United States v. Bryan Jacobs

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 14-2960 and 14-3800
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UNITED STATES OF AMERICA
v.
BRYAN JACOBS
a/k/a “Brianna”
a/k/a “xbriannas89x”
a/k/a “xBriannaS89x”
Bryan Jacobs,
Appellant
____________
On Appeal from United States District Court
for the District of New Jersey
(D.N.J. No. 1-10-cr-00801-001)
District Judge: Honorable Renee M. Bumb
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 20, 2015
Before: FISHER, CHAGARES, and COWEN, Circuit Judges.
(Opinion Filed: May 4, 2015)
____________
OPINION*
____________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FISHER, Circuit Judge.
Bryan Jacobs pled guilty to one count of receipt of child pornography. The District
Court sentenced Jacobs to 240 months of incarceration—the statutory maximum for this
crime—and imposed restitution in the amount of $75,000. He appeals the reasonableness
of his sentence and the amount of restitution imposed. We will affirm.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts that are necessary
to our analysis.
Jacobs pretended to be a teenage girl to convince minor boys to send him pictures
of themselves in sexually explicit poses. He also extorted some boys into sending him
pictures of themselves. In one instance, Jacobs threatened to share a minor’s pictures with
the minor’s friends if he did not send Jacobs more pictures; in another instance, Jacobs
threatened to accuse a minor of posting child pornography on a website if the minor did
not send pictures. Jacobs posted the images on websites and used them to trade for more
images of child pornography. At the time of his arrest, Jacobs had over 11,000 images
and almost 300 videos of child pornography.
A federal grand jury in the District of New Jersey indicted Jacobs on five counts
of sexual exploitation of children, in violation of 18 U.S.C. § 2251(a); four counts of
2
receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1); and
one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B)
and (b)(2). Jacobs pled guilty to one count of receipt of child pornography. The child
pornography referred to in this count was of one specific minor victim, whom we will
refer to as Child Victim 1.
At the sentencing hearing, the District Court calculated Jacobs’s Sentencing
Guidelines range to be 324 to 405 months, based on an offense level of 41 and a criminal
history category of I. But because the statutory maximum for the offense was 20 years,
the District Court set the Guidelines range at 240 months.1 After affording Jacobs and the
United States an opportunity to argue for what an appropriate sentence would be, the
District Court imposed a sentence of 240 months of incarceration to be followed by 15
years of supervised release. The District Court set a hearing to determine whether
restitution was appropriate for the harm done to Child Victim 1 and, if so, the amount of
restitution. After the hearing, the District Court issued an order setting Jacobs’s
restitution at $75,000 and an opinion explaining its order. Jacobs filed a timely appeal
from both his sentence and the restitution order.
1
See 18 U.S.C. § 2252A(a)(2)(A) & (b)(1); U.S.S.G. § 5G1.1(a) (stating that
when the statutory maximum sentence is less than the Guidelines range, the maximum
sentence is the Guidelines sentence).
3
II.
The District Court had jurisdiction over this criminal action under 18 U.S.C.
§ 3231. We have appellate jurisdiction over Jacobs’s challenge to his sentence and the
restitution order under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We review the
procedural and substantive reasonableness of Jacobs’s sentence for abuse of discretion.2
We review a challenge to the appropriateness of restitution for abuse of discretion and the
amount of loss for clear error.3
III.
A.
In reviewing a defendant’s sentence, we first ensure that the sentence was
procedurally reasonable, and then we ensure that it was substantively reasonable.4 A
district court commits no procedural errors when it 1) correctly calculates the applicable
Guidelines range; 2) rules on any motions for departure and states how the departure
affects the Guidelines range; and 3) after hearing argument from the parties on an
appropriate sentence, considers the 18 U.S.C. § 3553(a) factors to determine the
2
See United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir. 2009) (en banc). An
abuse of discretion occurs when the District Court’s decision “rests on a clearly
erroneous finding of fact, an error of law, or a misapplication of law to the facts.” Marco
v. Accent Publ’g Co., 969 F.2d 1547, 1548 (3d Cir. 1992).
3
United States v. Vitillo, 490 F.3d 314, 330 (3d Cir. 2007); United States v.
Quillen, 335 F.3d 219, 221 (3d Cir. 2003).
4
Tomko, 562 F.3d at 567.
4
appropriate sentence and places its reasoning on the record.5 Jacobs says that the District
Court made two procedural errors here. First, he argues that the District Court
miscalculated his Guidelines range by including inapplicable enhancements. And second,
he argues that the District Court did not consider his arguments in favor of a lesser
sentence when it evaluated the § 3553(a) factors.
First, with respect to the District Court’s Guidelines calculation, he has waived his
challenges. On appeal, he challenges three Guidelines enhancements: a two-level
enhancement under U.S.S.G. § 2G2.2(b)(2), for images involving a prepubescent minor
or a minor less than 12 years old; a six-level enhancement under § 2G2.2(b)(3)(D), for
distributing images to a minor to induce the minor to engage in illegal activity; and a
four-level enhancement under § 2G2.2(b)(4), for images that portrayed sadistic or
masochistic conduct. Jacobs objected to these enhancements initially,6 but he
affirmatively “dropp[ed]” these objections in his sentencing memorandum.7 Jacobs
5
Id.
6
Presentence Report at 39-41.
7
Ohio App. at 57.
5
intentionally abandoned a known right and has waived his objections.8 Therefore, we will
not review them.
Second, the District Court meaningfully considered the arguments Jacobs now
raises in evaluating the § 3553(a) factors. Jacobs complains that the District Court did not
consider his alleged disadvantaged childhood, his incarceration in a non-federal
institution, his remorse and ability to be rehabilitated, and the alleged inadequacy of the
child pornography Guidelines in determining an appropriate sentence. This is not correct.
The District Court did meaningfully consider these arguments in determining an
appropriate sentence.9 Jacobs merely disagrees with the District Court’s ultimate
evaluation of the § 3553(a) factors. That is a challenge to the substantive reasonableness
of the District Court’s sentence.
8
See United States v. Olano, 507 U.S. 725, 733 (1993). Jacobs suggests that he
did not pursue these objections because the United States “threat[ened]” that Jacobs
would lose credit for acceptance of responsibility and that the United States might
withdraw from the plea agreement. Appellant’s Br. at 37. With respect to the
enhancements Jacobs now argues were incorrect, the United States only made this
“threat” with respect to Jacobs’s objection to the § 2G2.2(b)(3)(D) enhancement.
Presentence Report at 40-41. The United States’s “threat” was that Jacobs had stipulated
that this enhancement would apply in the plea agreement; objecting to the enhancement
could be construed as breaching the plea agreement, allowing the United States to
withdraw from it, or as Jacobs’s failure to accept responsibility for the offense. Id. Given
that the United States’s position is supported by the plea agreement, App. at 97, we see
no basis to excuse Jacobs’s waiver.
9
Ohio App. at 313-15 (discussing Jacobs’s alleged disadvantaged childhood); App. at
328-29 (discussing Jacobs’s incarceration in a non-federal institution); App. at 313, 321
(discussing Jacobs’s acceptance of his responsibility for the crime and “good use of his
time in prison”); App. at 319-21 (discussing the alleged inappropriateness of the child
pornography Guidelines).
6
In reviewing the substantive reasonableness of a sentence, we must affirm “unless
no reasonable sentencing court would have imposed the same sentence on that particular
defendant for the reasons the district court provided.”10 We have no difficulty concluding
that Jacobs’s sentence was substantively reasonable under this standard. Jacobs defrauded
and extorted minors into creating child pornography of themselves. The District Court
heard testimony of the impact that his conduct had on his victims. He also accumulated a
large library of child pornography. The District Court did not abuse its discretion in
finding that the culpability of Jacobs’s conduct required the sentence imposed even in
light of the arguments and evidence Jacobs presented at the sentencing hearing.11
B.
Under 18 U.S.C. § 2259, the District Court was required to order restitution for
Child Victim 1’s losses that Jacobs’s criminal conduct proximately caused. 12 Here, the
District Court found that Child Victim 1’s losses amounted to $60,000 for past medical
expenses—mental health counseling beginning in 2006—and $15,000 for future medical
expenses. Jacobs presents two challenges to the District Court’s award. First, he says that
the District Court should not have awarded restitution for medical expenses incurred
10
Tomko, 562 F.3d at 568.
11
With respect to the appropriateness of the child pornography Guidelines, we
have held that a district court does not need to investigate the empirical justifications of
those Guidelines if it agrees with the range they indicate. See United States v. Lopez-
Reyes, 589 F.3d 667, 671 (3d Cir. 2009). The District Court concluded that because it
found the Guidelines range appropriate in this case, no inquiry was necessary. App. at
320-21. This was not error.
12
See Paroline v. United States, 134 S. Ct. 1710, 1718-19, 1722 (2014).
7
before Child Victim 1 learned in 2009 that he actually sent pictures to Jacobs who
distributed and posted those pictures on the Internet because those expenses must not
have been related to Jacobs’s conduct. And second, he says that insufficient evidence
supported the $60,000 award for past medical expenses.
We see no error in requiring Jacobs to make restitution for medical expenses Child
Victim 1 incurred before learning in 2009 that he had communicated with Jacobs. From
Child Victim 1’s perspective, before 2009, someone had induced him into taking pictures
of himself at the age of 13 in sexually explicit poses. This person also extorted him into
taking more pictures of himself by threatening to send the pictures to Child Victim 1’s
friends. And Child Victim 1 had discovered that this person had lied about his or her
identity while they were still communicating.13 We agree with the District Court that it
was “highly probable” Child Victim 1 required therapy for the harm he suffered even
before learning exactly with whom he corresponded and what Jacobs had done with the
pictures.14 Accordingly, the District Court correctly determined that Jacobs’s conduct
“was a substantial factor in causing” Child Victim 1 to seek counseling starting before
learning Jacobs’s identity, and, therefore, restitution was appropriate.15
13
Ohio App. at 367.
14
App. at 33.
15
United States v. Crandon, 173 F.3d 122, 126 (3d Cir. 1999).
8
As for Jacobs’s challenge to the amount of medical expenses included in the
restitution order, our review is for clear error.16 Jacobs must show that the figure is
“‘completely devoid of a credible evidentiary basis or bears no rational relationship to the
supporting data.’”17 Jacobs argues that the amount of restitution for the years 2006
through 2011 had no evidentiary basis because the Government did not produce billing
records from this period. However, Child Victim 1’s mother submitted a statement saying
that her family had paid approximately $60,000 for his mental health counseling over this
period.18 This figure was corroborated by partial records and was the best she could do
given the loss of records over time. In light of these circumstances, this “reasonable
approximation” was satisfactory, and the $60,000 restitution for past medical expenses
was not clearly erroneous.19
IV.
For the reasons set forth above, we will affirm Jacobs’s sentence and the order of
restitution.
16
Vitillo, 490 F.3d at 330.
17
Id. (quoting United States v. Haut, 107 F.3d 213, 218 (3d Cir. 1997)).
18
Jacobs has not challenged the use of Child Victim 1’s mother’s unsworn
statement at the restitution hearing either before the District Court or on appeal.
Accordingly, any objection is waived.
19
United States v. Seligsohn, 981 F.2d 1418, 1423 (3d Cir. 1992), superseded by
statute on other grounds by U.S.S.G. § 1B1.11(b)(2); United States v. Hand, 863 F.2d
1100, 1104 (3d Cir. 1988) (“Difficulties of measurement do not preclude the court from
ordering a defendant to compensate the victim through some restitution.”).
9