NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0684n.06
No. 08-6241
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Oct 14, 2009
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
DANA SCOTT RICHARDSON, ) DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
BEFORE: GILMAN and GRIFFIN, Circuit Judges, and STEEH, District Judge.*
GRIFFIN, Circuit Judge.
Defendant Dana Scott Richardson appeals his 160-month prison sentence and lifetime term
of supervised release as procedurally and substantively unreasonable after pleading guilty to
distributing child pornography transported in interstate commerce by computer in violation of 18
U.S.C. § 2252(a)(2)(A). Richardson argues that the length of his sentence is greater than necessary
to achieve the sentencing objectives set forth in 18 U.S.C. § 3553(a). We disagree and affirm.
I.
On June 12, 2006, an FBI agent entered an internet chat room and observed a message that
invited persons to trade child pornography by downloading a file-sharing program. The agent
*
The Honorable George Caram Steeh, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 08-6241
USA v. Richardson
successfully downloaded the program, accessed Richardson’s computer, and downloaded 305 images
of minors engaging in sexually explicit conduct. The FBI obtained and executed a federal search
warrant at Richardson’s residence and seized his computer and related equipment. During the
search, Richardson admitted to agents that he used the file-sharing program to download and trade
child pornography on the Internet.
Richardson pled guilty to distributing child pornography transported in interstate commerce
by computer in violation of 18 U.S.C. § 2252(a)(2)(A). The presentence report (“PSR”) determined
that Richardson’s base offense level was 22 pursuant to U.S.S.G. § 2G2.2(a)(2), Trafficking in
Material Involving the Sexual Exploitation of a Minor, and assessed his criminal history at Category
I (based on 1 criminal history point). The PSR recommended a five-level enhancement under §
2G2.2(3)(B) because his offense involved the distribution of child pornography for “a thing of
value,” namely, the images he obtained from others by sharing his images. The PSR also
recommended a four-level enhancement under § 2G2.2(b)(4) because the images included depictions
of violence. In addition, the PSR applied a two-level enhancement pursuant to § 2G2.2(b)(6)
because the offense involved the use of a computer and a four-level enhancement under §
2G2.2(b)(7)(C) because the offense involved at least 300 but fewer than 600 images. The PSR
afforded a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a)-(b),
yielding a total offense level of 34 and an advisory Guidelines range of 151 - 188 months of
imprisonment.
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USA v. Richardson
The district court conducted Richardson’s sentencing on September 30, 2008. Following
extensive argument by the parties, the district court imposed a within-Guidelines sentence of 160
months of imprisonment and a lifetime term of supervised release.
This appeal follows.
II.
We review the district court’s sentencing decisions for reasonableness under an
abuse-of-discretion standard. United States v. Bates, 552 F.3d 472, 476 (6th Cir. 2009) (quoting
Gall v. United States, 128 S. Ct. 586, 594 (2007)); United States v. Bolds, 511 F.3d 568, 575 (6th
Cir. 2007). Reasonableness review has both a procedural and a substantive component. United
States v. Sedore, 512 F.3d 819, 822 (6th Cir. 2008). This court “must first ensure that the district
court committed no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18
U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence . . . .” Gall, 128 S. Ct. at 597. If the sentence is procedurally
sound, we “then consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id. We apply a presumption of substantive reasonableness to
sentences that fall within the applicable Guidelines range. Sedore, 512 F.3d at 823.
III.
Richardson asserts four arguments on appeal. First, he claims that the district court did not
articulate the specific weight it attributed to each § 3553(a) factor when imposing his sentence.
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USA v. Richardson
Next, he argues that the district court erroneously relied upon § 2G2.2 as its “starting point” when
fashioning his within-Guidelines sentence, which he claims is contrary to United States v. Booker,
543 U.S. 220 (2005). He also asserts that his 160-month prison term is substantively unreasonable
because there exists a significant disparity in the length of prison sentences imposed for similar
conduct in the Eastern District of Tennessee. Finally, he contends that a lifetime term of supervised
release, imposed pursuant to 18 U.S.C. § 3583(k), is substantively unreasonable because it is greater
than necessary to fulfill the purposes of sentencing set forth in § 3553(a).
A.
The district court correctly calculated the Guidelines range, treated the range as advisory,
considered the 18 U.S.C. § 3553(a) factors, and explained the sentence it imposed. Nevertheless,
Richardson argues that the district court’s explanation of his sentence was procedurally unreasonable
because it failed to articulate the weight it assigned to each § 3553(a) factor. In addition, he argues
the district court erred because it employed § 2G2.2 as its “starting point” when fashioning his
sentence.
According to United States v. Bostic, “[i]f a party does not clearly articulate any objection
and the grounds upon which the objection is based, when given [a] final opportunity [to] speak, []
that party will have forfeited its opportunity to make any objections not previously raised and thus
will face plain error review on appeal.” United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.
2004); United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) (applying Bostic rule to
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USA v. Richardson
procedural- reasonableness claims). It is uncontested that Richardson did not object to the district
court’s explanation of his sentence when it asked the Bostic question:
[District Court]: All right. Mr. Tollison, does the Defendant have any
objection to the sentence just pronounced that has not been
previously raised?
[Defense Counsel]: No, your Honor.
Under United States v. Vonner, 516 F.3d 382 (6th Cir. 2008), a party does not forfeit its right
to appeal issues “previously raised,” but it does undermine its right “to challenge the adequacy of
a court’s explanation for the sentence – an issue that bec[o]me[s] apparent as soon as the court
finish[es] announcing its proposed sentence[,] and [] counsel nonetheless decline[s] the court’s
invitation to address” any errors in the articulation of that sentence. Vonner, 516 F.3d at 386.
(emphasis added). Thus, errors alleged relating to the district court’s explanation of his sentence are
subject to plain-error review. To establish plain error, Richardson
must show (1) that an error occurred in the district court; (2) that the error was plain,
i.e., obvious or clear; (3) that the error affected [the] defendant’s substantial rights;
and (4) that this adverse impact seriously affected the fairness, integrity or public
reputation of the judicial proceedings.
United States v. Alexander, 543 F.3d 819, 822 (6th Cir. 2008) (quoting United States v. Koeberlein,
161 F.3d 946, 949 (6th Cir. 1998)).
The sentencing transcript reveals that the district court engaged in a lengthy discussion of the
§ 3553(a) factors before imposing his sentence. Richardson is incorrect insofar as he claims that the
district court was required to articulate the weight it assigned to each § 3553(a) factor when
pronouncing his sentence. We are not “tasked with demanding that the district judge consider each
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USA v. Richardson
of the issues enumerated in § 3553(a) equally or engage in a ‘ritualistic incantation’ of these statutory
factors” to conclude that a defendant’s sentence is procedurally reasonable. United States v. Benson,
195 F. App’x 414, 417 (6th Cir. 2006) (unpublished) (citing United States v. Williams, 436 F.3d 706,
709 (6th Cir. 2006)). “Rather, this court should review the proceedings of the lower court to ensure
that the judge considered the statutory factors and adequately articulated his rationale such that the
resultant sentence, though not what the defendant desired, cannot be faulted as unreasonable for
failure to consider issues relevant to § 3553(a).” Benson, 195 F. App’x at 417. Because the district
court was not required to articulate the weight it assigned to each § 3553(a) factor, Richardson
cannot demonstrate error, let alone plain error.
Next, Richardson argues that the district court erroneously relied upon § 2G2.2(a) as its
“starting point” when fashioning his within-Guidelines sentence, which he asserts is contrary to
United States v. Booker, 543 U.S. 220 (2005). We disagree. Although the Sentencing Guidelines
are advisory, the Supreme Court has nevertheless instructed the district courts to consult the advisory
sentencing range as “the starting point and initial benchmark” of its sentencing analysis. Gall, 128
S. Ct. at 596. Thus, this argument plainly lacks merit.
For these reasons, we conclude that Richardson’s sentence is procedurally reasonable.
B.
Upon concluding that the sentencing decision is procedurally sound, we “then consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Alexander, 543 F.3d at 822. District courts are charged with imposing “a sentence sufficient, but
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USA v. Richardson
not greater than necessary, to comply with the purposes” of sentencing set forth in § 3553(a). We
apply a rebuttable presumption of reasonableness for sentences within the Guidelines range. Sedore,
512 F.3d at 823.
Richardson argues that the length of his prison term is substantively unreasonable because
other defendants in the Eastern District of Tennessee have been sentenced more leniently for
substantially similar conduct. Specifically, Richardson identifies two individuals who received
shorter prison sentences, his brother, Jason Richardson, and Ronald Reagan. The district court
carefully considered Richardson’s sentencing- disparity argument, reviewed Jason’s and Reagan’s
presentence reports and sentences, and found that Richardson’s conduct was distinguishable and
warranted a longer sentence:
Defendant argues for a below Advisory Guideline sentence based upon recent cases
which Defendant suggests are similar to his. In his sentencing memorandum
Defendant compared his case to that of Ronald Reagan, sentenced by Judge Phillips
on July 24, 2008, and Defendant’s brother, Jason Richardson, sentenced by Judge
Jordan on April 17th, 2008.
The Court has reviewed each of those cases and determined that the conduct of those
defendants is distinguishable from this defendant’s conduct and, therefore, a
difference in sentence is warranted.
As to Mr. Reagan, though Mr. Reagan agreed that he distributed child pornography,
Mr. Reagan’s conduct did not involve distribution for pecuniary gain or a thing of
value, like Defendant’s did, and Mr. Reagan had fewer images, 104, than Defendant
did, between 300 and 599.
As to Defendant’s brother, Jason Richardson, Mr. Jason Richardson agreed to the
factual basis that he, “knowingly downloaded, viewed and possessed images of child
pornography,” but nothing in Jason Richardson’s factual basis established that he
distributed child pornography or offered to trade child pornography with others,
which distinguishes his conduct from that of the Defendant here.
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The Court notes that in those cases both of the respective sentencing judges
sentenced – also notes that both sentencing judges sentenced within the Advisory
Guideline Range as applicable to those cases; in those instances, at the low or bottom
end of the Advisory Guideline Range.
In comparison to the relevant conduct in that case, as the Government noted in its
reply to sentencing memorandum, the facts in this case as set forth in the plea
agreement, as well as in the offense conduct outlined in the pre-sentence report,
establishes, among other things, the Defendant entered a chat room entitled
“100%teensexpics,” p-i-c-s, on the Internet and solicited to trade child pornography
over the Internet via a file-sharing program.
An undercover agent was able to accept the Defendant’s file server and freely
download images of children engaged in sexually explicit conduct. Defendant’s
computer was later seized pursuant to a federal search warrant and forensically
examined.
The forensic examination of his computer confirmed that he had distributed child
pornography over the Internet; that during execution of the search warrant the
Defendant admitted to the investigating agent that he had operated a file-sharing
software in order to share or distribute child pornography over the Internet with
others.
Earlier at the sentencing hearing Defendant also mentioned other defendants recently
sentenced by this court and argues that those cases support a below Advisory
Guideline Range sentence as well. However, based upon the Court’s recollection and
review of those cases, none of those defendants were involved in the distribution of
child pornography similar to the offense conduct here such as would warrant an
argument of unwarranted sentence disparity.
Additionally, the defendants in each of those cases, except for Derrick Blackmon, in
Case 3:06-cr-96, were sentenced with a term of imprisonment within the Advisory
Guideline Range calculated based upon their conduct and offense of conviction. Mr.
Blackmon was sentenced below the guideline range but at the statutory maximum for
his offense.
Based upon the Court’s consideration therefore of Defendant’s argument, in
particular his request for a variance based upon alleged unwarranted sentencing
disparities that would result from a within Advisory Guideline Range sentence in this
case, the Court would respectfully deny Defendant’s requested variance.
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Section 3553(a)(6) of Title 18 informs the district court of “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of similar
conduct[.]” 18 U.S.C. § 3553(a)(6) (emphasis added). Richardson has not identified an individual
who received a more lenient sentence that is guilty of similar conduct, specifically, distribution of
child pornography for a thing of value. The record clearly demonstrates that the district court
engaged in a thorough analysis of defendant’s request for a variance pursuant to § 3553(a)(6). Thus,
the district court did not abuse its discretion in declining to vary from the advisory Guidelines range
based upon the alleged disparity. See United States v. Cage, 458 F.3d 537, 542 (6th Cir. 2006).
Finally, Richardson contends that his lifetime term of supervised release, imposed pursuant
to 18 U.S.C. § 3583(k), is substantively unreasonable because it is greater than necessary to fulfill
the purposes of sentencing set forth in § 3553(a). Again, the district court engaged in a detailed
analysis of the § 3553(a) factors before pronouncing Richardson’s supervised release sentence:
As to the issue of sentencing disparities, that issue is also raised somewhat in the
Court’s consideration of a term of supervised release in this case, and the applicable
period, statutory period, being from five years to life.
The Court also does not believe that a supervised release term of greater than ten
years would result in unwarranted sentencing disparities in this case, the Court being
mindful of the lack of objection to that term by the Government, but it being the
Court’s duty to fashion a sentence inclusive of supervised release that would be
sufficient but not – that would be sufficient to comply with the purposes of Section
3553.
In looking at this issue, the Court first would note that while Mr. Reagan and Mr.
Jason Richardson were given supervised release terms by their respective sentencing
judges of ten years, other cases cited to this court by Defendant’s counsel, some
included supervised release terms of ten years up to life based upon the facts and
circumstances relevant to those cases.
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Next, in particular to this case, the Court has already noted that Defendant has not
participated in a current psychosexual evaluation and that the extent of his deviant
sexual behavior is unknown. However, as established in the pre-sentence report, the
Defendant was evaluated in 1990, and from that evaluation it is established through
the pre-sentence report the Defendant had serious problems at an earlier age that had
been left untreated.
Based upon this evaluation and the offense of conviction, safety of the community
is a strong consideration for the sentence to include a significant term of supervised
release in this case.
* * *
[T]he Court will impose in this case a supervised release term of life for all the
reasons previously discussed, and in particular, given the lack of treatment and the
need to provide the Defendant with treatment both – with treatment both during a
period of incarceration as well as during a period of supervised release, and based
upon the particular offense conduct herein relating to, among other things, the
number of images, the offer to trade or distribute, the type and extent of images and
other relevant conduct.
On this record, we do not consider the district court’s supervised-release decision
substantively unreasonable. “Congress insists that lifetime supervision be available to courts in
sentencing sexual offenders: . . . 18 U.S.C. § 3583(k) expressly authorize[s] the court to subject
[Richardson] to a life term of supervised release because [his] crime constituted a violation of 18
U.S.C. § 2252A.” United States v. Kennedy, 499 F.3d 547, 553 (6th Cir. 2007). In this regard,
Congress provided for lifetime supervision for sexual crimes because
[of the] long-standing concerns of Federal judges and prosecutors regarding the
inadequacy of the existing supervision periods for sex offenders, particularly for the
perpetrators of child sexual abuse crimes, whose criminal conduct may reflect
deep-seated aberrant sexual disorders that are not likely to disappear within a few
years of release from prison.
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H. R. Rep. No. 108-66, at 49-50 (2003) (Conf. Rep.), reprinted in 2003 U.S.C.C.A.N. 683, 684. The
Sentencing Guidelines also reflect this concern. Section 5D1.2 of the Guidelines provides that for
“a sex offense, however, [lifetime] . . . supervised release is recommended.” U.S.S.G. § 5D1.2
(Policy Statement). “[R]eading 18 U.S.C. § 3583(k) together with the policy statement in § 5D1.2[]
indicates that [] Congress and the Sentencing Commission intended to impose life terms of
supervised release on sex offenders.” Kennedy, 499 F.3d at 553 (citing United States v. Allison, 447
F.3d 402, 405 (6th Cir. 2006) (internal quotation marks omitted)). In light of these concerns, and
the district court’s individualized assessment of Richardson’s conduct, we conclude that a lifetime
term of supervised release is substantively reasonable.
IV.
For these reasons, we affirm the judgment of the district court.
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