United States v. Danny Dumas ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-2560
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Danny Lee Dumas
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: September 25, 2018
Filed: December 18, 2018
[Unpublished]
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Before COLLOTON, BEAM, and GRASZ, Circuit Judges.
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PER CURIAM.
Danny Dumas appeals his imposed statutory maximum sentence of 240 months
in prison and supervised release for life, following his guilty plea to one count of
receiving and distributing child pornography in violation of 18 U.S.C. § 2252. The
sentence represents the statutory maximum, and was a variance above the Guidelines
range of 188 to 235 months. At sentencing, defense counsel advocated for a
significant downward variance, citing Dumas's significant mental health problems,
including diagnoses of bipolar disorder and schizophrenia. Counsel also argued that
United States Sentencing Guideline 2G2.2(b)(6), which adds two levels for use of a
computer in the receipt and production of child pornography, should not be used in
every child pornography case because it is essentially redundant in this day and age,
as all or nearly all such offenses involve computers now. In response, the district
court1 questioned defense counsel extensively about Dumas's prior history of poor
success on state parole from various serious and disturbing state court crimes, his lack
of compliance with taking his mental health drugs when he was not in prison, and the
fact that the crimes he was actually charged with in state court likely under
represented his actual criminal history. The prosecutor underscored these factors
outlined by the district court's line of questioning, and with regard to the U.S.S.G. §
2G2.2(b)(6) enhancement, pointed out that the instant case was not a run-of-the-mill
child pornography case and that Dumas used the computer for more than just peer-to-
peer downloading and sharing. The prosecutor noted that in addition to file sharing,
Dumas accessed chat rooms wherein Dumas suggested to a person that this person
should molest a young child. Further, Dumas made comments to another person in
a chat room indicating that Dumas himself was molesting an underage youth. The
prosecutor ultimately asked for a within-Guidelines sentence of 200 months. When
pronouncing sentence, the district court listed and stated that it was considering the
factors set forth in 18 U.S.C. § 3553(a), and sentenced Dumas to the statutory
maximum of 240 months in prison. Dumas appeals the sentence as substantively
unreasonable, raising the mental health issues, challenging the reasonableness of the
U.S.S.G. § 2G2.2(b)(6) computer enhancement, and taking issue with the fact that the
sentence is above the Guidelines range despite the fact that Dumas took full
responsibility for his crime.
1
The Honorable Roseann Ketchmark, United States District Judge for the
Western District of Missouri.
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On a substantive reasonableness challenge, we review the district court's
sentence for an abuse of discretion. United States v. Feemster, 572 F.3d 455, 461
(8th Cir. 2009) (en banc). The district court abuses its discretion if it fails to consider
a relevant factor that should have instead received significant weight, gives
significant weight to an improper factor, or considers appropriate factors but commits
a clear error of judgment in weighing those factors. United States v. Long, 906 F.3d
720, 727 (8th Cir. 2018). We have reviewed the record, including the transcript and
presentence investigation report, and find no abuse of discretion. Here, the district
court considered all of the relevant factors, did not give weight to any improper
factor, and did not commit a clear error in judgment. The district court's questioning
reveals that it carefully considered Dumas's mental health issues, and questioned the
government about the use of U.S.S.G. § 2G2.2(b)(6) as an enhancement for specific
offense conduct. To the extent that there may be some concern about U.S.S.G. §
2G2.2(b)(6) and its redundancy with regard to use of a computer in child pornography
cases, we agree with the government that this particular case is not an appropriate
vehicle for challenging that provision, given Dumas's actual use of computers in this
case. While we can appreciate the fact that Dumas has apparently taken responsibility
for his crime, he did not advocate that particular fact as a reason for a further
downward variance at sentencing, and he did in fact receive a three-level reduction
to his base offense level for acceptance of responsibility. Thus, we find no abuse of
discretion and affirm the district court.
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