United States v. Turner

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15074 ELEVENTH CIRCUIT
NOVEMBER 17, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK

D. C. Docket No. 09-00122-CR-LSC-TMP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAMUEL JAY TURNER,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(November 17, 2010)

Before BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

After pleading guilty, Samuel Jay Turner appeals his total 300-month
sentence for receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)

(count one), and possessing child pornography, in violation of 18

U.S.C. § 2252A(a)(5)(B) (count two). On appeal, Turner argues that the district

court erred in applying a five-level sentencing enhancement for engaging in a

“pattern of activity” involving the sexual abuse or exploitation of a minor under

U.S.S.G. § 2G2.2(b)(5). Turner also contends that his 300-month sentence is

substantively unreasonable. After review, we affirm.

I. BACKGROUND

A. Offense Conduct

Turner subscribed to a website from which he purchased child pornography.

Unbeknownst to Turner, the website was part of a nationwide undercover project,

called Operation Thin Ice.

On February 18, 2009, Immigration and Customs Enforcement (“ICE”)

agents obtained and executed a search warrant for Turner’s residence, including his

computer. The ICE agents found computer media, including one hard drive used

to receive images of child pornography and another hard drive that contained

images of child pornography.

Turner was present during the search. Afterward, Turner voluntarily spoke

to the agents and confessed to using the Internet to receive and possess images of

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child pornography. Subsequent forensic examination of Turner’s computer media

revealed over 600 images of child pornography, some of which depicted sado-

masochistic images involving children under the age of twelve engaging in sexual

acts with adults.

B. Presentence Investigation Report

The revised Presentence Investigation Report (“PSI”) recommended: (1) a

base offense level of 22, pursuant to U.S.S.G. § 2G2.2(a)(2); (2) a two-level

reduction, pursuant to U.S.S.G. § 2G2.2(b)(1), because Turner did not intend to

distribute the child pornography; (3) a three-level reduction, pursuant to U.S.S.G.

§ 3E1.1, for acceptance of responsibility; (4) a two-level increase, pursuant to

U.S.S.G. § 2G2.2(b)(2), because the offense involved a prepubescent minor or a

minor who had not attained the age of twelve; (5) a four-level increase, pursuant to

U.S.S.G. § 2G2.2(b)(4), because the materials portrayed sadistic or masochistic

conduct; (6) a two-level increase, pursuant to U.S.S.G. § 2G2.2(b)(6), because the

offense involved the use of a computer; and (7) a five-level increase, pursuant to

U.S.S.G. § 2G2.2(b)(7)(D), because the offense involved more than 600 images.

The revised PSI also recommended a five-level increase, pursuant to

U.S.S.G. § 2G2.2(b)(5), because Turner previously had been convicted of sexually

abusing a minor female from the age of two to the age of four. According to the

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revised PSI’s criminal history section, Turner was convicted of first degree sexual

assault in Alabama state court in 1990. At the time of Turner’s conviction, the

minor female victim was approximately seven or eight years old.

Although the Alabama state court in 2009 could not provide further details

of this offense, the United States Attorney’s Office received a statement from the

victim, who is now an adult. The victim reported that between the approximate

ages of two and five, she was sexually abused by Turner “on numerous occasions.”

Turner, who was the best friend of the victim’s father, would enter her house at

night and molest her. The victim’s statement described in detail the molestation

that occurred “most nights,” how she eventually told her parents, the ensuing

investigation and trial and the effect Turner’s abuse has had on her life.1

Pursuant to U.S.S.G. § 4A1.2(e), the revised PSI did not assign criminal

history points for the 1990 sexual abuse conviction because the sentence was

imposed more than fifteen years before the commencement of the child

pornography offenses. However, due to the 1990 sexual abuse conviction,

Turner’s statutory mandatory minimum was fifteen years and his statutory

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The initial PSI did not recommend the five-level “pattern of activity” enhancement
because the details of the 1990 sexual abuse conviction were not available. The government
objected, arguing that the enhancement should apply and submitted the victim’s statement
providing the details of the sexual abuse and its impact on the victim. A subsequent addendum
to the PSI adopted the government’s position on the enhancement. The revised PSI included the
details of the sexual abuse and applied the five-level “pattern of activity” enhancement. Turner
did not object to these factual details in the revised PSI.

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maximum was forty years for count one and his statutory mandatory minimum was

ten years and his statutory maximum was twenty years for count two. See 18

U.S.C. § 2252A(b)(1) &(2) (imposing increased mandatory minimum and

maximum sentences if the defendant has, inter alia, a prior state conviction for

aggravated sexual abuse, sexual abuse or abusive sexual conduct involving a

minor).

With a total offense level of 35 and a criminal history category of I, the

revised PSI calculated an initial guidelines range of 168 to 210 months’

imprisonment. However, because of the fifteen-year statutory mandatory

minimum for count one, the revised PSI noted that Turner’s advisory guidelines

range became 180 to 210 months’ imprisonment, pursuant to U.S.S.G.

§ 5G1.1(c)(2).

Turner objected to the five-level “pattern of activity” enhancement. Turner

argued that his 1990 sexual abuse conviction was too isolated and attenuated to,

and too substantively different from, the current offense to constitute a pattern of

activity. However, Turner did not contend that the details of the sexual abuse were

inaccurate or object to the factual statements as to the 1990 sexual abuse

conviction in the revised PSI’s criminal history section.

C. Sentencing

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 At sentencing, Turner reasserted his objection to § 2G2.2(b)(5)’s five-level

“pattern of activity” enhancement. Turner argued that his nearly twenty-year-old

sexual abuse conviction was too remote to constitute part of a “pattern of activity”

of sexual abuse and that the phrase “pattern of activity” was vague. Turner also

pointed out that the victim was four years old when the sexual abuse occurred and

was making her statement twenty years later. Although Turner did not object to

the factual details of the sexual abuse offense, he asked the court to “take that into

consideration.”

The district court noted that the victim “clearly recalled” a “great amount of

the details” and that Turner was actually convicted of the offense in 1990 (at which

time the female victim was seven or eight years old). The district court overruled

Turner’s objection and found that the § 2G2.2(b)(5) five-level enhancement was

applicable. The district court adopted the PSI’s factual statements and guidelines

calculations and found that the advisory guidelines range was 180 to 210 months.

In mitigation, Turner pointed to the accessibility of child pornography on the

Internet and contended that he was not a bad person. Turner personally apologized

for his behavior and expressed regret. Turner asked for concurrent sentences of

fifteen years on count one and ten years on count two.

Before imposing a sentence, the district court emphasized the seriousness of

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Turner’s offense, that Turner had paid to obtain this child pornography and that

Turner was paying for a third party to abuse a small child for his pleasure, as

follows:

. . .[T]he thing is that folks that actively pursue child
pornography on the Internet, downloading it, viewing it, getting it,
which I know that you went to a website that was at least, I believe
this is right, went to a web site that was a government sting operation
and obtained, I assume paid for - - did he pay for it?
[Prosecutor]: Yes, your honor.
The Court: That, you know, if that had not been a government
web site and you had done that, then you paying for those images
would have been you paying for someone else to abuse a small child
for your pleasure, and that’s a shame. And it’s not something that our
society should or can permit to exist.

The district court noted that it had seen studies suggesting people who abuse small

children are less likely to change. The district court stated that it did not know if

that was true or not and expressed hope that Turner could change. The district

court explained that the fact that Turner had “actually done something with a child

before” made Turner “more dangerous to society, dangerous to children.”

The district court considered the advisory guidelines range of 180 to 210

months, but found it “insufficient to accomplish the goals of the federal statutes.”

The district court then imposed the mandatory minimum 180-month sentence on

count one and the mandatory minimum 120-month sentence on count two, to be

served consecutively, for a total sentence of 300 months’ imprisonment. The

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district court also imposed supervised release for Turner’s lifetime, with various

special conditions of supervised release, such as limiting Turner’s contact with

minors and requiring Turner to register as a sex offender and to participate in the

Probation Office’s computer restriction monitoring program and mental health

treatment program for sex offenders.

The district court further explained that it had considered the 18 U.S.C.

§ 3553 factors in determining an appropriate sentence. The district court stressed,

in particular, the nature and circumstances of the offense, Turner’s history and

characteristics, the need for the sentence to reflect the seriousness of the offense,

promote respect for the law and provide just punishment and the need to deter

Turner. In its written Statement of Reasons, the district court reasserted these

factors as the reason for imposing a sentence above the advisory guidelines range.

The district court added that Turner had a conviction for abusing a very young

child, and his instant offense was for pornography involving very young children.

Turner filed this appeal.

II. DISCUSSION

A. U.S.S.G. § 2G2.2(b)(5) Enhancement

Under U.S.S.G. § 2G2.2, “[i]f the defendant engaged in a pattern of activity

involving the sexual abuse or exploitation of a minor,” the defendant’s offense

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level is increased by five. U.S.S.G. § 2G2.2(b)(5). The commentary defines

“[p]attern of activity involving the sexual abuse or exploitation of a minor” as:

any combination of two or more separate instances of the sexual abuse
or sexual exploitation of a minor by the defendant, whether or not the
abuse or exploitation (A) occurred during the course of the offense;
(B) involved the same minor; or (C) resulted in a conviction for such
conduct.

U.S.S.G. § 2G2.2 cmt. n.1. The commentary excludes from the definition of

“sexual abuse or exploitation” the “possession, accessing with intent to view,

receipt, or trafficking in material relating to the sexual abuse or exploitation of a

minor.” Id.2

“The government bears the burden of establishing by a preponderance of the

evidence the facts necessary to support a sentencing enhancement.” United States

v. Kinard, 472 F.3d 1294, 1298 (11th Cir. 2006). However, “[i]t is the law of this

circuit that a failure to object to allegations of fact in a PSI admits those facts for

sentencing purposes.” United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.

2006).

Here, Turner did not object to the revised PSI’s factual allegations that he

2
We review “purely legal questions de novo, a district court’s factual findings for clear
error, and, in most cases, a district court’s application of the guidelines to the facts with ‘due
deference.’” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). The due
deference standard is “tantamount to clear error review,” which is satisfied if we are “left with a
definite and firm conviction that a mistake has been committed.” Id.

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sexual abused a very small child “numerous times” over a period of two or three

years, which resulted in his 1990 conviction in Alabama state court for first degree

sexual abuse. Thus, these facts are deemed admitted for sentencing purposes.

Further, the admitted facts are sufficient to establish a “pattern of activity

involving the sexual abuse or exploitation of a minor” within the meaning of

U.S.S.G. § 2G2.2(b)(5). Turner’s undisputed sexual abuse of the little girl

“numerous times” involved more than two separate instances. Indeed, according to

the statement of the victim, who is now an adult, it occurred “most nights” over the

two- or three-year period.

Turner’s argument that the “pattern of activity” must be between the past

sexual abuse and the current offense lacks merit. The commentary to § 2G2.2

specifically excludes from the definition of “sexual abuse or exploitation of a

minor” the receipt or possession of “material relating to the sexual abuse or

exploitation of a minor.” U.S.S.G. § 2G2.2 cmt. n.1. In other words, Turner’s

current offenses of receipt and possession of child pornography cannot be

considered in determining whether he has engaged in a pattern of activity.3

3
For this reason, we also find meritless Turner’s claim that § 2G2.2(b)(5) is illogical and
“misleading on its face.” Contrary to Turner’s contention, an offense of conviction to which
§ 2G2.2(b)(5) applies cannot be used to establish the pattern of activity, and, necessarily, two
other separate instances of sexual abuse or exploitation of a minor must be shown to support the
enhancement. See U.S.S.G. § 2G2.2 cmt. n.1.

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 Turner alternatively argues that his 1990 sexual abuse conviction is too

remote in time to constitute a “pattern of activity.” This Court has explained that

the commentary to U.S.S.G. § 2G2.2 defining the phrase “pattern of activity

involving the sexual abuse or exploitation of a minor” permits the sentencing court

to consider “conduct unrelated to the offenses of conviction.” United States v.

Anderton, 136 F.3d 747, 751 (11th Cir. 1998).4 However, we have not addressed

whether U.S.S.G. § 2G2.2(b)(5) has a temporal limitation on unrelated conduct that

is considered.

The five circuits that have addressed this question have consistently

concluded that the plain language of § 2G2.2(b)(5) does not place a time limit on

past instances of sexual abuse or exploitation a court may consider in finding a

pattern of activity. See United States v. Olfano, 503 F.3d 240, 243 (3d Cir. 2007)

(involving convictions approximately 16 and 13 years old); United States v.

Garner, 490 F.3d 739, 742-43 (9th Cir. 2007) (involving sexual abuse occurring “at

least 35 years earlier”); United States v. Gawthrop, 310 F.3d 405, 412-14 (6th Cir.

2002) (involving an 11-year-old conviction); United States v. Woodward, 277 F.3d

4
Prior to 1996, the commentary to U.S.S.G. § 2G2.2 defined a pattern of activity as “any
combination of two or more separate instances of the sexual abuse or exploitation of a minor,
whether involving the same or different victims.” Anderton, 136 F.3d at 750. In 1996, the
Sentencing Commission amended the commentary “to clarify that a ‘pattern of activity’ may
include acts of sexual abuse or exploitation that were not committed during the course of the
instant offense or that did not result in a conviction.” Id.

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87, 90-92 (1st Cir. 2002) (involving multiple convictions between 22 and 27 years

old); United States v. Lovaas, 241 F.3d 900, 903-04 (7th Cir. 2001) (involving

sexual abuse that occurred 26 years earlier).

We agree with our sister circuits. “[A] guideline’s meaning is derived first

from its plain language and, absent ambiguity, no additional inquiry is necessary.”

United States v. Campa, 529 F.3d 980, 1012 (11th Cir. 2008). Nothing in

§ 2G2.2(b)(5) or its commentary suggests that the “pattern of activity” must be

temporally close to the offense of conviction. Under the plain terms of the

commentary, the only requirements for establishing a “pattern of activity” are two

or more instances of sexual abuse or exploitation of a minor that are separate from

one another. Turner’s repeated sexual abuse of a little girl over several years in the

late 1980s more than satisfies those requirements. Accordingly, the district court

did not err in applying the five-level enhancement pursuant to § 2G2.2(b)(5).

B. Reasonableness

Turner argues that the district court’s decision to run his 180-month and

120-month sentences consecutively, for a total 300-month sentence, was

substantively unreasonable. We review the reasonableness of a sentence for abuse

of discretion using a two-step process. United States v. Pugh, 515 F.3d 1179, 1190

(11th Cir. 2008). We look first at whether the district court committed any

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significant procedural error and then at whether the sentence is substantively

reasonable under the totality of the circumstances. Id.5 The party challenging the

sentence bears the burden to show it is unreasonable in light of the record and the

§ 3553(a) factors.6 United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir.

2006). The district court also considers the § 3553(a) factors as to each offense

when determining whether imprisonment terms should be imposed concurrently or

consecutively. 18 U.S.C. § 3584(b).

“If, after correctly calculating the guidelines range, a district court decides

that a sentence outside that range is appropriate, it must ‘consider the extent of the

deviation and ensure that the justification is sufficiently compelling to support the

degree of the variance.’” United States v. Williams, 526 F.3d 1312, 1322 (11th

Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 50, 128 S. Ct. 586, 597

(2007)). Likewise, although “[s]entences outside the guidelines are not presumed

to be unreasonable, . . . we may take the extent of any variance into our calculus.”

5
Apart from his challenge to the district court’s application of the § 2G2.2(b)(5) “pattern
of activity” enhancement, Turner does not argue that his sentence is procedurally unreasonable.
6
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).

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United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.), cert. denied, 129 S. Ct.

2847 (2009). However, we “must give due deference to the district court’s

decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”

Gall, 552 U.S. at 51, 128 S. Ct. at 597.

Here, the total 300-month sentence represented a 90-month variance from

the high end of the advisory guidelines range of 180 to 210 months. Turner has not

met his burden to show that this upward variance was unreasonable.

Turner’s offenses were extremely serious. Turner received over the Internet

and then stored on his hard drive over 600 images of child pornography. Some of

these images depicted children under the age of twelve engaging in sexual contact

with adults that were sado-masochistic in nature.

Turner emphasizes that he did not produce or distribute the child

pornography and characterizes his involvement in the exploitation of the children

depicted as indirect. When Turner subscribed to the undercover website, he

purchased additional images of child pornography. As the district court noted (and

this Court has recognized), receiving and possessing child pornography helps

create a market for more pornography, encouraging the victimization of more

children. See United States v. Pugh, 515 F.3d 1179, 1196-97 (11th Cir. 2008).

Furthermore, as the district court explained, Turner poses a more dangerous

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threat to society than many child pornography defendants given his history of

actually abusing a small child and the increased recidivism of child sexual abusers.

Although Turner argues that his 1990 sexual abuse conviction was already taken

into account through the application of § 2G2.2(b)(5)’s five-level enhancement, the

district court was not precluded from also considering it under the § 3553(a)

factors. See United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007)

(rejecting argument that because conduct was considered in imposing guidelines

enhancement, it could not be considered under the § 3553(a) factors in imposing an

upward variance). Under the totality of the circumstances, and giving due

deference to the district court’s determination that the § 3553(a) factors, on the

whole, justified the 90-month variance, we cannot say the district court abused its

discretion in imposing a total 300-month sentence.

AFFIRMED.

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