IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 27, 2009
No. 08-10074
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
DOUGLAS JAMES MEYERS,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-219-1
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Douglas James Meyers was charged in a superseding indictment with
three counts of production of child pornography and aiding and abetting the
same, one count of possession of child pornography, and one forfeiture count.
Meyers pleaded guilty to the superseding indictment without a plea agreement.
Meyers’s presentence report (PSR) recommended a Guidelines range of
imprisonment of 180 to 210 months, but it noted that an upward departure was
potentially warranted under U.S.S.G. § 5K2.3 due to the extreme psychological
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-10074
impact of the offense on the victim. Meyers objected to the upward departure
recommendation. The district court found that the upward departure was
warranted and sentenced Meyers to 300 months of imprisonment and supervised
release for life.
Meyers argues that the district court erred in upwardly departing under
§ 5K2.3 because the severe psychological effect on the victim was the fault of his
codefendant’s participation in the offense conduct. Meyers’s codefendant is the
twenty-year-old cousin of the thirteen-year-old victim.
We review a district court’s findings of fact for clear error and its
interpretation of the Sentencing Guidelines de novo. United States v. Mauskar,
557 F.3d 219, 232 (5th Cir. 2009). Psychological damage is sufficiently severe
for the upward departure to apply when “there exists (1) a substantial
impairment of the intellectual, psychological, emotional, or behavioral
functioning of a victim, (2) which is of an extended or continuous duration, and
(3) which manifests itself by physical or psychological symptoms or by changes
in behavior patterns.” United States v. Hefferon, 314 F.3d 211, 228 (5th Cir.
2002) (quoting United States v. Anderson, 5 F.3d 795, 804 (5th Cir. 1993)).
Meyers concedes that the psychological damage to the victim was “severe.”
Based on the uncontested facts contained in the PSR, the testimony of the
victim’s grandmother, and the testimony of the guardian ad litem that the victim
attempted suicide, suffered from post-traumatic stress disorder, had been
hospitalized and put into rehabilitation, suffered nightmares, would likely need
to repeat a grade of school after previously being an honor student, and was
expected to need further in-patient therapy, it was not clearly erroneous for the
district court to determine that the conditions for the upward departure had
been met. See id.
Meyers also argues that his sentence is unreasonable because his
codefendant was sentenced to only 180 months of imprisonment after she
entered into a plea agreement with the Government in which she agreed to
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No. 08-10074
cooperate fully and to waive her right to appeal directly or collaterally attack her
conviction and sentence. Meyers argues that his sentence constitutes an
unwarranted sentencing disparity under 18 U.S.C. § 3553(a)(6). In reviewing
a sentence, we “consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall v. United States, 128 S. Ct. 586,
597 (2007).
The Government argued at sentencing that Meyers’s bragging about the
offense to the victim’s boyfriend and his previous possession of child erotica
distinguish his conduct from his codefendant’s. The victim’s grandmother, who
is also the codefendant’s aunt, characterized Meyers as a “45-year-old seasoned
pervert” and his codefendant as a “20-year-old, drugged-up victim.” The district
court agreed that the codefendant was in many respects a victim in this case.
The totality of the circumstances, considered in light of the § 3553(a) factors,
supports the sentence the district court imposed. See id. Meyers is essentially
asking this court to reweigh the § 3553(a) factors, which we may not do. See id.
He has not demonstrated that his sentence amounts to an abuse of discretion by
the district court.
AFFIRMED.
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