United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1103
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United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Ruth Kane, *
*
Appellee. *
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Submitted: September 26, 2006
Filed: December 18, 2006
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Before MURPHY, HANSEN, and RILEY, Circuit Judges.
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RILEY, Circuit Judge.
Following Ruth Kane’s (Kane) conviction for aggravated sexual abuse and
conspiracy to commit aggravated sexual abuse of her minor daughter, in violation of
18 U.S.C. §§ 2241(c), 371, and 2, Kane filed an appeal. Kane challenged the
sufficiency of the evidence supporting her conviction and her 210-month sentence
based on United States v. Booker, 543 U.S. 220 (2005). We affirmed Kane’s
conviction, but remanded the case to the district court for resentencing in light of
Booker. United States v. Kane, 148 F. App’x. 565, 566 (8th Cir. 2005) (per curiam).
On remand, the district court resentenced Kane to 120 months’ imprisonment. Now,
the government appeals Kane’s sentence on the basis that it is unreasonable. For the
reasons stated below, we vacate Kane’s sentence and remand to the district court for
resentencing.
I. BACKGROUND
At trial, both Kane’s minor daughter and Kane’s co-defendant, Joe J. Champion
(Champion), testified Champion sexually abused Kane’s daughter repeatedly over a
two-year period. The first molestation occurred when Kane’s daughter was nine years
old. Kane’s daughter testified Kane took her into the bathroom, where Champion was
waiting, and told her to take off her clothes. Kane sat on the toilet and held her
daughter on her lap, while Champion removed his pants and then put his penis against
Kane’s daughter’s vagina. Kane’s daughter testified it hurt and she passed out.
Kane’s daughter indicated when she woke up she found blood on her thigh and started
to cry. Kane told her to clean up the mess.
According to Kane’s daughter, the molestation occurred approximately twice
a week. Kane’s daughter testified Kane and Champion would typically take her into
the bathroom, and Kane would restrain her on Kane’s lap while Champion rubbed his
penis against her vagina until he ejaculated on her stomach.
Kane’s daughter testified the molestation also occurred in Kane’s bedroom.
Kane’s daughter testified she would lie on the bed and Champion would rub his penis
against her vagina until Champion ejaculated. Throughout the encounter, Kane would
either stand against the bedroom door or lie with her daughter on the bed. When the
encounter was over Kane would wipe away Champion’s semen as Kane’s daughter
cried. Champion abused Kane’s daughter in this manner more than 200 times. Kane’s
daughter and Champion testified Kane received payments of $20 from Champion as
compensation for providing her daughter for Champion’s sexual gratification.
The jury convicted Kane of aggravated sexual abuse and conspiracy to commit
aggravated sexual abuse of her minor daughter, in violation of 18 U.S.C. §§ 2241(c),
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371, and 2. The district court sentenced Kane to 210 months’ imprisonment for
aggravated sexual abuse of a child under the age of twelve and to 60 months’
imprisonment for conspiracy to commit sexual abuse of a child under the age of
twelve, to run concurrently. We affirmed Kane’s conviction, but remanded the case
for resentencing in light of Booker.
On remand, the district court resentenced Kane to 120 months’ imprisonment,
a 90-month downward variance from the low-end of her applicable advisory
Guidelines range of 210 to 262 months. The district court based its sentence on the
factors set forth in 18 U.S.C. § 3553(a). This appeal followed.
II. DISCUSSION
The government argues the district court abused its discretion in sentencing
Kane to 120 months. The government contends Kane’s sentence is not reasonable in
light of the factors set forth in § 3553(a).
We review a district court’s decision to sentence outside the advisory Guidelines
range for an abuse of discretion. United States v. Mashek, 406 F.3d 1012, 1017 (8th
Cir. 2005). An abuse of discretion occurs if the district court (1) failed to consider a
relevant factor that should have received significant weight; (2) gave significant weight
to an improper or irrelevant factor; or (3) considered only appropriate factors, but
committed a clear error of judgment in weighing those factors. United States v. Haack,
403 F.3d 997, 1004 (8th Cir.), cert. denied, 126 S. Ct. 276 (2005). We review
sentences for reasonableness as measured against the factors set forth in § 3553(a).
Mashek, 406 F.3d at 1015-16. In making a reasonableness determination, we ask
whether the district court abused its discretion. United States v. Pizano, 403 F.3d 991,
995 (8th Cir. 2005). A sentence outside the Guidelines range is not presumptively
reasonable. United States v. Wattree, 431 F.3d 618, 624 (8th Cir. 2005). The farther
the district court varies from the advisory Guidelines range, the more compelling the
justification based on the § 3553(a) factors should be. United States v. McMannus,
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436 F.3d 871, 874 (8th Cir. 2006). Although the district court need not mechanically
recite every factor of § 3553(a), the court needs to consider the relevant factors in
imposing a sentence. United States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005).
First, the government contends the district court failed to sufficiently consider
the seriousness of the offense, as outlined in § 3553(a)(2)(A), in determining Kane’s
sentence. We agree. The facts in this case are no less than horrifying and do not
support a downward variance of 90 months from the low-end of the advisory
Guidelines range. As the record indicates, Kane is a mother who, for $20, repeatedly
(1) sold her minor daughter to a pedophile for sexual exploitation, and (2) physically
participated and restrained her daughter so the pedophile could sexually abuse her. It
would take a very compelling justification to reduce the sentence of a mother who
submits her child to such abuse.
Next, the government contends the district court inappropriately considered the
history and characteristics of Kane, as outlined in § 3553(a)(1). Specifically, the
government claims the district court gave inappropriate weight to Kane’s rehabilitative
efforts while in prison, the unsupported conclusion Kane would not commit future
crimes, and Kane’s prior substance abuse. It is true Kane has made rehabilitative
efforts, which include attending parenting classes, participating in vocational training,
and obtaining a GED. While those efforts are commendable, Kane did not make those
efforts until after her initial sentence was imposed and after she filed an appeal. Kane’s
belated rehabilitative efforts are not extraordinary and do not support a sentence
reduction. See United States v. Robinson, 454 F.3d 839, 842-43 (8th Cir. 2006) (“Even
in cases where a rehabilitation is dramatic and hopefully permanent a district court
cannot place too much emphasis on that fact.” (citation and internal quotation
omitted)). A variance based on Kane’s rehabilitative efforts was inappropriate.
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The district court also determined Kane would not commit future crimes. With
respect to recidivism, the district court stated briefly: “I don’t think you pose a danger
to the public or likelihood that you’ll be a recidivist.” Kane argues that her age,
criminal history category, and the fact that she never sexually molested her minor
daughter are indicative of a slim chance of recidivism. But these arguments do not
exculpate or lessen the horrendous treatment to which she subjected her minor
daughter for money, nor do they indicate she would not commit this type of crime
again in the name of money. The Supreme Court explains the “risk of recidivism posed
by sex offenders is frightening and high.” Smith v. Doe, 538 U.S. 84, 103 (2003)
(citation and internal quotation omitted); see Doe v. Miller, 405 F.3d 700, 721 (8th
Cir.), cert. denied, 126 S. Ct. 757 (2005). Nothing in the record supports the district
court’s conclusion Kane probably will not repeat this type of crime.
The district court further considered Kane’s prior substance abuse as a
mitigating factor. The district court stated: “ I’ve gone below the guidelines in your
case because of your prior history of this substance abuse as well as your mental
health. That made you particularly susceptible to Mr. Champion’s influence.”
However, there is no evidence in the record linking Kane’s substance abuse or mental
illness with the crimes Kane committed against her daughter. Nor is there evidence in
the record indicating Kane committed these crimes because she was susceptible to, or
influenced by, Champion. Furthermore, drug or alcohol abuse and mental conditions
are not proper grounds for a downward variance, absent extraordinary circumstances.
United States v. Lee, 454 F.3d 836, 839 (8th Cir. 2006) (stating a defendant’s drug
abuse is not a proper ground for a downward variance, absent extraordinary
circumstances (citing § 3553(a)(5)(A) and U.S.S.G.§ 5H1.4)); United States v. Gall,
446 F.3d 884, 887-88, 890 (8th Cir. 2006) (mental immaturity of defendant is not a
proper factor for a downward variance). The district court abused its discretion in
considering Kane’s prior substance abuse and mental or emotional condition as bases
for a downward variance.
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The government also contends the district court inappropriately considered the
need to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct under § 3553(a)(6). The district court
determined Champion was more culpable than Kane, thus, she deserved a lower
sentence. Although § 3553(a)(6) may more appropriately apply to disparities on a
national level and not within the same conspiracy, see, e.g., United States v. Parker,
462 F.3d 273, 277 (3d Cir.), cert. denied, 127 S. Ct. 462 (2006), we will follow our
own precedent and the district court’s comparison, United States v. Lazenby, 439 F.3d
928, 932-34 (8th Cir. 2006). It is difficult to determine who is more
culpable–Champion, a child predator, or Kane, a mother who repeatedly sold her nine-
year-old daughter for $20 to gratify the sexual pleasures of a child predator.
Here, both Champion and Kane had a base offense level of 37. Champion
received a three-level reduction for acceptance of responsibility, reducing his offense
level to 34. Kane was not entitled to receive this three-level reduction because she
went to trial and challenged her guilt. See, e.g., United States v. Bell, 411 F.3d 960,
963-64 (8th Cir.), cert. denied, 126 S. Ct. 471 (2005). Champion, with a base offense
level 34 and criminal history category I, had an advisory Guidelines sentencing range
of 151to188 months and was sentenced to 180 months. On the other hand, Kane, with
a base offense level 37 and criminal history category I, had an advisory Guidelines
sentencing range of 210 to 262 months and was sentenced to 120 months. Kane’s
sentence reflects an unwarranted sentencing disparity.
Kane’s 120-month sentence quite simply is not proportional to the circumstances
of the crimes and the persons involved. As a result, Kane’s sentence is unreasonable
and must be vacated.
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III. CONCLUSION
We vacate Kane’s 120 month sentence and remand to the district court for
resentencing.
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