United States v. Brandon Farrell , 606 F. App'x 420 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 10 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30133
Plaintiff - Appellee, D.C. No. 1:04-cr-00180-BLW-4
v.
MEMORANDUM*
BRANDON GERALD FARRELL, AKA
Brandon Gerald Farrell, Jr., AKA Gerald
Lee Farrell, Jr., AKA Gerlad L. Farrell, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted July 6, 2015**
Seattle, Washington
Before: KLEINFELD, NGUYEN, and FRIEDLAND, Circuit Judges.
Defendant Brandon Gerald Farrell was convicted of interstate travel with a
minor with the intent to engage in criminal sexual activity and possession of child
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
pornography. He appeals from the district court’s imposition of 96 months of
imprisonment to be followed by fifteen years of supervised release. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
The district court did not err when it concluded that Farrell’s offense
involved attempted criminal sexual abuse for the purposes of calculating the base
offense level. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc) (standard of review). Farrell’s actions while the minor was asleep or passed
out after taking medicine and a vodka drink that he gave her, as well as his actions
leading up to the night in a hotel room with one bed, were sufficient to constitute
attempted criminal sexual abuse. 18 U.S.C. § 2242(2) (defining attempted criminal
sexual abuse); see United States v. Fasthorse, 639 F.3d 1182, 1184–85 (9th Cir.
2011); United States v. Hadley, 918 F.2d 848, 853–54 (9th Cir. 1990).
The district court also did not err when it found that the foreign exchange
student was a vulnerable victim and applied the two-point enhancement. See
United States v. Johnson, 132 F.3d 1279, 1285–86 (9th Cir. 1997). Nor did it err
in computing the total punishment for the two counts of which Farrell was
convicted. U.S. Sentencing Guidelines Manual § 5G1.2 (2003). Having correctly
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calculated the total punishment, the district court did not apply an above-
Guidelines sentence on Count 3 of the indictment. See id.
Farrell argues that fifteen years of supervised release is substantively
unreasonable and unconstitutionally disproportionate to his crime. Farrell has a
prior sex offense involving sexual intercourse with a 15-year-old female. The
district court did not abuse its discretion when it imposed Farrell’s sentence. See
Carty, 520 F.3d at 993 (standard of review). The district court found that “the
public is very much in need of protection from the defendant” because of his
“clearly calculated” offense and his history showing “an issue with young girls.”
His use of a cold pill and vodka on this young girl and then attempting to sexually
abuse her after she fell asleep or passed out, combined with his history, amply
shows the substantive reasonableness of the lengthy supervised release term, even
if it imposes a burden on Farrell’s visits with family members in Europe. See
United States v. Cope, 527 F.3d 944, 952–53 (9th Cir. 2008); see also 18 U.S.C. §
3583(k) (authorizing supervised release for five years to life); U.S. Sentencing
Guidelines Manual § 5D1.2(c) (2003) (recommending statutory maximum term of
supervised release). His sentence is not unconstitutionally disproportionate to his
crime. See United States v. Williams, 636 F.3d 1229, 1232–33 (9th Cir. 2011).
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AFFIRMED.
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