United States v. Spiwak

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4289

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ERIC SPIWAK,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (4:08-cr-00045-BO-1)

Argued: April 8, 2010 Decided: May 7, 2010

Before TRAXLER, Chief Judge, and DUNCAN and DAVIS, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Joseph Bart Gilbert, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Jennifer P.
May-Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Appellant Eric Lee Spiwak (“Spiwak”) pleaded guilty

pursuant to a plea agreement to one count of possession of child

pornography, in violation of 18 U.S.C. § 2242(a)(4)(B). The

district court granted the government’s motion for an upward

departure and sentenced Spiwak to 188 months imprisonment, 37

months above the top of his pre-departure advisory guidelines

range of 121 to 151 months imprisonment. Spiwak appeals,

contending that the imposition of his sentence was procedurally

unreasonable. We affirm.

I.

In 2006, state and federal law enforcement agencies

undertook a sting operation in which officers, posing as minors,

participated in Internet online chats with individuals seeking

to engage in sexual acts. On September 6, 2006, while in one of

these chat rooms, a Greensboro, North Carolina, sheriff’s deputy

posing as a 14 year-old girl received an instant message from an

individual using the screen name, “thefixer_2000,” whom police

later identified as Spiwak. Spiwak initially inquired if the

“girl” was truly 14 years old, and when the “girl” said yes,

Spiwak responded “Oh, ok, way too young,” and exited the chat

room. Shortly afterwards, however, Spiwak returned to the chat

room and began discussing sexual matters with the “girl.”

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Specifically, Spiwak told the “girl” that he would like to

“teach” her about sex, inquired about her sexual history, and

said that he would love to visit her. He sent a picture of

himself to the “girl” and noted that, “Teacher is ready, if

you’d like to be my pupil.” He also made plans to meet with the

“girl.” On September 8, 2006, Spiwak drove from his residence in

Newport, North Carolina, to Greensboro. On his way to

Greensboro, Spiwak spoke with the “girl” by phone and continued

to discuss graphic sexual details about their imminent meeting.

When he arrived at the location of the planned meeting,

Spiwak was approached by police. Investigators searched Spiwak’s

vehicle and found rubber gloves, lubricant, and condoms in the

glove box. They then took Spiwak into custody. Spiwak told

investigators that he had indeed had explicit conversations on

the Internet with a person he thought was a 14-year-old female,

but that his intention in traveling to Greensboro was to warn

the girl about the dangers of meeting men on the Internet.

Officers conducted a search of Spiwak’s home and seized two

computers and several zip drive computer diskettes, which

revealed 460 images identified as either child pornography or

child erotica. A majority of the images were of prepubescent

minors younger than age 12. Some images depicted young girls,

ranging in age from five to eight years old, in the nude, bound,

and in various sexual positions. The images also depicted young

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boys, between the ages of eight and 15, in the nude and in

various sexual positions with adult males.

II.

On July 23, 2008, a grand jury indicted Spiwak on one count

of attempting to entice a child to engage in illegal sexual

conduct, in violation of 18 U.S.C. § 2422(b), and one count of

possession of child pornography, in violation of 18 U.S.C. §

2242(a)(4)(B). Pursuant to a plea agreement, Spiwak pled guilty

to the possession charge.

It is undisputed that Spiwak’s advisory sentencing

guidelines offense level was 32 and his criminal history

category was I. Although Spiwak had three previous convictions

for taking indecent liberties with children, he was not assigned

any criminal history points because the convictions were more

than 20 years old. See U.S.S.G. § 4A1.2(e)(3). Thus, Spiwak’s

(pre-departure) advisory sentencing guidelines range was 121 to

151 months.

In advance of the sentencing hearing, the government moved

for an upward departure based on U.S.S.G. § 4A1.3, arguing that

criminal history category I significantly underrepresented “the

seriousness” of Spiwak’s “past criminal conduct” and his

likelihood of recidivism. J.A. 27, 29. Spiwak filed an

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opposition to the government’s motion, seeking a sentence of no

more than the statutory mandatory minimum of 120 months.

On the day of the sentencing hearing, the government

informed Spiwak’s counsel of its intention to present to the

court a statement from Julie Dougherty, who claimed to have been

sexually abused by Spiwak in the late 1980s when she was ten

years old. It is undisputed that Ms. Dougherty was not a

“victim” of any of the crimes for which Spiwak had previously

been convicted or of either of the offenses charged in the

instant indictment. The government offered Ms. Dougherty’s

information in support of both (1) an offense level adjustment

for engaging in a “pattern of activity” involving sexual abuse

of a minor, see U.S.S.G. § 2G2.2(b)(5) (which had been applied

by the probation officer in his preparation of Spiwak’s

Presentence Investigation Report) and (2) the government’s

motion for an upward departure based on inadequate criminal

history under U.S.G.G. § 4A1.3.

When the sentencing hearing commenced, it appears that the

district judge noticed that Ms. Dougherty was standing alongside

the prosecutor. The district judge was thereby prompted to

inquire of the prosecutor, “Do you have victim participation?”

J.A. 53. Without yet having explained Ms. Dougherty’s presence

and in response to the court, the prosecutor stated, “Yes, Your

Honor.” Id. Spiwak then objected that Ms. Dougherty was not

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depicted in any of the images that constituted the offense of

his conviction -- possession of child pornography –- and that

she was “not associated with this case.” J.A. 53. 1

There then followed an extended colloquy among the court,

counsel, and the probation officer, in which the court sought to

determine whether Ms. Dougherty was being “asked to participate

under the victim entitlement [sic] under federal law.” J.A. 56.

Ultimately, as the record conclusively shows, the district court

found and concluded that Ms. Dougherty was not a “victim” within

the contemplation of the Crime Victims Rights Act (“CVRA”), 18

U.S.C. § 3771:

The Court: I am just trying to get a read on
who is a victim.

The Prosecutor: [Ms. Dougherty is offered as
a] victim as well as in support of the
government’s upward departure argument as to
this defendant represents as far as
recidivism.

The Court: So you can put on evidence on
upward departure?

The Prosecutor: I believe I can, Your Honor.

1
In an understandable effort to pretermit the presentation
of Ms. Dougherty’s information to the district court, defense
counsel promptly withdrew Spiwak’s objection to a five level
adjustment in his offense level based on his “pattern of
activity involving the sexual abuse or exploitation of a minor”
under U.S.S.G. § 2G2.2(b)(5). Nevertheless, Ms. Dougherty’s
information was relevant to the issue of criminal history
inadequacy.

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 The Court: Well, okay. On that basis I may
allow it, but nevertheless, tell me who the
victims are.
. . .

Probation Officer: Yes, sir. Your Honor, 18
U.S.C. [§] 3661 just basically allows the
court no limitation, to consider any
information regarding the defendant’s
background, character, conduct.

The Court: But what about the victim law?
There is a specific law having to do with
victim participation in sentencing.

Probation Officer: She is not a victim of the
instant offense, but I do believe it’s
relevant to the –

The Court: To the relevant conduct.

Probation Officer: Yes, sir. And the specific
offense characteristics in the case as well
as the government’s motion for upward
departure. It’s very relevant.

The Court: Okay. I don’t disagree with that.

The Prosecutor: Thank you, Your Honor.

The Court: Do you want to say anything?

Defense counsel: Your Honor, I would just note
our objection.

The Court: Okay. I agree that at a minimum
it’s suitable for relevant conduct having to
do with a variance or departure.

J.A. 56-57.

Following this colloquy, the court allowed Ms. Dougherty to

make a statement, and she described in some detail how the

defendant had sexually abused her when she was a child. Ms.

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Dougherty also explained that the abuse has since then “caused

[her] family to fall apart.” J.A. 59.

The district court thereafter questioned the probation

officer as to how many criminal history points Spiwak’s prior

convictions for indecent liberties with children would have

received had they been scored. The probation officer responded

that if the prior convictions had been scored, they would have

resulted in a total of four criminal history points, placing

Spiwak in criminal history category III.

The district court then indicated, in agreement with an

implicit recommendation of the probation officer, that it would

grant the government’s motion for an upward departure pursuant

to U.S.S.G. § 4A1.3, thereby place Spiwak in offense level 32,

criminal history category III, yielding an advisory guidelines

sentencing range of 151 to 188 months imprisonment. Defense

counsel voiced an objection to an upward departure and supported

the objection with specific arguments which the district court

fully entertained. Notably, however, the district court

specifically asked defense counsel whether counsel could say

that the court had employed “improper methodology” in

determining to depart. J.A. 64. Defense counsel stated,

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unequivocally, he did not so contend. 2 Id. Spiwak now appeals his

sentence as procedurally erroneous.

III.

In reviewing any sentence, we apply a “deferential abuse of

discretion standard.” United States v. Carter, 564 F.3d 325, 328

(4th Cir. 2009) (internal quotations omitted). We review

questions of law, de novo. United States v. Cardwell, 433 F.3d

378, 384-85 (4th Cir. 2005). Statutory interpretation presents a

legal issue, subject to de novo review. United States v. Myers,

280 F.3d 407, 416 (4th Cir. 2002).

Under the Crime Victims Rights Act (“CVRA”), 18 U.S.C. §

3771, a crime victim has “[t]he right to be reasonably heard at

any public proceeding in the district court involving release,

plea, sentencing, or any parole proceeding.” 18 U.S.C. §

3771(a)(4). A crime victim is defined as “a person directly and

proximately harmed as a result of the commission of a Federal

offense or an offense in the District of Columbia.” 18 U.S.C. §

3771(e). Here, Spiwak argues that, under the CVRA, the district

court should not have allowed Ms. Dougherty to speak during the

2
The district court pressed defense counsel to indicate
whether “the methodology that the court is using [to effect an
upward departure] is a sufficient methodology.” J.A. 65. Defense
counsel sated, “Yes, Sir.” Id.

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sentencing hearing because Ms. Dougherty was not a victim of the

crime charged in the instant offense. In contrast, the

government argues that nothing in the CVRA places restrictions

on the district court’s discretion to consider any reliable

information at sentencing relevant to “the background,

character, and conduct of” an offender before the court for

sentencing. See 18 U.S.C. § 3661 (“No limitation shall be placed

on the information concerning the background, character, and

conduct of a person convicted of an offense which a court of the

United States may receive and consider for the purpose of

imposing an appropriate sentence.”). 3

Contrary to Spiwak’s contentions, it is clear from the

record that the district court did not find that Ms. Dougherty

3
Surprisingly, during oral argument Spiwak’s counsel
conceded that Spiwak would not have cause to appeal if Ms.
Dougherty’s information had been submitted to the district court
in a letter or an affidavit. He thereby seemed to have changed
strategy. So viewed, the challenge here is to the form in which
the district court allowed Ms. Dougherty to be heard rather than
the substance of her statement. As we understand the contention,
counsel seemed to ask us to interpret the CVRA and 18 U.S.C. §
3661 in a manner that would restrict a district court to hear
from a non-victim (such as Ms. Dougherty) only in writing and
not viva voce. According to counsel, the greater impact of a
statement offered in open court militates in favor of a rule
that oral statements should be limited to the defendant and
victim of the instant offense. We find nothing in the proposed
rule to commend itself to us, but in any event, we decline
counsel’s invitation to address this issue, which was not raised
in the brief. See United States v. Williams, 378 F.2d 665, 666
(4th Cir. 1967) (per curiam) (holding issues argued orally but
not addressed in brief were waived).

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was a “victim” under the CVRA. The district court agreed with

the probation officer that Ms. Dougherty was not a victim of the

instant offense and, therefore, did not qualify as a crime

victim under the CVRA. See supra p. 5. Thus, to the extent that

Spiwak assigns error to the district court’s alleged

misapplication of the CVRA, the record simply does not disclose

error at all.

Nor did the court err in allowing the government to proffer

Ms. Dougherty’s statement on the ground that her information

would be probative as to the government’s motion for an upward

departure. Sentencing courts are required to consider “the

nature and circumstances of the offense and the history and

characteristics of the defendant” prior to sentencing. 18 U.S.C.

§ 3553(a)(1). Indeed, there is “[n]o limitation . . . on the

information concerning the background, character, and conduct of

a person convicted of an offense which a court . . . may receive

and consider for the purpose of imposing an appropriate

sentence.” 18 U.S.C. § 3661.

From our careful review of the record in light of the

arguments presented by the parties, we hold that the district

court did not abuse its discretion in considering Ms.

Dougherty’s information. It is clear from the record that the

district court considered the statement in connection with the

government’s motion for an upward departure based on the alleged

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inadequacy of Spiwak’s criminal history category and his risk of

recidivism. The district court stated, “I agree that at a

minimum it’s suitable for relevant conduct having to do with a

variance or departure.” J.A. 57. Bearing in mind the

considerable latitude that district courts enjoy at sentencing,

as authorized by 18 U.S.C. § 3661, see United States v. Seay,

553 F.3d 732, 741-42 (4th Cir. 2009), we cannot say that the

district court abused its discretion.

Important to our holding, Spiwak does not allege or argue

on appeal that he was unduly prejudiced when the government

failed to give prior notice that Ms. Dougherty would be present

at the sentencing hearing. Specifically, after learning that the

government intended to have Ms. Dougherty address the district

court only shortly before sentencing, Spiwak’s counsel did not

ask for a postponement of the sentencing hearing in order to

prepare to question her or to investigate her information.

Notably, as well, Spiwak’s counsel did not request that Ms.

Dougherty be placed under oath and he did not request an

opportunity to cross examine her. Nor has Spiwak suggested at

any time or in any manner that the information provided to the

district court by Ms. Dougherty was unreliable.

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 IV.

We discern no abuse of discretion by the district court in

considering the information presented at sentencing and Spiwak

has not otherwise suggested that the sentence is procedurally

unreasonable. Accordingly, we affirm.

AFFIRMED

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