United States v. Kevin M. Dieatrick

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1279
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Kevin Michael Dieatrick, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 7, 2006
Filed: July 12, 2006
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Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
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PER CURIAM.
Kevin Michael Dieatrick (Dieatrick) pled guilty in the district court1 to the use
of a minor to engage in sexually explicit conduct for the purpose of producing a visual
depiction of such conduct, in violation of 18 U.S.C. § 2251(a). Dieatrick was facing
a mandatory minimum sentence of 10 years in prison. Before sentencing, however,
the government filed a substantial-assistance downward-departure motion under 18
U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 and recommended a sentence of 96 months
1
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
in prison. The court ultimately sentenced Dieatrick to 72 months in prison and 3 years
of supervised release.
On appeal, Dieatrick’s counsel has moved to withdraw and filed a brief under
Anders v. California, 386 U.S. 738 (1967), arguing the court “unreasonably denied a
departure beyond 70 months” because (1) the victim and her mother requested
leniency, (2) Dieatrick’s cooperation with the government led to the prosecution of
others involved in the offense, (3) Dieatrick served 26 months of “hard time” pending
sentencing, and (4) Dieatrick was not a distributor of pornography. In his pro se
document which we construe as a pro se supplemental brief, Dieatrick asserts the
district court should not have sentenced him before verifying he had personally read
the presentence investigation report (PSR). See Fed. R. Crim. P. 32(i)(1)(A).
Additionally, Dieatrick notes a sentencing conference had taken place in the judge’s
chambers, and argues the government engaged in prosecutorial misconduct during this
conference by presenting an inflated view of the sentencing possibilities for the other
defendants involved in the case. Dieatrick asserts the court relied on this
misinformation in formulating a “fair and just” sentence.
Although we cannot review the overall extent of the district court’s departure,
we will review Dieatrick’s sentence for reasonableness. See United States v. Booker,
543 U.S. 220, 261-62 (2005) (holding appellate courts review sentences for
reasonableness, and 18 U.S.C. § 3553(a) guides appellate courts in determining
whether sentence is reasonable); United States v. Berni, 439 F.3d 990, 992 (8th Cir.
2006) (per curiam) (holding challenge to extent of downward departure remains
unreviewable post-Booker, and fact that advisory Guidelines determination involves
section 5K1.1 departure does not shield overall sentence from review for
reasonableness), cert. denied, (U.S. June 26, 2006) (No. 05-11240).
We hold Dieatrick’s sentence, including a 48-month downward departure from
the initial advisory guidelines range calculation, was reasonable. The district court
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considered the particular circumstances of Dieatrick’s offense, Dieatrick’s extensive
cooperation with the government, and his criminal history. We hold all of these
factors were relevant under section 3553(a), and there is no indication the district
court based the sentence on any improper or irrelevant factor. See United States v.
Lincoln, 413 F.3d 716, 717-18 (8th Cir.) (holding district court must not base sentence
on irrelevant or improper factor, and must not neglect relevant factors), cert. denied,
126 S. Ct. 840 (2005); United States v. Saenz, 428 F.3d 1159, 1164-65 (8th Cir. 2005)
(holding there is range of reasonableness available to district court in any given case).
Turning to Dieatrick’s pro se argument the district court improperly sentenced
him without first verifying he personally had read the PSR, we note the record
establishes counsel’s verification the entire PSR was read to Dieatrick and Dieatrick
did not dispute that fact or request a continuance. We therefore hold Dieatrick’s
argument is without merit because he cannot show he was harmed. See Fed. R. Crim.
P. 52(a) (stating error that does not affect substantial rights is disregarded); United
States v. Prado, 204 F.3d 843, 845 (8th Cir. 2000) (finding any error was waived and
was harmless where defendant did not seek additional time to review PSR and had
made specific objections to PSR). Additionally, there is no indication of any
prosecutorial misconduct. Assuming arguendo the prosecutor’s statements in the
judge’s chambers were improper, there is no indication the court considered these
statements at sentencing so as to deprive Dieatrick of a fair proceeding. See United
States v. Milk, 447 F.3d 593, 602 (2006) (addressing claim of prosecutorial
misconduct).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found no other nonfrivolous issue. Accordingly, we grant counsel’s
motion to withdraw, and we affirm.
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