United States v. Cameron

United States Court of Appeals
For the First Circuit

No. 15-1037

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES M. CAMERON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, U.S. District Judge]

Before

Torruella, Lynch, and Thompson,
Circuit Judges.

Peter Charles Horstmann, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief for
appellee.

August 22, 2016
 TORRUELLA, Circuit Judge. Following a bench trial in

the U.S. District Court for the District of Maine, Defendant–

Appellant James M. Cameron ("Cameron") was convicted on thirteen

counts of child pornography. Cameron appealed for the first time,

and this Court vacated Cameron's conviction on six of those counts,

upheld his conviction on the remaining seven counts, and remanded

the case to the district court. United States v. Cameron, 699

F.3d 621, 653 (1st Cir. 2012).

The day after we issued our decision, Cameron fled the

state of Maine in violation of a court order. He was subsequently

apprehended and pled guilty to one count of criminal contempt.

The Government declined to seek a new trial on the six counts we

vacated and moved for sentencing on the seven remaining child-

pornography counts and the criminal-contempt count.

After a hearing, the district court sentenced Cameron to

165 months' imprisonment for the child-pornography counts and

twenty-four months for the contempt charge. Cameron now appeals

from his sentence for the child-pornography counts. Cameron

argues that the sentence was procedurally unreasonable because the

district court did not adequately consider Cameron's

disproportionate-sentence argument and treated certain factors in

Cameron's history and characteristics inappropriately. Cameron

also argues that the 165-month sentence creates an unwarranted

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sentence disparity with similar cases and was therefore

substantively unreasonable.

We affirm the district court's sentence.

I. BACKGROUND

A. Cameron's Conviction and Appeal

On February 11, 2009, a federal grand jury indicted

Cameron, then a prosecutor for the state of Maine, on sixteen

counts of child pornography-related crimes.1 After a bench trial,

the district court found Cameron guilty on thirteen of the sixteen

counts. The district court then sentenced Cameron to 192 months'

imprisonment. Cameron appealed to this Court, and on November 14,

2012, this Court held that the district court erred when it

admitted certain evidence in violation of Cameron's rights under

the Confrontation Clause. Cameron, 699 F.3d at 649-51. We

therefore vacated six counts of Cameron's conviction and remanded

the case to the district court "for re-sentencing, or a new trial

if the government wishes to so proceed." Id. at 626.

1 Cameron was indicted on ten counts of knowingly transporting
child pornography in violation of 18 U.S.C. §§ 2252A(a)(1) and
2256(8)(A); four counts of knowingly receiving child pornography
in violation of 18 U.S.C. §§ 2252A(a)(2) and 2256(8)(A); and two
counts of knowingly possessing child pornography in violation of
18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A).

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B. Cameron Flees Maine

The day after this Court issued its opinion upholding

portions of Cameron's conviction, Cameron fled the state of Maine

in violation of his release conditions. Cameron avoided detection

for more than two weeks, and during that time, he attempted to

cash two forged checks for $42,000 and $32,000. The district

court found that Cameron "fled the jurisdiction with the specific

intent to avoid the resentencing hearing that the First Circuit

ordered."

Cameron was eventually arrested in New Mexico, and on

January 2, 2013, the Government charged Cameron with criminal

contempt in violation of 18 U.S.C. § 401(3). Cameron pled guilty

to the criminal contempt charge on February 19, 2013.

C. The District Court Re-Sentences Cameron

1. The District Court's Sentencing Guidelines Calculation

The Government declined to re-try Cameron on the six

counts that this Court vacated and moved for resentencing on the

remaining seven counts and sentencing on the count for criminal

contempt. Cameron's probation officer prepared a Presentence

Investigation Report, and the parties submitted briefing. On

October 17, 2014, before holding a sentencing hearing, the

district court issued a detailed order in which it calculated

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Cameron's offense level under the U.S. Sentencing Guidelines

("USSG" or the "Guidelines").

In its sentencing order, the district court decided four

contested issues. First, it determined that it would not count

the images of child pornography underlying the six counts vacated

by this Court. Excluding those images, the district court counted

only 179 pornographic images of minors, and so it applied a three-

level enhancement under USSG § 2G2.2(b)(7)(B), rather than the

four-level enhancement sought by the Government.

Second, the district court determined that some of the

179 images contained sadistic or masochistic depictions and

applied a four-level enhancement under USSG § 2G2.2(b)(4).

Third, the district court added a five-level enhancement

to Cameron's offense level pursuant to USSG § 2G2.2(b)(3)(B)

because it determined that Cameron distributed images for a thing

of value.

Fourth, the district court applied a two-level

enhancement for obstruction of justice pursuant to USSG § 3C1.1,

but it recognized Cameron's "right to argue that the application

of the obstruction of justice enhancement in the Guideline

calculation and of a consecutive penalty in the statute for the

same conduct results in a sentence that is too harsh" under 18

U.S.C. § 3553(a).

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 Based on these rulings and other uncontested factors,

the district court ruled that Cameron had a total offense level of

forty. As the district court explained at the subsequent

sentencing hearing, Cameron had a base offense level of twenty-

two. To that, the district court added a fourteen-level

enhancement from the contested issues discussed above, a two-level

enhancement for images of a prepubescent minor, and a two-level

enhancement for storing images on a computer, bringing Cameron's

total offense level to forty. Cameron had a criminal history

category of I, which led to a Guideline sentencing range of 292 to

365 months of imprisonment.

The district court reserved judgment on "the total

sentence" for Cameron's sentencing hearing.

2. The District Court Sentences Cameron to 165 Months of
Imprisonment Based on its 18 U.S.C. § 3553(a) Analysis

The district court held a sentencing hearing on

December 17, 2014. At the hearing, Cameron argued that his

employment as Maine's chief drug-enforcement prosecutor at the

time of his offenses could not "be an aggravating factor." The

district court "generally" agreed with Cameron that it could not

increase Cameron's sentence because of his employment at the time,

but it ruled that it would consider his position "as a factor in

assessing his history and characteristics" under 18 U.S.C. §

3553(a).

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 The district court also addressed Cameron's contention

that "a growing national consensus" supported a sentence "near the

statutory minimum of five years" for child pornography. It

recognized that 18 U.S.C. § 3553(a)(6) required it "to avoid

unwarranted sentencing disparities among similarly situated

defendants," but the district court also described the difficulty

in doing so "because the circumstances are so highly

individualized." To "illustrate how difficult" it could be to

compare cases, the district court orally discussed three "cases

that [it was] familiar with" from Cameron's briefing and

distinguished those cases from Cameron's.

The district court also reviewed Cameron's history and

characteristics, including his attempt to escape resentencing,

which did "not speak well of the defendant's character."

Ultimately, the district court imposed a 165-month sentence on the

child-pornography counts. To get to this number, it looked at

Cameron's total offense level of forty and ignored the two-level

increase for obstruction of justice, because it was imposing a

separate twenty-four month sentence for obstruction of justice.

This produced a total offense level of thirty-eight "for purposes

of the child pornography offenses," with a Guideline range of 235

to 293 months' imprisonment. The district court then subtracted

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seventy months from the 235-month Guideline minimum, as it had

done the first time it sentenced Cameron,2 to reach 165 months.

Cameron timely appealed from the sentencing order.

II. ANALYSIS

Cameron argues that his sentence was procedurally and

substantively unreasonable because the district court did not

adequately analyze and distinguish the numerous cases he cited as

comparators and considers factually relevant, and its 165-month

sentence created a "glaring disparity between Cameron's sentence

and others." Cameron also argues that the district court did not

credit Cameron's acceptance of responsibility at his second

sentencing hearing, penalized him for going to trial, and

inappropriately considered Cameron's position as a prosecutor at

the time of his crimes. We first examine Cameron's claims of

procedural error and then turn to his claims of substantive error.

A. The District Court Did Not Commit Procedural Error

When reviewing sentencing determinations, this Court

"first review[s] the procedural component of the sentence for abuse

of discretion." United States v. Innarelli, 524 F.3d 286, 292

(1st Cir. 2008). "[P]rocedural errors amounting to an abuse of

discretion might include 'failing to calculate (or improperly

2 The district court also incorporated its reasoning from its
first sentencing order.

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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.'" Id. (quoting United

States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008).

1. The District Court Properly Used the Sentencing
Guidelines as a Starting Point for Cameron's Sentence

Cameron argues that the district court committed

procedural error by using the Guidelines as a starting point for

Cameron's sentence. Cameron cites Kimbrough v. United States, 552

U.S. 85, 88 (2007), for the proposition "that having the guidelines

as the 'starting point' [for a sentence] would not adequately

ensure . . . uniformity." He then argues that "the national

average [of sentences for similar charges] is the starting point

for most [child-pornography] sentencing reductions."

Cameron misreads Kimbrough and our precedents.

Kimbrough itself states that "district courts must treat the

Guidelines as the starting point and the initial benchmark" for

their sentencing decisions, although they can vary from those

guidelines based on their "greater familiarity with the individual

case and the individual defendant." Id. at 108-09 (ellipsis

omitted). Our case law likewise makes plain that district courts

"must start out by calculating the proper Guidelines range -- a

step so critical that a calculation error will usually require

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resentencing." United States v. Rodríguez, 630 F.3d 39, 41 (1st

Cir. 2010).

Here, the district court correctly treated the

Sentencing Guidelines as its starting point in calculating

Cameron's sentence. See, e.g., id. Cameron does not contest the

district court's calculation, which was favorable to Cameron

because it omitted the images underlying the six counts we vacated

in Cameron's first appeal (and which the Government sought to have

included in the calculation as "related conduct"). The district

court was not required to use the national sentencing average as

its starting point.

2. The District Court Properly Applied 18 U.S.C. § 3553(a)

Cameron also argues that the district court committed

procedural error because it "ignored 49 pages of disparate cases

that were brought to its attention" and "failed to consider

aggregate sentencing data." In addition, Cameron contends that

the district court did not credit him for accepting responsibility,

penalized Cameron for going to trial, and improperly considered

Cameron's former position as a prosecutor.

The record shows that the district court did not ignore

Cameron's citations or sentencing data. At the December 17, 2014

sentencing hearing, the district court acknowledged "all of the

effort that [Cameron] made in pointing the [sentencing] cases out,"

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and it specifically discussed some of those cases to "illustrate

how difficult" comparing cases can be. The district court also

stated that it "reviewed carefully [Cameron's] extensive and

helpful memorandum." Cameron would have us assume that the

district court never considered his authorities and statistics,

simply because it did not discuss them as deeply as he would

prefer. We need not do that. See United States v. Clogston, 662

F.3d 588, 592 (1st Cir. 2011) ("A reviewing court should be

reluctant to read too much into a district court's failure to

respond explicitly to particular sentencing arguments. Instead,

the reviewing court must assay the record as a whole to gauge the

sentencing judge's thought process.").

Cameron's other assertions are likewise misplaced. The

district court recognized that Cameron had eventually accepted

responsibility for his actions, but it also weighed Cameron's

flight prior to resentencing and questioned whether Cameron's new-

found acceptance was a "form of conviction conversion."

Similarly, the district court examined Cameron's prior employment

as a prosecutor only "as a factor in assessing his history and

characteristics," whether helpful or hurtful to Cameron. Finally,

the district court examined Cameron's conduct throughout his trial

and appeals. Cameron was not penalized for going to trial, he

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merely did not benefit from the Guideline reductions that might

have applied for cooperating and pleading guilty.

The district court specifically stated that it

"consider[ed] each of the factors set forth in 18 U.S.C. Section

3553(a)," directly addressed Cameron's disparity argument, and

discussed Cameron's crime, history, and characteristics. The

district court's thoroughness forecloses Cameron's claims of

procedural unreasonableness. See Innarelli, 524 F.3d at 292.3

B. The District Court Did Not Commit Substantive Error

Because the district court did not commit procedural

error, we now must consider "the substantive reasonableness of the

sentence imposed under an abuse-of-discretion standard." United

States v. Vázquez-Martínez, 812 F.3d 18, 22 (1st Cir. 2016)

(quoting Gall, 552 U.S. at 51). This Court recognizes the

"substantial discretion vested in a sentencing court" as well as

the judge's prerogative to "custom-tailor an appropriate sentence"

based on the district court's familiarity with the case and its

application of the sentencing factors in 18 U.S.C. § 3553(a).

United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

3 Cameron also asserts, in a single sentence, that his 165-month
sentence "served to violate his rights" under the Fifth and Eighth
Amendments of the United States Constitution. Cameron did nothing
to develop those arguments in his briefs or at oral argument, and
so he has waived them. See United States v. Berk, 652 F.3d 132,
137 n.5 (1st Cir. 2011).

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"[W]e afford the district judge wide discretion, as after the

[district court] has calculated the Guidelines range, sentencing

becomes a judgment call," and we "defer to the sentence as

reasonable so long as it is supported by a plausible sentencing

rationale and reaches a defensible result." United States v.

Breton, 740 F.3d 1, 19 (1st Cir. 2014) (alterations omitted). The

question is "whether the sentence, in light of the totality of the

circumstances, resides within the expansive universe of reasonable

sentences." United States v. King, 741 F.3d 305, 308 (1st Cir.

2014). "It is a rare below-the-range sentence that will prove

vulnerable to a defendant's claim of substantive unreasonableness.

Id. at 310 (citing United States v. Floyd, 740 F.3d 22, 39-40 (1st

Cir. 2014)).

Cameron asserts that "there is nothing plausible or

defensible about the result in this case," but he presents nothing

that suggests the district court abused its substantial discretion

to "custom-tailor" a sentence. Flores-Machicote, 706 F.3d at 20.

Cameron espouses the same sentencing disparity arguments he made

to support his claim of procedural error, and those arguments fail

for much the same reasons. The district court explained its

rationale for the 165-month sentence, which was well below the

Guidelines range, and adopted its well-reasoned sentencing

memorandum from its original sentence in 2011.

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 The court's rationale regarding the sentence generally,

and Cameron's disparity argument specifically, was certainly

"plausible," and the result "defensible," which is all that our

review requires. Breton, 740 F.3d at 19. Cameron's sentence, by

virtue of the court's attention to all of the 18 U.S.C. § 3553(a)

factors and Cameron's disparity argument, as well as the relative

leniency of the sentence in light of the Guideline minimum, is

well within the "universe of reasonable sentences." King, 741

F.3d at 308.4 As such, this is plainly not the "rare below-the-

range sentence" that would succumb to a defendant's claim of

substantive unreasonableness. Id. at 310.

III. CONCLUSION

For the foregoing reasons, the district court's sentence

is affirmed.

Affirmed.

4 Citing United States v. Stone, 575 F.3d 83, 97 (1st Cir. 2009),
in which we criticized -- but upheld -- a sentence imposed by this
same district judge, Cameron declares that this district judge
"continue[s] to impose harsh sentences for first time offenders in
CP cases." In light of Cameron's remark, we note that the district
court stated at Cameron's 2011 sentencing hearing that it "take[s]
that directive from the appellate court with seriousness," and
discussed Stone at that hearing and in its 2011 sentencing order,
including this Court's criticism of the Stone sentence.

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