United States v. Turner, David A.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 4, 2006
Decided November 21, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-1440
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Indiana, Indianapolis Division
v.
No. IP 05-70-CR-01
DAVID ANDREW TURNER,
Defendant-Appellant. David F. Hamilton,
Judge.
ORDER
David Turner pleaded guilty to nine counts of producing child pornography,
18 U.S.C. § 2251(a), (e), and one count of possessing child pornography, id.§ 2252(a)(4)(B). The district court calculated a total offense level of 53 and a
Category V criminal-history score, resulting in a recommended guidelines sentence
of life. The district court sentenced Turner to a total of 100 years. On appeal
Turner argues that his sentence is unreasonable because 100 years is greater than
necessary to comply with the purposes of punishment addressed at 18 U.S.C.
§ 3553(a)(2).
Turner married Kim Bussell in 1994 and in 2000 adopted her two children,
including Jane Doe, who was born in 1988. In November 2004, more than a year
No. 06-1440 Page 2
after she stopped living with Turner, Jane Doe reported to her aunt and uncle that
Turner had been taking explicit pictures of her since she was 12 or 13 years old.1
Her aunt and uncle contacted authorities, who obtained a warrant to search
Turner’s home.
While executing the search warrant, police discovered approximately 95
computer disks containing pornographic images of minors. Before they stopped
counting, police found more than 7,000 images of child pornography, including
videos depicting adult males having sexual intercourse with infants, and other
sadistic photographs and videos of children under the age of six. Two of Turner’s
disks contained images of Jane Doe when she was between the ages of 13 and 15,
and another contained images of one of her friends at age 15. Both victims
identified Turner as the photographer for all of the images. Based on this evidence,
a grand jury indicted Turner on nine counts of producing child pornography and one
count of possessing child pornography. On the morning of trial, Turner pleaded
guilty to the possession count and waived his right to a jury trial on the remaining
counts.
During trial the government’s first witness, Turner’s wife and Jane Doe’s
mother, testified that Turner knew how old Jane Doe was based on birthday
celebrations and her year in school. Turner’s wife also testified that he created two
Internet websites: an adult subscription site entitled Anallinguslovers.com and a
free site entitled Privatecollectionz.com. She also identified each of the pictures
underlying the nine counts of producing child pornography as a sexually explicit
image of her daughter or her daughter’s friend. With one exception, she identified
the backgrounds in all of the pictures as being either in her house or at the
apartment of one of her co-workers, Sang Jang (“John Doe” in the record because,
according to the government, he was not charged in the indictment), who spent time
with Turner and who was a friend of the family.
1
At oral argument, Turner’s counsel asked that we omit any recitation of the facts from
our decision. Although we understand counsel’s concern about the nature of Turner’s offense,
we cannot feasibly discuss the reasonableness of Turner’s sentence without describing the events
leading to his conviction. See Krynicki v. Falk, 983 F.2d 74, 75 (7th Cir. 1992) (“Any step that
withdraws an element of the judicial process from public view makes the ensuing decision look
more like fiat . . . .”); United States v. Mentzos, 462 F.3d 830, 843 (8th Cir. 2006) (denying
defendant’s motion to file opinion under seal because circumstances of his case were insufficient
to distinguish it from other criminal cases in which the opinions were published); BBA
Nonwovens Simpsonville, Inc. v. Superior Nonwovens, LLC, 303 F.3d 1332, 1335 (Fed. Cir.
2002) (citing importance of public scrutiny on administration of justice in denying motion to
issue opinion under seal).
No. 06-1440 Page 3
The government’s next witness, Jane Doe, identified Turner as her adoptive
father and Jang as one of her mother’s co-workers and a friend of Turner’s. When
she was about 11 or 12, Jane Doe said, Turner would supply her and her friends
with alcohol and marijuana and take nude or partially nude pictures of them when
they were drunk or high. After one of these photo sessions, Jane Doe accepted
Turner’s proposal that she pay off a concert ticket by posing for “artistic” photos
with her shirt off, rather than by doing household chores as originally agreed.
After that session, Turner proposed additional photo sessions in exchange for
money and gifts. Jane Doe accepted and began posing for photo sessions
approximately twice a month in exchange for new clothes, perfume, lingerie, shoes,
alcohol, marijuana, cigarettes, and extended curfews.
As the months went on, Jane Doe testified, the nature of the photo sessions
began to change; she began to pose completely naked, showing her genitalia, and
using props as Turner directed. Additionally, before each photo session, Jane Doe
would consume alcohol, marijuana, and cigarettes that Turner provided. The
nature of the photo sessions changed once again, Jane Doe testified, when Turner
told her that he would pull her out of school early to pose for nude photos with Jang,
and that she and Jang would perform oral sex on each other. Jane Doe agreed to
this because she liked Jang, but she told Turner she did not want to have
intercourse because she was a virgin and because she said she was menstruating.
After Turner took Jane Doe out of school early the next day, he took her to
Jang’s apartment where she consumed five or six shots of tequila and a couple of
beers that Turner and Jang supplied. Feeling the effects of the alcohol, she began
to remove her clothing and performed oral sex on Jang at Turner’s direction. She
could not remember what happened next, she said, because the alcohol caused her
to “black out.” The next day, however, she was angry to discover both videos and
photographs of her having intercourse with Jang. Jane Doe testified that Turner
and Jang told her she had consented to intercourse, but she said she felt angry and
betrayed because she remembered telling them that she did not want to have sex.
Jane Doe asked Turner to destroy the photographs and video from the evening, and
she believed that he did. Jang also apologized to her and gave her a necklace and
concert tickets, which she accepted. The two began a dating relationship that Jang
told her to keep quiet because he was married and she was too young. That
relationship eventually ended in Jang’s arrest.
Finally, Jane Doe identified herself in the pictures listed in eight of the
producing counts and identified Turner as the photographer. She also described
one instance in which Turner touched her and asked her to perform oral sex on him,
which she did. In addition, Jane Doe testified, she once found a nude picture of
herself on his for-profit website and asked him to remove it. At the time she finally
No. 06-1440 Page 4
reported all of these incidents to her aunt and uncle, Jane Doe was in counseling for
drug and alcohol abuse.
The government’s final witness, Jane Doe’s friend, testified that she was
close to Jane Doe and her family and sometimes even referred to Turner and his
wife as “Dad” and “Mom.” She said that sometimes she stayed over at Jane Doe’s
house more than one night in a row after her relationship with her own mother
began to deteriorate. While at Jane Doe’s home, she said, she often smoked
marijuana and drank whiskey with Jane Doe and Turner.
After Jane Doe and her mother moved out of the house in August 2003, Jane
Doe’s friend continued to visit Turner at his home and sometimes stayed overnight
because her mother had kicked her out of her house and she had nowhere to live.
While she was at Turner’s home, she would drink alcohol and smoke marijuana and
cigarettes with him, and Turner would show her his porn website. Turner also
showed her nude and partially clothed pictures of Jane Doe, and explained that
Jane Doe would allow him to take nude pictures of her in exchange for “favors.” He
also told her that he loved Jane Doe and would like to marry her if he wasn’t her
“father.”
Because Turner was aware that Jane Doe’s friend was broke and homeless,
he paid her to do household chores such as cleaning the kitchen, doing his laundry,
and mowing the yard. Then, around Thanksgiving 2003, Turner said he knew she
was desperate for money and offered to pay her $100 if she would allow him to
photograph her nude. She testified that she did not want to pose for the photos,
and though she offered to pose topless or in her underwear rather than fully nude,
Turner was not satisfied. After consuming whiskey and marijuana, she said, she
finally agreed to let Turner take fully nude pictures, which she identified for the
court as those related to one of the producing counts, and also allowed Turner to
perform oral sex on her. The next day, though, she felt disgusted about what she
had done and asked Turner to destroy the photographs.
At the conclusion of this testimony, Turner changed his plea on the nine
remaining counts from not guilty to guilty. The district court sentenced Turner to
the statutory maximum on each Count: 20 years on each of Counts 1 to 7; 30 years
on each of Counts 8 and 9, which occurred after the PROTECT Act (Prosecutorial
Remedies and Other Tools to End the Exploitation of Children Today Act, Pub. L.
No. 108-21, 117 Stat. 650 (2003)) raised the maximum sentence on these counts
from 20 to 30 years; and 10 years on Count 10. The court divided Turner’s sentence
into four parts: Group 1 consisted of Counts 1, 2, 6, and 7 to be served concurrently
for a total of 20 years; Group 2 consisted of Counts 3, 4, and 5 to be served
concurrently for a total of 20 years; Group 3 consisted of Count 8 alone for a total of
30 years; and Group 4 consisted of Counts 9 and 10 to be served concurrently, for a
No. 06-1440 Page 5
total of 30 years. The court then determined that Turner would serve each
sentencing group consecutively to one another for a total term of 100 years.
On appeal Turner does not dispute that the district court properly calculated
his guidelines range as life imprisonment, but he argues that his 100-year overall
sentence is greater than necessary to comply with the purposes of punishment
dictated by Congress in § 3553(a)(2) and, thus, is unreasonable. We give deference
to the district court when reviewing the reasonableness of a sentence; we will not
substitute our judgment for that of the sentencing court but instead will decide only
whether the district court imposed the sentence it did for reasons that are logical
and consistent with the factors set forth in § 3553(a). United States v. Williams,
425 F.3d 478, 481 (7th Cir. 2005). Furthermore, a sentence imposed within a
properly calculated guidelines range is presumptively reasonable. United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). And although the presumption may be
rebutted by demonstrating that the sentence would be unreasonable when
measured against the § 3553(a) factors, “it will be a rare Guidelines sentence that is
unreasonable.” Id.
To begin, Turner first argues that Mykytiuk was “wrongly decided” and
should be reversed because its presumption of reasonableness is inconsistent with
§ 3553. But Mykytiuk provides that the presumption of reasonableness attached to
any sentence may be rebutted by measuring the term against the § 3553 factors, as
Turner requests his sentence be measured, so it is difficult to see how the decision
is inconsistent with the statute. Thus, we see no reason to overturn Mykytiuk. See
United States v. Wallace, 458 F.3d 606, 611 (7th Cir. 2006) (explaining that despite
a conflict among the circuits regarding the presumptive reasonableness of properly
calculated guidelines sentences, this court’s position outlined in Mykytiuk remains
firm); see also, e.g. United States v. Mendoza, 457 F.3d 726, 730 (7th Cir. 2006);
United States v. Garner, 454 F.3d 743, 751 (7th Cir. 2006); United States v. Juarez,
454 F.3d 717, 720-21 (7th Cir. 2006); United States v. Blue, 453 F.3d 948, 952 (7th
Cir. 2006).
In an attempt to rebut the presumptive reasonableness of his appropriately
calculated guidelines sentence, Turner next argues that his sentence is
unreasonable because 100 years is greater than necessary to comply with
§ 3553(a)(2), which dictates that a sentence reflect the seriousness of the offense,
promote respect for the law, provide just punishment, adequately deter crime,
protect the public from further crimes by the defendant, and “provide the defendant
with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner.” The record does not support Turner’s
argument. Instead, it shows that the district court (Judge David F. Hamilton)
thoroughly considered not only § 3553(a)(2), but all of the § 3553 factors in
determining an appropriate sentence.
No. 06-1440 Page 6
First, the district court explained that it considered each of the relevant
factors under § 3553, including the applicable guidelines range of life imprisonment.
Regarding the nature of the offense under § 3553(a)(1), the court noted the age of
the victims and the defendant’s relationship to one of them, his use of alcohol and
drugs to overcome both victims’ reluctance to participate in the abuse, and the fact
that Turner engaged in actual sexual conduct with both victims. The court also
evaluated Turner’s sentence under § 3553(a)(2) when it acknowledged that
sentences as severe as Turner’s are “intended for the worst crimes and worst
offenders short of capital punishment” and explained its belief that the sentence
would provide just punishment to Turner and would deter both Turner and others
who might commit similar crimes.
To the extent Turner argues that his sentence is unreasonable under
§ 3553(a)(6) because the court failed to account for sentencing disparities among
defendants with similar records, his argument also fails. We have explained that
“[i]t is not enough for a defendant to argue that a few cases from any particular
circuit seem to cast doubt on his sentence.” United States v. Newsom, 428 F.3d 685,
689 (7th Cir. 2005). To evaluate sentencing disparities, it is not just the crime of
conviction and the total length of the sentence that is pertinent; the specific facts of
the crimes and the defendant's individual characteristics should also be considered.
Id. Here, the district court noted that Turner’s offense was severe given the huge
number of images he produced and possessed and the number of times he
repeatedly exploited his victims over the course of several years and the court was
entitled to conclude, as it did, that the differences in the facts of each of the cases
Turner cited justified a more severe sentence for Turner. See id. It is also notable
that, in each of the cases Turner cited, the defendants committed all of their crimes
before enactment of the PROTECT Act, which raised the minimum and maximum
penalties for producing child pornography, whereas Turner’s convictions include
child-pornography crimes that occurred after the PROTECT Act became effective on
April 30, 2003. 18 U.S.C. § 2251(a), (e); Pub. L. No. 108-21, 117 Stat. 650 (2003).
Having failed to rebut the presumption, we are left with a sentence within
the guidelines range that even Turner does not dispute was appropriately
calculated. And we note that the Eleventh Circuit recently upheld a sentence of 140
years imprisonment where a defendant qualified for a life sentence under the
guidelines with an offense level of 43, 10 levels below Turners’ and a Category V
criminal history after he was convicted of two counts of producing child
pornography and one count of distributing it. United States v. Johnson, 451 F.3d
1239, 1241 (11th Cir. 2006). In Johnson, as here, the defendant did not dispute the
guidelines range of life imprisonment, and thus the Eleventh Circuit concluded that
sentencing the defendant to 50 years on two counts and 40 years on the other count
to be served consecutively for a total of 140 years was appropriate under U.S.S.G.
No. 06-1440 Page 7
§ 5G1.2(d) to ensure life imprisonment and was not unreasonable. Id. at 1243,
1244.
Finally, although Turner’s counsel maintains that the 100-year sentence is
unreasonable, we asked at oral argument what a reasonable sentence, given a “life”
guideline calculation, would be, but he gave no firm response and acknowledged he
would have argued that even a 50-year sentence was unreasonable. Thus, we
conclude that, because the district court engaged in a detailed analysis of all of the
§ 3553 factors in explaining the sentence it imposed, there is no support for
Turner’s argument that his sentence was unreasonable. Accordingly, the judgment
of the district court is AFFIRMED.