Justia.com Opinion Summary:
Defendant pled guilty to two counts of possession of child pornography. Defendant appealed his sentence. The court held that, even if the court assumed that the district court erred by not discussing defendant's argument regarding the child pornography guidelines, defendant had not shown a reasonable probability that he would have received a lower sentence but for the alleged error; the district court did not fail to adequately explain its reasoning for determining the sentence; defendant's sentence was substantively reasonable where the district court considered not only the nature of the offense but also defendant's characteristics weighing in favor of a more lenient sentence; and there was no error in imposing the internet restriction where defendant could still access the internet with the permission of a probation officer. Accordingly, the court affirmed the sentence.Receive FREE Daily Opinion Summaries by Email
Criminal case - Sentencing. Claim that district court erred by failing to address argument that the child pornography guidelines are overinflated is rejected; district court adequately discussed the reasons for its sentencing decision; sentence was not substantively unreasonable; no error in imposing a restriction on defendant's use of the internet in light of the evidence which showed defendant used peer-to-peer software to commit the crime.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
United States of America,
Scott Kinsey Black,
* Appeal from the United States
* District Court for the
* Eastern District of Missouri.
Submitted: December 16, 2011
Filed: March 12, 2012
Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
WOLLMAN, Circuit Judge.
Scott Kinsey Black pled guilty to two counts of possession of child
pornography, in violation of 18 U.S.C. Â§ 2252A(a)(5)(B). The district court1
sentenced him to sixty monthsâ imprisonment, an eighteen-month downward variance
from the United States Sentencing Guidelines (Guidelines) range. Black appeals his
sentence, arguing that the court erred in failing to consider or adequately respond to
his argument that the child pornography sentencing guidelines are overinflated. Black
further contends that his sentence is substantively unreasonable because the district
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
court did not fully consider the 18 U.S.C. Â§ 3553(a) factors. Finally, he argues that
the district court abused its discretion in imposing a special condition of supervised
release restricting Blackâs access to the internet. We affirm.
Following the entry of his guilty plea, Black filed a sentencing memorandum
with the district court, arguing that his history and characteristics and the nature of the
offense weighed in favor of a sentence of probation. The memorandum also argued
that the enhancements in the child pornography possession sentencing guidelines often
result in a sentence significantly greater than necessary to serve the statutory purposes
At sentencing, the district court calculated Blackâs Guidelines range to be 78
to 97 monthsâ imprisonment. In determining Blackâs sentence, the district court stated
that the sadistic and masochistic images of children under the age of twelve found on
Blackâs computer âare as bad as anything that we deal with[.]â Sentencing Tr. 18.
After stating that it had read Blackâs sentencing memorandum, the district court
discussed Blackâs mental health history and his lack of criminal history and then
varied downward to a sentence of sixty monthsâ imprisonment. During its discussion
of the sentencing factors, the district court asked the parties if they wished to have any
other factors discussed. Neither party responded, whereupon, having determined that
a sixty-month sentence satisfied the statutory purposes of sentencing, the district court
found that the sentence as pronounced avoided an unwarranted sentencing disparity.
The district court also sentenced Black to a lifetime of supervised release, one
condition of which was that Black not use a computer or device that has access to the
internet without the written approval of the probation office. The district court found
that this condition was appropriate in light of the fact that Black had âactively used
a retrieval computer-type device in order to execute the crime.â Sentencing Tr. 24.
The presentence investigation report (PSR) revealed that Black had used Limewire,
an online file sharing program, to download child pornography. Neither party
objected to the factual findings in the PSR.
âIn reviewing a challenge to a sentence, we âmust first ensure that the district
court committed no significant procedural error.ââ United States v. Dace, 660 F.3d
1011, 1013 (8th Cir. 2011) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
Failing to adequately explain a chosen sentence or failing to consider the Â§ 3553(a)
factors constitutes procedural error. United States v. Nissen, 666 F.3d 486, 490 (8th
Cir. 2012) (citations omitted). âIf a defendant fails to timely object to a procedural
sentencing error, the error is forfeited and may only be reviewed for plain error.â
United States v. Phelps, 536 F.3d 862, 865 (8th Cir. 2008). âUnder plain error review,
the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial
rights.â Id. (citations omitted). ââAn error affects a substantial right if it is
prejudicial,â meaning that âthere is a reasonable probability the defendant would have
received a lighter sentence but for the error.ââ United States v. Maxwell, 664 F.3d
240, 246 (8th Cir. 2011) (quoting United States v. Mireles, 617 F.3d 1009, 1013 (8th
Cir. 2010)). Even if that showing is made, â[t]his court will correct such an error
âonly if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.ââ Id. (quoting United States v. Starfield, 563 F.3d 673, 674 (8th Cir.
2009)). Because Black failed to object with any specificity to the district courtâs
alleged failure to consider Blackâs child pornography guidelines argument or to
explain in any detail the reasons for the sentence, we review his claims for plain error
Black cites Rita v. United States, 551 U.S. 338 (2007), for the proposition that
when a nonfrivolous reason for imposing a different sentence is presented, the
sentencing judge âwill normally . . . explain why he has rejected those arguments.â
Id. at 357. Yet, as we have noted, âRita also indicates that not every reasonable
argument advanced by a defendant requires a specific rejoinder by the judge.â United
States v. Gray, 533 F.3d 942, 944 (8th Cir. 2008). âDistrict courts generally have
discretion to decide whether to respond to every argument.â Dace, 660 F.3d at 1014
(citing Rita, 551 U.S. at 356).
Black raised his argument regarding the child pornography guidelines in his
sentencing memorandum, but he did not reiterate it at the sentencing hearing, nor did
he ask the district court to address it. Although the district court made no specific
reference to the argument at the hearing, it indicated that it had read the sentencing
memorandum. Indeed, it engaged in a colloquy with defense counsel regarding a
portion thereof. Moreover, when the district court asked whether there were other
factors that it should discuss, Black did not renew his overinflated child pornography
guidelines argument. That a district judge does not mention a nonfrivolous argument
does not mean that it was not considered. See Gray, 533 F.3d at 944. Black has thus
not shown plain error. Even if we assume that the district court erred by not
discussing Blackâs argument regarding the child pornography guidelines, Black has
not shown a reasonable probability that he would have received a lower sentence but
for the alleged error.
Black next contends that the district court failed to adequately explain its
reasoning for rejecting his argument. As set forth above, a district court need not
respond to every argument a defendant makes, see Dace, 660 F.3d at 1014, Gray, 533
F.3d at 944. âIn explaining the sentence the district court need only set forth enough
to satisfy the appellate court that he has considered the partiesâ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.â United States
v. Gonzalez, 573 F.3d 600, 607 (8th Cir. 2009) (citation omitted). â[A]ll that is
generally required to satisfy the appellate court is evidence that the district court was
aware of the relevant factors.â Nissen, 666 F.3d at 491 (quoting United States v.
Perkins, 526 F.3d 1107, 1110 (8th Cir. 2008)). The record demonstrates that the
district court was aware of the relevant factors and that it considered them when
determining Blackâs sentence. The district court mentioned the nature and
characteristics of the offense, Blackâs lack of a criminal history, his mental health
problems, his need for continued treatment, and the need to avoid unwarranted
No procedural errors having been demonstrated, we turn to the substantive
reasonableness of the sentence, which we review under a deferential abuse-ofdiscretion standard. United States v. Werlein, 664 F.3d 1143, 1146 (8th Cir. 2011)
(per curiam) (citing Gall, 552 U.S. at 51). âA district court abuses its discretion âwhen
it fails to consider a relevant and significant factor, gives significant weight to an
irrelevant or improper factor, or considers the appropriate factors but commits clear
error of judgment in weighing those factors.ââ Id. (quoting United States v. Miner,
544 F.3d 930, 932 (8th Cir. 2008)). Black argues that the sentence imposed by the
district court is substantively unreasonable because the court did not consider that the
child pornography guidelines are overinflated, gave too much weight to the offense,
did not sufficiently explain the sentence, and did not properly apply the sentencing
âA presumption of reasonableness will be applied to sentences within the
guideline range, even if the sentence is derived from a guideline that was âthe product
of congressional direction rather than [an] empirical approach.ââ Werlein, 664 F.3d
at 1146 (alteration in original) (quoting United States v. Kiderlen, 569 F.3d 358, 369
(8th Cir. 2009)). Moreover, â[w]here a district court has sentenced a defendant below
the advisory guidelines range, it is nearly inconceivable that the court abused its
discretion in not varying downward still further.â United States v. McKanry, 628 F.3d
1010, 1022 (8th Cir. 2011) (internal quotation and citation omitted). Having read
Blackâs sentencing memorandum, the district court considered not only the nature of
the offense but also Blackâs characteristics weighing in favor of a more lenient
sentence, including his mental health history and lack of criminal history, and then
varied downward from Blackâs sentencing range. Assuming that it may disregard the
child pornography sentencing guideline on policy grounds, a district court is not
required to do so. See United States v. Barron, 557 F.3d 866, 871 (8th Cir. 2009); see
also United States v. Maulding, 627 F.3d 285 (7th Cir. 2010) (per curiam) (holding
that a policy disagreement with the child pornography sentencing guidelines does not
require a district court to vary downward for a defendantâs sentence to be reasonable).
In sum, the district court did not abuse its discretion in declining to vary downward
Finally, Black contends that the district court abused its discretion by imposing
a special condition of supervised release prohibiting access to the internet without
approval from the probation office. âThe district court enjoys broad discretion when
imposing conditions of supervised release, provided that each condition: â1) is
reasonably related to the sentencing factors set forth in 18 U.S.C. Â§ 3553(a); 2)
involves no greater deprivation of liberty than is reasonably necessary for the purposes
set forth in Â§ 3553(a); and 3) is consistent with any pertinent policy statements issued
by the Sentencing Commission.ââ United States v. Wiedower, 634 F.3d 490, 493 (8th
Cir. 2011) (quoting United States v. Bender, 566 F.3d 748, 751 (8th Cir. 2009)).
Because Black did not object to the imposition of the restriction at sentencing, we
review his argument under the plain error standard set forth above.
We conclude that the district court did not plainly err in imposing the internet
restriction. The district court found that Black was not just a passive possessor of
child pornography but rather âactively used a retrieval computer-type device in order
to execute the crime.â Sentencing Tr. 24. The court noted that the PSR, which stated
that Black had employed a Limewire file sharing program, demonstrated that the
limitations placed on Blackâs supervised release were appropriate because of the
manner and method by which Black had accessed the child pornography. In United
States v. Durham, 618 F.3d 921 (8th Cir. 2010), we determined that a district court
does not abuse its discretion, much less plainly err, in imposing a restriction on
internet access when the restriction does not amount to a total ban and the evidence
shows that the defendant shared child pornography through the use of a file sharing
program like Limewire. Id. at 944-45. Because Black may still access the internet
with the permission of the probation office, the ban is not a total one, id. at 944, and
thus the district court did not plainly err in imposing the internet use restriction.
The sentence is affirmed.