United States v. Michael Debaere

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4291

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

MICHAEL SHANE DEBAERE,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:13-cr-00329-JAB-1)

Submitted: December 8, 2014 Decided: January 8, 2015

Before NIEMEYER and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Anand P. Ramaswamy, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

On October 7, 2013, Michael Shane Debaere (Debaere) pled

guilty to one count of accessing images of child pornography by

computer with the intent to view, in violation of 18 U.S.C.

§ 2252A(a)(5)(B) and (b)(2). On February 25, 2014, the district

court sentenced him to 70 months’ imprisonment. On appeal,

Debaere does not challenge his conviction, but challenges his

sentence as procedurally unreasonable. We affirm. ∗

Debaere’s presentence report, prepared prior to his

sentencing hearing on February 25, 2014, calculated his advisory

sentencing range under the United States Sentencing Guidelines

(the Guidelines) as 97 to 120 months’ imprisonment, based upon a

total offense level of 30 and a criminal history category of I.

Debaere did not dispute that the presentence report

correctly calculated his advisory sentencing range. However, he

∗
Debaere’s written plea agreement provides that he waives
his right to appeal whatever sentence he receives on any ground.
In his brief, Debaere contends that such appeal waiver provision
is unenforceable because, during his guilty plea hearing, the
district court failed to discuss it with him to ascertain his
understanding of its operation. Because the government has
expressly declined to seek enforcement of the appeal waiver
provision in Debaere’s plea agreement, we decline to enforce it.
United States v. Jones, 667 F.3d 477, 486 (4th Cir. 2012).

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requested a downward variance to a short sentence to be served

in a community correction center, followed by an extended term

of supervised release. Debaere based his request upon the

following two arguments: (1) without application of “technical”

Guidelines’ enhancements based upon specific offense

characteristics, his advisory sentencing range would only have

been 18 to 24 months’ imprisonment; and (2) his requested

sentence is sufficient, but not greater than necessary, to

comply with the sentencing factors under 18 U.S.C. § 3553(a).

The government opposed Debaere’s requested sentence of

confinement in a community correction center on the basis that

the totality of relevant factors in his case do not justify such

extraordinary relief and such sentence would constitute an

unwarranted sentencing disparity among defendants with similar

records who have been found guilty of similar conduct, as

disfavored in 18 U.S.C. § 3553(a)(6). However, expressly

recognizing and verifying that every possessor of child

pornography sentenced in the United States District Court for

the Middle District of North Carolina received a downward

variance in 2013, the government took the position that if the

district court chose to vary downward from Debaere’s advisory

sentencing range, it should select its sentence from level 24,

resulting in an advisory sentencing range of 51 to 63 months’

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imprisonment, “which is half of what the guideline range is in

this matter, and consider a sentence in that range to be

sufficient . . . .” (J.A. 38).

In pronouncing Debaere’s sentence, the district court first

stated that it had considered the calculations resulting from

application of the Guidelines and found they were appropriately

determined. The district court then expressly rejected

Debaere’s argument regarding the technical nature of the

Guidelines’ offense level enhancements for specific offense

characteristics, “not[ing] that although [Debaere] has presented

the special offense characteristics as being technical in

nature, they’re technical in nature because they cover the types

of conduct that would be involved in criminal activity of this

kind.” (J.A. 41). The district court continued to explain its

rationale for rejecting Debaere’s argument as follows:

With respect to the nature and circumstances of
the offense, as the Court has noted and is known with
respect to these type of cases, that is, the victims —
— innocent victims who are truly at risk of harm in
order for the types of videos, pictures that are being
made available to those who seek them, that actual
children, for the most part, are being used and being
subject to such abuse.

The Defendant’s attitude about the technical
nature does not diminish in any way the seriousness
with which the Court or Congress took in developing
the crimes for this offense. While it’s true that the
Sentencing Commission has had some concern with
respect to the types of sentences that have been
imposed and even the Government in this case
suggesting a downward departure so there would not be

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a disparity amongst the various defendants, the Court
nevertheless finds that the activity in this case is
serious and harmful both to society and to the
children involved.

(J.A. 41-42).

With respect to Debaere’s history and characteristics, the

district court stated that it found Debaere has family support

and does not have a substantial criminal history. The district

court then went on to state that it has noted in similar cases

that in order to avoid sentencing disparity it will sentence

outside of Debaere’s advisory sentencing range. However, the

district court declared,

[it] will impose a sentence in this case that is
sufficient, but not greater than necessary, to meet
the sentencing objectives of 3553 taking into account
the need for punishment and deterrence, particularly
deterrence as to other individuals who would choose to
engage in such criminal activity that’s harmful to
society and to the children involved. The Court will
take into account the need for any psychological
assistance this Defendant may have to help him address
the conduct that he’s engaged in in this case.

(J.A. 42-43).

The district court then announced that, for reasons

previously stated, it would depart from the advisory sentencing

range as a variance and sentence Debaere to 70 months’

imprisonment, followed by 15 years of supervised release, which

sentence the district court expressly found to be appropriate

and sufficient, but not greater than necessary.

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II.

On appeal, Debaere challenges only his sentence and does so

on the single ground that the district court failed to

adequately explain its reasons for sentencing him to 70 months’

imprisonment, and therefore, his sentence is procedurally

unreasonable. As relief, Debaere seeks to have his sentence

vacated and his case remanded for a new sentencing hearing.

We review the procedural reasonableness of a sentence for

abuse of discretion. Gall v. United States, 552 U.S. 38, 52

(2007). Of relevance in the present appeal, a sentence is

procedurally unreasonable, and therefore an abuse of discretion,

if the district court “fail[s] to adequately explain the chosen

sentence——including an explanation for any deviation from the

Guidelines range.” Id. at 51. In order to adequately explain

its chosen sentence, the district court “must place on the

record an individualized assessment based on the particular

facts of the case before it.” United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted). As

we explained in Carter, the explanation need not be elaborate or

lengthy but must be adequate to permit meaningful appellate

review. Id. The sentencing “court must demonstrate that it

considered the parties’ arguments and had a reasoned basis for

exercising its own legal decisionmaking authority.” United

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States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (internal

quotation marks and alteration marks omitted).

Our careful review of the record discloses that the

district court adequately explained its chosen sentence of 70

months’ imprisonment. There is no dispute that the district

court correctly calculated Debaere’s advisory sentencing range

under the Guidelines as 97 to 120 months’ imprisonment.

Moreover, the record makes clear that in determining Debaere’s

downward variant sentence of 70 months’ imprisonment from that

range, the district court considered: (1) his advisory

sentencing range; (2) the parties’ arguments for a downward

variant sentence from that range; (3) the need to avoid

unwarranted sentencing disparities among defendants with similar

records who have been found guilty of similar conduct; (4) the

particular facts of Debaere’s case; and (5) the sentencing

factors under § 3553(a). In sum, the district court placed on

the record an individualized assessment of Debaere’s case based

upon the particular facts of his case which provides a rationale

tailored to Debaere’s case and is adequate to permit meaningful

appellate review. Accordingly, we reject Debaere’s contention

that his sentence is procedurally unreasonable and affirm his

sentence.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

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this court and oral argument would not aid the decisional

process.

AFFIRMED