United States v. Amin Ricker ( 2020 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2351
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Amin Ricker
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota - Pierre
____________
Submitted: June 18, 2020
Filed: December 22, 2020
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Before GRUENDER, WOLLMAN, and KOBES, Circuit Judges.
____________
WOLLMAN, Circuit Judge.
A jury convicted Amin Ricker of the following federal offenses: two counts
of aggravated sexual abuse of a child who had not attained the age of 12 years; one
count of travel with intent to engage in illicit sexual conduct; and four counts related
to the transportation, distribution, receipt, and possession of child pornography. The
district court1 sentenced Ricker to a total of 600 months’ imprisonment. Ricker
argues that the district court erred in denying his motion to suppress evidence, in
sequestering his father during trial, in admitting certain evidence, and in determining
the fact that Ricker had a prior conviction for possession or distribution of child
pornography. Ricker also contends that his sentence is substantively unreasonable.
We affirm.
I. Background
Ricker traveled from South Dakota to Texas in January and March 2015 to
sexually abuse S.M. and J.M., the seven-year-old twin daughters of an acquaintance.
He took photos and videos of the abuse.
Law enforcement officers in Pierre, South Dakota, received information in
February 2017 suggesting that cheer_dad17 sent and received child pornography
images via online chat. The internet provider disclosed that cheer_dad17 was
accessing the internet from Ricker’s address. Officers then obtained a search warrant
for Ricker’s residence.
During the search, Ricker made incriminating statements and confirmed that
he was the account user cheer_dad17. Officers seized several devices, including
Samsung cell phones, an Apple iPad, and a 64-gigabyte thumb drive. A forensic
review of the seized devices revealed approximately 30,000 images and more than
100 videos of child pornography and child erotica. Data recovered from a Samsung
cell phone indicated that Ricker had shared with an online friend links to his file
storage system, which contained child pornography. In return, the friend sent Ricker
child pornography and links to child pornography websites.
1
The Honorable Roberto A. Lange, now Chief Judge, United States District
Court for the District of South Dakota.
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Pornographic and non-pornographic images and videos of S.M. and J.M., were
recovered from the 64-gigabyte thumb drive. The metadata indicated that the photos
and videos were created in January and March 2015 and that many were created with
the models of Samsung cell phone and Apple iPad that had been seized from Ricker.
Ricker was charged with the child sexual abuse and child pornography offenses
set forth above. After an evaluation, he was deemed competent to stand trial. The
results of his evaluation included diagnostic impressions of autism spectrum disorder
and major depression and a recommendation to monitor for pedophilic disorder.
Ricker’s father moved from Florida to South Dakota to support his son during these
legal proceedings. Ricker lived with his father while on pretrial release.
Ricker moved to suppress the statements he made while his home was being
searched, arguing that he was in custody, that he had invoked his right to counsel, and
that his statements were not voluntary. The district court denied the motion, adopting
the magistrate judge’s2 report and recommendation. As discussed more fully below,
the district court overruled Ricker’s pretrial objections to the sequestration of his
father as a potential witness and to the admission of descriptive cover sheets attached
to the evidence obtained from his devices. The district court also denied Ricker’s
motion to exclude the expert testimony of Anthony Imel, a Physical Scientist Forensic
Examiner with the Federal Bureau of Investigation (FBI).
At trial, the government presented evidence—bank records, employment
records, and airline records—that Ricker had traveled from South Dakota to Texas
in January and March 2015. Ricker also confirmed the trips. Several law
enforcement officers testified, including Special Assistant Attorney General Toby
Russell of the South Dakota Division of Criminal Investigation. Russell had
2
The Honorable Mark A. Moreno, United States Magistrate Judge for the
District of South Dakota.
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completed forensic examinations on the devices seized from Ricker and had created
the descriptive cover sheets for the evidence stored therein, which included photos,
videos, and copies of online chats. Photos and videos showed Ricker digitally
penetrating S.M. and J.M. and pushing his erect penis against their vaginas. In one
video, S.M. can be heard saying, “Amin . . . stop hitting.”
S.M. and J.M. testified that Ricker had sexually abused them in Texas, when
they were seven years old. S.M. explained that Ricker would grab her and kiss her
on the lips. He once climbed in bed with her, began taking off her clothes, and
grabbed her ankle when she tried to get away. She was able to break free. On
another occasion, S.M. was in the bathroom when Ricker entered and started kissing
her. S.M. testified that “he pulled me in the bedroom and started having sex with
me,” which she clarified as “taking his private spot into mine.” The government
confirmed that S.M. meant vaginal intercourse. J.M. testified that she had witnessed
Ricker sexually abuse S.M. and that Ricker had abused her, as well, “put[ting] his
private part to mine.” Both girls testified that Ricker bought their family gifts and
took them out to dinner.
S.M. and J.M.’s mother, Rhonda, testified that Ricker had traveled to Texas
two or three times to visit her family in late 2014 or early 2015. He brought gifts for
the children and gave Rhonda money to help pay bills and buy food. Rhonda testified
that she walked into a room during one of Ricker’s visits and saw Ricker lying on the
floor in his underwear and the girls nearby in their underwear, whereupon she left the
room. She returned and left repeatedly, observing Ricker naked with S.M.’s hand on
his penis and later observing J.M. with her mouth on Ricker’s penis. S.M. and J.M.
were removed from their mother’s home in December 2015. Rhonda testified that she
had previously admitted to a Texas law enforcement officer that she had been
watching the door to ensure that no one saw Ricker sexually abusing the girls.
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Rhonda identified S.M. and J.M. as the children with Ricker in certain photos and
videos that were found on Ricker’s devices.3
FBI Forensic Examiner Imel testified that he had compared known images of
Ricker’s left hand to two images of a left hand from a video found on a seized device.
He “eliminated the female genitalia that was present in the” video images to complete
the comparison. He pointed out the similarities between the images and testified that
Ricker’s left index finger appeared to be the left index finger depicted in the video.
Ricker presented expert evidence regarding his autism diagnosis and testified
in his own defense. He denied sexually abusing S.M. and J.M. and testified that the
images of child pornography may have been put in his electronic storage by an online
friend who shared the account.
Ricker was found guilty on all counts. At sentencing, the district court
determined that Ricker’s total offense level was 43, that his criminal history category
was I, and that his sentencing range under the U.S. Sentencing Guidelines
(Guidelines) was life imprisonment.
II. Discussion
A. Motion to Suppress
We first address the district court’s denial of Ricker’s motion to suppress the
statements he made to law enforcement officers while his home was being searched.
We review the district court’s legal conclusions de novo and its findings of fact for
clear error. United States v. Czichray, 378 F.3d 822, 825 (8th Cir. 2004).
3
Rhonda was charged with aggravated sexual abuse of a child in Dallas County,
Texas. She agreed to plea to a lesser charge in exchange for her testimony against
Ricker.
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According to evidence presented at the suppression hearing, Detective Dusty
Pelle and Officer David Estes of the Pierre, South Dakota, Police Department, along
with five other law enforcement officers, went to Ricker’s residence to execute a
search warrant in February 2017. Estes activated his bodycam upon arriving at the
scene.
Pelle and Estes approached the mobile home in which Ricker had rented a
room. When Ricker answered the door, Pelle stepped inside and told Ricker about the
search, while Estes conducted a protective sweep. Pelle then explained that Ricker
was not under arrest, but that Pelle would like to speak to him.
With Pelle’s permission, Ricker called his father, Carl Ricker, who thereafter
asked to speak to the detective. Pelle accepted the phone and explained that Ricker
was not under arrest, but that Pelle wanted to interview Ricker about “some online
stuff.” Carl Ricker said that he did not want his son to talk to anyone without an
attorney present, to which Pelle responded that Ricker was an adult who could make
that decision for himself. During the call, the remaining officers entered the residence
and began the search.
Estes kept watch over Ricker during the search. While still talking with his
father, Ricker went into the bathroom to urinate. Estes instructed Ricker to keep the
door open, later testifying that he did so to ensure that Ricker could not destroy the
phone or grab a hidden weapon. Ricker told his father to call his attorney, because
his cell phone was covered by the warrant. After Pelle again spoke to Carl Ricker,
the call ended and officers seized the cell phone.
Estes and Ricker stepped outside the mobile home, where Estes made small
talk. Ricker initially told Estes that he was scared and nervous, but he soon began
discussing his work as a railroad conductor and his early life in Singapore. Pelle
eventually joined Estes and Ricker. Pelle explained that he would like to talk to
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Ricker, but that it was Ricker’s decision and that he could stop the conversation at
any time. When Pelle asked whether he would like to talk at the police station or in
Pelle’s vehicle, Ricker replied, “we can talk in the car.”
Pelle activated a recording device after they were seated in the front seat of his
vehicle. Pelle reiterated that Ricker was not under arrest, that Ricker did not have to
talk to him, and that Ricker could end the conversation at any time. After Ricker said
that his attorney was at a funeral, Pelle explained, “[I]f you don’t want to talk to me
because you want an attorney, you got to tell me that . . . ’cause if you say you want
an attorney, . . . we’ll just stop . . . talking.” Pelle twice reiterated that if Ricker asked
for an attorney, the conversation would end. Ricker said that his father wanted the
attorney to be present, to which Pelle replied that Ricker was an adult and that it was
his decision to ask for an attorney. Ricker thereafter made several incriminating
statements. When Ricker indicated that he would like to speak to his attorney, Pelle
immediately terminated the interview, and the men exited the vehicle.
Ricker argues that the district court should have suppressed the statements he
made to Pelle, because he was in custody when he made them and had not been
advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). To determine
whether a person is in custody, we ask “whether there is a formal arrest or restraint
on freedom of movement of the degree associated with a formal arrest.” California
v. Beheler, 463 U.S. 1121, 1125 (1983) (internal quotation marks and citation
omitted). We consider the totality of the circumstances in determining how a
reasonable person in Ricker’s position would have understood his situation. See
Berkemer v. McCarty, 468 U.S. 420, 442 (1984); see also United States v. Griffin,
922 F.2d 1343, 1349 (8th Cir. 1990) (listing six non-exhaustive factors for evaluating
whether an individual is in custody for purposes of Miranda). We have said that
“[t]he most obvious and effective means of demonstrating that a suspect has not been
taken into custody . . . is for the police to inform the suspect that an arrest is not being
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made and that the suspect may terminate the interview at will.” Griffin, 922 F.2d at
1349 (internal quotation marks and citation omitted).
We conclude that Ricker was not subjected to the restraints associated with a
formal arrest and thus was not taken into custody at any time during the search of his
home. Although several officers were present to execute the search warrant, only
Pelle and Estes had any meaningful interaction with Ricker. Pelle repeatedly
explained to Ricker that he was not under arrest, that the questioning was voluntary,
that Ricker was free to end the conversation at any time, and that Pelle would end the
interview if Ricker were to ask to speak to an attorney. To ensure that Ricker did not
interfere with the search and that the other officers could complete their evidence-
gathering tasks, Estes did not allow Ricker to move freely throughout his home and
kept watch over Ricker when he used the bathroom. Ricker was not handcuffed or
physically restrained, however, and he was allowed to call his father on his cell
phone. Neither Pelle nor Estes employed any strong-arm tactics or deceptive
stratagems during their conversations with Ricker. True to his word, Pelle ended the
interview as soon as Ricker himself indicated that he wanted to wait for his attorney.
In light of these circumstances, a reasonable person in Ricker’s situation would not
have viewed himself restrained as though he were under formal arrest.
We also conclude that Ricker did not assert his Fifth Amendment right to
counsel by saying that his attorney was at a funeral and that his father wanted his
attorney to be present. See Davis v. United States, 512 U.S. 452, 462 (1994) (holding
that the remark “[m]aybe I should talk to a lawyer” was not a request for counsel);
United States v. Mohr, 772 F.3d 1143, 1146 (8th Cir. 2014) (holding that the
defendant’s “statement ‘I think I should get [a lawyer]’ was not an unequivocal
invocation of his right to counsel”). Nor could Carl Ricker invoke his son’s right to
counsel for him. See Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986) (“[T]he
privilege against compulsory self-incrimination is, by hypothesis, a personal one that
can only be invoked by the individual whose testimony is being compelled.”).
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Finally, we agree with the district court’s determination “that Ricker being on the
autism spectrum and English being his second language did not make his statements
involuntary based on the totality of the circumstances.” D. Ct. Order of March 8,
2019, at 3 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).
B. Sequestration of Carl Ricker
A week before trial began, the government filed its amended witness list, which
included Carl Ricker’s name. The government also moved in limine to sequester all
witnesses. Ricker objected to the sequestration of his father, arguing that the
government had placed Carl Ricker on the witness list to exclude him from the trial.
The government responded that Carl Ricker was a witness with respect to the day the
search warrant was executed, as well as with respect to Ricker’s mental health and
autism diagnosis, about which Ricker’s expert would testify. The court found that the
government presented “a colorable reason” for placing Carl Ricker on the witness list
and concluded that the sequestration order thus applied to him. The court revisited
its ruling before the government closed its case-in-chief and decided to keep its order
in place. Carl Ricker remained sequestered during the trial but was not called as a
witness.
Rule 615 of the Federal Rules of Evidence states, “At a party’s request, the
court must order witnesses excluded so that they cannot hear other witnesses’
testimony.” The purpose of sequestration is twofold. “It exercises a restraint on
witnesses ‘tailoring’ their testimony to that of earlier witnesses; and it aids in
detecting testimony that is less than candid.” Geders v. United States, 425 U.S. 80,
87 (1976). We review for abuse of discretion the district court’s decision to sequester
a witness, reversing only upon “a showing of substantial prejudice.” See United
States v. Conners, 894 F.2d 987, 991 (8th Cir. 1990) (standard of review).
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We conclude that the district court did not abuse its discretion by sequestering
Carl Ricker during trial. Although the government has failed to articulate how Carl
Ricker’s testimony about the day of the search might have been relevant at trial, its
claim that it considered calling Carl Ricker to rebut the defense expert’s testimony
is not without some merit. Ricker had filed a notice of intent to present expert
evidence, anticipating that the psychiatrist would testify to “Ricker’s mental health
condition(s).” Carl Ricker had testified at the suppression hearing that despite having
been diagnosed as suffering from autism, his son was intelligent and self-sufficient.
Carl Ricker also had claimed that the victims had taken advantage of his son. The
district court’s decision to order Carl Ricker’s sequestration thus fell within the
bounds of its discretion.
Ricker argues that the exclusion of Carl Ricker from the courtroom during trial
violated his Sixth Amendment right to a public trial and constituted structural error.
The Sixth Amendment guarantees an accused’s “right to a speedy and public trial.”
The Supreme Court has said “that an accused is at the very least entitled to have his
friends, relatives and counsel present, no matter with what offense he may be
charged.” In re Oliver, 333 U.S. 257, 272 (1948). This entitlement is not absolute,
however, and does not necessarily prohibit the sequestration under Rule 615 of the
defendant’s friends or relatives who may be called as witnesses. See United States
v. Blanche, 149 F.3d 763, 769-70 (8th Cir. 1998) (rejecting defendant’s claim that his
Sixth Amendment right to a public trial was violated when the district court, pursuant
to Rule 615, refused to allow his sister to be in the courtroom for part of trial); see
also United States v. Sherlock, 962 F.2d 1349, 1356 (9th Cir. 1989) (“The right to a
public trial . . . is not absolute and must give way in some cases to other interests
essential to the fair administration of justice.” (citing Waller v. Georgia, 467 U.S. 39,
45 (1984))). Because Carl Ricker could have been called to testify during his son’s
trial, we conclude that the district court did not err when it excluded him from the
courtroom under Rule 615.
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C. Admission of Cover Sheets
Special Assistant Attorney General Russell completed forensic examinations
of nineteen devices seized from Ricker. Russell testified that he previewed the files
on the devices looking for evidence of child pornography, which he defined as
“images or videos that show minors engaging in prohibited sex acts.” The district
court interrupted Russell’s testimony to explain to the jury that they would receive
an instruction “defining child pornography under federal law, which may or may not
be different than [the] testimony you’re hearing.”
Over Ricker’s objection, the district court admitted the descriptive cover sheets
that Russell had created to accompany the numerous exhibits associated with his
forensic examinations. The cover sheets stated the device information and described
the underlying exhibit, typically listing the file name, the file path, and the file date
and time. Some cover sheets also included Russell’s opinions, however. For
example, one described the exhibit as “show[ing] the receipt of a video file depicting
child pornography” and another described the exhibit as containing images “that are
visual duplicates or visually similar to the erotic and pornographic image files
depicting [the minor victim] that were recovered” from another device. Some cover
sheets identified the minor victim. The district court issued the following pre-
submission limiting instruction:
Some of these cover sheets and some of Special Agent Russell’s
testimony characterized images as “child pornography” and named
someone whom Special Agent Russell believed to be the subject of the
image or exhibit. It is for you to decide based on the evidence and these
instructions what, if any, images constitute child pornography and who
is pictured in any image.
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Ricker argues that the information set forth on the cover sheets constituted
inadmissible hearsay. “‘Hearsay’ means a statement that (1) the declarant does not
make while testifying at the current trial or hearing; and (2) a party offers in evidence
to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c).
Statements include a person’s written assertions. Fed. R. Evid. 801(a). We review
the district court’s evidentiary rulings for abuse of discretion. See United States v.
Hawkins, 796 F.3d 843, 864 (8th Cir. 2015) (standard of review).
The opinions set forth in the cover memos (e.g., that images depicted child
pornography, that certain images were similar to other images, and that certain
victims were depicted in the exhibits) constituted hearsay. These previously written
assertions by Russell were offered in evidence by the government to prove the truth
of the matters asserted. The government did not cite any relevant rule or case that
would permit Russell’s earlier statements to be admitted into evidence. We thus
conclude that the district court should not have admitted these hearsay-containing
cover sheets into evidence.
We do not decide whether it was error to admit the cover sheets that listed only
the device and file information (i.e., name, path, date, and time). Ricker has not
specifically challenged the content of those cover sheets, and we conclude that he
suffered no prejudice from their admission.
We hold that any error in admitting the cover sheets was harmless in light of
the overwhelming evidence against Ricker, coupled with the district court’s limiting
instruction. See Hawkins, 796 F.3d at 866 (holding that the district court’s erroneous
admission of certain evidence was harmless in light of the overwhelming evidence
and “the safeguards the district court and the parties implemented to minimize the
prejudicial effect of this evidence”); United States v. Adejumo, 772 F.3d 513, 525
(8th Cir. 2014) (“An erroneous evidentiary ruling is harmless . . . if it did not have a
substantial influence on the jury’s verdict.”). The victims offered compelling
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testimony of the abuse they suffered, which was supported by the photos and videos
of their abuse, as well as the testimony of other witnesses. The evidence that Russell
traveled from South Dakota to Texas, recorded his sexual abuse of the victims,
distributed certain images of that abuse, and organized and maintained thousands of
images and more than 100 videos of child pornography and child erotica supported
the child pornography charges.
D. Admission of Expert Testimony
Shortly after he was indicted in 2017, Ricker requested that the government
disclose any expert witnesses it intended to call at trial. The government filed its
notice of intent to present expert testimony on March 5, 2019, approximately two
weeks before trial was scheduled to begin. The notice identified FBI Forensic
Examiner Imel as an expert and stated that he had examined child pornography videos
that were recovered from Ricker’s devices and compared them to exemplar photos of
Ricker’s hands, which had been taken pursuant to a search warrant in November
2018. The notice stated that Imel would testify that the hands portrayed in the videos
matched the exemplar photos. The government provided Imel’s expert report to
defense counsel on March 14. The next day, the government filed an amended notice
of intent to present expert testimony and provided to defense counsel the exemplar
photos and hand comparison charts. Each chart showed an image from the videos and
an exemplar photo placed side by side, with arrows noting comparison points. Ricker
moved for a continuance and for the exclusion of Imel’s testimony.
The district court denied the motion for a continuance and denied, in part, the
motion to exclude Imel’s testimony. As relevant here, the district court ruled that
Imel would be allowed to testify that the hand depicted in certain videos appeared to
be Ricker’s hand. Trial began on March 18, 2019, and Imel testified on March 22.
Two hand comparison charts and four exemplar photos were entered into evidence.
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Ricker argues that the government failed to provide adequate notice of Imel’s
expert opinion and failed to timely provide the comparison charts and exemplar
photos. He contends that the government’s inexcusable delay required that Imel’s
testimony be excluded.
Federal Rule of Criminal Procedure 16(a)(1)(G) requires that, at the
defendant’s request, the government provide a written summary of any expert
testimony that the government intends to use at trial during its case-in-chief. If the
government does not comply with this rule, the court may order disclosure, grant a
continuance, prohibit the party from introducing the evidence or grant any relief that
is “just under the circumstances.” Fed. R. Crim. P. 16(d)(2). “Decisions concerning
the admissibility of expert testimony lie within the broad discretion of the trial court
and will not be reversed on appeal unless there has been an abuse of that discretion.”
United States v. Anderson, 446 F.3d 870, 874 (8th Cir. 2006) (quoting United States
v. Ortega, 150 F.3d 937, 943 (8th Cir. 1998)).
We conclude that the district court did not abuse its discretion in admitting
Imel’s testimony. As an initial matter, no specific deadline had been set for the
disclosure of expert testimony. Rule 16 does not address the time for providing
notice, and the scheduling order did not include a deadline for filing witness lists or
disclosing experts. Unlike cases in which sanctions have been imposed on the
government, there was no finding here that the government acted with reckless
disregard of a discovery deadline. E.g., United States v. Sims, 776 F.3d 583, 584,
586 (8th Cir. 2015) (DNA evidence justifiably excluded in light of the government’s
post-deadline disclosure of lab report and identity of expert and its four-day pretrial
identification of additional expert witnesses.); United States v. Davis, 244 F.3d 666,
668, 671-72 (8th Cir. 2001) (no abuse of discretion in excluding DNA evidence
where the February 28 disclosure deadline for expert testimony had passed, and the
government provided a preliminary DNA report on March 30 and a written report on
March 31, the business day before the April 3 trial was set to begin).
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On this record, we cannot say that the district court erred in admitting Imel’s
testimony. Ricker and his attorney plainly knew that photos of Ricker’s hands had
been taken pursuant to a warrant and were well aware of the videos Imel ultimately
used for comparison, because they were central to the government’s case and had
been provided in discovery. Although the government did not produce the
comparison charts and exemplar photos with its initial notice of intent to present
expert testimony, the March 5 notice disclosed that Imel would testify regarding the
comparison, as well as his conclusion that the hand in the videos was Ricker’s.
Visual comparisons of two images of hands may be within the province of an expert,
but it is different from the “scientific and highly technical” nature of DNA evidence.
See Davis, 244 F.3d at 671. As the district court aptly stated, “[I]f the fingers in the
video were different from Ricker’s, the very able defense attorney involved in the
case would have presented such testimony.” D. Ct. Order of Apr. 10, 2019, at 18.
E. Prior Conviction Determined by Court
With respect to the four counts related to the transportation, distribution,
receipt, and possession of child pornography, the superseding indictment alleged that
Ricker “had a prior conviction under the laws of the State of South Dakota relating
to the possession and distribution of child pornography.” Such a prior conviction
under state law increases the statutory sentencing range for federal child pornography
offenses. 18 U.S.C. § 2252A(b)(1),(2).
The government presented evidence at trial that Ricker had pleaded guilty in
April 2015 to possession or distribution of child pornography in Beadle County,
South Dakota. Ricker admitted on cross-examination that he had been convicted of
the state offense. Over Ricker’s objection, the district court concluded that the fact
of the prior conviction was a determination for the court, not the jury, and thus it did
not instruct the jury that the prior conviction was an element of the federal child
pornography offenses. The court determined at sentencing that Ricker’s earlier
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conviction constituted a qualifying prior conviction and that Ricker thus was subject
to the enhanced sentencing ranges under 18 U.S.C. § 2252A(b)(1), (2).
Ricker argues that the question whether he had a prior state conviction for
possession or distribution of child pornography should have been submitted to the
jury because the existence of such a conviction increased the mandatory minimum
sentences. See Alleyne v. United States, 570 U.S. 99, 103 (2013) (holding that “any
fact that increases the mandatory minimum is an ‘element’ that must be submitted to
the jury”). But as Ricker recognizes, the Supreme Court has held that the fact of a
prior conviction is a sentencing factor for the court to decide. Almendarez-Torres v.
United States, 523 U.S. 224, 239-47 (1998); Alleyne, 570 U.S. at 111 n.1 (deciding
to “not revisit” Almendarez-Torres because the parties did “not contest that decision’s
vitality”); United States v. Abrahamson, 731 F.3d 751, 752 (8th Cir. 2013) (per
curiam) (“[T]he Court in Alleyne left intact the rule that enhancements based on the
fact of a prior conviction are an exception to the general rule that facts increasing the
prescribed range of penalties must be presented to a jury.”). The district court thus
did not err in determining that Ricker had a qualifying prior conviction, nor in
refusing to submit the issue to the jury. We also reject Ricker’s arguments that the
district court’s actions constituted a constructive amendment of or variance in the
indictment. See United States v. Farish, 535 F.3d 815, 821-22 (8th Cir. 2008) (“A
constructive amendment occurs when the essential elements of the offense as charged
in the indictment are altered in such a manner—often through . . . jury
instructions—that the jury is allowed to convict the defendant of an offense different
from or in addition to the offenses charged in the indictment.” (quoting United States
v. Whirlwind Soldier, 499 F.3d 862, 870 (8th Cir. 2007))); United States v.
Buchanan, 574 F.3d 554, 564 (8th Cir. 2009) (“A variance arises when the evidence
presented proves facts that are materially different from those alleged in the
indictment.” (internal quotation marks and citation omitted)).
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F. Sentence
Ricker argues that his 600-month sentence is substantively unreasonable
because the district court failed to adequately consider the impact of Ricker’s autism
diagnosis. See 18 U.S.C. § 3553(a)(1) (instructing the district court to consider “the
history and characteristics of the defendant”). Ricker claims that his autism diagnosis
is a mitigating factor because it “pushes him toward relationships with children,”
causes him to be susceptible to manipulation, and results in immaturity and an
undeveloped sense of responsibility. Appellant’s Br. 41. In support, he cites research
indicating that “characteristics of autism may . . . predispose an autistic individual to
sexual crimes,” Christine N. Cea, Note, Autism & the Criminal Defendant, 88 St.
John’s L. Rev. 495, 502 (2014), as well as case law requiring district courts to
consider a defendant’s mental disability and age, United States v. Williams, 553 F.3d
1073, 1085 (7th Cir. 2009) (remanding for the district court to consider the
defendant’s “actual disability and the combination of his disability with his
susceptibility to manipulation”); Gall v. United States, 552 U.S. 38, 58 (2007)
(“Immaturity at the time of the offense conduct is not an inconsequential
consideration.” (quoting United States v. Gall, 374 F. Supp. 2d 758, 762 n.2 (S.D.
Iowa 2005))). Ricker contends that the need to protect the public from further crimes
does not justify his sentence.
The district court did not abuse its discretion in sentencing Ricker. See United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (standard of review).
The court considered Ricker’s autism diagnosis and the ably presented argument
regarding its impact, along with Ricker’s post-secondary education and solid work
history, noting that Ricker’s personal characteristics weighed in favor of a below-
Guidelines sentence. Against Ricker’s positive attributes, the court weighed the
remaining 18 U.S.C. § 3553(a) sentencing factors.
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The court recounted the details of Ricker’s offenses, describing the case as
“one of the worst child pornography cases that the Court has seen,” in part because
Ricker recorded himself sexually abusing the victims and then distributed the
recording. The court rejected the argument that Ricker had been manipulated by S.M.
and J.M.’s mother, finding instead that Ricker had groomed the girls, in part by
helping to support their mother. The court found Ricker’s testimony that perhaps the
victims themselves took the photos and videos “completely ridiculous,” because the
images depict an adult penis and Ricker’s fingers and because S.M. stated Ricker’s
name in one of the videos. The court also considered the trove of child pornography
that Ricker possessed and had meticulously organized. Before sentencing Ricker to
a below-Guidelines sentence, the court found cause to subject Ricker to a severe
punishment, to deter him from committing further crimes, and to protect the public
from him. We thus conclude that the sentence is not substantively unreasonable, and
we reject Ricker’s argument that “the mandatory minimum is unconstitutional as
applied in this case.” Appellant’s Br. 44. See United States v. Rodriguez-Ramos,
663 F.3d 356, 366 (8th Cir. 2011) (“A sentence within statutory limits is generally not
subject to review under the Eighth Amendment.” (quoting United States v. Murphy,
899 F.2d 714, 719 (8th Cir. 1990) (alteration omitted))).
Conclusion
The judgment is affirmed.
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