United States v. Walter Roberts ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-2222
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Walter Richard Roberts
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Texarkana
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Submitted: December 16, 2013
Filed: April 3, 2014
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Before WOLLMAN, LOKEN, and KELLY, Circuit Judges.
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LOKEN, Circuit Judge.
In February 2012, an adult man notified Texarkana, Arkansas, police that
Walter Richard Roberts, a long-time youth baseball coach, had sexually abused the
man on more than 100 occasions between 1986 and 1992, when the victim was
between 9 and 14 years old. An investigation revealed that Roberts had abused many
other boys. On one occasion in 1988 or 1989, Roberts sexually abused one boy on a
fishing trip that crossed the Arkansas border into Texas. As that offense was within
the applicable federal statute of limitations, Roberts was charged with and pleaded
guilty to one count of transporting a minor in interstate commerce with intent to
engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). The district
court,1 varying upward, sentenced Roberts to 120 months in prison, the statutory
maximum for a violation of § 2423(a) at the time Roberts committed the offense.
Roberts appeals the sentence. We affirm.
I. An Ex Post Facto Clause Issue.
At sentencing, using the 1992 version of the Sentencing Guidelines, as the
parties had agreed, the district court determined that his advisory guidelines range was
63 to 78 months in prison. The government urged an upward departure or variance
based on aggravating factors and the victims’ psychological injury. The government
noted that, at the time of sentencing, a violation of § 2423(a) was punishable by a
prison term of ten years to life, and the advisory guidelines range was 262 to 327
months in prison. The district court imposed an upward variance. In the course of a
lengthy explanation for imposing the statutory maximum 120-month sentence, the
court stated, “The maximum sentence you can serve is 10 years, but if you committed
this crime today, you would be facing a much longer sentence.”
The Constitution’s ex post facto clause, Art. I, § 9, cl. 3, is violated when the
retroactive application of a change in the law creates “a sufficient risk of increasing
the measure of punishment attached to the covered crimes.” Garner v. Jones, 529 U.S.
244, 250 (2000) (quotation omitted). Roberts argues for the first time on appeal that
the district court’s reference to the increased punishment he would face if he
committed the crime today demonstrates that intervening amendments to the
1
The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas.
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Guidelines subjected him to a “substantial risk” of increased punishment. This
contention is without merit.
At the time of Roberts’s sentencing, there was disagreement among some
circuits whether the ex post facto clause barred applying subsequent amendments to
the now-advisory Guidelines. The Supreme Court resolved that conflict in Peugh v.
United States, concluding that “[a] retrospective increase in the Guidelines range
applicable to a defendant creates a sufficient risk of a higher sentence to constitute an
ex post facto violation.” 133 S. Ct. 2072, 2084 (2013). However, the court explained,
although “application of a higher Guidelines range violates the Ex Post Facto Clause,
sentencing courts will be free to give careful consideration to the current version of
the Guidelines as representing the most recent views of the agency charged by
Congress with developing sentencing policy. . . . The newer Guidelines [will be] one
of many reasons a district court might give for deviating from the older Guidelines.”
Id. at 2087 (emphasis in original). Here, the district court applied the Guidelines the
parties agreed were in effect at the time of Roberts’s offense in determining his
advisory range, and then it considered the current Guidelines in determining the final
sentence. Thus, the court perfectly anticipated the decision in Peugh. There was no
error, much less plain error.
II. Abuse of Sentencing Discretion.
Roberts argues the district court abused its sentencing discretion by failing
adequately to explain a substantively unreasonable sentence. The failure-to-explain
contention is frivolous. The court’s explanation of its upward variance, which took
up more than three pages of the sentencing transcript, came after three victims and two
of their fathers testified to Roberts’s extensive abuse of many young boys and the
extreme, long-lasting emotional and psychological injuries he inflicted on his young
victims. The court noted that Roberts as baseball coach, family friend, and family
member had for many years “surrounded himself with young boys” and “put himself
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in a position of authority where he would be trusted and respected by these boys so
he could abuse them.” His victims were of “an age when the child was naive, and
therefore most vulnerable to a person in a position of trust,” making Roberts nothing
less than “a predator” whose actions “had a substantial and long-lasting impact on [the
victims], on their families and on this community as a whole.” The court concluded
that the guidelines range of 63 to 78 months failed to “adequately reflect[ the 18
U.S.C. §] 3553 criteria” of deterring Roberts from abusing young children and
protecting society from these serious crimes.
This explanation was more than sufficient “to satisfy the appellate court that
[the district court] has considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.” United States v. Hill, 552 F.3d
686, 691 (8th Cir. 2009) (quotation omitted). Indeed, as Roberts did not make a
timely objection to the court’s explanation, we should deem the issue waived. See
United States v. Krzyzaniak, 702 F.3d 1082, 1085 n.3 (8th Cir. 2013).
Roberts further argues that the district court abused its discretion by imposing
a substantively unreasonable sentence that gave too much weight to the increased
punishment authorized in the current statute and Guidelines; too little weight to his
advisory guidelines range; and too little weight to mitigating factors -- Roberts’s clean
criminal record, military and community service, and role as a good father and family
provider. Our review of the substantive reasonableness of a sentence for abuse of
discretion is highly deferential. “[I]t will be the unusual case when we reverse a
district court sentence -- whether within, above, or below the applicable Guidelines
range -- as substantively unreasonable.” United States v. Feemster, 572 F.3d 455, 464
(8th Cir. 2009) (en banc) (quotation omitted). As we have often stated, “a sentencing
court has wide latitude to weigh the section 3553(a) factors in each case and assign
some factors greater weight than others,” United States v. Lozoya, 623 F.3d 624, 627
(8th Cir. 2010) (quotation omitted). After careful review of the extensive sentencing
record, we conclude there was no abuse of the district court’s wide sentencing
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discretion. See, e.g., United States v. Borromeo, 657 F.3d 754, 756-57 (8th Cir.
2011).
The judgment of the district court is affirmed.
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