United States v. Emory Zastrow ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3139
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Emory James Zastrow, *
*
Appellant. *
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Submitted: April 15, 2008
Filed: July 23, 2008
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Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
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RILEY, Circuit Judge.
Emory James Zastrow (Zastrow) pled guilty to one count of producing child
pornography, in violation of 18 U.S.C. § 2251. The district court1 imposed a sentence
of 240 months imprisonment. Zastrow appeals his sentence claiming the sentence is
unreasonable. We affirm.
1
The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
I. BACKGROUND
Neither party challenges the facts leading to Zastrow’s guilty plea nor do they
dispute Zastrow’s advisory Sentencing Guidelines range. The only argument is
whether Zastrow’s sentence is reasonable. We briefly state the relevant facts.
Zastrow, age seventy-three, was charged with two counts of sexual exploitation
of a child by persuading, enticing, or coercing the minor child to engage in sexually
explicit conduct for the purpose of producing visual depictions (photographs). The
sexual exploitation began before the victim’s eighth birthday. The victim was a
family friend of Zastrow, and Zastrow occasionally provided after school care for the
victim. A police search of Zastrow’s home revealed five sexually explicit
photographs of the victim which were taken in 2005 and 2006. Zastrow pled guilty
to one count of the indictment. The second count was dismissed. The plea agreement
included a paragraph indicating Zastrow acknowledged the statutory maximum and
mandatory minimum penalties for his conviction. Zastrow also knew the district court
would consult the advisory Sentencing Guidelines, but was not bound by the
Guidelines.
Zastrow’s presentence investigation report (PSR) reflected an adjusted total
offense level of 37 and a criminal history category of I. Zastrow’s advisory
Guidelines range was 210 to 262 months imprisonment, and his mandatory minimum
sentence was 180 months imprisonment. The district court adopted the PSR’s
recommended advisory Sentencing Guidelines range and sentenced Zastrow to 240
months imprisonment.
II. DISCUSSION
“On appeal, we will review a sentence for an abuse of discretion, giving due
deference to the district court’s decision.” United States v. Braggs, 511 F.3d 808, 812
(8th Cir. 2008) (citing Gall v. United States, 552 U.S. __, __, 128 S. Ct. 586, 597
(2007) and Rita v. United States, 551 U.S. __, __, 127 S. Ct. 2456, 2465 (2007)).
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“First, we will ensure that the district court did not commit a significant procedural
error, such as miscalculating the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain why a sentence was chosen.”
Id. (citing Gall, 552 U.S. at __, 128 S. Ct. at 597). “If the district court’s decision is
procedurally sound, then we will consider the substantive reasonableness of the
sentence imposed, applying an abuse-of-discretion standard.” Id. “A mechanical
recitation of the § 3553(a) factors is unnecessary, however, particularly when a judge
elects simply to apply the advisory guideline range to a particular case.” United States
v. Todd, 521 F.3d 891, 897 (8th Cir. 2008) (citing United States v. Otterson, 506 F.3d
1098, 1100 (8th Cir. 2007)); see also Rita, 551 U.S. at __, 127 S. Ct. at 2468-69. “In
that situation, a lengthy explanation is not necessarily required, because
‘[c]ircumstances may well make clear that the judge rests [her] decision upon the
Commission’s own reasoning that the Guidelines sentence is a proper sentence . . . in
the typical case, and that the judge has found that the case before [her] is typical.’”
Todd, 521 F.3d at 897 (quoting Rita, 551 U.S. at __, 127 S. Ct. at 2468). “A district
court’s application of the advisory guidelines is reviewed de novo, while findings of
fact are reviewed for clear error.” United States v. Whiting, 522 F.3d 845, 849 (8th
Cir. 2008) (citation omitted).
Zastrow contends the district court failed to abide by the requirement of
§ 3553(a) that his sentence be “sufficient, but not greater than necessary to comply
with the purposes” of sentencing. In making this argument, Zastrow claims the
district court gave insufficient consideration to his physical condition, age of seventy-
three years, medical problems of high blood pressure and arthritis, inability to stand
for more than 20 minutes at the time, remorse and lack of criminal history. However,
“[w]here, as here, the sentence imposed is within the advisory guideline range, we
accord it a presumption of reasonableness.” United States v. Harris, 493 F.3d 928,
932 (8th Cir. 2007) (relying on Rita, 551 U.S. at __, 127 S. Ct. at 2462-63 and United
States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005)). “That the Sentencing
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Commission and the district court both believed that [a sentence of 240 months
imprisonment] was appropriate makes it likely that the sentence is reasonable in the
‘mine run of cases,’ and that it reflects the ‘not greater than necessary’ requirement
of § 3553(a)(2).” Id. (quoting Rita, 551 U.S. at __, 127 S. Ct. at 2465, 2467).
The record indicates the district court considered Zastrow’s age and medical
condition. The district court, on Zastrow’s request, recommended to the Bureau of
Prisons that Zastrow serve his sentence in a facility near his family and where his
medical needs could be properly monitored. See United States v. Farrington, 499 F.3d
854, 862 (8th Cir. 2007) (stating, “[t]he court also accounted for [defendant’s] health
concerns when it recommended to the Bureau of Prisons that [defendant] serve his
sentence at a facility that could properly monitor his medical needs.” (citing Rita, 551
U.S. at __, 127 S. Ct. at 2470)). The record also demonstrates the district court
considered Zastrow’s lack of criminal history because the court, in arriving at
Zastrow’s Sentencing Guidelines range, took into consideration Zastrow’s criminal
history category of I. A first time offender falls into criminal history category I. See
United States v. Sheridan, 270 F.3d 669, 673 (8th Cir. 2001) (“[C]ategory [I] . . . is
set for a first-time offender.” (citation omitted)). Lastly, the court reduced Zastrow’s
offense level for acceptance of responsibility indicating the court took into account
Zastrow’s remorse. See United States v. Spurlock, 495 F.3d 1011, 1015 (8th Cir.
2007) (explaining, “the timeliness of a defendant’s acceptance of responsibility is a
measure of his true contrition and remorse for the criminal conduct.” (citations
omitted)).
Zastrow has not identified evidence in the record indicating the district court
committed a procedural error (such as miscalculating the Guidelines range, treating
the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to explain adequately why a
sentence was chosen). Thus, the district court’s sentence is procedurally sound.
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Giving deference to the district court’s decision, we find the district court’s
sentence of 240 months is not unreasonable and is not an abuse of discretion. The
mere fact that Zastrow believes he should have received the mandatory minimum
sentence of 180 months is not, in itself, a sufficient ground for reversal. See Braggs,
511 F.3d at 812 (“Reversal is not justified on grounds that we could reasonably
conclude that a different sentence was appropriate.” (citing Gall, 552 U.S. at __, 128
S. Ct. at 597)).
III. CONCLUSION
Based on the foregoing, we affirm the judgment of the district court.
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