United States v. Steve Willard ( 2006 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 05-3706
    ___________
    United States of America,                *
    *
    Appellee,                  *
    * Appeal From the United States
    v.                                 * District Court for the
    * Western District of Arkansas.
    Steven Gerard Willard,                   *
    *      [UNPUBLISHED]
    Appellant.                  *
    ___________
    Submitted: June 12, 2006
    Filed: June 16, 2006
    ___________
    Before SMITH, HEANEY, and GRUENDER, Circuit Judges.
    ___________
    PER CURIAM.
    Steven Gerard Willard pled guilty to one count of traveling in interstate
    commerce for the purpose of sexual conduct with a person under eighteen and one
    count of transporting child pornography via the internet. The district court1 sentenced
    him to 168 months of imprisonment, followed by supervised release for life. He
    appeals his sentence, and we affirm.
    1
    The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
    for the Western District of Arkansas.
    Willard was indicted following a sting operation aimed at internet-based sexual
    predators. He initiated internet-based conversations with what he thought were two
    girls, aged twelve and thirteen. In actuality, they were fictitious identities maintained
    by an adult private citizen,2 who contacted police after Willard sent sexually explicit
    images to one of her alternate identities, “Fancydancer14.” Willard, a Washington
    resident, arranged to meet Fancydancer14 in her home state of Arkansas. When he
    arrived at the agreed-upon hotel room, he was arrested. A subsequent search of his
    residence uncovered child and adult pornography.
    Willard was then charged with one count of traveling in interstate commerce
    to engage in sexual conduct with a minor,3 and five counts of transmitting child
    pornography in interstate commerce.4 He entered into a plea agreement, whereby he
    pled guilty to the charge of traveling in interstate commerce to engage in sexual
    conduct with a minor and one count of transmitting child pornography in exchange
    for the dismissal of the remaining charges. At sentencing, he argued that offense-
    related enhancements could not be imposed because they were not admitted or proven
    to a jury beyond a reasonable doubt. The district court held a lengthy sentencing
    hearing in which a number of witnesses were called to present testimony related to
    the enhancements. At the end of the hearing, the district court overruled Willard’s
    objection, and calculated a guidelines range of 168 to 210 months. Willard was
    sentenced to 168 months, and this appeal followed.
    Willard first argues that the court could not impose any enhancements unless
    they were pled and proven to a jury beyond a reasonable doubt or admitted by him.
    2
    By perhaps strange fortuity, both “girls” Willard chatted with were the same
    person.
    3
    
    18 U.S.C. § 2423
    (b).
    4
    18 U.S.C. § 2252A(a)(1).
    -2-
    This contention is at odds with our circuit precedent. “Nothing in [United States v.
    Booker, 
    543 U.S. 220
     (2005)] suggests that sentencing judges are required to find
    sentence-enhancing facts beyond a reasonable doubt under the advisory Guidelines
    regime.” United States v. Pirani, 
    406 F.3d 543
    , 551 n.4 (8th Cir. 2005) (en banc). A
    judge may find facts that enhance a sentence without violating a defendant’s jury trial
    rights, so long as the judge understands that the guidelines are advisory. United
    States v. Morell, 
    429 F.3d 1161
    , 1164 (8th Cir. 2005).
    The record in this case leaves no question that the district court understood
    Booker’s impact. It noted that the Supreme Court struck down the mandatory portion
    of the guidelines and left the remainder intact, such that enhancements remained the
    product of judicial factfinding. This circuit has previously rejected Willard’s
    argument that facts must be found by a jury before they are used to enhance a
    sentence. Pirani, 
    406 F.3d at 551
    .
    Willard next argues his sentence is “unreasonable,” as that term applies to post-
    Booker sentences. A sentence is unreasonable if it appears the court gave significant
    weight to an improper factor, failed to fully consider an appropriate factor, or
    otherwise made a clear error of judgment. United States v. Haack, 
    403 F.3d 997
    ,
    1004 (8th Cir. 2005). A sentence within the recommended guidelines range,
    however, is presumed reasonable. United States v. Lincoln, 
    413 F.3d 716
    , 717 (8th
    Cir. 2005).
    Willard’s sentence of 168 months is at the low end of his guidelines range, and
    thus presumptively reasonable. Willard does not offer any specific reason why his
    sentence is unreasonable. Rather, he claims it is unreasonable because it was the
    product of enhancements imposed due to judge-found facts. As stated above, that
    argument fails, and he directs us to nothing else in the record indicating his sentence
    is unreasonable in light of the § 3553(a) factors. The sentencing transcript contains
    a lengthy discussion in which the district court carefully considers those factors and
    -3-
    how they ought to apply to Willard’s situation and ultimate sentence. We find no
    error here.
    For the reasons stated above, we affirm.
    ______________________________
    -4-