United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 20, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-20922
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
SCOTT ERIN ALLISON
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
Before HIGGINBOTHAM, DAVIS, and STEWART, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Defendant Scott Erin Allison challenges the district court’s
imposition of a life term of supervised release following Allison’s
guilty plea to possession and production of child pornography. We
affirm.
I
The unpleasant specifics of Allison’s child pornography
offenses provide a necessary backdrop to understanding the district
court’s imposition of a life term of supervised release. Although
apparently beginning much earlier, Alison’s predilection for young
girls was first discovered in May 2003. Then, Allison’s estranged
wife, Kathy, tending to Allison’s dogs while he was vacationing
over Memorial Day weekend, found a young girl’s underwear
underneath Allison’s bed. Suspicious, Kathy returned to Allison’s
house the next day and, with further investigation, found a tripod,
a video camera, several 8mm tapes, and numerous floppy disks.
Disturbed, Kathy returned again, finding a computer hard drive.
Kathy turned all of these items over to law enforcement.
The evidence confirmed Kathy’s suspicions. One video showed
Allison with a young girl, approximately three-and-a-half years
old, whose genitals and buttocks were exposed to a hidden camera in
the laundry room. The girl’s mother confirmed that the video was
made at Allison’s house around late November or early December
1994, as the girl was wearing the same Christmas dress that she
wore in a photo with Santa Claus, published in the local newspaper
twenty-six days before Christmas.
Allison made a second video of the same child approximately
twelve months later. The video showed Allison in the same laundry
room spanking the girl, pulling down her pants and underwear, and
exposing her genitals and buttocks to the camera. As the girl
cried out, “Mama, I want my Mama,” Allison continued to spank her,
all the while telling her that he “didn’t” and “wouldn’t” hurt her.
At the close of the video, Allison placed a laundry basket in front
of the camera lens.
In a third video, Allison taped a different young girl, about
ten or eleven years old at the time, undressing in Allison’s
bedroom. The girl informed authorities that she would go to
Allison’s house to go swimming at a community pool and that she
2
would change into her bathing suit in Allison’s bedroom at his
direction. She was recorded by a camera Allison had set up in the
closet. She confirmed that Allison’s secretive taping of her
occurred during the summer of 1995.
The computer hard drive and floppy disks contained numerous
images and videos of nude young girls in sexually suggestive poses
and engaging in sexually explicit conduct. Authorities also found
files on the computer indicating that Allison engaged in online
communications with young girls, including the sending and
receiving of child pornography.
Allison was charged in a six-count indictment with various
child pornography offenses. He pled guilty to one count of
production of child pornography, in violation of 18 U.S.C.
§ 2251(a), and to one count of possession of child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B). The presentence report
recommended a life term of supervised release, and the government
promptly filed notice of its intention to seek upward departure.
The government argued that a life term of supervised release was
necessary to “insure[] the continued monitoring of the defendant,
a convicted sex offender.”
Allison asked the court to sentence him at the bottom of the
applicable guideline range, asserting that he was remorseful and
“capable of being rehabilitated.” The district court disagreed,
sentencing Allison to concurrent terms of imprisonment of 96 months
3
for each count. The government argued that a life term of
supervised release was appropriate:
[Allison] has shown a consistent pattern of an unnatural
sexual interest in children and acting on it. That’s the
critical inquiry, Judge. I just want you to consider
that he’s acted on it. He’s gone through all stages of
this continuum of behavior that therapists and the
experts in this field describe. And it’s a scary thing
he’s done to these children[.]
The district court agreed, sentencing Allison to concurrent terms
of supervised release of three years (on the production charge) and
life (on the possession charge). Relevant to this appeal, the
court stated:
That’s a departure, but under the circumstances of what
[the prosecutor] just mentioned, the matter of scientific
evidence is that this a perpetual problem, it’s not
something that eight years in prison will cure. It may
deter, but it’s a predilection not unlike alcoholism and
some other things that don’t seem to respond to
incentives that embezzlement and simpler crimes do
respond to.
After imposing the sentence, the district court continued:
Mr. Allison, all of the counselors in the world can’t
solve this problem. And I don’t care what kind of
thoughts you have; you just can’t act on them. If you
act on them, you are going to end up in prison or worse.
And it might be hard. I can’t conceive that it would be
as hard as what you’re going to do. And you have to ––
society, the lifetime of supervision is not to hold your
hand; it’s to watch you, because if you’re determined
that you’re going to go out there and violate this law
again, there is no way of stopping it. But when you’re
caught, you can imagine what the guidelines will be on
that?
* * *
And basically what’s going to happen is, if you do this
again after you get out, you’re going to die in prison.
4
That’s the short answer. That’s got to be down pretty
far even on your list of choices.
This appeal followed. Allison only challenges the district court’s
imposition of a life term of supervised release.
II
Allison concedes that he first objected to the life term of
supervised release on appeal to this Court; thus, our review is
only for plain error.1 Allison argues (1) that he lacked notice of
the district court’s specific ground for upward departure; (2) that
the district court’s written reasons for departure were
insufficient; (3) that the district court’s decision to depart was
an abuse of discretion; and (4) that the extent of the departure
was unreasonable. We find no error.
Supervised release terms are designed to “assist individuals
in their transition to community life.”2 The term of supervised
release is controlled by 18 U.S.C. § 3583. Under § 3583(b), the
maximum term of supervised release for a Class C felony is three
years. With sex offenders, Congress determined they needed
additional supervision as they make the transition back to
community life. To this end, § 3583(b) is amended by § 3583(k),
1
United States v. Olano, 507 U.S. 725, 732 (1993); United States v.
Villegas, 404 F.3d 355, 358 (5th Cir. 2005).
2
United States v. Johnson, 529 U.S. 53, 59 (2000).
5
which provides that the maximum term of supervised release for
various sex offenses, including violations of § 2252A, is life.3
The United States Sentencing Guidelines track the heightened
punishment for sex offenders reflected in the statute.4 For a
typical Class C felony, the term of supervised release is at least
two years but not more than three years.5 With sex offenders, a
life term of supervised release is recommended: The “policy
statement” in § 5D1.2(c) provides that “[i]f the instant offense is
a sex offense, the statutory maximum term of supervised release is
recommended.”6 The comments to § 5D1.2(c) make clear that
Allison’s possession offense qualifies as a “sex offense.”
Reading 18 U.S.C. § 3583(k) together with the policy statement
in § 5D1.2(c) indicates that the Congress and the Sentencing
Commission intended to impose life terms of supervised release on
sex offenders. Congress explicitly recognized the high rate of
recidivism in convicted sex offenders, especially child sex
offenders. The legislative history of § 3583(k) states that the
life term of supervised release was in response to the
3
Both Allison’s possession and production offenses qualify as “sex
offenses” under § 3583(k). For whatever reason––the record is unclear–– the
district court imposed the life term of supervised release only on the possession
charge.
4
Allison was sentenced under the 2003 edition of the Sentencing Guidelines,
so all references herein are to that edition.
5
U.S. SENTENCING GUIDELINES § 5D1.2(a) (2003 ed.).
6
U.S. SENTENCING GUIDELINES § 5D1.2(c) (2003 ed.).
6
long-standing concerns of Federal judges and prosecutors
regarding the inadequacy of the existing supervision
periods for sex offenders, particularly for the
perpetrators of child sexual abuse crimes, whose criminal
conduct may reflect deep-seated aberrant sexual disorders
that are not likely to disappear within a few years of
release from prison. The current length of the
authorized supervision periods is not consistent with the
need presented by many of these offenders for long-term
and in some cases, life-long monitoring and oversight.7
With this background in mind, we turn to Allison’s contentions on
appeal.
Allison’s notice argument centers on the district court’s
reliance on the purportedly unannounced “scientific evidence”
suggesting that possession of child pornography was a “perpetual
problem” that would not be “cure[d]” with a 96-month prison
sentence. Federal Rule of Criminal Procedure 32(h) requires the
court to provide “reasonable notice” if it intends to depart from
the applicable sentencing range “on a ground not identified for
departure in either the presentence report or in a party’s
prehearing submission.”8 Rule 32(h) is designed to avoid placing
defense counsel in the position of “trying to anticipate and negate
every conceivable ground on which the district court might choose
to depart on its own initiative.”9
7
H.R. REP. NO. 108-66, at 49-20 (2003) (conf. rep.), reprinted in 2003
U.S.C.C.A.N. 683, 684; see also United States v. Moriarty, 429 F.3d 1012, 1025
(11th Cir. 2005).
8
See FED. R. CRIM. PRO. 32(h); United States v. Andrews, 390 F.3d 840, 844-45
(5th Cir. 2004).
9
United States v. Milton, 147 F.3d 414, 421 (5th Cir. 1998).
7
We have consistently held that the notice requirement may be
satisfied by information in the PSR.10 Here, the PSR explicitly
referenced 18 U.S.C. § 3583(k) and the “policy statement,”
§ 5D1.2(c), in the sentencing guidelines. Allison also received
notice of the possible life term of supervised release at his
rearraignment and through the government’s notice of intention to
seek upward departure. Recognizing this, Allison focuses his
objection on the district court’s characterization of the general
notion that pedophiles are typically recidivists as “scientific
evidence.” He contends that there was no scientific evidence
discussed in the PSR, mentioned in the government’s motion for
upward departure, or presented to the district court in the form of
publications or expert testimony. Essentially, Allison asks us to
hold that a district court judge must quantify each sentencing
decision with citation to and discussion of empirical data.
This position fundamentally misunderstands the district court
judge’s role in sentencing. Especially after United States v.
Booker, sentencing is an art, not a science. For instance, we now
only review sentences for “reasonableness.”11 District court judges
occupy a unique position in the imposition of criminal justice,
such that their evaluation of a case warrants substantial
10
United States v. Davenport, 286 F.3d 217, 219 (5th Cir. 2002); United
States v. Doucette, 979 F.2d 1042, 1047 n.4 (5th Cir. 1992).
11
United States v. Booker, 543 U.S. 220, 261-62 (2005); United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005).
8
deference. They see many cases with different facts, giving them
a perspective much different than that of an appellate court judge.
Further, we are not persuaded that the district court’s invocation
of “science” taints the judgment-call that the court made, as it
was nothing more than a shorthand reference to the general
notion––reflected in the statute and the guidelines––that
pedophiles are typically recidivists. In short, Allison’s notice
argument fails.
Allison’s objection to the district court’s written reasons
for departure is similarly meritless. In order to permit effective
appellate review of sentences,12 a district court must state in
writing its specific reasons for an upward departure from the
guidelines.13 Here, the district court provided a single reason:
“Solely with respect to the term of supervised release, the Court
departs pursuant to U.S.S.G. § 5D1.2(c).” The single reference to
the policy statement recommending a life term of supervised release
cannot be read in a vacuum,14 as the policy statement is derived
from the statutory authority in 18 U.S.C. § 3583(k) and is
consistent with Congress’s intention to punish possessors of child
12
United States v. Gore, 298 F.3d 322, 325-26 (5th Cir. 2002) (providing
that the goal of § 3553 is to “permit effective appellate review of sentencing”).
13
18 U.S.C. § 3553(c); United States v. Gonzalez, ___ F.3d ___, 2006 WL
895204, *2-*3 (5th Cir. April 7, 2006).
14
Cf. United States v. Saldana, 136 Fed. Appx. 681, 681-82 (5th Cir. 2005)
(finding that a single reference to § 5K2.0 of the sentencing guidelines, which
is the general provision for upward departures, was insufficient to meet
§ 3553(c)’s requirement and remanding to the district court so that it could
supplement its reasons for departure).
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pornography with life terms of supervised release because of the
high rate of recidivism.
We also conclude that the district court did not abuse its
discretion in its decision to depart upward or in the extent of the
departure.15 A court does not abuse its discretion in deciding to
depart upward when its reasons for doing so advance the objectives
in 18 U.S.C. § 3553(a)(2), are authorized by § 3553(b), and are
justified by the facts of the case.16 Here, inherent in the
district court’s reference to the policy statement is a reflection
on the seriousness of the offense and the need to provide a just
punishment––both permissible considerations under 18 U.S.C.
§ 3553(a)(2). Further, the district court’s stated reason––the
general notion that pedophiles are typically recidivists––is
consistent with protecting the public from further crimes by the
defendant, and we must be mindful of the admitted-to facts
illustrating Allison’s lengthy involvement in various child
pornography offenses. Lastly, both the decision to departure
upward and the extent of the departure are consistent with
Congress’s and the Sentencing Commission’s intention to punish
15
See Gonzalez, ___ F.3d at ___, 2006 WL 895204, *3; United States v.
Saldana, 427 F.3d 298, 308 (5th Cir. 2005); United States v. Simkanin, 420 F.3d
397, 415 (5th Cir. 2005); United States v. Smith, 417 F.3d 483, 492 (5th Cir.
2005); United States v. Moore, 997 F.2d 30, 37 (5th Cir. 1993) (describing that
discretion as “wide”).
16
See Gonzalez, ___ F.3d at ___, 2006 WL 895204, *3; Saldana, 427 F.3d at
310.
10
child sex offenders with life terms of supervised release. We see
no abuse of discretion.
III
Accordingly, the district court’s imposition of a life term of
supervised release is AFFIRMED.
11