United States v. Brown

DRONEY, Circuit Judge,

dissenting:

The majority simply disagrees with the length of the imprisonment imposed upon the defendant by the district court, yet it cloaks that disagreement as procedural error. There was no procedural error, and the sentence was well within the discretion of the district court. It was also appropriate. The defendant sexually abused at least three very young girls, recorded that abuse, installed secret cameras in public areas where children changed clothes, and possessed over 25,000 images of child pornography on his computers, including many scenes of bestiality and sadistic treatment. No doubt this was a lengthy sentence, but it was warranted.

I dissent. The district judge committed no error whatsoever — procedural or substantive.

I. Background

On March 21, 2012, Brown was indicted in the Northern District of New York on five counts: three counts of production of child pornography in violation of 18 U.S.C. §§ 2251(a), (e) and 2256(8) (Counts One to Three), • and two counts of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2) and 2256(8)(A) (Counts Four and Five).

Brown was sentenced to 60 years’ imprisonment after pleading guilty to the three counts of production of child pornography — each in connection with a different young female victim — and the two counts of possession of child pornography. The three child victims in the production counts were identified as Jane Does 1 through 3. This was a below-Guidelines sentence; Brown’s sentence calculated under the Guidelines was 110 years.

Brown has never objected to the factual portions of the Pre-Sentence Report (“PSR”). In addition, as part of his plea agreement, he expressly admitted certain details of his criminal conduct. Although the majority gives a description of the nature of Brown’s crimes, Majority Op. 53-55, a fuller description of the impact of Brown’s crimes on the victims is important.

Many of the victims identified in the images that related to the two possession counts provided Victim Impact Letters to the district court prior to sentencing. In those letters, the victims recounted feelings of helplessness, depression, shame, and fear. In the words of one victim,

My privacy and myself ha[ve] been violated and my pictures are on the internet all over the world.... Even though I’ve tried so hard to forget there’s not a day that goes by that it doesn’t affect me.... I break down into tears all of a sudden, I don’t talk for a day, I get random flashbacks, I have horrible nightmares.... Now the pictures are spread all over the internet, and unfortunately it’s beyond my control.

PSR at 36-37. In the words of another victim, “[b]eing sexually abused is something you never forget,.... [b]ut when you *63have photographs of your abuse on the Internet, ... it makes it even more impossible to keep it in your past and move on from it. It is like the abuse is still happening.” PSR at 41.

As to the three counts of the indictment which charged production of child pornography, the families of Jane Doe 1 and Jane Doe 2 spoke at Brown’s sentencing. They described the significant behavioral issues that these girls suffer, and how the girls struggle to maintain relationships with family and friends. For example, Jane Doe l’s family explained that Jane Doe 1 blames herself for what happened. She experiences frequent nightmares in which Brown “chas[es] her with [his] phone and camera.” App. 84. Jane Doe l’s grandmother recounted witnessing these nightmares and hearing Jane Doe 1 scream, “Get him off me, get him off me.” App. 84. Jane Doe 1 was nearly held back in school and required one-on-one tutoring and counseling services. Jane Doe 2’s family similarly described how Jane Doe 2 suffers from guilt and nightmares, has difficulty trusting other people, and has required extensive treatment, including medication and counseling. The families told the district court that both they and the girls “feel violated in the worst imaginable way” and that the girls “live in fear” and continue to “struggle[] with what happened.” App. 83. Jane Doe 3, Brown’s ex-wife’s sister, PSR ¶ 61, did not submit a Victim Impact Statement or speak at sentencing.

At sentencing, the district court accepted the PSR’s Guidelines calculation. At Criminal History Category I and offense level 43, Brown’s recommended sentence under the Guidelines was initially life imprisonment. However, because each count was subject to a statutory maximum, Brown’s Guidelines sentence became 110 years. Brown’s counsel stated that Brown had no objection to this calculation.

The district court sentenced Brown to 60 years’ imprisonment, imposing 20-year consecutive terms on Counts One through Three (the production counts related to victims Jane Does 1 through 3), and 10-year terms on Counts Four and Five (the possession counts) to be served concurrently with one another and with its sentence on the production counts.

II. Procedural Reasonableness

On appeal, Brown raises — for the first time — two challenges to his Guidelines calculation: (1) that the district court misapplied the Guidelines’ grouping and stacking provisions and (2) that the court erroneously applied an enhancement for material depicting sadistic or masochistic conduct. Despite rejecting these challenges, see Majority Op. 58-59, the majority nonetheless concludes that Brown’s sentence was procedurally unreasonable on a basis not raised before the district court or on appeal: that Jane Doe 3 was sleeping at the time she was abused and recorded by the Defendant, and the district court did not acknowledge that at sentencing. Because the district court imposed a consecutive sentence of 20 years for the production count related to Jane Done 3, the majority concludes, the sentence must be vacated.

While the majority faults the' district court for “misunderstanding] the nature of [the] harm as to Brown’s third victim,” Majority Op. 59, Brown’s only discussion of any factual error by the district court appears in his briefs description of the case’s procedural history, where he writes that “Judge Sharpe erroneously emphasized the pictures’ supposedly violent and or sadistic aspects.” Appellant’s Br. at 10. This has nothing to do with the district court’s understanding of the harm inflicted upon Jane Doe 3. And while Brown quotes portions of the district court’s statement at *64sentencing which the majority finds troubling, Appellant’s Br. at 40, Brown does so only in the context of an unrelated challenge to the substantive reasonableness of his sentence. This is insufficient to raise the issue on appeal. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”).’

While we have discretion to consider arguments outside an appellant’s brief where “manifest injustice would otherwise result,” JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A de C.V., 412 F.3d 418, 428 (2d Cir.2005), no such extreme circumstances warrant exercise of that discretion here.1

Even assuming that the majority properly reached this issue, I cannot agree that the district court proeedurally erred by stating that Brown “destroyed the lives of three specific children,” App. 101, simply because Jane Doe 3 was asleep at the time Brown sexually abused and photographed her. See Majority Op. 59-60. The majority concludes that the district court’s “repeated emphasis on the fact that Brown had destroyed the lives of ‘three specific children,’ ” is reason “to remand for resen-tencing to ensure that the sentence is not based on a clearly erroneous understanding of the facts.” Id.

Unlike the majority, I do not find that the court’s comments “suggestfj that the district court may have misunderstood the nature of that harm as to Brown’s third victim.” Id. In making the comment about the “three specific children,” the court was discussing the need for specific deterrence in light of the significant harm Brown caused to the victims in both the child pornography that he produced and possessed. See App. 101-02. However, when discussing the severity of Brown’s actions toward Jane Does 1, 2, and 3, and its relationship to the severity of the sentence imposed, the court explained, “When I look at the first three counts and look at the specific children that are involved, then I have to say to myself which one of [them] didn’t you abuse? And my answer to that is there isn’t none of the three that you didn’t abuse.” App. 102. Not only did the *65district court specifically note that a factor important to it in imposing Brown’s sentence was “Jane Doe III, [and that Brown] ejaculate[ed] on her while she was sleeping,” App. 100 (emphasis added), but also said that it had read the presentence report, App. 77, 101, which specifically states that Jane Doe 3 was asleep, PSR ¶¶ 27, 35, and presently unaware of the abuse. PSR ¶ 51.

While it is true that Jane Doe 3 may have been unaware that Brown molested her and recorded it, this does not mean that the court committed procedural error by concluding that Brown “abuse[d]” her, App. 102, or that a significant sentence was not warranted on Count Three. That Jane Doe 3 was asleep does not change the fact that Brown placed his penis on her hand, ejaculated on her hands and feet, and pulled aside her underwear to touch her vagina, all while taking pictures and videos that he later uploaded to his computer for future viewing.2 Simply because Jane Doe 3 did not know of Brown’s actions then does not mean she will not learn of them in the future. When she does discover what occurred, she will have to live with the fact that she was violated in a deplorable way by a close family member.

Like Jane Doe 1, Jane Doe 2, and the many other victims represented in the Victim Impact Letters that were before the district court for the counts of possession of child pornography, Jane Doe 3 will also be exposed to the fear and uncertainty of whether the photographs that Brown produced will be viewed by others. The district court correctly recognized this fear when it stated “the three children here worry [ ] for the rest of their li[ves],” App. 100, about whether photographs of then-abuse have or will be viewed by others. Jane Doe 3 is as likely to experience this uncertainty and fear as the other victims, regardless of whether she currently remembers the abuse.

That Jane Doe 3 was asleep when she was abused must also be considered in the context of Brown’s other abuse and misconduct. Brown admitted to sexually assaulting three victims; Jane Does 1, 2, and 3. The presentence report also indicated that there were two additional victims, Victims 4 and 5. PSR ¶ 37. Brown had numerous computer files of these two additional victims. PSR ¶ 36. However, law enforcement was unable to establish the identities of these two minors, and Brown’s production of these images was not charged in the Indictment. But Brown did not object to the presentence report before sentencing and the district court specifically inquired whether there were any objections to the PSR at sentencing; there were none. App. 78. Victim #4 was eight or nine years old and was photographed opening her vagina, and Victim #5 was an unknown infant.3 PSR ¶ 37. The identified victims *66Brown abused ranged in age from eight to eleven years old. Forensic analysis of Brown’s computer revealed 44 files of child pornography produced of Jane Doe 1, 12 files of Jane Doe 2, 39 files of Jane Doe 3, 33 files of Victim #4, and 2 files of Victim #5. In addition, over 25,000 images of child pornography, including depictions of bondage, bestiality, and what appeared to be an intoxicated minor, were recovered on Brown’s computers. PSR ¶¶ 36, 41. Brown also placed a pinhole camera in various locations, including in a hamper at a pool party and at a hotel bathroom in a Lake George waterpark, which recorded children changing out of their swimwear. PSR ¶ 38.

I therefore cannot conclude from either Brown’s sentence or the district court’s explanation for that sentence that the court “misunderstood” the harm to Jane Doe 3 when it imposed a consecutive sentence of 240 months’ imprisonment on Count Three.

III. Substantive Reasonableness

Although the majority purports not to express a “definitive view on the substantive reasonableness of [the] sentence,” Majority Op. 60, it nonetheless urges the district court to consider whether the imposed sentence is truly warranted and suggests that a lesser sentence is required. Based on the court’s statements analogizing Brown to “the worst kind of dangerous sex offender,” App. 102, and his offense conduct as “as serious a crime as federal judges confront,” App. 101, the majority suspects “the district court may have seen no moral difference between Brown and a defendant who murders or violently rapes children.” Majority Op. 61. The majority also faults the district court in stating that Brown “was ‘exactly like’ sex offenders who rape and torture children.” Majority Op. 61 (quoting App. 100).

I disagree. The district court did not say that Brown was “exactly like” sex offenders who rape and torture children, as the majority suggests. The court’s remarks were as follows:

The possession of child pornography is not a victimless crime. The children depicted in ... those photographs, did not volunteer to participate in torture, sexual intercourse, bestiality and bondage. They were hijacked by people exactly like you, Mr. Brown, put through those events, had them photographed, and as the three children here worry about for the rest of their life, those photographs are out there forever, as is demonstrated by the fact that somebody like you can retrieve [them] and continue to victimize [them].

App. 100-101. Thus, the court did not indicate that Brown was as morally culpable as an individual who rapes or tortures children. Rather, in making these statements, the court was emphasizing that Brown not only committed the serious crime of possessing over 25,000 images of child pornography, but also committed the even more serious crimes of producing child pornography of multiple child victims forced to engage in sexual acts. It was in this sense — that he was a “producer” of child pornography — that Brown was “ex*67actly like” those who created the images that he possessed.

The other statements cited by the majority do not show that the district court, in fact, viewed Brown’s conduct as the worst crime a defendant could commit. On the broad spectrum of criminal conduct, Brown’s conduct was not as severe as that of a murderer or an individual who rapes or tortures a child. See Majority Op. 61. The district court’s comments — read in context — were meant to emphasize the severity of Brown’s many crimes in contrast to crimes of lesser severity, rather than to suggest that his crimes were in fact the “most severe” he could have committed. Thus, in describing Brown as the “worst kind of dangerous sex offender,” the district court explained, ‘You’re not just one who looks at photographs obtained over the internet. You’re one who puts that penchant in action, as is demonstrated here.” App. 102. The court therefore was simply explaining that Brown’s conduct was more serious than that of an individual who possesses, but does not produce, child pornography.

While the court did not expressly compare Brown’s crimes to more severe offenses — such as murder, torture, or rape— an express discussion was not required. See United States v. Pereira, 465 F.3d 515, 523 (2d Cir.2006) (finding no error where the district court did not expressly consider certain § 3553(a) factors). I therefore disagree that the district court’s language signaled error or an inability to see a “moral difference” between Brown and a defendant who murders or violently rapes children. Nor do I believe this is one of those “exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible decisions.’ ” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.2007)).

Brown repeatedly engaged in sexual contact with at least three young girls between the ages of eight and eleven while he photographed and videotaped the abuse. This contact is captured in the images themselves, which show each victim’s underwear being pulled aside while her genital area is touched; an adult penis in one victim’s hand, next to one victim’s mouth, and on one victim’s lips; and Brown ejaculating onto one victim’s hands and feet.

Brown’s actions were calculated. He produced the images of Jane Doe 1 and Jane Doe 2 at Jane Doe 2’s mother’s trailer home when they were entrusted to his care on various occasions. He also sought to bring the girls to Lake George just weeks after producing pornographic images and videos of Jane Doe 3 in the same location. He even offered to buy Jane Doe 1 an iPad in exchange for the ability to take additional photographs. Brown also admitted to hiding a pinhole camera in bathrooms at specific locations where they were likely to capture images of children nude, including a public waterpark, and did not object to the PSR’s description of the production of child pornography of Victims #4 and 5.

Brown’s conduct resulted in the production of 145 still images and three videos of the identified victims and additional images of two unidentified victims. Several of the pornographic images of Jane Doe 1 and Jane. Doe 2 were uploaded to the Internet.4 Brown also downloaded over 25,-000 still images and 365 videos of child *68pornography, including still images depicting torture, bondage, and bestiality.

All of these undisputed facts, taken together, weighed in favor of a particularly severe sentence for Brown’s convictions on the three production and two possession counts. Nevertheless, the district court imposed a sentence that was well-below Brown’s recommended Guidelines range.

This case is not United States v. Dorvee, 616 F.3d 174 (2d Cir.2010). In Dorvee, the defendant was sentenced to the statutory maximum of 240 months’ imprisonment after pleading guilty to one count of distribution of child pornography. See id. at 176. Dorvee’s conviction arose from sexually-explicit conversations that he had online with two undercover police officers that he believed to be teenage boys. Id. Dorvee was arrested when he arrived at a meeting with one of the “boys,” after indicating that he wanted to photograph and engage in sexual conduct with the “boy.” Id. A search of Dorvee’s computers revealed several thousand still images and approximately 100 to 125 videos of minors engaging in sexually explicit conduct. Id.

We found Dorvee’s within-Guidelines sentence to be substantively unreasonable. Id. at 188. The district court had “apparent[ly] assum[ed] that Dorvee was likely to actually sexually assault a child,” but this assumption was “unsupported by the record evidence,” which demonstrated that Dorvee had never had any actual sexual contact with children. Id. at 183-84. The record also contained medical and psychiatric expert reports that Dorvee was unlikely to initiate a relationship with a child. Id. at 183. We found that application of the Guidelines as applied in Dorvee’s case led to an irrational result, observing that the Guidelines resulted in a greater sentence than had he been convicted of “actually engag[ing] in sexual conduct with a minor.” Id. at 187.

Brown did have actual sexual contact— repeatedly' — with multiple young victims, and Brown engaged in the production of child pornography during the course of this abuse. We have repeatedly upheld lengthy sentences in production cases post-Dorvee, recognizing a distinction between production and possession, particularly in production cases involving sexual contact with victims. See United States v. Oehne, 698 F.3d 119, 125 (2d Cir.2012) (per curiam) (“Dorvee is readily distinguishable .... Unlike the defendant in Dorvee, Oehne actually sexually assaulted a child.... He photographed the abuse and distributed the images over the internet, where they have been viewed by thousands worldwide.... ”); United States v. Broxmeyer, 699 F.3d 265, 291 (2d Cir.2012) (“[T]his case is distinguishable [from Dor-vee] in presenting ample record evidence of Broxmeyer actively engaging minors in sexual conduct, for purposes of both photographing it and participating in it.”); see also United States v. Hamilton, 548 Fed. Appx. 728, 730 (2d Cir.2013) (summary order) (“Insofar as Hamilton argues that such lengthy sentences should be ‘reserved [for] intentional murder,’ we find such an argument unavailing. Nor are we persuaded that a life sentence in the case at bar overstates the ‘seriousness of the offense,’ see 18 U.S.C. § 3553(a)(2)(A), given Hamilton’s role in producing graphic child pornography by filming himself sexually abusing children as young as four years old.”).

The record at Brown’s sentencing amply demonstrates that the district court considered all of the § 3553(a) factors, and gave particular weight to the seriousness of Brown’s criminal conduct. Cf. United States v. Snyder, 425 Fed.Appx. 64, 65 (2d Cir.2011) (summary order) (“While the district court did make reference to the circumstances of the crime and expressed anger and disgust, a reading of the record as a whole indicates the district court con*69sidered all of the Section 3553(a) factors.”). The court’s emphasis on the severity of Brown’s crimes and emphatic language was warranted. See United States v. Flores-Machicote, 706 F.3d 16, 23 (1st Cir. 2013) (“Sentencing judges are not automatons, and a judge is entitled to view certain types of crime as particularly heinous.”).

Given the seriousness of Brown’s offenses and the need to protect the public from further crimes of this defendant5 and others, the below-Guidelines sentence imposed in this case was well “within the range of permissible decisions.” Cavera, 550 F.3d at 191; see, e.g., United States v. Brown, 613 Fed.Appx. 58, 60 (2d Cir.2015) (summary order) (upholding 720-month sentence as substantively reasonable in conspiracy to produce child pornography case); United States v. Rafferty, 529 Fed. Appx. 10, 13-14 (2d Cir.2013) (summary order) (upholding 720-month sentence as substantively reasonable for four counts of producing child pornography and one count of possessing child pornography); cf. United States v. Klug, 670 F.3d 797, 801 (7th Cir.2012) (“[TJhis court has upheld lengthy sentences for defendants involved in producing child pornography, even where the victims were not molested in the process. [For example,] ... an 80-year sentence was affirmed.... [where a] defendant ... babysat the young son of his stepbrother but abused his position of trust by taking nude photos of the child while he slept.”). I would therefore find Brown’s sentence to be substantively reasonable.

. In addition to the arguments discussed above, Brown also argues that the district court erred by (1) finding that he had not demonstrated remorse for his crimes and (2) “erron[e]ously believ[ing] that [Brown] produced violent or sadomasochistic child pornography.” Appellant’s Br. 31. The majority did not rely on these arguments as a basis for vacatur, and for good reason. As to the first argument, the district court’s finding did not affect Brown's Guidelines range; in accepting the PSR’s Guidelines calculation, the district court in fact reduced Brown's offense level by three levels for acceptance of responsibility. Moreover, the assessment of whether Brown had demonstrated remorse was well within the province of the district court, and there was no clear error in the court's finding. Cf. United States v. Cousineau, 929 F.2d 64, 69 (2d Cir.1991) ("[T]he district court['s] [conclusion that the defendant] ... had not shown remorse or acknowledged the wrongfulness of the conduct for which he was convicted.... is entitled to great deference....”). As to the second argument, although the images Brown possessed on his computer but did not produce were the ones that depicted violent or sadomasochistic conduct, the district court’s remarks at sentencing demonstrate that the court distinguished between the production and possession counts, see App. 100 (discussing production counts and stating that those counts did not "obviate the last counts of the indictment, which [are] the possession of the child pornography”), and was aware that the sadistic and violent images at issue were produced by other individuals and possessed by Brown, see id. (“[T]he possession of the child pornography [counts] ... result[ ] in identifying 294 additional victims and a hundred ninety-four known victim series, ... and those pictures involving torture, sexual intercourse, bestiality and bondage.... The children depicted in ... those photographs, did not volunteer to participate in torture, sexual intercourse, bestiality and bondage.”).

. Although the images of Jane Doe 3 — like the images of Jane Doe 1 and Jane Doe 2 — were produced by Brown and uploaded to his computer, it is not clear whether images, of Jane Doe 3 were shared on the Internet, as the images of Jane Doe 1 and Jane Doe 2 were. It is also not clear, however, that they were not shared.

. At sentencing, the government provided that the nature of the images of Victims #4 and 5 "were different” as "they involved a hidden camera where the images may not be considered sexually explicit, but they captured two minors changing in and out of their clothing.” App. 80-81. The government continued, stating “there were two additional victims, Jane Doe VI and VII” who were "also secretly filmed with a hidden camera changing in and out of their clothes.” App. 81. The government appears to have made this statement in error as the PSR states that "images of Victim #4 depicted a female approximately eight to nine years old with black hair opening her vagina and wearing a cartoon t-shirt” and that images of Victim #5 "depict an unknown infant.” PSR ¶ 37. The PSR goes on to pro*66vide that "[ijmages were also located of unknowing victims obtained by the defendant hiding a pinhole camera at various locations.” PSR ¶ 38 (emphasis added). The PSR provides that four children were filmed by the pinhole camera: an identified minor female who was unaware she was a victim, Brown's son, and two unidentified children who were taped changing out of their swimwear. PSR ¶ 38. Victims #4 and 5 are not those children, identified by the government at sentencing as Victims #6 and 7, depicted in images and videos obtained by Brown’s placement of the pinhole cameras.

. Brown has denied uploading the images but acknowledged that no one else had access to the images or was aware of their existence, such that someone else could have uploaded them.

. The majority takes note of Brown’s age and states that "defendants such as Brown are generally less likely to reoffend as they get older,” and cites to an opinion by Judge Pos-ner for support. Majority Op. 61. But Judge Posner noted in the same concurrence that "sex offenders are more likely to recidivate than other criminals.” United. States v. Craig, 703 F.3d 1001, 1004 (7th Cir.2012) (Posner, J., concurring).