United States v. Garner

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10417
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00553-WBS
JAMES R. GARNER,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Chief District Judge, Presiding
Argued and Submitted
May 15, 2007—San Francisco, California
Filed June 18, 2007
Before: Betty B. Fletcher, Eugene E. Siler, Jr.,* and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
7209
UNITED STATES v. GARNER 7211
COUNSEL
Caro Marks, Assistant Federal Defender, Sacramento, Cali-
fornia, for the appellant.
Camil A. Skipper, Assistant U.S. Attorney, Sacramento, Cali-
fornia, for the appellee.
7212 UNITED STATES v. GARNER
OPINION
HAWKINS, Circuit Judge:
This appeal tests the temporal and relational limits of prior
conduct as a sentencing enhancement. In it, James Garner
(“Garner”), sentenced to 262 months following his guilty plea
conviction for two counts of attempted receipt of visual depic-
tions of a minor engaged in sexually explicit conduct and six
counts of distribution of visual depictions of a minor engaged
in sexually explicit conduct, all in violation of 18 U.S.C.
§ 2252(a)(2), contends the district court erred by using thirty-
five-year-old conduct to enhance his sentence and that his
resulting sentence is unreasonable. We affirm.
FACTS AND PROCEDURAL HISTORY
Garner was first identified by federal authorities in 2002
when he responded to an internet advertisement placed by an
undercover postal inspector, promising to deliver videos of
young schoolgirls having sex. Garner sent the inspector two
emails, indicating his preference for videos with very young
children, seven to twelve years old, with their parents. Garner
ordered one videotape, described as a video of a father with
three girls aged eight, nine, and fourteen, and one ten-year-old
boy. Garner also inquired if the undercover inspector had any
tapes of a young boy (five to twelve years old) with his
mother, and indicated he would like to order one of those as
well. Garner sent $40 to the inspector with his home address,
and also a follow-up letter inquiring about the package. The
package was never sent.
In 2005, another postal inspector placed an advertisement
on the Internet describing his collection of tapes of young
girls having sex. Garner responded to this advertisement as
well, indicating he preferred children from five to twelve
years old, especially girls with parents involved. After
exchanging some emails with the undercover inspector, he
UNITED STATES v. GARNER 7213
ordered three videos, sending the inspector $45 along with a
letter identifying the videos he wanted and providing the
address of a friend for shipment.
In connection with a separate investigation by the Walnut
Creek Police Department, U.S. Postal Inspectors executed a
search warrant at Garner’s residence in December 2005. Gar-
ner’s computer contained numerous image files containing
child pornography and hundreds of instant message chats with
others about child pornography. In some instances, images
had been transferred during the instant messages.
Garner waived his Miranda rights and admitted he had
sought to purchase videotapes in 2002 and 2005, distributed
and received child pornography over the Internet, and sexu-
ally molested at least two of his children or stepchildren when
they were minors. He denied having sex with other minors
and indicated that statements he had made in emails suggest-
ing he had done so were merely fantasies.
The presentence report recommended a five-level increase
in offense level because Garner had engaged in a “pattern of
activity involving the sexual abuse or exploitation of a
minor.” U.S.S.G. § 2G2.2(b)(5). Garner objected that the sex-
ual abuse of his daughter and stepdaughter were too remote
in time to be considered without violating due process. The
district court disagreed and found by clear and convincing
evidence that Garner had sexually abused his children and
that the Guidelines permitted consideration of this conduct
even though it had occurred some time ago.
Pointing to his age, health and lack of a prior record, Gar-
ner argued for a sentence of eleven to fifteen years. The gov-
ernment pointed to Garner’s recent travel in northern
California to meet other adults with the intent of sexually
abusing children and Garner’s recent inquiries to his daughter
about the sex life of his minor granddaughter. The govern-
ment argued that a sentence at the bottom of the range was
7214 UNITED STATES v. GARNER
necessary to protect the public and to reflect the seriousness
of the offense.1
Noting that Garner’s history and characteristics were a
major consideration, including his internet correspondence
and his recent “perverted conversations” regarding his grand-
daughter with his daughter, the court sentenced Garner to 262
months. The court stated the sentence would reflect the seri-
ousness of the crime, provide just punishment and protect the
public from future crimes, noting that, if Garner were not
imprisoned, he “would pose a danger to other people’s chil-
dren.”
STANDARD OF REVIEW
This court reviews “the district court’s interpretation of the
Sentencing Guidelines de novo, the district court’s application
of the Sentencing Guidelines to the facts of the case for abuse
of discretion, and the district court’s factual findings for clear
error.” United States v. Kimbrew, 406 F.3d 1149, 1151 (9th
Cir. 2005). This court reviews the ultimate post-Booker sen-
tence imposed for “reasonableness.” United States v. Reina-
Rodriguez, 468 F.3d 1147, 1158 (9th Cir. 2006).
DISCUSSION
I. “Pattern of Activity” Enhancement
[1] Garner argues that the district court erred by applying
a five-level enhancement for “pattern of activity,” because the
prior conduct of sexually abusing his own children occurred
at least thirty-five years earlier. Section 2G2.2(b)(5) of the
Guidelines permits a five-level increase in offense level “if
the defendant engaged in a pattern of activity involving the
sexual abuse or exploitation of a minor.” The Commentary to
this Guideline defines “pattern of activity” as “any combina-
1
The sentencing range was 262 to 327 months.
UNITED STATES v. GARNER 7215
tion of two or more separate instances of the sexual abuse or
sexual exploitation of a minor by the defendant, whether or
not the abuse or exploitation (A) occurred during the course
of the offense; (B) involved the same minor; or (C) resulted
in a conviction for such conduct.” U.S.S.G. § 2G2.2, cmt. n.1.
[2] Garner does not contest the district court’s finding that
he had previously engaged in sexual abuse of a minor; rather,
he argues only that the conduct is too remote in time to be
considered. We have previously held that the application note
to § 2G2.2 makes clear that the sentencing court may properly
consider “expanded relevant conduct,” that is, conduct that
did not occur during or in connection with the offense of con-
viction. United States v. Williamson, 439 F.3d 1125, 1139-40
(9th Cir. 2006); see also United States v. Anderton, 136 F.3d
747, 751 (11th Cir. 1998); United States v. Ashley, 342 F.3d
850, 852 (8th Cir. 2003). In Williamson, however, we did not
consider whether there is any temporal restriction on the use
of such prior conduct.
[3] The plain language of the Commentary to § 2G2.2 elim-
inates the need for any temporal or factual nexus between the
offense of conviction and any prior act of sexual abuse or
exploitation; the provision obviously intends to cast a wide
net to draw in any conceivable history of sexual abuse or
exploitation of children. And indeed, in applying this section,
other circuits have affirmed the enhancement even when the
prior acts were quite temporally remote. United States v.
Gawthrop, 310 F.3d 405, 413-14 (6th Cir. 2002) (eleven years
earlier); United States v. Woodward, 277 F.3d 87, 89-91 (1st
Cir. 2002) (twenty to twenty-three years earlier); United
States v. Lovaas, 241 F.3d 900, 901 (7th Cir. 2001) (twenty-
six years earlier).
Recognizing the broad sweep of this provision, Garner
argues that to expand relevant conduct to include thirty-five-
year-old actions violates due process. Substantive due pro-
cess, however, requires only that a sentencing scheme be
7216 UNITED STATES v. GARNER
rational and not based on “arbitrary distinction.” Chapman v.
United States, 500 U.S. 453, 465 (1991). Garner does not
explain how the use of older but admittedly relevant conduct
is “arbitrary” or “irrational.” The courts have, for some time,
recognized that such prior conduct demonstrates an increased
danger of recidivism. See Parke v. Raley, 506 U.S. 20, 27
(1992) (recidivism statutes repeatedly upheld against due pro-
cess and other challenges); United States v. Bredy, 209 F.3d
1193, 1197-98 (10th Cir. 2000) (eighteen-year-old and
twenty-seven-year-old prior robbery convictions used to sup-
port three-strikes conviction not arbitrary and did not violate
due process).
[4] Moreover, the particularly high danger of recidivism of
sex offenders is well-known and has been used to support var-
ious other laws, such as sex-offender registration require-
ments. See Smith v. Doe, 538 U.S. 84, 102-03 (2003); see also
McKune v. Lile, 536 U.S. 24, 34 (2002) (risk of sex-offender
recidivism is “frightening and high”). Thus, the Sentencing
Commission could easily have a rational basis for increasing
the sentences of defendants who have previously sexually
abused or exploited children, and then later receive, possess,
or distribute material involving the sexual exploitation of chil-
dren, even if years later. We, therefore, affirm the district
court’s application of the § 2G2.2(b)(5) enhancement.
II. Reasonableness
[5] When there is no material error in the district court’s
calculation of the Guidelines range, we consider whether the
ultimate sentence imposed by the district court was “reason-
able.” Reina-Rodriguez, 468 F.3d at 1158. In making this
determination, we are guided by the sentencing factors set
forth in 18 U.S.C. § 3553(a), which include the nature and cir-
cumstances of the offense, the history and characteristics of
the defendant, the kinds of sentences available, and the range
established by the Guidelines. United States v. Nichols, 464
F.3d 1117, 1124-25 (9th Cir. 2006).
UNITED STATES v. GARNER 7217
The district court rejected Garner’s argument that the sen-
tence imposed was greater than necessary to meet the goals of
sentencing, given his age, poor health, and vulnerability in
prison, in light of both the seriousness of the offense and Gar-
ner’s history of sexual abuse of his own children. Tying that
history and Garner’s recent actions, including his recent per-
verted conversations regarding his granddaughter with his
daughter, the district court concluded it had “no reason to
think that you’re not still the same person that you were when
you committed these acts against your children.”
[6] Garner’s sentence also reflects the seriousness of the
offense and provides just punishment. The district court was
especially concerned about protecting the public from future
crimes and believed Garner would pose a danger to other chil-
dren if not in prison. The court then sentenced Garner to 262
months in prison, the low end of the Guideline range. Recog-
nizing that this meant Garner would probably spend the rest
of his life in prison, the court urged him to do things while in
prison to try to rectify what he had done in the past.
[7] On these facts, we cannot say that the 262-month sen-
tence is unreasonable. As the government argues, despite his
age and health, Garner remained a threat to children. The dis-
trict court was clearly aware of the probable consequences of
its sentence, yet felt this sentence was necessary to provide a
just punishment and to protect other children from Garner.
That a lesser sentence might also have been reasonable does
not make this particular sentence unreasonable. See Nichols,
464 F.3d at 1126. Reflecting the seriousness of the sexual
exploitation of children, we have previously found quite
lengthy sentences to be reasonable. See Williamson, 439 F.3d
at 1140 (statutory maximum 180-month sentence for distrib-
uting child pornography not unreasonable); see also United
States v. Stewart, 462 F.3d 960, 964 (8th Cir. 2006) (300-
month sentence for possessing and transmitting child pornog-
raphy not unreasonable); United States v. Cunningham, 405
F.3d 497, 505-06 (7th Cir. 2005) (210-month sentence for
7218 UNITED STATES v. GARNER
producing child pornography not unreasonable). We are satis-
fied from our review of the record that the district court’s sen-
tencing decision was reasonable in light of the policies set
forth in § 3553(a).
AFFIRMED.