UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4827
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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.
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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
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