United States v. Hubbard

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4524

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CARL DEAN HUBBARD,

Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (1:03-cr-00178)

Submitted: February 8, 2007 Decided: March 16, 2007

Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Larry R. Ellis, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

This is an appeal from a conviction and sentencing for receipt

of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A).

Carl Dean Hubbard ("Appellant") pleaded guilty to receipt of child

pornography after his motion to suppress evidence seized in the

execution of two search warrants was denied. Pursuant to the plea

agreement, Appellant reserved his right to appeal the district

court's denial of his motion to suppress. Appellant now appeals

the denial of his motion to suppress, as well as his sentencing.

For the reasons that follow, we affirm.

I.

We first consider Appellant's argument that the district court

erred in denying his motion to suppress evidence seized during the

execution of search warrants for both his home and his mother's

home. The warrants in this case were issued by a magistrate after

a police officer presented evidence that a former girlfriend of

Appellant's made a 911 call to report that her two young sons, aged

four and five, had told her that Appellant had molested them while

they stayed at his home the previous night. The officer went to

the woman's home to interview her personally. She also told the

officer that she had, months earlier, discovered child pornography

in both Appellant's home and in a locked room Appellant controlled

at his mother's house. When the boys' mother confronted Appellant

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about the pornography at the time, Appellant claimed to be

participating in an investigation with a local police agency of

which the photographs were a part. Before the magistrate, the

officer indicated his belief in the mother's credibility.

The police officer also interviewed the two children

individually, outside the presence of their mother. He was unable

to establish meaningful communication with the younger child, but

the older boy both gave the officer a verbal account of the

molestation consistent with his mother's report and demonstrated

Appellant's actions with a "masturbatory" gesture. J.A. 199.

A district court's ruling denying a motion to suppress

presents a question of law subject to de novo review, but the

magistrate's initial finding of probable cause is due "great

deference" by a reviewing court. United States v. Hodge, 354 F.3d

305, 309 (4th Cir. 2004). Probable cause exists "where the known

facts and circumstances are sufficient to warrant a man of

reasonable prudence in the belief that contraband or evidence of a

crime will be found." Ornelas v. United States, 517 U.S. 690, 696

(1996).

We find the evidence described above and presented to the

magistrate was sufficient to establish probable cause to issue the

warrants in this case. We take particular note of the officer’s

credibility assessment with respect to the mother. An officer's

trained judgment that a witness's mental state is consistent with

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the account she is giving justifies the officer in giving credence

to that evidence. See United States v. Perez, 393 F.3d 457, 462

(4th Cir. 2004); United States v. DeQuasie, 373 F.3d 509, 523 (4th

Cir. 2004). Even if we were unpersuaded of the existence of

probable cause, we note as well the availability of the “good

faith” exception to the exclusionary rule, allowing officers to

reasonably rely on issued warrants even if subsequently proven

invalid, on these facts. See United States v. Leon, 468 U.S. 897,

922 (1984).

II.

We now turn to Appellant's arguments regarding his sentencing.

Appellant was sentenced to 87 months' imprisonment, the top of the

advisory Guidelines range for an offense level of 26 in Criminal

History Category II. The presentence report determined the

applicable guideline as U.S.S.G. § 2G2.2 (2000)1, which prescribed

a base offense level of 17. The probation officer recommended

adding four levels for reasons Appellant does not challenge, as

well as adding five levels under U.S.S.G. § 2G2.2(b)(4) because it

found Appellant had engaged in a pattern of sexual abuse of minor

1
The November 1, 2000 edition of the Guidelines Manual was
used to determine Appellant's advisory Guideline range. Therefore,
all Guideline references in this opinion are to that edition. The
current version of the five-level enhancement for a "pattern of
activity involving the sexual abuse or exploitation of a minor" is
found at U.S.S.G. § 2G2.2(b)(5).

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children. Appellant challenges the admission of hearsay statements

at his sentencing hearing, the five-level enhancement under

U.S.S.G. § 2G2.2(b)(4), and the district court's denial of his

requested acceptance of responsibility credit for a reduction in

offense level. We consider each of these arguments in turn.

First, Appellant contends that the district court abused its

discretion at sentencing by admitting hearsay statements in the

form of videotaped interviews of the two boys describing

Appellant's molestation of them. Abundant case law confirms that

a sentencing court may properly consider and credit hearsay

evidence, provided the defendant be given an opportunity to rebut

or explain such evidence.2 See Williams v. New York, 337 U.S. 241,

246-51 (1949); United States v. Randall, 171 F.3d 195, 210 (4th

Cir. 1999); United States v. Terry, 916 F.2d 157, 160-61 (4th Cir.

1996).

2
Appellant's reliance on Crawford v. Washington, 541 U.S. 36
(2004), is misplaced. Crawford dealt with hearsay statements that
had been admitted at trial. Id. at 38-41. Every circuit court to
consider the issue of Crawford's application to sentencing
proceedings has concluded that the decision does not limit a
sentencing court's broad discretion to consider hearsay evidence.
See United States v. Kazopoulos, 437 F.3d 569, 575 (6th Cir. 2006);
United States v. Brown, 430 F.3d 942, 944 (8th Cir. 2005); United
States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005), cert.
denied, 126 S. Ct. 1604 (2006); United States v. Luciano, 414 F.3d
174, 179 (1st Cir. 2005); United States v. Martinez, 413 F.3d 239,
243 (2d Cir. 2005), cert. denied, 126 S. Ct. 1086 (2006); United
States v. Monteiro, 417 F.3d 208, 215 (1st Cir. 2005), cert. denied
126 S. Ct. 1405 (2006); United States v. Roche, 415 F.3d 614, 618
(7th Cir. 2005), cert. denied 126 S. Ct. 671 (2005).

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 In this case, Appellant was given an opportunity to rebut or

explain the videotaped statements of the two boys. Appellant had

the videotaped interviews analyzed by an expert, who testified at

the sentencing hearing. Moreover, at Appellant's request, the

district court reviewed the private health care and welfare records

of the two boys for impeaching material. We therefore find no

error in the district court's admission of the hearsay statements

of the two boys at sentencing.

Appellant next argues that the district court erred in finding

that he engaged in a pattern of sexual abuse or exploitation of

children. The United States Sentencing Guidelines provide for a

five-level increase in the offense level if the court finds that

the defendant "engaged in a pattern of activity involving the

sexual abuse or exploitation of a minor." U.S.S.G. § 2G2.2(b)(4).3

We review the sentencing court's decision to refer to a particular

advisory guideline de novo, but we review factual findings made by

that court in support of a decision for clear error. United States

v. Washington, 398 F.3d 306, 310 (4th Cir. 2005), cert. denied, 125

S. Ct. 2558 (2005). At sentencing, the district court makes

findings based on a preponderance of the evidence. United States

3
Under the terms of this provision, "sexual abuse or
exploitation" includes sexual contact with a minor that violates
applicable state law. U.S.S.G. § 2G2.2 cmt. n.1. A "pattern of
activity" under this provision consists of "two or more" instances
of sexual abuse. Id.

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v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied, 127 S.

Ct. 121 (2006).

As the basis for its finding that Appellant had engaged in a

pattern of activity involving the sexual abuse of a minor, the

district court credited the statements of the two young sons of

Appellant's ex-girlfriend. The older boy initially described the

assault to a police officer the day after he was molested and the

same day he reported the incident to his mother. Searches of

Appellant's home and his locked room in his mother's home produced

child pornography, the presence of which supports an inference

crediting the boys' accounts of being molested by Appellant.

Additionally, in a videotaped interview with a social worker

eighteen months after the incident, the younger boy identified

Appellant as his molester without being prompted to do so.4

Appellant's own expert admitted that the fact that the boys'

initial complaints were made immediately following the incident

made them more credible. Further, Appellant's expert conceded that

the younger boy's testimony in the videotaped interview was given

in response to fair questioning and that the passage of time

4
In the videotaped interview, the older boy generally denies
being sexually molested, although he is not specifically confronted
about the incident with Appellant. The district court judge,
however, concluded that the older boy's response on the videotape
was a defensive one, intended to fend off questions about another
incident about which he was embarrassed. We do not find this
factual determination, crediting instead the boy's statement given
to the police officer immediately after being molested, to be
clearly erroneous.

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between the event and the videotaped interview did not increase the

likelihood that the boy would fabricate false accusations. Given

the record and the due deference owed the sentencing court's

findings of fact and credibility determinations, we do not find the

decision to credit the two boys' accounts to be clearly erroneous.

Therefore, we uphold the application of the five-level enhancement

based on a "pattern of activity involving the sexual abuse" of a

minor. See U.S.S.G. § 2G2.2(b)(4).

Finally, Appellant argues that the district court erred in

denying him credit for acceptance of responsibility under the

advisory guidelines. A sentencing court may grant the defendant a

two-level reduction in his total offense level if it is persuaded

that a defendant has accepted responsibility for his offenses.

U.S.S.G. § 3E1.1(a). Here, Appellant persisted in denying sexual

conduct with the two young sons of his former girlfriend. The

district court specifically credited the accounts of the two boys

at sentencing and, therefore, denied Appellant the acceptance of

responsibility reduction. Because, as discussed above, the

district court did not err in crediting the young boys' testimony,

we find its denial of the acceptance of responsibility reduction

appropriate.

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 III.

For the foregoing reasons, we affirm Carl Dean Hubbard's

conviction and sentence. We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

AFFIRMED

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