United States v. Derremy Jerrell Walker

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13403
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERREMY JERRELL WALKER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cr-00020-WWB-EJK-1
____________________
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2 Opinion of the Court 21-13403
Before GRANT, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Derremy Walker used a hidden phone camera to film
underage girls using the bathroom in their high school. He now
challenges his convictions for using or attempting to use a minor
to produce child pornography and his resulting sentence. Finding
no error, we affirm.
I.
Walker worked as a janitor in a Florida high school. On
three days in November 2019—while Walker was on the job—he
hid a cellphone under a sink in a student bathroom. He angled the
phone so that its camera could view under a stall door and into the
stall, around hip level, and pressed a button to record. From that
vantagepoint, he captured videos in which at least 10 students
exposed their genitals or buttocks while undressing to use the
bathroom.
His scheme ended when two girls happened to sit on the
bathroom floor and noticed a cellphone “propped up under the
sink on the pipes facing towards the toilet.” One girl grabbed the
phone, saw that it was recording a video, and brought it to the
dean’s office, prompting an investigation. Eventually federal
prosecutors charged Walker with two counts of using or
attempting to use a minor to produce child pornography, in
violation of 18 U.S.C. § 2251(a) and (e). A jury convicted him of
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both counts. The district court then sentenced him to 60 years’
imprisonment: the sentence recommended by the Guidelines and
the maximum allowed by statute. See 18 U.S.C. § 2251(e). This
appeal followed.
II.
Walker argues that the district court improperly instructed
the jury. We review the jury instructions for an abuse of discretion,
but determine de novo whether those instructions “misstated the
law or misled the jury.” United States v. Baston, 818 F.3d 651, 660
(11th Cir. 2016).
Walker primarily contends that the district court misstated
the law when issuing a supplemental instruction about an element
of § 2251(a). As relevant to this appeal, a person violates § 2251(a)
when he uses (or attempts to use) a minor “with the intent that
such minor engage in, any sexually explicit conduct for the
purpose” of “producing” or “transmitting” a “visual depiction of
such conduct.” 18 U.S.C. § 2251(a) (emphasis added); see id.§ 2251(e). Congress has defined sexually explicit conduct to include
the “lascivious exhibition of the anus, genitals, or pubic area of any
person,” and this Court has explained that an exhibition is
lascivious when it “potentially excites sexual desires or is
salacious.” Id. § 2256(2)(A)(v); United States v. Grzybowicz, 747
F.3d 1296, 1305–06 (11th Cir. 2014) (quotations omitted and
alteration adopted). The district court gave substantially those
definitions in its instructions. It defined sexually explicit conduct
to include “lascivious exhibition of the genitals or pubic area of any
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person,” and lascivious exhibition as “indecent exposure of the
genitals or pubic area usually to incite lust.”
The jury wanted more detail, specifically, about whose
sexual desires matter. They asked whether the standard “applied
to a normal person or the individual charged”—that is, was it a
“subjective versus objective standard?” After much discussion with
the government and Walker’s counsel, the court told the jury to
consider lasciviousness from the viewpoint of “the defendant or
any intended viewer.”
Although we have never adopted that viewpoint explicitly,
we approved it impliedly in United States v. Holmes, 814 F.3d 1246(11th Cir. 2016). There, we held that a child’s “otherwise innocent
conduct”—like using the bathroom—could count as a “lascivious
exhibition of the genitals or pubic area.” Id. at 1251–52 (quotation
omitted). In reaching that conclusion, we endorsed other circuit
opinions that “focused on the intent of the producer.” Id. at 1252.
And—most important for our purposes here—we cited with
approval an opinion declaring that “[l]asciviousness is not a
characteristic of the child photographed but of the exhibition which
the photographer sets up for an audience that consists of himself or
like-minded pedophiles.” Id. (quoting United States v. Wiegand,
812 F.2d 1239, 1244 (9th Cir. 1987)). The perspective
recommended by the district court—that of the defendant and his
intended audience—was substantially the same, simply less
inflammatory, and so an accurate statement of the law.
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Moreover, the supplemental instruction did not direct a
verdict against Walker. See United States v. Akwuba, 7 F.4th 1299,
1311 (11th Cir. 2021). To do so, the instruction would have needed
to decide a factual question about an element of a charged offense.
See id.; Mims v. United States, 375 F.2d 135, 148 (5th Cir. 1967). 1
The supplemental instruction here did not; instead, it answered a
legal question about the proper perspective for determining
whether conduct is sexually explicit. True, the jury convicted
Walker within seconds of receiving the instruction. But their speed
suggests only that the judge answered a critical question for the
jury—not, as Walker claims, that the court essentially told the jury
that an element of the offense had been met. We thus see no error
in the supplemental instruction.
Walker also contends that the district court should not have
instructed the jury on attempt. We disagree. The attempt
instruction accurately expressed the law. See United States v. Lee,
603 F.3d 904, 913–14, 918 (11th Cir. 2010). And the instruction was
not liable to confuse or prejudice the jury, which was charged with
determining whether Walker had attempted to use a minor to
produce child pornography. See United States v. Clay, 832 F.3d
1259, 1310 (11th Cir. 2016). His challenges to the jury instructions
therefore fail.
1 This Court adopted as binding precedent all decisions of the former Fifth
Circuit handed down before October 1, 1981, in Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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III.
Walker next challenges his sentence on two grounds. First,
he argues that the district court improperly applied a sentencing
enhancement for engaging in a “pattern of activity involving
prohibited sexual conduct.” See U.S. Sentencing Guidelines
§ 4B1.5(b) (Nov. 2018). We review de novo the court’s
interpretation and application of the guideline providing for that
enhancement. United States v. Amedeo, 370 F.3d 1305, 1312 (11th
Cir. 2004).
Walker concedes that the requirements for the
enhancement are satisfied, so long as his actions were in fact
prohibited sexual conduct. They were. The conduct underlying
the enhancement was filming the exposed pubic areas of girls using
the bathroom—the very conduct for which he was convicted of
producing (or attempting to produce) child pornography. See
U.S.S.G. § 4B1.5 cmt. n.4(A). And to the extent that he is
contending that the jury lacked sufficient evidence to convict him
for that conduct, we disagree. As we explained in Holmes,
surreptitiously filming girls “performing normal, everyday
activities” in the bathroom can count as using minors to engage in
sexually explicit conduct for pornography production, depending
“on the actions of the individual creating the depiction.” 814 F.3d
at 1251–52. Here, Walker’s actions sexualized innocent bathroom
activities; he aimed a hidden camera into a bathroom stall to
capture girls’ naked pubic areas. See id. at 1252. A jury could
reasonably conclude that through those recordings he was trying
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to create a lascivious exhibition of their pubic areas—conduct that
suffices to convict him of using or attempting to use a minor to
produce child pornography. See id. The district court thus
properly applied the enhancement.
Second, Walker argues that his sentence was substantively
unreasonable. We review the court’s sentencing decision for an
abuse of discretion. United States v. Irey, 612 F.3d 1160, 1188 (11th
Cir. 2010) (en banc). Under that standard, we vacate a sentence as
substantively unreasonable “if, but only if, we are left with the
definite and firm conviction that the district court committed a
clear error of judgment in weighing the [sentencing] factors.” Id.
at 1190 (quotation omitted).
The district court sentenced Walker to 60 years’
imprisonment. The Guidelines range for his offenses had been
calculated as life imprisonment. See U.S.S.G. ch. 5, pt. A. But
§ 2251(e) capped his sentence at 60 years’ imprisonment, and that
maximum became the Guidelines recommendation as well. See 18
U.S.C. § 2251(e); U.S.S.G. § 5G1.2(b). Because the sentence
imposed is within the Guidelines recommendation, we start with
the presumption that it is reasonable. See Rita v. United States, 551
U.S. 338, 347 (2007).
Nothing Walker raises persuades us to depart from that
presumption. Walker mainly contends that his conduct was not
serious enough to merit the maximum sentence because he did not
physically molest the girls. As the district court recognized,
though, “just because [he] didn’t physically touch them, does not
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mean that they are not as damaged as if [he] had.” The court
reflected on letters from girls depicted in the videos, and noted that
they “are very similar” to letters “from children that have been
physically touched in terms of the psychological damage that’s
done to them and the violation that they feel that they have and
the humiliation that they’ve gone through.” We cannot fault the
court for not departing from the Guidelines sentence simply
because Walker violated the girls without touching them. Walker
also points to hardship he experienced as a child. But the district
court explicitly considered those difficulties before deciding to
nonetheless impose the Guidelines sentence.
Walker has identified defendants who received far less than
the Guidelines sentence for their child-pornography offenses. But
his sentence is not unusual enough to be substantively
unreasonable. Indeed, we recently upheld a similar maximum
sentence (there, 1440 months) where a court had “thoroughly
discussed” the defendant’s “particularly heinous conduct and direct
participation in the creation of child pornography, his breach of
public trust as a police officer, and his total failure to take
responsibility for his actions.” United States v. Kirby, 938 F.3d
1254, 1259 (11th Cir. 2019). Much of the same applies here. As the
district court explained, Walker’s conduct was “[b]eyond serious”
because he exploited his position as a custodial worker to abuse
girls, destroying their sense of safety and privacy by capturing
videos of them in a bathroom.
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He also expressed little remorse, and even seemed to push
blame onto the girls he victimized. See United States v. Feldman,
931 F.3d 1245, 1264 (11th Cir. 2019). Walker told the court at
sentencing that he was “sure that even [his] accusers themselves
have veered off course if not once but multiple times, but still the
community can and should be able to look forward and trust even
them in the future.” He then offered “congratulations” to the court
for succeeding at “tak[ing] time away from him,” and noted that its
efforts would “continue to ensure [his] humiliation until the end.”
Given the conduct underlying Walker’s offenses and his statements
at sentencing, the district court did not abuse its discretion in
sentencing him to 60 years’ imprisonment.
Walker’s convictions and sentence are AFFIRMED.