considering the presentence proffer later.
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United States v. Warner
into account in sentencing him.” Vonner, 516 F.3d at 387 (citing Rita v. United States, 551 U.S. 338,
356 (2007)) (internal citations and quotation marks omitted). Warner concedes that the district court
acknowledged his mitigation arguments, and indeed the record reflects the district court’s express
consideration of each mitigating factor proffered by Warner. On this record, the district court did
not plainly err. Vonner, 516 F.3d at 388.
Finally, Warner challenges the district court’s failure to explain its conclusion that he has a
high risk of recidivism. According to Warner, neither the government nor the district court cited any
studies or statistics showing that there is a high rate of recidivism among those convicted of sexual
crimes against children, nor stated why Warner personally would have a high risk of recidivism.
Warner cites to several studies—not presented to the district court—that purport to demonstrate a
low rate of recidivism among sex offenders. He argues that these studies belie the district court’s
conclusion on recidivism, and the district court’s failure to explain its rationale on his recidivism risk
and failure to address the other mitigating arguments as they relate to recidivism deprived Warner
of a procedurally reasonable sentence.
A district court “need not describe in detail or list all of the documents or other evidence it
considered during sentencing.” United States v. Gale, 468 F.3d 929, 941 (6th Cir. 2006). This court
therefore presumes, “without some affirmative indication in the record to the contrary . . . that a
district court has reviewed the evidence provided to it.” Id. Here, the district court concluded,
“based on [its] review of the entire record, that Mr. Warner [was] a significant risk to recidivate.”
This followed the district court’s statement that it believed Warner needed “concentrated and
hopefully effective sex offender therapy” and that “Warner was apprehended before there were more
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United States v. Warner
victims.” The record therefore demonstrates that the district court considered the issue of recidivism
and explained its view that, based upon the specific evidence from the case before it, Warner posed
a risk of recidivism. And because Warner did not object to the district court’s explanation at the
time of sentencing, the district court was not able to correct any deficiency in its explanation “on the
spot.” Vonner, 516 F.3d at 385 (citing United States v. Bostic, 371 F.3d 865, 873 (6th Cir. 2004)).
Based on this record, the district court did plainly err.
III.
A procedurally reasonable sentence is reviewed for substantive reasonableness under an
abuse of discretion standard. Gall, 552 U.S. at 51. A “sentence may be substantively unreasonable
‘when the district court selects the sentence arbitrarily, bases the sentence on impermissible factors,
fails to consider pertinent [18 U.S.C.] § 3553(a) factors, or gives an unreasonable amount of weight
to any pertinent factor.’” United States v. Borho, 485 F.3d 904, 908 (6th Cir. 2007) (quoting United
States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006)). Where the sentence falls within the
Guidelines range, a presumption of reasonableness applies. Vonner, 516 F.3d at 389.
Warner’s brief substantive reasonableness challenge contends that his “individual
characteristics speak to the propriety of a lower sentence in this case.” Warner argues that his
criminal history, low risk of recidivism, extreme remorsefulness, and embrace of therapy all counsel
a sentence that does not fall at the top of the guideline range and the statutory maximum.
This type of generalized challenge to the district court’s weighing of § 3553(a) factors cannot
overcome the presumption of reasonableness. Houston, 529 F.3d at 756. As discussed above, the
district court considered and balanced the mitigating facts cited by Warner with the “egregious” facts
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United States v. Warner
and circumstances of the case, including Warner’s assault and victimization of minors and the
irretrievable placing of images of one of those minors on the internet. The record does not reflect
that the district court arbitrarily selected a sentence or relied too heavily on any one factor. “The fact
that the district court did not give the defendant the exact sentence he sought is not a cognizable
basis to appeal, particularly where the district court followed the mandate of section 3553(a) in all
relevant respects.” United States v. Jackson, 466 F.3d 537, 540 (6th Cir. 2006). Because the district
court adequately considered the factors set forth in § 3553(a) and imposed a sentence within the
applicable Guidelines range, Warner’s sentence was reasonable.
IV.
This court generally reviews a district court’s imposition of supervised release conditions for
abuse of discretion. United States v. Carter, 463 F.3d 526, 528 (6th Cir. 2006). Because Warner
was given an opportunity to object to the conditions at sentencing but failed to do so, this court
reviews the imposition of those conditions for plain error. United States v. Kingsley, 241 F.3d 828,
835 (6th Cir. 2001).
As Warner concedes, this court has previously held that the issues related to the possible use
of a penile plethysmograph on supervised release many years in the future is not ripe for review on
direct appeal. United States v. Lee, 502 F.3d 447, 449–51 (6th Cir. 2007); United States v. Massey,
349 F. App’x 64, 70 (6th Cir. 2009) (unpublished opinion) (concluding that because it would be
“mere conjecture for this Court to try to define the parameters of Massey’s future supervised-release
conditions,” a challenge to the optional use of a plethysmograph or an ABEL assessment following
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No. 08-2134
United States v. Warner
a 360-month sentence was not ripe for review). Because Warner’s challenge to the possible use of
a penile plethysmograph and an ABEL assessment is foreclosed by Lee, we decline to consider it.
V.
For the foregoing reasons, we affirm Warner’s conviction and sentence.
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United States v. Warner
DOWD, Dissenting
The district court, facing a spread of 73 months within the guideline range of 292 months to
365 months, chose a sentence of 360 months with a limited explanation as to why he advanced 68
months beyond the minimum in imposing a 360 month sentence on a 37 year old defendant who
timely admitted his conduct, apparently attempted to cooperate with the government, and who had
no prior criminal record.
The United States Sentencing Commission published The History of Child Pornography
Guidelines in October, 2009. The report indicates that since their introduction in 1987, the child
pornography have undergone nine amendments, each time resulting in significantly increased
guideline ranges and available enhancements. The report further indicates that sentences under
U.S.S.G. § 2G2.2 have had a high and increasing rate of downward departures and below-guidelines
variances. Specifically, footnote 33 in The History states:
In fiscal year 2008, for offenders sentenced under §2G2.2, the non-government
sponsored below-guideline rate was 35.7 percent, the government sponsored below-
guideline rate was 8.5 percent, and the above-guideline rate was 2.0 percent. 2008
Sourcebook, Table 28. By comparison, for all offenders, the non-government
sponsored below-guideline rate was 13.4 percent, the government sponsored below-
guideline rate was 25.6 percent, and the above-guideline rate was 1.5 percent. 2008
Sourcebook, Table N. In fiscal year 2007, for offenders sentenced under §2G2.2, the
non-government sponsored below-guideline rate was 27.2 percent, the government
sponsored below-guideline rate was 7.0 percent, and the above-guideline rate was 2.4
percent. 2007 Sourcebook Table 28. By comparison, for all offenders, the non-
government sponsored below-guideline rate was 12.0 percent, the government
sponsored below-guideline rate was 25.6 percent, and the above-guideline rate was
1.5 percent. 2007 Sourcebook, Table N.
A review of child pornography sentencing decisions in the Sixth Circuit supports the
conclusions reached in footnote 33. As an example, in United States v. Cherry, 487 F.3d 366 (6th
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United States v. Warner
Cir. 2007), the downward variance by the district court to a sentence of 120 months when the
guideline range called for a sentence of 210 to 262 months was affirmed. In the case of United
States v. Stall, 581 F.3d 276 (6th Cir. 2009), the sentence of the district court to one day
incarceration and a ten year period of supervised release was affirmed following the defendant’s
conviction of two counts of child pornography, and in spite of the fact that the sentencing range of
57 to 71 months. In the case of United States v. Stern, 590 F.Supp. 2d 945 (N.D. Ohio 2008), the
district court, faced with a advisory sentencing guidelines range of 46 to 57, imposed a prison
sentence of 12 months and one day. In United States v. Janosko, 355 Fed. Appx. 892, 2009 WL
4609826 (C.A.6 (Ohio)), the district, court faced with a guideline range 210 to 262 months, imposed
a sentence of 180 months. In that case, the defendant unsuccessfully appealed the decision of the
Northern District of Ohio, but once again the district court engaged in a downward variance. Also,
in the case of United States v. Mikowski, 332 Fed. Appx. 250, 2009 WL 1546375 (C.A.6 (Mich.)),
the guideline sentencing range was 262 to 327 months, but the maximum term of imprisonment was
limited to a sentence of 240 months. Against that background, the district court sentenced the
defendant to 192 months which represented a downward variance of 48 months.
The pivotal decision in Booker for the first time advanced the proposition that the district
court not only had to consider the concept of departures, but also a new concept of variances. The
Booker decision instructed that the district court, before pronouncing sentence, was required to
analyze the sentencing factors under 18 U.S.C. § 3553(a). In this case, the defendant had engaged
in pedophile conduct which supported a lengthy sentence.
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United States v. Warner
The district court, at the sentencing hearing, declared in part as follows:
The defendant has a history of a mental health issues. He has been diagnosed
with mental health conditions from time to time during his life. He is a person of 37
years of age, has absolutely no prior record, and tragically was abused himself as a
young child by a person about ten years his senior. That abuse consisted of sexual
assault on him. I take Mr. Warner at his word that he is remorseful for his actions
and very sorry that he has, in essence, passed along to another generation of children
the victimization that was imposed on him.
I also recognize that he proffered with the government. The government has
chose, in its discretion, not to file a 5K motion. The Court believes that the remarks
of counsel as it relates to his cooperation with the government are better addressed
in a Rule 35 should the government at some point find itself in a position to file a
Rule 35 as to Mr. Warner. So at this point I am giving that, because it is contingent
in nature, I am giving that proffer no weight. I will, however, consider it should the
government find itself in a position to file a Rule 35 at a later date.
Then, the district court concluded:
Needless to say, the facts and circumstances of this case are egregious in the
extreme. Mr. Warner assaulted a youngster and victimized another youngster by
sexually assaulting N.S. and placing images of M.S. in cyberspace through the
internet. As Mr. Kessler appropriately points out, those images cannot be retrieved,
they will be in cyberspace forever, which is devastating to the victim's family and the
victim obviously. This is a crime that has victims for a long period of time. The
Court associates itself with the nature of these types of crimes the statement in United
vs. Goff case, a Third Circuit case, decided in the year 2007 concerning the breadth
of victimization of the individual victims and their families when they are victimized
by child pornography.
These offenses are very very serious under the law. They involve the
violation of a youngster who has the protection of the law and deserved to grow up
without being victimized. I have no doubts that Mr. Warner's crimes have had deep
psychological effects both on N.S. and M.S. Fortunately, and I believe Mr. Warner
believes this, fortunately Mr. Warner was apprehended before there were more
victims, but I am not forgetting the fact that Mr. Warner engaged in the distribution
of child pornography pictures and images beyond N.S. and M.S., which just
exacerbates the situation even more.
....
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The Court finds that a guideline sentence as found by the Court, that is, a
sentence in the advisory guidelines of 292 to-- 292 to 365 are warranted at the top
end of the guideline range, and that is going to be the sentence of the Court.
I respectfully observe that if the defendant had been convicted of the second degree murder
of his pedophile victim (offense level 38) and timely admitted his guilt, he would have been facing
a range of 168 to 235 months assuming a three-level adjustment for acceptance of responsibility.
Yet with the affirmance of his conviction for dealing in child pornography, he will serve 125 months
more than if his criminal conduct had been limited to the second degree murder of his victim.
The initial purpose driving the adoption of guideline sentencing was to avoid disparate
sentencing for the same type of criminal conduct. Disparate sentencing is now the hallmark of
sentencing decisions involving child pornography. In my view, the district court’s sentencing
opinion fails to justify a sentence at almost the very top of the guideline range given the defendant’s
history. I am unable to concur in the majority opinion even though I acknowledge the deference
extended to the district court in the majority opinion.
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