United States v. Scher

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4827

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

STEWARD SCHER, a/k/a DadnNC, a/k/a Carmine4u,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:08-cr-00109-RJC-1)

Submitted: July 14, 2010 Decided: July 26, 2010

Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Matthew R. Segal,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Edward R. Ryan, United States
Attorney, Cortney S. Escaravage, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Steward Scher appeals his 180-month sentence following

a guilty plea to possession, transportation and distribution of

child pornography in violation of 18 U.S.C.A. § 2252(a)(1),

(a)(2), (a)(4)(B) (West Supp. 2010). On appeal, Scher contends

that the district court procedurally erred by enhancing his base

offense level by five levels pursuant to U.S. Sentencing

Guideline Manual (“USSG”) § 2G2.2(b)(3)(C) (2008). Scher also

argues that the length of his sentence is unreasonable. We

affirm.

We first address Scher’s claim of procedural

sentencing error. Scher contends, as he did below, that the

USSG § 2G2.2(b)(3)(C) enhancement was not applicable in his case

because the Government failed to establish that Scher

distributed pornography to a minor. The district court found

that internet chatroom communications with “AmyP12” justified

application of the enhancement, 1 rejecting Scher’s contention

that both he and “AmyP12” were adults using a role-playing

chatroom.

1
“AmyP12” conversed with Scher in a chatroom, and Scher
transferred pornographic material to her over the internet.

2
Distribution to a minor is defined as “the knowing

distribution to an individual who is a minor at the time of the

offense.” USSG § 2G2.2, cmt. n.1. A minor is:

(A) an individual who had not attained the age of 18
years; (B) an individual, whether fictitious or not,
who a law enforcement officer represented to a
participant (i) had not attained the age of 18 years,
and (ii) could be provided for the purposes of
engaging in sexually explicit conduct; or (C) an
undercover law enforcement officer who represented to
a participant that the officer had not attained the
age of 18 years.

Id.

The Government must prove the facts needed to support

a sentencing enhancement by a preponderance of the evidence.

United States v. Milam, 443 F.3d 382, 386 (4th Cir. 2006). In

determining whether a sentencing enhancement applies, we may

consider hearsay, provided that the information bears a

“sufficient indicia of reliability to support its accuracy.”

United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010);

see USSG § 6A1.3(a), p.s. When reviewing the district court’s

application of the sentencing guidelines, we review questions of

law de novo and findings of fact, such as whether Scher

distributed child pornography to a minor, for clear error. See

United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008).

In United States v. Hansel, 524 F.3d 841 (8th Cir.

2008), the Eighth Circuit addressed the application of USSG

§ 2G2.2(b)(3)(C) to facts similar to those presented here.

3
Using an internet chatroom, Hansel provided images depicting

child pornography to an individual who used the screen name

“beccajones13” and who stated to Hansel that she was a

thirteen-year-old female. Hansel, 524 F.3d at 847. While

Hansel argued there was no evidence before the district court

from which it could conclude that beccajones13 was actually a

minor, the Eighth Circuit found that the screen name and the

representation provided sufficient evidence to support the

district court’s finding to that effect. Id.

We have reviewed the record and conclude that the

district court’s finding that AmyP12 was a minor was similarly

supported by a preponderance of the evidence and is not clearly

erroneous. AmyP12 informed Scher that she was a twelve-year-old

female and sent him two pictures of herself. The pictures were

consistent with the physical appearance of a prepubescent

female. Scher continued to send AmyP12 images of child

pornography after she informed him that she was twelve years old

and after he received two pictures of a young girl.

Accordingly, the district court did not clearly err, and this

claim of procedural sentencing error fails.

Scher also argues that his sentence is substantively

unreasonable, in that it was longer than necessary to achieve

the sentencing goals of 18 U.S.C. § 3553(a) (2006), particularly

in view of the harsh sentencing guideline ranges generated by

4
the guidelines applicable to child pornography crimes. 2 See

generally United States v. Morace, 594 F.3d 340, 345-48 (4th

Cir. 2010) (discussing nationwide trend of downward departures

and variances in child pornography cases).

“Substantive reasonableness examines the totality of the

circumstances to see whether the sentencing court abused its

discretion in concluding that the sentence it chose satisfies

the standards set forth in § 3553(a).” United States v.

Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010); see Gall v.

United States, 552 U.S. 38, 51 (2007). In imposing a variant

sentence, the sentencing court “must consider the extent of the

deviation and ensure that the justification is sufficiently

compelling to support the degree of the variance.” Gall, 552

U.S. at 50. “[A] major departure should be supported by a more

significant justification than a minor one.” Id. Given that

the district court is in a “superior position to find facts and

judge their import under § 3553(a) in the individual case,” we

must give “due deference to the district court’s decision that

the § 3553(a) factors, on the whole, justify the extent of the

2
In his reply brief, Scher seeks to recharacterize his
claim as one of procedural sentencing error, and claims that
the district court did not address all of his arguments for a
downward variance. We find no merit to this claim, as the
record confirms the district court’s thorough consideration of
Scher’s arguments.

5
variance.” Id. at 51. “The fact that the appellate court might

reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district

court.” Id.

We conclude that Scher’s sentence is substantively

reasonable. While Scher argues that the district court did not

give sufficient weight to his history and characteristics or to

the sentencing disparities that would result from the imposition

of a within-guideline sentence, it is clear from the record that

the district court meticulously considered those factors and

properly weighed them against the seriousness of the offense,

including victim impact and the need to protect the public and

deter criminal activity. The court decided that a sentence

thirty months below the bottom of the guideline range was

sufficient but not greater than necessary to accomplish the

purposes of 18 U.S.C. § 3553(a). And while this sentence is

below the applicable guideline range, we find that the extent of

the deviation was adequately explained and well within the

district court’s discretion.

Accordingly, we affirm the district court judgment.

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