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United States v. Dennis Burkholder ( 2010 )


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  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA                        No. 08-50446
    Plaintiff-Appellant,                D.C. No.
    v.                            2:08-cr-00099-GW-
    DENNIS BURKHOLDER,                                     1
    Defendant-Appellee.
             OPINION
    Appeal from the United States District Court
    for the Central District of California
    George H. Wu, District Judge, Presiding
    Argued and Submitted
    November 4, 2009—Pasadena, California
    Filed January 8, 2010
    Before: Myron H. Bright* Harry Pregerson, and
    Ronald M. Gould, Circuit Judges.
    Opinion by Judge Bright
    *The Honorable Myron H. Bright, Senior United States Circuit Judge
    for the Eighth Circuit, sitting by designation.
    607
    UNITED STATES v. BURKHOLDER               609
    COUNSEL
    Thomas P. O’Brien, United States Attorney, Christine C.
    Ewell, Assistant United States Attorney, and Anne M. Voigts
    (argued), Assistant United States Attorney, Los Angeles, Cali-
    fornia, for the plaintiff-appellant.
    James W. Spertus (argued), Los Angeles, California, for the
    defendant-appellee.
    610              UNITED STATES v. BURKHOLDER
    OPINION
    BRIGHT, Circuit Judge:
    In June 2008, appellee Dennis Burkholder pleaded guilty to
    a single count of possession of child pornography in violation
    of 18 U.S.C. § 2252A(a)(5)(B). The plea agreement contem-
    plated a sentence of 41 months. At sentencing, the district
    court struck several written victim impact statements attached
    to the presentence investigation report (PSR), granted
    Burkholder a downward variance because of his poor health,
    and imposed a 30-month sentence.
    The government appeals the sentence, asserting the district
    court procedurally erred when it struck the victim impact
    statements from the PSR thereby denying the victims their
    right to be reasonably heard under the Crime Victims’ Rights
    Act (CVRA), 18 U.S.C. § 3771, and violating Rule 32 of the
    Federal Rules of Criminal Procedure (Rule 32). We affirm for
    the following reasons: (1) the right to be reasonably heard
    does not require that written victim impact statements remain
    attached to the PSR that is forwarded to the prison authorities
    and (2) the district court did not violate Rule 32.
    I.   Background and Procedural History
    Between November and December 2006, Burkholder pur-
    chased subscriptions to at least two commercial internet sites
    that offered child pornography to their members. Law
    enforcement discovered Burkholder’s memberships and
    obtained a search warrant for his home. Burkholder cooper-
    ated with the search, telling the agents that he downloaded the
    pictures to his computer and deleted the pictures after saving
    many on compact discs. In total, Burkholder possessed more
    than 600 images of child pornography. In January 2008, a fed-
    eral grand jury indicted Burkholder, charging him with one
    count of possession of child pornography in violation of 18
    U.S.C. § 2252A(a)(5)(B). Burkholder pleaded guilty pursuant
    UNITED STATES v. BURKHOLDER                 611
    to a plea agreement, and the court ordered preparation of a
    PSR before the September 2008 sentencing hearing.
    The PSR was disclosed on August 6, 2008, and included
    summaries of two written victim impact statements (the let-
    ters). Although the PSR stated that copies of the letters were
    attached to the PSR, copies of the letters were included only
    with the PSR sent to the district court. And though the PSR
    mentioned two letters, the district court received five letters
    in total, none of which Burkholder received before sentenc-
    ing.
    At the outset of the sentencing hearing, the district court
    indicated its intent to strike the letters from the PSR:
    The Probation Report also includes . . . these let-
    ters. Frankly, I don’t know what they’re for. They’re
    not related to this particular case. And I looked at
    them. And they’re a little confusing. The court
    would strike the letters.
    The government responded that the letters were authored
    by children depicted in the images Burkholder possessed. The
    government explained that a number of the images found on
    Burkholder’s computer matched children known through a
    database at the National Center for Missing and Exploited
    Children.
    Burkholder moved to strike the letters as generic and
    because he had not seen them. The district court expressed
    concern with the letters’ detailed descriptions of harm caused
    by the abuse, not just the harm suffered when a person was
    found possessing images of the abuse. The court stated that
    the letters concerned conduct unrelated to the defendant and
    that it was obvious that the children would be distressed by
    the images Burkholder possessed. The government responded
    that it submitted the letters because victims have a statutory
    right to be heard.
    612                UNITED STATES v. BURKHOLDER
    The district court struck the letters from the PSR. The court
    stated it understood that child pornography is not a victimless
    crime, but nonetheless concluded:
    I don’t think it necessitates the addition of the letters
    themselves in the probation report . . . . [I]t seems
    that [the letters] add[ ] a[n] element, which I guess
    isn’t really applicable aside from just the basic argu-
    ment that you make in regards to the fact of victim
    harm . . . . So, I will strike the attached letters.
    Later in the sentencing hearing, in response to Burkholder’s
    request for a mechanism to ensure that the letters were struck
    from the PSR, the court stated, “When I say I’m striking it,
    . . . I am excluding the letters from the report . . . . so they
    are not included in the materials that are sent to the prison
    . . . .”
    After hearing argument about whether Burkholder’s health
    should affect his sentence, the district court varied from the
    guidelines and the 41-month sentence contemplated in the
    plea agreement, and imposed a 30-month sentence followed
    by fifteen years of supervised release. The government timely
    appeals the sentence, arguing the district court violated the
    victims’ rights under the CVRA and erred under Rule 32. The
    government seeks a remand for a resentencing and to allow
    the written victim impact statements to be reattached to the
    PSR.
    II.   Discussion
    A.    The Crime Victims’ Rights Act
    The government argues the district court denied the victims
    their right under the CVRA to be reasonably heard when it
    struck the letters from the PSR. Whether the statutory right to
    be reasonably heard requires the continuing attachment of
    written victim impact statements to a PSR is a matter of first
    UNITED STATES v. BURKHOLDER                 613
    impression and one of statutory interpretation. We review
    matters of statutory interpretation de novo. United States v.
    Lincoln, 
    277 F.3d 1112
    , 1113 (9th Cir. 2002).
    The CVRA makes crime victims participants in the crimi-
    nal process. Kenna v. U.S. Dist. Ct., 
    435 F.3d 1011
    , 1013 (9th
    Cir. 2006). It establishes eight different rights held by crime
    victims and allows both the government and the victim to
    enforce those rights. 
    Id. (citing 18
    U.S.C. § 3771(a), (d)(1)).
    The right at issue here provides that crime victims have “[t]he
    right to be reasonably heard at any public proceeding in the
    district court involving release, plea, sentencing, or any parole
    proceeding.” 18 U.S.C. § 3771(a)(4). The CVRA defines
    “crime victim” as “a person directly and proximately harmed
    as a result of the commission of a Federal offense . . . . In the
    case of a crime victim who is under 18 years of age . . . family
    members . . . may assume the crime victim’s rights.” 
    Id. § 3771(e).
    The government first argues that children portrayed in por-
    nographic images are the crime victims of those who possess
    or distribute the pornographic images, and therefore have
    rights under the CVRA. We consider this argument.
    Burkholder agrees that the authors of the letters had the
    right to be reasonably heard at his sentencing. He asserts,
    however, the district court’s actions did not violate the
    authors’ rights under the CVRA. Additionally, the district
    court recognized that the children depicted in the images
    Burkholder possessed were victims of Burkholder’s crime.
    Thus, no dispute exists here that the letter writers qualify as
    crime victims. Here the record reflects that the district court
    read and considered the letters. Thus, in fact, the sentencing
    judge heard those crime victims to the extent that he could do
    so in this case.
    The further question here is whether the CVRA required
    continuing attachment of the letters to the PSR or, said
    614                UNITED STATES v. BURKHOLDER
    another way, prohibited the district court from striking the let-
    ters from the PSR during the sentencing hearing.
    [1] We first examine the language of the CVRA and
    observe that the CVRA does not define the “right to be rea-
    sonably heard.” The right simply provides crime victims the
    “right to be reasonably heard at any public proceeding”
    involving sentencing. 
    Id. § 3771(a)(4).
    Nothing in the statute
    plainly requires appending written victim impact statements
    to a PSR.
    [2] Nor does the government’s position find support in the
    CVRA’s legislative history. That history suggests that Con-
    gress was concerned with ensuring that crime victims be
    allowed to speak at proceedings:
    It is not the intent of the term “reasonably” in the
    phrase “to be reasonably heard” to provide any
    excuse for denying a victim the right to appear in
    person and directly address the court. Indeed, the
    very purpose of this section is to allow the victim to
    appear personally and directly address the court.
    This section would fail in its intent if courts deter-
    mined that written, rather than oral communication,
    could generally satisfy this right. On the other hand,
    the term “reasonably” is meant to allow for alterna-
    tive methods of communicating a victim’s views to
    the court when the victim is unable to attend the pro-
    ceedings. . . . In short, the victim of crime, or their
    counsel, should be able to provide any information,
    as well as their opinion, directly to the court con-
    cerning the release, plea, or sentencing of the
    accused. This bill intends for this right to be heard
    to be an independent right of the victim.
    It is important that the “reasonably be heard” lan-
    guage not be an excuse for minimizing the victim’s
    opportunity to be heard. Only if it is not practical for
    UNITED STATES v. BURKHOLDER                 615
    the victim to speak in person or if the victim wishes
    to be heard by the court in a different fashion should
    this provision mean anything other than an in-
    person right to be heard.
    150 Cong. Rec. S10910, S10911 (daily ed. Oct. 9, 2004)
    (statement of Sen. Kyl) (emphasis added). This statement by
    one of the CVRA’s primary sponsors explains that the CVRA
    provides victims the opportunity to communicate directly to
    the district court; it does not specifically require a district
    court to append a written statement to a PSR. Here, the vic-
    tims chose to exercise their right by submitting written victim
    impact statements, which, as we have noted, were examined
    and considered by the district court.
    Moreover, our decision in Kenna does not support the gov-
    ernment’s position. Kenna concerned a district court’s denial
    of a victim’s request to speak at 
    sentencing. 435 F.3d at 1013
    -
    14. This court held that the “right to be reasonably heard”
    means that “the district court must hear from the victims, if
    they choose to speak . . . . Victims now have an indefeasible
    right to speak, similar to that of the defendant . . . .” 
    Id. at 1016.
    The ruling by the district court that the right does not
    require attaching written victim impact statements to a PSR
    comports with Kenna’s description of the right to be reason-
    ably heard as an “indefeasible right to speak.”
    [3] The action by the district court does not frustrate the
    objectives of the CVRA as outlined in Kenna: (1) ensuring
    that the district court doesn’t discount the impact of the crime
    on the victims; (2) forcing the defendant to confront the
    human cost of his crime; and (3) allowing the victim to regain
    a sense of dignity and respect rather than feeling powerless
    and ashamed. 
    Id. Certainly, a
    victim can achieve these aims
    by submitting a written impact statement describing the
    effects of a defendant’s crime. But the efficaciousness of
    these goals is not furthered by mandating that written victim
    impact statements be permanently attached to a PSR. In sum,
    616                 UNITED STATES v. BURKHOLDER
    we find no support for understanding the right to be reason-
    ably heard as necessitating the continuing attachment of writ-
    ten victim impact statements to a PSR.
    Here, the victims chose to assert their right to be reasonably
    heard by submitting written statements. The letters discussed
    at length the effects of child abuse, not committed by
    Burkholder, as well as the impact of the pornographic images.
    The district court considered the letters and determined that
    much of their content did not relate to Burkholder’s acts. The
    court then struck the letters from the PSR so that they would
    not be included in the materials sent to the Bureau of Prisons.
    [4] On this record, we hold that the district court did not
    violate the right to be reasonably heard by striking the written
    victim impact statements from the PSR during the sentencing
    process after reading and considering the letters.
    B.    Rule 32
    The government argues the district court violated Rule 32
    by striking the victim impact statements from the PSR, assert-
    ing that Rule 32 explicitly requires that the PSR include vic-
    tim impact information. This court reviews a district court’s
    compliance with Rule 32 de novo. United States v. Baldrich,
    
    471 F.3d 1110
    , 1112 (9th Cir. 2006).
    [5] When Burkholder was sentenced in September 2008,
    Rule 32 required that a PSR contain “verified information,
    stated in a nonargumentative style, that assesses the financial,
    social, psychological, and medical impact on any individual
    against whom the offense has been committed.” Fed. R. Crim.
    P. 32(d)(2)(B) (2008).1 Before imposing sentence, a district
    1
    Amendments to Rule 32 took effect on December 1, 2008. The portion
    of the rule quoted above now states, “information that assesses any finan-
    cial, social, psychological, and medical impact on any victim.” Fed. R.
    Crim. P. 32(d)(2)(B). We examine Rule 32 as it existed at Burkholder’s
    sentencing. See United States v. Thomas, 
    355 F.3d 1191
    , 1200 (9th Cir.
    2004) (examining Rule 32 in effect at the time of sentencing).
    UNITED STATES v. BURKHOLDER                      617
    court must “address any victim of a crime of violence or sex-
    ual abuse who is present at sentencing and must permit the
    victim to speak or submit any information about the sen-
    tence.” Fed. R. Crim. P. 32(i)(4)(B). A district court must rule
    on any disputed portion of the PSR or other controverted mat-
    ter unless it determines that a ruling is unnecessary. Fed. R.
    Crim. P. 32(i)(3)(B).
    Here, the government provided five letters to the district
    court, two of which were provided to the Probation Office and
    commented on in the PSR. The PSR explains the sexual abuse
    the children suffered (which was not perpetrated by
    Burkholder) and their feelings of embarrassment and contin-
    ued violation in learning their pictures were on the Internet.2
    Burkholder moved to strike the statements attached to the
    PSR as generic and because he had no opportunity to view
    them before sentencing. None of the victims were present at
    sentencing.
    We first address the government’s reliance on this court’s
    per curiam decision in United States v. Santana, 
    908 F.2d 506
    (9th Cir. 1990). In that case, the court concluded that a district
    court’s consideration of a victim impact statement at sentenc-
    ing in a non-capital case did not violate the Supreme Court’s
    holding in Booth v. Maryland, 
    482 U.S. 496
    (1987). 
    Santana, 908 F.2d at 507
    . A district court’s authority to strike matters
    from the PSR was neither presented nor addressed in Santana.
    Thus, Santana is not relevant here.
    The government next argues that Rule 32(d)(2)(B) requires
    that a PSR include information on the impact of the crime on
    the victim, and Rule 32(i)(4)(B) requires that courts must per-
    mit victims to speak or submit information about the sentence.
    Therefore, argues the government, the district court could not
    2
    The government asserts that the court struck the paragraphs in the PSR
    summarizing two of the letters. However, nothing in the sentencing tran-
    script or elsewhere in the appellate record supports that assertion.
    618              UNITED STATES v. BURKHOLDER
    strike the letters from the PSR without violating the explicit
    commands of Rule 32. We disagree.
    First, none of the victims were present at sentencing and
    the victims were permitted to submit information to the dis-
    trict court. Therefore, the district court did not violate Rule
    32(i)(4)(B).
    Rule 32(i)(3)(B) requires a court to rule on disputed por-
    tions of a PSR or other controverted matters, unless the court
    determines that a ruling is unnecessary. The court followed
    the requirements of Rule 32(i)(3)(B). The district court found
    that the letters concerned conduct unrelated to the defendant.
    However, the court understood that child pornography was
    not a victimless crime.
    [6] In support of his motion to strike the letters, defense
    counsel stated, “these presentence reports follow defendants
    around for the rest of their lives. They are used for all evalua-
    tions.” After considering the letters, the court struck them
    from the PSR, stating, “I am excluding the letters from the
    report. And so . . . they are not included in the materials that
    are sent to the prison, et cetera.” On this record, the govern-
    ment has not shown that the district court erred under Rule 32.
    [7] Based on the record in this case, we determine that the
    sentencing judge did not err. Accordingly, we AFFIRM.