United States v. Richard Bistline

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0235n.06
No. 14-3874
FILED
Mar 31, 2015
UNITED STATES COURT OF APPEALS
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
RICHARD BISTLINE, )
SOUTHERN DISTRICT OF
)
OHIO
Defendant-Appellant. )
)
)
Before: GILMAN and KETHLEDGE, Circuit Judges; LUDINGTON, District Judge.*
KETHLEDGE, Circuit Judge. This case is before us for a third time. Richard Bistline
pled guilty to knowingly possessing child pornography, in violation of 18 U.S.C. § 2522. He
now challenges his sentence of one year and one day in prison. We affirm.
I.
“Richard Bistline pled guilty to knowingly possessing 305 images and 56 videos of child
pornography on his computer. Many, if not a majority, of those images and videos”—including
those depicting Kylie and Vickie, two victims whose statements were read at Bistline’s
sentencing hearings—depicted young girls “being raped by adult men.” United States v. Bistline,
665 F.3d 758, 760 (6th Cir. 2012) (Bistline I). The guidelines range for Bistline’s sentence was
63 to 78 months’ imprisonment, though the district court failed to acknowledge that fact at
*
The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of Michigan,
sitting by designation.
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United States v. Bistline
Bistline’s first (or second) sentencing hearing. The court sentenced Bistline to overnight
confinement in the courthouse lockup, plus 30 days’ home confinement and ten years’
supervised release. We reversed, holding that “the sentence imposed in this case does not
remotely meet the criteria that Congress laid out in § 3553(a).” Id. at 768. But on remand the
district court imposed the same sentence, except that the court extended Bistline’s period of
home confinement from 30 days to three years. We reversed again, holding that “[t]he sentence
imposed on remand does not ‘reflect the seriousness of the offense’; it does not meet the
retributive goal of ‘provid[ing] just punishment for the offense’; and it does not ‘afford adequate
deterrence to criminal conduct[,]’ among other deficiencies.” United States v. Bistline, 720 F.3d
631, 634 (6th Cir. 2013) (Bistline II). We also ordered the case assigned to a different district
judge on remand. Id. at 634-35.
At Bistline’s third sentencing, the district court stated that it had “reviewed everything in
the lengthy record before me,” including the “lengthy sentencing memoranda and exhibits[.]”
Tr. 2, 4. The court then heard arguments from counsel for each side, testimony from Bistline’s
probation officer, and allocution from Bistline himself. The government argued for a sentence of
60 months’ imprisonment; Bistline argued for a noncustodial sentence. Ultimately the court
imposed a sentence of one year plus one day in prison, followed by ten years’ supervised release.
The court allowed Bistline to remain free on bond pending this appeal.
II.
A.
Bistline argues that the district court’s imposition of a sentence greater than overnight
confinement in the courthouse lockup violated his Sixth Amendment rights. That is a legal
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United States v. Bistline
argument, which we review de novo. United States v. Beverly, 369 F.3d 516, 536 (6th Cir.
2004).
Bistline’s briefs are unclear as to why, exactly, he thinks his custodial sentence violates
the Sixth Amendment. But he seems to reason as follows: first, certain of our holdings in our
prior decisions in this case—namely, that the district court unreasonably applied 18 U.S.C.
§ 3553(a) in choosing a sentence of overnight confinement in the lockup—“[i]n effect” amount
to findings of fact (rather than holdings) that § 3553(a) required a custodial sentence in Bistline’s
case (Opening Br. at 34); and second, those putative factual findings in turn mandated a custodial
sentence of a certain length (i.e., one longer than a single day) in the same manner that, say,
statutory minimums mandate a sentence of a certain length. Thus, the argument seems to go,
Bistline’s sentence was mandated by (appellate) judge-found facts, which would be contrary to
the Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151, 2160 (2013).
The short answer to this argument is that our review of Bistline’s sentence for substantive
reasonableness was mandated by Supreme Court precedent rather than barred by it. See United
States v. Booker, 543 U.S. 220, 261-62 (2005); Gall v. United States, 552 U.S. 38, 51 (2007). A
somewhat longer answer is that our determinations (to use a neutral term) that the district court
misapplied § 3553(a) were not findings of fact. To the contrary, § 3553(a) requires the district
court (and then the circuit court on appeal, see Booker, 543 U.S. at 261) to “consider” certain
factors in determining a defendant’s sentence. And that kind of consideration, we have already
held, yields a judgment rather than a finding of fact. See United States v. Gabrion, 719 F.3d 511,
533 (6th Cir. 2013) (en banc). Bistline’s Sixth Amendment argument is meritless.
Nor, it bears mention, does this record even present the Sixth Amendment issue that
Bistline seeks to raise. He asserts, as a premise of his Sixth Amendment argument, that “[t]he
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sole factor relied on by Judge Smith in support of the longer sentence [i.e., the 366-day sentence
on review here] was that this court required a longer sentence.” Opening Br. at 32 (emphasis in
original). But the record refutes that assertion. In support of the sentence imposed here, the
district court stated, among other things, that “I believe that the sentence imposed is fair and just
punishment for the defendant”; that the sentence “will send a message throughout our country
that this conduct must not be repeated”; that “[t]he sentence imposed today will afford the
defendant the appropriate and necessary means of rehabilitation”; and that “the sentence imposed
is sufficient but not greater than necessary to comply with the purposes of sentencing outlined in
Section 3553(a).” Tr. 50-51. It is true that the district court elsewhere recognized that, in light
of our prior decisions in this case, a noncustodial sentence was no longer an option in Bistline’s
case. Tr. at 47. But the court’s own statements show that, even if that option had been available,
the district court would not have exercised it. The record makes clear that the sentence imposed
in this case—366 days’ imprisonment, rather than none—was the district court’s own.
B.
Bistline argues on three grounds that his sentence is procedurally unreasonable. But he
presented none of these grounds to the district court, even after the court asked whether “the
parties have any objections to the sentence just pronounced that have not previously been
raised[.]” Tr. at 51. We therefore review the procedural reasonableness of Bistline’s sentence
only for plain error. See United States v. Simmons, 587 F.3d 348, 355-58 (6th Cir. 2009).
There was none. Bistline first argues that the court ignored his argument that U.S.S.G.
§ 2G2.2—the guideline governing his base-offense level—lacked “any empirical support or
other sound policy” to support it. Opening Br. at 38. As an initial matter, our court has already
held that “Congress’s long and repeated involvement in raising the offense levels for § 2G2.2
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make clear that the grounds of its action were not only empirical, but retributive—that they
included not only deterrence, but punishment.” Bistline I, 665 F.3d at 764; see also Bistline II,
720 F.3d at 633. Bistline once again offers no response to those retributive grounds; and thus
that the district court did not expressly discuss his argument did not affect his substantial rights.
Moreover, the record shows that the district court did consider Bistline’s critique of the
guidelines: the court stated that it had reviewed Bistline’s sentencing memorandum, and indeed
refused to apply three enhancements for policy reasons. Thus, the district court did not “plainly
violate[] its duty to analyze[] . . . his arguments for leniency.” United States v. Vonner, 516 F.3d
382, 388 (6th Cir. 2008) (en banc) (emphasis and internal quotation marks omitted).
Bistline next argues that the district court did not explain adequately why his arguments
for leniency did not support a sentence shorter than the 366-day sentence that the court imposed.
But the record makes clear the district court considered Bistline’s arguments about his age,
health, and other personal characteristics; indeed the court and the parties discussed those
considerations at length during the sentencing hearing. The court was not obligated to discuss
Bistline’s arguments more than it did. See United States v. Gale, 468 F.3d 929, 941 (6th Cir.
2006).
Bistline likewise argues that the district court failed to consider a guidelines policy
statement that he says encourages home confinement for elderly and infirm defendants. But
Bistline himself made no more than a passing reference to this policy statement in the district
court, so the district court was not required to discuss it. See United States v. Madden, 515 F.3d
601, 611 (6th Cir. 2008). Bistline’s sentence was procedurally reasonable.
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C.
Finally, Bistline argues that his 366-day sentence is substantively unreasonable. That
sentence, to be clear, amounts to more than an 80% reduction from the low end of his original
guidelines range. Suffice it to say that, for all of the reasons already stated in our prior opinions
in this case, Bistline’s sentence is not unreasonably harsh. See Bistline I, 665 F.3d at 764-768;
Bistline II, 720 F.3d at 634-35.
The district court’s judgment is affirmed.
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