File Name: 06a0437n.06
Filed: June 27, 2006NOT RECOMMENDED FOR
FULL-TEXT PUBLICATION
No: 05-1988
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee
On Appeal from the United States District
Court for the Eastern District of Michigan
v.
DALE HAWORTH,
Defendant - Appellant
______________________________/
BEFORE: KENNEDY, COLE, Circuit Judges; and VARLAN, District Judge.*
KENNEDY, Circuit Judge. Defendant Dale Haworth appeals his sentence following a
guilty plea to both transportation and shipment of child pornography in violation of 18 U.S.C. §
2252A(a)(1) and to possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
Defendant Haworth contends that his sentence is unreasonable under United States v. Booker, 543
U.S. 220, 261 (2005). For the following reasons, we AFFIRM.
BACKGROUND
*
The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
On March 23, 2005, Defendant Dale Haworth (“Haworth” or “Defendant”) pled guilty to
transportation and shipment of child pornography in violation of 18 U.S.C. § 2252A(a)(1) and
possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The underlying facts
were set forth in the Presentence Report (“PSR”), to which neither party objected:
On January 27, 2001, a company based in California, named “shutterfly.com”, which
develops digital pictures into hard copies, received four orders on their web site from
e-mail account, “ehaworth@cancentric.net”. When a representative from
“shutterfly.com” received the order, they found that two of the four orders contained
child pornography. The e-mail account belonged to DALE HAYWORTH1, who
resided in Newport, Michigan. “Shutterfly.com” notified the FBI in California that
they had received a request to develop pornographic pictures of children. After
opening an investigation, the FBI located at the San Francisco, California Division
contacted the FBI in Detroit, Michigan regarding the case.
On April 11, 2001, after reviewing the material provided by the FBI in San
Francisco, California, FBI agents in Detroit, Michigan and officers from the Monroe
County Sheriff’s Department executed a federal search warrant at 1851 Magnolia,
Newport, Michigan. The defendant’s Dell Dimension XTS T450 Tower computer
was seized along with his printer, nine white binders of “snuff stories” and stories
of women being “spit roasted,” pornographic pictures, calendars, a diary, a photo
album, miscellaneous papers and notes, one roll of undeveloped film, 449 3.5"
diskettes and 3 CD-Roms.
Analysis of the first 269 disks located over 700 images of child pornography and
erotica, involving prepubescent minors under the age of 12. The images included
bestiality, bondage, urination, as well as cartoon-type images depicting spanking.
The adult images located included bondage, torture, urination, females with
speculum’s, as well as females displaying used tampons/pads. There are also
cartoon-type images of females being spitted and barbequed. The text that was
recovered included stories pertaining to transgenderism, incest, impregnation, rape,
torture, mutilation, dismemberment, snuff, and necrophilia. There were also sexual
torture stories relating to females being spitted, barbequed, and then eaten. It was
also found that HAYWORTH had a membership with Excite, which is a
pornographic web site, under the e-mail account LisaMarie42@excite.com. The
1
Throughout the PSR the defendant’s name is incorrectly spelled as “Hayworth”. The correct
spelling of defendant’s name is “Haworth,”and that spelling is used throughout this opinion.
2
majority of the more graphic-type stories were written by a Lisa Michelle Wiggins
with an e-mail address of Lisamichelle42@excite.com. It is believed that
HAYWORTH uses both pen names and may be the author of these stories.
On July 6, 2005, the district court held a sentencing hearing. At the sentencing hearing
Haworth argued he should be treated as an “end user” rather than as a distributor of child
pornography. He objected to the Presentence Report insofar as he was sentenced under Guideline
Section 2G2.2, receiving pictures involving the sexual exploitation of a minor, rather than Section
2G2.4, possession of materials depicting such sexual exploitation. The district court denied this
objection. The court did apply what its considered the “most advantageous” guidelines manual, the
2000 version rather than the 2004. JA at 25.
The advisory guideline range was 41-51 months. Haworth argued that the court should
sentence him so that he received no period of incarceration. The district court disagreed and
sentenced Haworth at the bottom of the advisory guideline range, to concurrent terms of 41 months’
imprisonment. This timely appeal followed.
ANALYSIS
In United States v. Booker the Supreme Court rendered the Sentencing Guidelines advisory
for all criminal cases. The Court explained that “Section 3553(a) remains in effect, and sets forth
numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they
have in the past, in determining whether a sentence is unreasonable.” United States v. Booker, 543
U.S. 220, 261 (2005). Booker requires that the sentence imposed by the district court be reasonable.
Booker, 543 U.S. at 224; United States v. Jackson, 408 F.3d 301, 304 (6th Cir. 2005). Haworth
contends that his sentence is unreasonable under Booker.
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I.
Haworth first argues the district court placed excessive weight on the guidelines sentencing
range. Notably, while courts may not exclusively rely on the guideline range, district courts “must
consult those Guidelines and take them into account when sentencing.” Booker, 543 U.S. at 264
(emphasis added). As explained by this circuit, “Booker requires an acknowledgment of the
defendant’s applicable Guidelines range as well as a discussion of the reasonableness of a variation
from that range.” Jackson, 408 F.3d at 305.
In this case, the district court only began its discussion with the guidelines range stating, “the
first thing I have to do is look at the sentencing guidelines.” JA at 31; see United States v. Willis,
2006 WL 1043937, 2 (6th Cir. 2006) (where district court first considered the advisory range as the
“the starting point,” and then went on to discuss the relevant § 3553(a) factors, this court found the
sentence reasonable). Yet, the district court then recognized its ability to deviate from that advisory
range, stating:
The Court has often said I don’t always agree with the sentencing guideline, and the
Sentencing Reform Act. The Supreme Court has given me a lot of latitude -- not a
lot but some latitude under the two recent cases. . . The Court believes that the Court
should use the Sentencing Guidelines in this particular matter. This is a heartland
of America kind of case in this particular charge. I think all cases are unique. This
one is unique because I think it is exactly what sentencing guidelines were intended
to deal with. The Court believes the sentencing guidelines should be followed in this
particular case. As I say, I don’t always feel that way, probably more times than I
not than I do. But I think this is the kind of case it was intended for.
JA at 32. Clearly, the district court did not “simply select” what it deemed “an appropriate sentence
without such required consideration.” United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). The
court recognized its ability to deviate from the guidelines and noted that it sometimes does disagree
and depart from those guidelines; but, ultimately, the court found that this was the type of case
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where the advisory guideline range was particularly apt. The district court’s discussion of the
guideline range does not suggest it gave them too much weight, but rather, indicates the court
carefully thought about the appropriateness of the advisory range. JA at 31. Thus, we find that the
district court did not place excessive weight on the guidelines range.
II.
Haworth also argues that his sentence is unreasonable because the district court failed to
consider all the relevant § 3553 factors. On appeal, Haworth does not dispute that his advisory
guideline range was properly calculated. In United States v. Williams, 436 F.3d 706, 708 (6th Cir.
2006), this court held that sentences properly calculated under the advisory Guidelines are credited
with a “rebuttable presumption of reasonableness”.2 Consequently, Haworth’s sentence is
presumptively reasonable. The burden on is on Haworth to establish that his sentence is
unreasonable. Id.
Yet, “[t]his rebuttable presumption does not relieve the sentencing court of its obligation to
explain to the parties and the reviewing court its reasons for imposing a particular sentence.” United
States v. Richardson, 437 F.3d 550 (6th Cir. 2006). This court has held that a sentence may be
unreasonable where a district judge fails to “consider” the applicable guidelines range or other
relevant factors listed in 18 U.S.C. § 3553(a) “and instead simply selects what the judge deems an
appropriate sentence without such required consideration.” Webb, 403 F.3d at 383. Districts courts
must “calculate the Guideline range as they would have done prior to Booker, but then sentence
2
In his brief, filed prior to this court’s decision in Williams, Haworth contends that this court
in Webb, “rejected the presumptive reasonableness of a guideline sentence.” Br. at 12. Obviously,
in light of Williams this contention is without merit.
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defendants by taking into account all of the relevant factors of 18 U.S.C. § 3553, as well as the
Guidelines range.” United States v. Stone, 432 F.3d 651, 655 (6th Cir. 2005).
Notably, a district court need not explicitly reference each of the § 3553(a) factors in its
sentencing determination. See McBride, 434 F.3d at 475 n. 3; United States v. Kirby, 418 F.3d 621,
626 (6th Cir. 2005) (a court “need not recite these factors but must articulate its reasoning in deciding
to impose a sentence in order to allow for reasonable appellate review”); United States v. Williams,
436 F.3d 706, 708 (6th Cir.2006) (finding that while the sentencing judge must consider the list of
sentencing factors articulated in § 3553(a), “[s]uch consideration ... need not be evidenced
explicitly.”). Yet even though a district court “need not recite these factors,” it “must articulate its
reasoning in deciding to impose a sentence in order to allow for reasonable appellate review.”
Williams, 436 F.3d at 709 (quoting Kirby, 418 F.3d at 626).
At the hearing the district court discussed the need for the defendant’s sentence to “reflect
the seriousness of the offense” and to “provide for just punishment”. § 3553(a)(2)(A). The court
stated that, “[t]his is a heartland of America kind of case in this particular charge” and that while he
did not always agree with the guidelines sentencing range he felt “this [case] is unique because I
think it is exactly what the sentencing guidelines were intended to deal with.” JA at 31. The court
later went on to find that punishment was “an important consideration” in this type of case. JA at
32.
The district court also considered “the history and characteristics of the defendant.” §
3553(a)(1). The court recognized Haworth’s past military service but found that the the need for
deterrence outweighed this consideration stating, “[Haworth’s] military service is very important
to him, to his country. However, the sentencing guidelines were designed for lots of other reasons
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and some of them were a deterrent factor.” JA at 32. The district court then went on to note the
importance that Haworth’s sentence “afford adequate deterrence.” JA at 32; § 3553(a)(2)(B). The
court addressed Haworth’s “commitments” (that he committed to giving up alcohol and to using the
internet), but found that punishment and deterrence were both “important considerations,” and that,
“[Haworth] is very strong in terms of his commitments, I’m sure, but I think he also needs some help
in relation to that commitment.” JA at 32.
Finally, the court also discussed the need to “provide the defendant with needed educational
or vocational training, medical care, or other correctional treatment in the most effective manner.”
§ 3553(a)(2)(D). The court stated that rehabilitation and was an “important consideration” and went
on to order mandatory drug testing, participation in a mental health program while on supervised
release for a period of two years, and, if necessary, participation in a substance abuse program. JA
at 32.
We find a review of the sentencing hearing transcript reveals that the district court did
consider the § 3553(a) factors and did explain its reasoning for sentencing Haworth within the
advisory Guidelines range.
III.
Haworth further argues there are several mitigating factors the district court failed to take
into account and, as a result, his sentence is unreasonably longer than necessary to achieve the
various goals of sentencing in § 3553(a)(2). Specifically, Haworth argues the court failed to give
proper weight to: his unblemished criminal history, his previous full-time employment, his service
in the military, and his unsupported allegation that he had prohibited himself from further access to
the internet and was “otherwise completely rehabilitated”.
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We find the district court did consider the factors Haworth advanced; it simply chose not to
rely on them. With respect to his criminal history, this is taken into account by the guidelines. As
to his employment history, his military service, and his alleged rehabilitation, again, as discussed,
the court referenced these factors, however, the court went on to find that other § 3553(a)
considerations, such as rehabilitation, deterrence and punishment justified the recommended
guideline sentence of forty-one months’ imprisonment.
Finally, Haworth also claims that he should have been sentenced less severely under United
States v. Farrelly, 398 F.l3d 649 (6th Cir. 2004) as he was an “end user” rather than a distributor of
child pornography. Id. at 657 (“the obvious intent of the Guidelines however is to punish less
severely for possession than for trafficking”). Notably, this portion of the Farrelly opinion has since
been mooted due to a change in the guidelines:
In the November 2004 version of the Guidelines, the Sentencing Commission deleted
U.S.S.G. § 2G2.4 and determined that all people who are convicted of either
possessing or transmitting child pornography should be sentenced under U.S.S.G. §
2G2.2. This change makes the portion of Farrelly that deals with U.S.S.G. § 2G2.4
moot for future child pornography sentences.
United States v. Williams, 411 F.3d 675, 678 (6th Cir. 2005). Haworth also cited to Farrelly at the
district court level, however, he did so to request that his base offense level be calculated
differently.3 The Presentence Report recommended that Haworth be sentenced under Section 2G2.2
(Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting,
3
In a letter from Appellant’s counsel to the probation officer, Appellant’s counsel wrote “In
United States v. Farrelly, 398 F.3d 649 (6th Cir.2004), the Sixth Circuit held that “‘[t]he obvious
intent of the Guidelines...is to punish less severely for possession than for trafficking.’ Thus, ‘end-
users’ such as Mr. Haworth, who are not ‘traffickers’ should receive the lower guideline.” JA at 53.
8
Shipping, or Advertising Material Involving the Sexual Exploitation of a Minor; Possession Material
Involving the Sexual Exploitation of a Minor with Intent to Traffic). Haworth objected to this
finding arguing that under Farrelly Section 2G2.4, with a lower base offense level of 15 (Possession
of Materials Depicting a Minor Engaged in Sexually Explicit Conduct), should apply. The district
court rejected this argument.
On appeal, Haworth does not dispute that his advisory guideline range was properly
calculated. Yet, he again points to the Farelly decision, this time arguing that because he was an
“end-user” rather than a distributor, his sentence is unreasonable. Presumably, Haworth is claiming
that the court should have considered the fact that he was an “end-user” under the “seriousness of
the offense” (§ 3553(a)(2)(A)), although he did not specifically argue this on appeal, nor in the court
below.
Yet, even though Haworth did not frame this issue in this same manner below, the district
court did consider it. The court rejected Haworth’s argument at the sentencing hearing, reasoning
that it was already applying the 2000 Guidelines, the guideline range, “most advantageous to the
defendant”. JA at 26. Under the 2000 Guidelines the base offense level for a violation of 18 U.S.C.
§ 2252(A)(1) is 17 (U.S.S.G. § 2G2.2). Under the 2004 Guidelines, the base offense level for the
same violation is now 18 (U.S.S.G. § 2G2.2). Thus, especially given the way in which this
argument was originally raised (an objection to the offense level), we find the district court did
consider this argument, but found it already took it into consideration by sentencing Haworth under
the more advantageous 2000 guidelines manual.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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