United States v. Brandon Hill ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1364
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Brandon K. Hill, *
*
Appellant. *
*
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Submitted: September 25, 2008
Filed: January 12, 2009
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Before RILEY, BRIGHT, and MELLOY, Circuit Judges.
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RILEY, Circuit Judge.
Brandon K. Hill (Hill) pled guilty to one count of knowingly and willingly
enticing an adult female to travel in interstate commerce for purposes of prostitution,
in violation of 18 U.S.C. § 2422(a). Hill’s advisory Guidelines range was 15-21
months. The district court1 found the Guidelines range was insufficient to achieve an
appropriate sentence, and an upward variance was warranted. The district court
1
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
sentenced Hill to 51 months imprisonment, to run consecutively to a 174-month
sentence Hill was already serving in the Western District of Oklahoma. Hill appeals,
arguing the district court procedurally erred by failing to explain adequately the basis
for its sentencing decision and by comparing Hill’s offense to other sex crimes. Hill
also argues the 51-month sentence was substantively unreasonable. We affirm.
I. BACKGROUND
Hill met the 19-year-old victim, S.S., at a gas station in Hazelwood, Missouri,
in December of 2004. Some months later, Hill bought a plane ticket so S.S. could fly
to Dallas, Texas, to meet Hill. Hill told S.S. he was a pimp. S.S. left Dallas, but
returned to Dallas in March of 2005 and began to work as a prostitute for Hill. S.S.
traveled to Philadelphia, Pennsylvania; San Antonio, Texas; Austin, Texas; Raleigh,
North Carolina; Milwaukee, Wisconsin; Kansas City, Missouri; Kansas City, Kansas;
and St. Louis, Missouri, to work as a prostitute for Hill. S.S. turned over all of her
prostitution proceeds to Hill.
Between August 2, 2005, and August 10, 2005, Hill induced S.S. to travel to
Overland Park, Kansas, to work as a prostitute. Hill then induced S.S. to travel from
Overland Park, Kansas, to St. Louis, Missouri, to work as a prostitute. S.S. was
arrested in St. Louis, Missouri, for possession of marijuana by Maryland Heights
Police. Police officers searched S.S.’s cell phone memory and found numbers, photos
of Hill, and extensive text messages between S.S. and Hill. These messages discussed
travel, prostitution, and the proceeds of the prostitution. Hill was charged with a
single count of knowingly and willingly enticing an adult female to travel in interstate
commerce for purposes of prostitution. See 18 U.S.C. § 2422(a). Hill admitted his
involvement and pled guilty.2
2
In separate proceedings in the Western District of Oklahoma, a jury found Hill
guilty of various other charges arising from Hill’s involvement in prostitution
offenses. The Oklahoma charges did not involve S.S., but did involve minor victims,
one 17 years old and another under 14 years old. The Oklahoma district court
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The court and the parties agreed Hill had a total offense level of 12 and a
criminal history category of III, resulting in an advisory Guidelines range of 15 to 21
months. At Hill’s sentencing hearing, the court considered Guideline departures under
§§ 5K2.3 (extreme psychological injury) and 5K2.8 (extreme conduct), but
determined there was no evidence to support either of these departures. However, the
district court disagreed with the Guidelines range for Hill’s offense and found the
factors set forth in 18 U.S.C. § 3553(a) warranted an upward variance. The district
court declared:
I do find, under 18 U.S.C. 3553(a), when I look at deterrence, the
repetition of the activity and the fear that it will be repeated, and to
protect the public from future crimes, and to avoid unwanted [sic]
sentencing disparities, that a sentence of 51 months is an appropriate
sentence to satisfy the statutory purposes of sentencing.
. . . The sentence is to run consecutive to the sentence he’s
currently serving in the Western District of Oklahoma[.]
At Hill’s sentencing, the district court acknowledged, “I have to be candid. I
probably came as close to falling out of my chair as I ever have as a federal judge
when I saw the recommended range of punishment on Mr. Hill’s case for a violation
of the Mann Act for moving a woman across multiple state lines for the purpose of
prostitution.” The district court compared and contrasted Hill’s offense and
Guidelines range with sentences the court had imposed on other defendants for
possession of child pornography, declaring,
I’ve given out sentences for possession – not manufacturing, not
distribution, not transportation – of child pornography of up to 237
months.
sentenced Hill to 174 months imprisonment.
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Here is an actual person being used in prostitution by [Hill], being
moved across state lines for the purposes of prostitution, and the
guidelines recommend a sentence of 15 to 21 months? I’m having a hard
time putting that in context under unwanted [sic] sentencing disparities.
I know they’re not the same, but here we’re dealing with a real
person who’s in prostitution. [Hill] is keeping the proceeds of that
money.
Shortly thereafter, the district court reiterated:
So I have on one hand a series of sentences that happen much
more frequently where we sentence someone to prison for downloading
pictures off the internet. As awful as they are, they’re downloading
photographs. Here we have an individual who actually had a woman in
essence in servitude serving as a prostitute for his monetary benefit. And
I need some help in where to put this in context of the nature of federal
sentencing.
I think the whole panoply of 3553(a) is open for discussion, and
I would like to hear that discussion so I can best determine what to do
today.
The court clarified that it recognized Hill’s victim was not a juvenile, and the
purpose of the court’s comparison between child pornography and Hill’s offense was
because “we don’t see many Mann Act cases in federal court[,]” and child
pornography is “the most common sex-related crime that the federal courts deal with.”
The court explained, “[s]o I was trying to put [Hill’s offense] in context and calibrate
it appropriately.”
The court later compared Hill’s Guidelines range to financial crimes, stating,
“This is the kind of guideline range I would typically see from a credit card scam, and
I don’t think I can compare the two,” and “[Hill’s Guidelines range] looks more like
a credit card identity theft case than it does a Mann Act, you know, subjecting a
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woman to prostitution across state lines type of case.” The court also compared Hill’s
Guidelines range to that of a drug offender, saying, “You know, 5 grams of crack
cocaine gets you an automatic 60 months in the federal penitentiary.”
Ultimately, the court found “that under 3553(a) the guideline range here that is
recommended is not appropriate given the total circumstances of this case when I
compare and contrast them to all these other cases.” The court explained, “I’m just
convinced that the guidelines are wrong here, given the human effects here of a
woman in prostitution exposed to health risk, sexually transmitted diseases, and she’s
turning over her proceeds to another person. And those aren’t just common sense.
I don’t think we can argue about those facts.”
Hill argues the district court procedurally erred in imposing the 51-month
sentence because the district court (1) did not adequately explain the reason for the
variance, and (2) improperly compared Hill’s crime with other crimes, primarily child
pornography. Hill also argues the 51-month sentence was substantively unreasonable.
II. DISCUSSION
A. Standard of Review
The first step in reviewing a sentence is to “ensure that the district court
committed no significant procedural error.” Gall v. United States, __ U.S. __, 128 S.
Ct. 586, 597 (2007). Examples of procedural error include: “failing to calculate (or
improperly calculating) 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 the chosen sentence—including an
explanation for any deviation from the Guidelines range.” Id.
Hill failed to object at sentencing to any alleged procedural sentencing error.
“If a defendant fails to object timely to a procedural sentencing error, the error is
forfeited and may only be reviewed for plain error.” United States v. Vaughn, 519
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F.3d 802, 804 (8th Cir. 2008) (citing United States v. Pirani, 406 F.3d 543, 549 (8th
Cir. 2005) (en banc); United States v. Guarino, 517 F.3d 1067, 1068-69 (8th Cir.
2008)). “Under plain error review, the defendant must show: (1) an error; (2) that is
plain; and (3) that affects substantial rights.” Id. (citing Johnson v. United States, 520
U.S. 461, 466-67 (1997); Fed. R. Crim. P. 52(b)). Even if the defendant shows these
three conditions are met, we “may exercise [our] discretion to correct a forfeited error
only if it ‘seriously affects the fairness, integrity, or public reputation of judicial
proceedings.’” Id. at 804-05 (quoting Johnson, 520 U.S. at 467, in turn quoting United
States v. Olano, 507 U.S. 725, 732 (1993)).
If we determine the district court committed no plain procedural error that
affected Hill’s substantial rights and seriously affected the fairness, integrity, or public
reputation of Hill’s sentencing, we will “then consider the substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard . . . , tak[ing] into
account the totality of the circumstances, including the extent of any variance from the
Guidelines range.” See Gall, 128 S. Ct. at 597. “In contrast to procedural errors, a
defendant does not forfeit an attack on the substantive reasonableness of a sentence
by failing to object in the district court.” Vaughn, 519 F.3d at 805 (citation omitted).
Although “[we] may consider the extent of the deviation, [we] must give due
deference to the district court’s decision that the § 3553(a) factors, on the whole,
justify the extent of the variance.” Gall, 128 S. Ct. at 597. “The sentencing judge is
in a superior position to find facts and judge their import under § 3553(a) in the
individual case.” Id. (quotation and citation omitted). Therefore, “[t]he fact that [we]
might reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Id.
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B. Sentencing Procedure
1. Explanation of Hill’s Sentence
Hill first contends the district court committed procedural error by failing
adequately to explain the chosen sentence. Gall sets forth the procedure to be
followed in sentencing a criminal defendant. The district court should begin “by
correctly calculating the applicable Guidelines range.” Gall, 128 S. Ct. at 596 (citing
Rita v. United States, __ U.S. __, 127 S. Ct. 2456 (2007)). “[T]he Guidelines should
be the starting point and the initial benchmark [, but] [t]he Guidelines are not the only
consideration[.]” Id. The district judge should allow “both parties an opportunity to
argue for whatever sentence they deem appropriate,” and then should “consider all of
the § 3553(a) factors to determine whether they support the sentence requested by a
party.” Id. The district judge
must make an individualized assessment based on the facts presented.
If he decides that an outside-Guidelines sentence is warranted, he must
consider the extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance. [It is]
uncontroversial that a major departure should be supported by a more
significant justification than a minor one. After settling on the
appropriate sentence, he must adequately explain the chosen sentence to
allow for meaningful appellate review and to promote the perception of
fair sentencing.
Id. at 597 (citing Rita, 127 S. Ct. 2456).
In explaining the chosen sentence and analyzing the relevant § 3553(a) factors,
“a district court is not required to provide ‘a full opinion in every case,’ but must ‘set
forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking
authority.” United States v. Robinson, 516 F.3d 716, 718 (8th Cir. 2008) (quoting
Rita, 127 S. Ct. at 2468).
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The district court in Hill’s case provided ample explanation of its rationale for
the sentence imposed. The court focused directly on the facts of Hill’s case and the
harm caused by Hill’s conduct, making the following statements at sentencing:
(1) “[Hill’s victim] is a real person, subjected to prostitution, controlled by [Hill],
moving at least from Kansas to Missouri”; (2) “That begs the question about the
amount and level of psychological control one must have in order for a woman to
submit to prostitution and give you the money she receives from that conduct”;
(3) “This woman [] is real. She’s not a photograph. She’s not something that was
downloaded from the internet and just saved on a hard drive, as horrible as that is
. . .”; and (4) “I’m just convinced that the guidelines are wrong here, given the human
effects here of a woman in prostitution exposed to health risk, sexually transmitted
diseases, and she’s turning over her proceeds to [Hill].” The district court further
explained, “under 18 U.S.C. [§] 3553(a), when I look at deterrence, the repetition of
the activity and the fear that it will be repeated, and to protect the public from future
crimes, and to avoid unwanted [sic] sentencing disparities, that a sentence of 51
months is an appropriate sentence to satisfy the statutory purpose of sentencing.” The
district court’s explanation was more than “enough to satisfy [this court] that he ha[d]
considered the parties’ arguments and ha[d] a reasoned basis for exercising his own
legal decisionmaking authority.” Robinson, 516 F.3d at 718 (quoting Rita, 127 S. Ct.
at 2468). The district court did not commit significant procedural error, much less
plain error, in explaining Hill’s sentence.
2. Comparison of Hill’s Offense to Other Offenses
Hill also contends the district court procedurally erred by comparing Hill’s
prostitution offense to other offenses, namely possession of child pornography. There
is no evidence the district court mistakenly conflated Hill’s offense with a child
pornography offense or any other offense or made erroneous factual findings with
respect to Hill’s conduct. See Gall, 128 S. Ct. at 597 (declaring it is procedural error
to “select[] a sentence based on clearly erroneous facts”). On the contrary, the
sentencing transcript clearly reflects the district court’s awareness the two offenses are
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“not the same” and Hill’s victim was not a juvenile. The purpose of the court’s
comparison between child pornography and Hill’s offense was because “we don’t see
many Mann Act cases in federal court[,]” and child pornography is “the most common
sex-related crime that the federal courts deal with.” The court explained, “[s]o I was
trying to put [Hill’s offense] in context and calibrate it appropriately.” The court later
compared Hill’s Guidelines range to sentences typically imposed in credit card
identity theft cases. The court also commented, “You know, 5 grams of crack cocaine
gets you an automatic 60 months in the federal penitentiary.”
The district court was not required to sentence Hill in a vacuum or disregard its
substantial sentencing experience. Cf. Gall, 128 S. Ct. at 597-98 (observing district
courts are in a better position to find facts, judge their import under § 3553(a), and
make credibility determinations because district courts “see so many more Guidelines
sentences than appellate courts do”) (citation omitted). Hill cites no authority
prohibiting a district court from comparing a defendant’s crime to other types of
crimes in an attempt to calibrate the relative severity of a defendant’s conduct and
impose an appropriate sentence. Our search discloses no such authority. We therefore
conclude the district court did not procedurally err, and certainly did not commit plain
error, by comparing and contrasting Hill’s crime and Guidelines range to other types
of offenses.
3. District Court’s Disagreement with Hill’s Guidelines Range
Finally, the district court did not err in concluding the Guidelines range in this
case was insufficient to accomplish the purpose of sentencing set forth in § 3553(a).
In Kimbrough v. United States, 128 S. Ct. 558 (2007), the Supreme Court recognized
a district court does not abuse its discretion by determining the applicable Guidelines
range results in a sentence “greater than necessary” to achieve § 3553(a)’s sentencing
objectives in a particular case. Id. at 575. Hill’s sentence presents the inverse of the
situation in Kimbrough. The district court in Kimbrough determined the applicable
Guidelines range resulted in a sentence “greater than necessary” to achieve
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§ 3553(a)’s sentencing objectives, id. at 565. The district court in Hill’s case
determined the applicable Guidelines range resulted in a sentence insufficient to
achieve § 3553(a)’s sentencing objectives.
The district court’s disagreement with the Guidelines range in Hill’s case was
clearly the product of considered and careful analysis. The sentencing transcript
indicates the sentencing court thoughtfully grappled with the appropriate sentence,
taking account of the facts of Hill’s case, the impact of Hill’s crime on the victim, the
need to protect society, the concern Hill would repeat his crime and the need for
deterrence, and the relative severity of Hill’s crime in the overall scheme of federal
sentencing. The district court determined, “I find that under 3553(a) the guideline
range here that is recommended is not appropriate given the total circumstances of this
case when I compare and contrast them to all these other cases.” Shortly thereafter,
the court stated, “I’m just convinced that the guidelines are wrong here, given the
human effects here of a woman in prostitution exposed to health risk, sexually
transmitted diseases, and she’s turning over her proceeds to another person.” Just as
the district court in Kimbrough was within its discretion to determine the applicable
Guidelines range was “greater than necessary,” we conclude the district court in Hill’s
case was within its discretion to determine Hill’s Guidelines range was insufficient to
achieve an appropriate sentence. The district court’s sentencing calculation, selection,
and explanation do not represent any significant procedural error.
C. Substantive Reasonableness
Hill contends his 51-month sentence was substantively unreasonable.
“[T]ak[ing] into account the totality of the circumstances, including the extent of [the]
variance from the Guidelines range” and “giv[ing] due deference to the district court’s
decision that the § 3553(a) factors, on the whole, justify the extent of the variance,”
Gall, 128 S. Ct. at 597, our review of Hill’s sentence reveals no abuse of
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the district court’s considerable discretion and no basis for concluding the sentence
is substantively unreasonable.
III. CONCLUSION
We affirm Hill’s sentence.
BRIGHT, Circuit Judge, dissenting.
I dissent. Here the guidelines range was 15 to 21 months. The guidelines
already take into account the 18 U.S.C. § 3553(a) factors. The district court did not
think that the guidelines were proper, but gave no valid reason for raising the 15-21
months to 51 months, a raise of about 150%.
The comparison to other sex crimes as noted by the majority is not convincing.
The district court imposed what I call a sentence without support. That is
inappropriate. We require good reason for a judge to depart below the guidelines.
The same approach should be followed for a sentence above the guidelines.
This defendant deserves no special consideration from any judge, but he is
entitled to equal treatment with other offenders similarly situated.
This defendant is otherwise getting his just deserts. See footnote 2 in majority’s
opinion. Hill will serve 174 months (14.5 years) for his other sex-related crimes.
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