United States v. David Diehl , 775 F.3d 714 ( 2015 )

Case: 11-51076 Document: 00512893558 Page: 1 Date Filed: 01/07/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 11-51076
United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, January 7, 2015
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
DAVID ANDREW DIEHL, also known as David A. Diehl,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
After a bench trial, Defendant-Appellant David Diehl was convicted of
ten counts of sexual exploitation of a child/production of child pornography in
violation of 18 U.S.C. § 2251(a) and sentenced to 600 months of imprisonment.
After electing to proceed pro se on appeal, Diehl challenges various aspects of
his conviction and sentence. We affirm.
I. Factual and Procedural Background
In 2010, Diehl was charged with ten counts of sexual exploitation of a
child/production of child pornography under 18 U.S.C. § 2251(a). The
indictment alleged that in 1999 and 2000, Diehl did knowingly “employ, use,
induce, entice, and coerce” three minor females to engage in sexually explicit
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conduct for the purpose of making visual depictions of such conduct, and that
the visual depictions were “transported in interstate and foreign commerce and
mailed.”
Diehl waived a jury trial and proceeded to a bench trial before the district
court. He entered into an agreed stipulation of facts and evidence wherein he
admitted all of the elements of the offenses, except the required interstate
commerce nexus. Diehl stipulated that on multiple occasions he induced three
minor victims to engage in sexually explicit conduct for the purpose of
producing video depictions. As part of its deliberations, the district court
viewed the pornographic images produced by Diehl. According to the evidence,
Diehl recorded encounters in which he sexually assaults three minor female
victims on multiple separate occasions, including scenes of oral sex, digital
penetration, penile penetration, sodomy, lascivious exhibition of the genitals
and pubic area of the minors, and masturbation. Jane Doe #1 was
approximately 10 years old when the videos were made. Jane Doe #2, a
relative of Diehl’s, was approximately 8 years old. Jane Doe #3 was
approximately 3 years old.
Diehl stipulated that the ten video exhibits introduced by the
government and described in the indictment were created between February
1999 and November 2000 in the Western District of Texas. Diehl further
admitted that: (1) each of the videos was found stored on one or more
computers, or other computer storage media, at places outside of Texas, (2)
that the visual depictions were found outside of Texas as recently as 2010, and
(3) that each of the videos was currently available on the internet, and all of
them had been available since at least 2007. It was undisputed that all the
videos had been found on electronic media outside the state of Texas, including
in Arizona, Maryland, New Jersey, Indiana, and Australia. In 2011, the
National Center for Missing and Exploited Children reviewed their reports and
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noted that, collectively, the images produced by Diehl were identified over
3,000 times in child pornography investigations conducted by law enforcement
in the United States.
At trial, FBI Special Agent Sean Mullen testified about the investigation
that allowed officials to identify the victims and Diehl. He also testified that
he was able to obtain Diehl’s desktop computer from Diehl’s ex-wife, Kerry
Jenkins. Diehl, who was then living in Florida, had shipped the computer to
Jenkins in Texas. Jenkins voluntarily gave the equipment to Mullen. The
computer contains an encrypted hard drive that investigators have been
unable to subject to forensic analysis.
Jenkins testified that from February 1999 to November 2000, she and
Diehl lived in Austin, Texas. She and Diehl subsequently moved to Ohio before
they divorced in 2002. She testified that after the divorce, Diehl moved to
several different states including Florida, California, and Texas. Jenkins said
there were always computers in their home, and that Diehl always brought his
computers with him when they moved.
The government also called Kenneth Courtney, Diehl’s former coworker
and friend. At the time of the trial, Courtney was serving a 15-year state
sentence for possession of child pornography. Courtney testified that in the
summer of 2008, when they were both living in Florida, Diehl showed him his
collection of child pornography, which Diehl had stored on a hard drive on his
desktop computer. Some of the video depictions were the same as those
contained in the government’s exhibits. Diehl told Courtney that he made the
videos. Courtney and Diehl discussed child pornography files they downloaded
from the internet through eMule, a file-sharing network. Diehl explained to
Courtney how he used Internet Relay Chat (“IRC”) as a conduit for his videos.
Courtney described IRC as “a very decentralized communication medium that
enabled direct communication between each computer.” Courtney testified
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that Diehl told him he would use IRC to “meet people on various channels,”
including “makers,” or people who produced child pornography, to persuade
them to produce new child pornography in exchange for material from Diehl.
Courtney testified that Diehl said that he would share a small amount of his
material with someone else in the expectation of getting new child pornography
in return. Courtney testified that “it was quid pro quo.”
At the conclusion of the government’s case, Diehl moved for a judgment
of acquittal pursuant to Federal Rule of Criminal Procedure 29, on the grounds
that the government had failed to provide sufficient evidence to establish a
nexus to interstate commerce. The district court denied the motion.
The district court found Diehl guilty on all ten counts. The district court
found beyond a reasonable doubt that the videos “clearly established”
§ 2251(a)’s “visual depiction” and “sexually explicit” elements. The district
court also found that the facts showed beyond a reasonable doubt that the
production of the child pornography occurred within Texas and that it
appeared in other states on the internet, which was sufficient to show a nexus
to interstate commerce under § 2251(a).
At the sentencing hearing, the district court heard extensive argument
and testimony relevant to the Guidelines calculations, the 18 U.S.C. § 3553(a)
sentencing factors, and the appropriate sentence. The court also heard
statements from the mother of one of the victims and from Diehl. 1 The court
granted two of Diehl’s objections to Guidelines sentencing enhancements and
overruled three other objections, none of which Diehl challenges on appeal.
The court determined that the advisory imprisonment range under the 2000
Sentencing Guidelines was 210 to 262 months of imprisonment. The statutory
1 The district court also heard a statement from the father of a purported fourth victim
of Diehl’s, who was not part of the evidence in this case. The court later stated that it did not
rely on this evidence in deciding the sentence.
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maximum sentence was 20 years of imprisonment on each of the ten counts, or
200 years of imprisonment.
The court imposed a total sentence of 600 months of imprisonment and
described the reasons for the sentence on the record. Diehl’s counsel objected
to the sentence as being substantively and procedurally unreasonable. Diehl
filed a timely notice of appeal and elected to proceed pro se on appeal.
II. Discussion
We recognize that where a defendant elects to proceed pro se in a direct
criminal appeal, “it is our duty to construe pro se briefs liberally so that a
litigant will not suffer simply because he did not attend law school or find a
suitable attorney.” United States v. Ayika, 554 F. App’x 302, 308 (5th Cir.
2014). Diehl raises multiple challenges to his conviction and sentence,
including alleging that his indictment was untimely, that his trial counsel was
ineffective for failing to raise the statute of limitations as a defense, that there
was insufficient evidence of a connection to interstate commerce, and that his
sentence is procedurally and substantively unreasonable. We address each in
turn.
A. Statute of Limitations
Diehl first argues that the statute of limitations for the offense expired
prior to his indictment in 2010. He argues that the offenses alleged in the
indictment were completed before November 2000 and the five-year limitations
period found in 18 U.S.C. § 3282(a) applies to the offense.
Diehl failed to raise the statute of limitations as a defense at trial. We
have previously held that a defendant waives a statute of limitations defense
if it is not asserted at trial. United States v. Arky, 938 F.2d 579, 581-82 (5th
Cir. 1991). However, Diehl raises the statute of limitations as an ineffective
assistance of counsel claim, arguing that his trial counsel was ineffective for
failing to raise the issue before or during the trial. Ineffective assistance of
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counsel claims ordinarily are not reviewed on direct appeal unless they first
have been addressed by the district court. See United States v. Rosalez-Orozco,
8 F.3d 198, 199 (5th Cir. 1993). Here, however, since Diehl’s claim rests on a
pure question of law and needs no further development of the record, we will
address it on direct appeal. See id. To prevail on his claim of ineffective
assistance of counsel, Diehl must establish that: (1) his counsel’s performance
fell below an objective standard of competence; and (2) the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668,
687 (1984).
We apply the criminal statutes in effect at the time of Diehl’s offense.
See United States v. Smith, 869 F.2d 835, 836-37 (5th Cir. 1989). The
applicable version of § 2251(a) prohibited the “sexual exploitation” of a minor,
stating, in relevant part, that any person who causes a minor to engage in “any
sexually explicit conduct for the purpose of producing any visual depiction of
such conduct, shall be punished.” See 18 U.S.C. § 2251(a) (2000). The statute
did not include a limitations period. Ordinarily, where a criminal statute does
not contain its own statute of limitations, the general five-year statute of
limitations for noncapital offenses found in 18 U.S.C. § 3282(a) applies. See,
e.g., United States v. Edelkind, 525 F.3d 388, 393 (5th Cir. 2008); 18 U.S.C.
§ 3282(a).
However, the government argues that an offense under § 2251(a) falls
within the extended statute of limitations for child abuse offenses found in 18
U.S.C. § 3283. At the time of Diehl’s offense, § 3283 provided: “No statute of
limitations that would otherwise preclude prosecution for an offense involving
the sexual or physical abuse of a child under the age of 18 years shall preclude
such prosecution before the child reaches the age of 25 years.” 18 U.S.C. § 3283(2000). According to the stipulated facts regarding the ages of the victims,
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none of Diehl’s victims had reached the age of 25 when the indictment was
filed.
Section 3283 contains no definitions. Instead, “sexual abuse” and
“exploitation” are defined in 18 U.S.C. § 3509(a), the predecessor statute to
§ 3283. See 18 U.S.C. § 3509(a); Violent Crime Control and Law Enforcement
Act of 1994, Pub.L. No. 103-322, § 330018(a), 108 Stat. 1796 (transferring the
child abuse statute of limitations from § 3509(k) to § 3283). We find these
definitions in § 3509(a) to be the appropriate definitions to use in determining
the application of the extended statute of limitations in § 3283. In United
States v. Coutentos, the Eighth Circuit relied on the definition of “sexual abuse”
in § 3509(a) when determining the application of § 3283. 651 F.3d 809, 816-17
(8th Cir. 2011). In United States v. Carpenter, the Ninth Circuit agreed, noting
that the only definition of sexual abuse in Title 18 is found in § 3509(a), that
§ 3509(a) was originally part of the same statutory section as the extended
statute of limitations for offenses involving sexual abuse of children, and that
Congress later re-codified the sections as part of an effort to consolidate various
statutes of limitation in a single chapter. 680 F.3d 1101, 1103 (9th Cir. 2012).
As the Ninth Circuit explained, “it makes little sense to detach the statutory
definition in a way that would have the opposite effect of Congress’s consistent
efforts to extend the statute of limitations for crimes of sexual abuse against
children.” Id. (emphasis in original).
Applying the language of the relevant statutes, it is clear that producing
child pornography under § 2251(a) falls within the definition of “sexual abuse”
in § 3283. The § 3283 extended statute of limitations applies, inter alia, to “an
offense involving the sexual or physical abuse” of a child under the age of 18
years. 18 U.S.C. § 3283 (2000). Under the definitions in § 3509(a), using
children to engage in sexually explicit conduct, including “exploitation” in the
form of child pornography, constitutes “sexual abuse” of a child. 18 U.S.C.
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§ 3509(a)(6), (a)(8). Diehl was indicted and convicted under 18 U.S.C.
§ 2251(a), which is titled “Sexual exploitation of children,” and prohibits using
or inducing children under the age of 18 to engage in sexually explicit conduct
for the purpose of creating a visual depiction. 18 U.S.C. § 2251(a) (2000).
“Thus, the offense of producing child pornography involves the ‘sexual abuse’
of a child as that term is defined in § 3283.” Coutentos, 651 F.3d at 816-17.
Diehl argues that although his offenses did involve physical contact, the
offense of producing child pornography does not necessarily involve such
contact, and thus production of child pornography does not categorically
constitute “sexual abuse.” The plain language of the statutory definitions
contradicts Diehl’s assertion. In Carpenter, the Ninth Circuit determined that
even if the defendant’s specific conduct did not involve physical contact with a
child, the offense of producing child pornography clearly falls within the
definition of sexual abuse found in § 3509(a), and the extended statute of
limitations of § 3283 applies. 680 F.3d at 1103.
We join our sister circuits in holding that § 3283 is the statute of
limitations applicable to Diehl’s sexual exploitation of a child/production of
child pornography charges under § 2251(a). See Carpenter, 680 F.3d at 1103-
1104; Coutentos, 651 F.3d at 816-17. Because it is undisputed that none of
Diehl’s minor victims had attained the age of 25 at the time of the indictment,
Diehl’s indictment was timely. As a matter of law, Diehl’s counsel was not
ineffective for failing to raise the statute of limitations as a defense.
B. Interstate Commerce Nexus
Diehl next argues that the government failed to prove the required nexus
between his offense and interstate commerce. During the time frame alleged
in the indictment, § 2251(a) criminalized the production of sexually explicit
images involving minors
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if [the producer] knows or has reason to know that such visual
depiction will be transported in interstate or foreign commerce or
mailed, if that visual depiction was produced using materials that
have been mailed, shipped, or transported in interstate or foreign
commerce by any means, including by computer, or if such visual
depiction has actually been transported in interstate or foreign
commerce or mailed.
18 U.S.C. § 2251(a) (2000); see also United States v. Runyan, 290 F.3d 223, 238
(5th Cir. 2002). This required “nexus with interstate commerce, which courts
frequently call the ‘jurisdictional element,’ is simply one of the essential
elements” of the offense. United States v. Sealed Appellant, 526 F.3d 241, 243
(5th Cir. 2008) (quoting United States v. Martin, 147 F.3d 529, 531 (7th Cir.
1998)).
Thus, “a claim of an insufficient connection to interstate commerce is a
challenge to one of the elements of the government’s case and is therefore
considered a claim about the sufficiency of the evidence.” United States v.
Riddle, 249 F.3d 529, 536 (6th Cir. 2001). In reviewing the sufficiency of the
evidence following a bench trial, we ask “whether the finding of guilt is
supported by substantial evidence, i.e., evidence sufficient to justify the trial
judge, as the trier of fact, in concluding beyond reasonable doubt that the
defendant is guilty.” United States v. Turner, 319 F.3d 716, 720 (5th Cir. 2003)
(quoting United States v. Mathes, 151 F.3d 251, 252 (5th Cir. 1998)). We must
“view all evidence in the light most favorable to the government and defer to
all reasonable inferences drawn by the trial court.” Id. at 720-21.
Under the relevant version of § 2251(a), there are three ways to satisfy
the interstate commerce nexus: if the maker knows or has reason to know the
depiction will be transported in interstate commerce; if the depiction was
created using materials that have been transported in interstate commerce; or
“if such visual depiction has actually been transported in interstate or foreign
commerce or mailed.” 18 U.S.C. § 2251(a) (2000). Diehl was indicted under
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the third jurisdictional hook, which contains no knowledge requirement. See
United States v. Terrell, 700 F.3d 755, 759 (5th Cir. 2012) (noting that
“knowledge must be proven only as to the first jurisdictional hook” of
§ 2251(a)). In Runyan, we considered “whether an Internet transmission, in
and of itself, constitutes interstate transportation sufficient to satisfy the
interstate commerce element of § 2251.” United States v. Runyan, 290 F.3d
223, 239 (5th Cir. 2002). We concluded that it did, holding that “[t]ransmission
of photographs by means of the Internet is tantamount to moving photographs
across state lines and thus constitutes transportation in interstate commerce.’”
Id. (quoting United States v. Carroll, 105 F.3d 740, 742 (1st Cir. 1997)).
Further, the Seventh Circuit has held that evidence that child pornography
“actually traveled across state lines,” by being carried from one state to
another, satisfies the interstate commerce nexus. See United States v.
Schaffner, 258 F.3d 675, 683 (7th Cir. 2001).
Here, the fact that the videos that were created in Texas and found in
multiple other states, together with the witnesses’ testimony supporting the
district court’s findings, is sufficient to satisfy the interstate commerce nexus
requirement. First, it is undisputed that the production of the videos occurred
in Texas, and the videos were thereafter found on computers in Arizona,
Maryland, New Jersey, Indiana, and Australia. As the district court reasoned,
“it defies common sense to say therefore that the depictions did not move in
interstate commerce.” Further, the record includes specific evidence from
which the district court could reasonably infer that Diehl himself transported
the images across state lines, both physically and via the internet. Courtney
testified that Diehl had explained how he used Internet Relay Chat as a
conduit for his videos, and how he would entice other people on the internet to
make or provide new child pornography in exchange for material from Diehl.
Courtney also testified that Diehl retrieved the images—which were created
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in Texas—from his computer and showed them to Courtney while they were in
Florida. Further, Agent Mullen’s and Jenkins’ testimony supports a finding
that Diehl physically transported the videos in interstate commerce when he
shipped his computer across state lines to his ex-wife, and when he moved his
computer across state lines multiple times.
Based on the foregoing, Diehl has not shown that there is insufficient
evidence that the § 2251(a) interstate commerce nexus requirement was
satisfied. 2
C. Sentencing Errors
Diehl was sentenced consecutively to 200 months on each of Counts 1, 3
and 6, and concurrently to 200 months on Counts 2, 4, 5, 7, 8, 9 and 10, for a
total of 600 months of imprisonment. The district court calculated the advisory
Guidelines sentencing range as 210 to 262 months, and imposed the 600-month
sentence as an upward variance based on its § 3553(a) analysis. On appeal,
the government gives liberal construction to Diehl’s pro se appeal, and
presumes that the sentencing errors were preserved for appellate review. In
the circumstances of this case, we do likewise.
“Under Gall v. United States, our process of reviewing a sentence is
bifurcated.” United States v. Scott, 654 F.3d 552, 554 (5th Cir. 2011) (citing
Gall v. United States, 552 U.S. 38, 51 (2007)). First, we determine whether the
district court committed procedural error, such as:
2 Diehl also argues that his counsel was ineffective for failing to object when the
district court referenced a later amended version of § 2251(a). Diehl is correct that when
announcing its verdict, the district court’s discussion of the interstate nexus issue referred to
language contained in both the 2000 version of the statute and the 2008 version of the statute.
Nevertheless, the district court correctly identified the issue and the government’s burden,
and expressly found that the government had proven that the videos actually moved in
interstate commerce, as required by the applicable version of § 2251(a). Diehl has not shown
any prejudice resulting from his counsel’s failure to object to the court’s extraneous
comments.
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(1) failing to calculate (or improperly calculating) the applicable
Guidelines range; (2) treating the Guidelines as mandatory; (3)
failing to consider the 18 U.S.C. § 3553(a) factors; (4) determining
a sentence based on clearly erroneous facts; or (5) failing to
adequately explain the chosen sentence, including an explanation
for any deviation from the Guidelines range.
Id. at 555 (quoting United States v. Armstrong, 550 F.3d 382, 404 (5th Cir.
2008)). Under this first step, “we review the district court’s interpretation or
application of the sentencing guidelines de novo, and its factual findings for
clear error.” Id. (quoting United States v. Gutierrez-Hernandez, 581 F.3d 251,
254 (5th Cir. 2009)). Second, if the sentencing decision is procedurally sound,
we review the substantive reasonableness of the sentence for abuse of
discretion. Id.
1. Procedural Reasonableness
Liberally construing his arguments, Diehl contends that the district
court did not give serious consideration to the applicable Guidelines range
when determining the sentence, failed to adequately consider his reasons and
arguments in favor of a lower sentence, and failed to adequately explain the
sentence. He also argues that ex post facto principles required the district
court to impose a sentence within the Guidelines range.
All sentencing proceedings should begin with a correct calculation of the
applicable Guidelines range, which serves as the “initial benchmark.” Gall,
552 U.S. at 49. “The Guidelines are not the only consideration, however.
Accordingly, after giving both parties an opportunity to argue for whatever
sentence they deem appropriate, the district judge should then consider all of
the § 3553(a) factors to determine whether they support the sentence requested
by a party.” Id. at 49-50. In selecting a sentence, the district court must
consider the § 3553(a) sentencing factors, including: (1) the nature and
circumstances of the offense and the history and characteristics of the
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defendant, (2) the need for the sentence to reflect the seriousness of the offense
and provide just punishment, protect the public from further crimes of the
defendant, and provide the defendant with needed correctional treatment, (3)
the kinds of sentences available, (4) the Sentencing Guidelines and any
relevant policy statements, and (5) the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty
of similar conduct. See 18 U.S.C. § 3553(a); Gall, 552 U.S. at 50 n.6.
A review of the record of the sentencing proceeding and the district
court’s lengthy and thorough consideration of the evidence, the Guidelines
range, the arguments of the parties, Diehl’s own allocution, and the § 3553
factors belies each of Diehl’s contentions. The district court spent a significant
amount of time at the sentencing hearing reviewing the relevant trial evidence,
hearing new evidence presented by the parties, and listening to the arguments
of counsel regarding the correct Guidelines range. Although the district court
ultimately imposed a non-Guidelines sentence, it expressly stated that “I have
fully and thoroughly considered all ramifications of the guidelines.” The record
fully supports this statement.
The district court also stated that it had considered Diehl’s arguments
in favor of a lower sentence. The court specifically referenced Diehl’s
sentencing memoranda and the need to avoid unwarranted sentencing
disparities in its oral pronouncement of sentence. Although the district court
did not address in detail each of Diehl’s arguments on the record, “a district
court need not recite each of the § 3553(a) factors and explain its applicability.”
See United States v. Herrera-Garduno, 519 F.3d 526, 531 (5th Cir. 2008).
The district court also discussed the § 3553(a) factors, and explained
which ones it believed justified the non-Guidelines sentence, specifically the
seriousness of the offense, the need for deterrence and to “promote respect for
the law among others who might be considering this and, further, to provide
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just punishment for this particular offense and to promote respect for the law
by this defendant.” In short, our review of the sentencing hearing reveals the
district court’s careful consideration of the appropriate sentence, with
reference to the Guidelines, the evidence, the arguments of the parties, and the
statutory sentencing factors. We find no procedural error.
Lastly, Diehl appears to argue that because the Guidelines were
mandatory in 2000, when he committed his offenses, the district court was
obliged to impose a Guidelines sentence, and that its failure to do so amounted
to a violation of the Ex Post Facto clause. This court has already rejected this
argument. See United States v. Austin, 432 F.3d 598, 599 (5th Cir. 2005).
2. Substantive Reasonableness
Diehl also raises several challenges to the substantive reasonableness of
the sentence. Diehl argues that the district court erroneously based its
sentence on the extensive circulation of the videos he produced although he
was not charged with distribution of the videos, that the district court failed to
properly credit the fact that he had no relevant criminal history, that a decade
had passed since the crimes occurred, that there was no substantiated evidence
of his committing other crimes since then, that the court failed to consider his
“self-motivated” rehabilitation, and that the court failed to consider the option
of sentencing him to a fine. Diehl also challenges the extent of the district
court’s upward variance.
We consider the substantive reasonableness of a sentence under an
abuse of discretion standard. See Gall, 552 U.S. at 51; Scott, 654 F.3d at 555.
A non-Guidelines sentence unreasonably fails to reflect the statutory
sentencing factors set forth in § 3553(a) where it (1) does not account for a
factor that should have received significant weight, (2) gives significant weight
to an irrelevant or improper factor, or (3) represents a clear error of judgment
in balancing the sentencing factors. United States v. Smith, 440 F.3d 704, 708
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(5th Cir. 2006). “The farther a sentence varies from the applicable Guidelines
sentence, the more compelling the justification based on factors in section
3553(a) must be.” Id. at 707 (internal quotation marks and citation omitted).
Ultimately, our “review for substantive reasonableness is ‘highly deferential,’
because the sentencing court is in a better position to find facts and judge their
import under the § 3553(a) factors with respect to a particular defendant.”
United States v. Hernandez, 633 F.3d 370, 375 (5th Cir. 2011) (quoting United
States v. Key, 599 F.3d 469, 473 (5th Cir. 2010)). Even a significant variance
from the Guidelines does not constitute an abuse of discretion if it is
“commensurate with the individualized, case-specific reasons provided by the
district court.” United States v. McElwee, 646 F.3d 328, 338 (5th Cir. 2011)
(quoting United States v. Herrera-Garduno, 519 F.3d 526, 531 (5th Cir. 2008)).
In the specific circumstances of this case, the overall sentence is well-
supported by the facts and by the district court’s consideration and explanation
of the § 3553(a) sentencing factors. It is clear that the district court sentenced
Diehl with reference to the applicable statutory maximum, the seriousness of
the crimes, including the abuse reflected on the videos, and the involvement of
three minor victims, all of which are appropriate, even necessary,
considerations. See 18 U.S.C. § 3553(a); Gall, 552 U.S. at 50 n.6
As to the seriousness of the offense, the court stated that “this is probably
the single most persuasive factor in this Court’s sentencing. I find this to be a
horrible offense.” Despite Diehl’s attempts to argue that this offense was
merely ordinary in the context of child pornography production cases, it cannot
seriously be suggested that ten separate counts of repeated sexual abuse of
three victims between the ages of 3 and 10 years old for the purposes of making
videos is not an especially grave crime. The ten video compilations, which the
district court viewed during the bench trial, included scenes of Diehl having
oral sexual contact with the minors, inducing the minors to engage in oral
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sexual contact with him, digital penetration, penile penetration, sodomy,
lascivious exhibition of the genitals and pubic area of the minors, and
masturbation. In the video described by Count 6 of the indictment, Diehl grabs
the head of a 3-year old child and ejaculates inside her mouth.
Further, as the district court noted, “[i]n addition to the actions that are
depicted on the videos that this Court observed at trial,” the videos appeared
in connection with over 3,000 ongoing child pornography cases, and the videos
“have now developed a life of their own and are continuing to be circulated.
And I do find that there is no way to pull those videos back.” The district court
did state that it was “satisfied that this defendant uploaded images of the films
that he took, because I have no other explanation of how they would have
gotten in circulation had this defendant not uploaded them. And that comes
from the evidence that I heard at the trial in this case.” These statements,
however, do not indicate that the district court sentenced Diehl based on the
distribution of the videos, which Diehl was not charged with. Instead, the
court’s discussion of the circulation of the videos refer to the serious
consequences of Diehl’s own admitted actions of sexually abusing multiple
children for the purposes of creating videos, which now continue to circulate
and re-victimize those children. The court stated that “the strongest factor
that I look at in determining the appropriate sentence in this case is the
seriousness of this crime and what it has done to the people that were victims
and what it will continue to do to the people who are victims and what it has
done to their family.” It was not improper for the district court to consider the
continuing impact on the victims in judging the seriousness of the offense and
selecting the sentence.
Contrary to Diehl’s assertions, the court specifically considered his
arguments in favor of a lower sentence. The court weighed those factors
against the seriousness of the offense. It stated:
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No. 11-51076
I recognize and will state on the record that, even though the
evidence is these particular crimes were committed some years ago
and there is no evidence of other crimes since then, that it is
possible to commit a crime that is so extreme and so horrific and
so heinous that punishment must be meted out to fit the crime
regardless of how a defendant has lived his life since then.
The court also stated that it had considered the mitigating statements made
about Diehl’s early childhood and his background of sexual abuse. That the
court determined these mitigating factors were outweighed by the seriousness
of the offense does not demonstrate error.
Further, the district court considered sentences that had been imposed
in other cases concerning production of child pornography, and considered how
Diehl’s offense compared to the conduct in those cases. Diehl’s 600-month
sentence is in line with other sentences found substantively reasonable for
producers of child pornography. See United States v. Oehne, 698 F.3d 119, 125-
126 (2d Cir. 2012) (affirming as substantively reasonable 540-month sentence
for two counts of production and distribution of child pornography); United
States v. Herrick, 512 F. App’x 534, 538-39 (6th Cir. 2013) (affirming as
substantively reasonable 1,140-month sentence for six counts of production,
distribution and possession of child pornography); United States v. Bleckler,
510 F. App’x 495, 496-97 (8th Cir. 2013) (affirming as substantively reasonable
660-month sentence for four counts of production and possession of child
pornography involving three children); United States v. Huskey, 349 F. App’x
495, 496-97 (11th Cir. 2009) (affirming as substantively reasonable 840-month
sentence for production, distribution and receipt of child pornography).
The extent of the variance from the Guidelines range here does require
careful consideration, as any variance of this size would do. However, this
court has previously upheld large variances where the district court’s decision
was justified by the sentencing factors. In United States v. Schmidt, this court
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No. 11-51076
affirmed a 444-month sentence that was 151 months above the top of the
defendant’s Guidelines range and represented a 51.5% upward variance. 552
F. App’x 300, 306 (5th Cir. 2014). Schmidt also examined a number of cases in
which we upheld sentences which were “substantially above, or multiples of,
the top of the Guidelines range.” Id. at 306 n.20 (collecting cases finding
substantial upward variances to be substantively reasonable).
Given the district court’s extensive consideration and explanation of the
appropriate sentence in light of the § 3553(a) sentencing factors, we simply
cannot conclude that the district court did not account for a factor that should
have received significant weight, gave significant weight to an improper factor,
or that it clearly erred in its balancing of the sentencing factors. See Smith,
440 F.3d at 708. To the contrary, the only evidence supporting such a
contention is the size of the variance alone, which does not result in a sentence
that is at all out of line with sentences in cases involving similar offenses and
which the district court amply justified in the specific circumstances of this
case. Diehl has not demonstrated that the district court’s imposition of a 600-
month sentence is substantively unreasonable.
III. Conclusion
For the foregoing reasons, we AFFIRM Diehl’s conviction and sentence
in all respects.
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