United States Court of Appeals
Fifth Circuit
F I L E D
In the February 26, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-31093
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ELIZAVETA NIKONOVA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
m 3:05-CR-4-ALL
___________________________
Before SMITH, BENAVIDES, and PRADO, I.
Circuit Judges. Nikonova is a Russian citizen who immi-
grated to the United States in 1996. In 2004,
JERRY E. SMITH, Circuit Judge: while she was attending Louisiana State Uni-
versity, law enforcement officers discovered
Elizaveta Nikonova appeals the sentence that she was using her laptop computer to ac-
she received following her plea of guilty of one quire and store child pornography. From the
count of possession of child pornography in computer, authorities eventually recovered
violation of 18 U.S.C. § 2252A(a)(5)(B). We seven image files and six movie files depicting
affirm. child pornography.
Nikonova claims to have become interested
in child pornography only after watching an Nikonova’s offense level was 22, which, com-
episode of the television show “Law & Order bined with her criminal history category of I,
SVU” and that her interest in the material was yielded a guideline range of 41-51 months’ im-
80% motivated by a desire to conduct scien- prisonment. Nikonova objected to the upward
tific research and 20% by personal gratifica- adjustment for sadistic images, arguing that,
tion. She confessed that she knowingly and in- although the images were sadistic, the govern-
tentionally possessed the pornography. In her ment had not adequately proved that she had
plea agreement, she waived her right to appeal intentionally ordered and received them. She
her conviction and sentence subject to three also moved the court to depart downward
exceptions: (1) punishment imposed in excess from the guidelines and sentence her to proba-
of the statutory maximum; (2) punishment tion. The court overruled Nikonova’s ob-
constituting an upward departure; and (3) “the jection to the upward adjustment, declined to
applicability of . . . Blakely v. Washington [, depart from the guideline range, and sentenced
542 U.S. 296 (2004),] to the United States Nikonova to 41 months.
Sentencing Guidelines.”
After Nikonova filed her notice of appeal,
Nikonova’s plea agreement was filed in the the government filed a Federal Rule of Crim-
district court on January 13, 2005, the day af- inal Procedure 35 motion to reduce the sen-
ter the Court issued United States v. Booker, tence based on her assistance in the investiga-
543 U.S. 220 (2005). The district court stated tion and prosecution of others. The district
to Nikonova, with regard to her reservation of court granted the motion, reduced Nikonova’s
the right to appeal the application of Blakely offense level by two levels, and imposed a
to the federal sentencing guidelines, that the sentence of 31 months.
Supreme Court had
II.
kind of taken care of that . . . certain parts The government contends that Nikonova
of the Guidelines are no longer effective has waived her right to appeal. We disagree.1
and no longer mandatory. So, although We review waivers of appeal de novo. See
you reserve this right in the plea agreement, United States v. Baymon, 312 F.3d 725, 727
for all practical purposes, that has already (5th Cir. 2002). We use ordinary principles of
been taken care of; do you understand contract interpretation to determine whether a
that?” Nikonova stated that she did under-
stand and that she appreciated that, “other
than those reservations in the plea agree-
ment”, she had no right to appeal “anything
1
else that happens in this case. We disagree with the government’s contention
that, by failing to brief the waiver issue in her op-
At sentencing the district court relied on a ening brief, Nikonova waived the argument that she
presentence investigation report (“PSR”) that, has preserved her right to appeal. The government
inter alia, recommended a four-level increase moved for dismissal of the appeal on the basis of
waiver, but because it was the government’s mo-
in Nikonova’s offense level because certain
tion, Nikonova was hardly obligated to address the
photographs in her possession depicted sadis-
issue until the government briefed it in this court.
tic images of prepubescent children having in- Nikonova’s response in her reply brief adequately
tercourse with adults. The PSR calculated that preserved the issue.
2
waiver applies,2 but we construe waivers nar- F.3d 711, 716 (5th Cir. 2006), petition for
rowly and against the government.3 cert. filed (May 18, 2006) (No. 05-11144). It
follows that Nikonova’s Blakely reservation
The government contends that Nikonova entitles her to argue on appeal that her sen-
retained only the right to raise a Sixth Amend- tence is unreasonable both because the district
ment challenge to the guidelines analogous to court miscalculated the relevant guideline
the challenge to the Washington state guide- range and because it failed adequately to con-
lines in Blakely. Although Nikonova’s collo- sider factors counseling in favor of a down-
quy with the district court might provide some ward departure.5
support to this interpretation of the agreement,
we need not look beyond the plain language of III.
the plea where, as here, it obviously does not The parties devote substantial argument to
waive the right to appeal.4 whether the sadistic-image enhancement that
the district court applied has an intent require-
By preserving an appeal based on the ap- ment that was met in this case. We need not
plicability of Blakely to the guidelines, Niko- resolve this issue, because Nikonova’s sen-
nova maintained her right to benefit from the tence is reasonable even if the sadistic-images
Supreme Court’s prescribed remedy for the enhancement should not have applied. With-
problem (implied by the reasoning of Blakely) out the four-level enhancement for sadistic im-
that the then-mandatory guidelines were un- ages, her guideline range would have been 27-
constitutional. One consequence of Booker’s 33 months. See U.S.S.G. ch. 5 pt. A. Be-
holding that Blakely applies to the federal cause her sentence of 31 months falls within
guidelines is that those guidelines became ad- that range, it is entitled to a presumption of
visory, and courts are to look to all the factors reasonableness.6 The relevant question is not
described in 18 U.S.C. § 3553(a), instead of whether the enhancement should have applied,
just to the guidelines, to devise a “reasonable” but whether Nikonova has rebutted the pre-
sentence. See Booker, 543 U.S. at 259-60.
Under Booker, a properly calculated guidelines
range is not the exclusive basis for a legal sen- 5
We find this reasoning to be particularly apt
tence but instead is a highly relevant factor in when we consider that the government could have
our review of sentences to see whether they drafted a plea agreement explicitly limiting Niko-
satisfy the Supreme Court’s criterion of rea- nova’s right to appeal to a more narrow Sixth
sonableness. See United States v. Duhon, 440 Amendment issue. Instead the agreement contained
the broad phrase “the applicability of [Blakely] to
the United States Sentencing Guidelines.” As not-
2 ed above, we construe waivers of appeal narrowly
United States v. McKinney, 406 F.3d 744,
746 (5th Cir. 2005). and against the government. Harris, 434 F.3d at
770 & n.2.
3
See United States v. Harris, 434 F.3d 767,
6
770 & n.2 (5th Cir. 2005), cert. denied, 126 S. Ct. See United States v. Medina-Argueta, 454
1897 (2006). F.3d 479, 483 (5th Cir. 2006) (stating that where
“the district court miscalculates the Guideline
4
See McKinney, 406 F.3d at 746 (stating that range yet imposes a sentence that falls within a
a waiver is to be ascertained from the plain lan- properly calculated guideline range, the sentence
guage of the agreement). enjoys a presumption of reasonableness”).
3
sumption of reasonableness that attaches to the A non-guideline sentence is unreasonable in
sentence even if application of the enhance- light of the statutory sentencing factors where
ment was incorrect. it “(1) does not account for a factor that
should have received significant weight,
Nikonova has not rebutted the presumption (2) gives significant weight to an irrelevant or
of reasonableness. To assess reasonableness, improper factor; or (3) represents a clear error
we look to the factors set forth in § 3553(a). of judgment in balancing the sentencing fac-
See Booker, 543 U.S. at 359-60; Medina- tors.” United States v. Smith, 440 F.3d 704,
Argueta, 454 F.3d at 484. Although Niko- 708 (5th Cir. 2006). Nikonova suggests that
nova argues that the district court should have we should apply the same test to determine
departed downward, we lack jurisdiction to re- whether a guideline sentence is reasonable.
view a discretionary decision not to depart See Alonzo, 435 F.3d at 554. To apply the
downward from the guideline range. See Unit- test in the same manner to guideline sentences
ed States v. Hernandez, 457 F.3d 416, 424 and non-guideline sentences alike, however,
(5th Cir. 2006). Instead, we review to deter- would ignore the presumption of reasonable-
mine whether the district court’s imposition of ness that applies to guideline sentences and
a guideline sentence instead of a non-guideline would disregard the discretion appropriately
sentence was reasonable.7 afforded to a district court where it has consid-
ered all the § 3553(a) factors. Therefore, the
This court has not articulated the standard presumption of reasonableness that attaches to
by which a defendant may rebut the presump- a properly calculated guideline sentence is re-
tion of reasonableness that attaches to a guide- butted only where the sentence falls so far
line sentence. We have, however, stated that, afoul of one of the standards in Smith as to
where a court has imposed a sentence within a constitute a clear error in the court’s exercise
properly calculated guideline range, “we will of its broad sentencing discretion.9
infer that the Judge has considered all the fac-
tors set forth for a fair sentence in the Guide-
lines.” United States v. Mares, 402 F.3d 511, 8
(...continued)
519 (5th Cir.), cert. denied, 126 S. Ct. 43
rather than down. United States v. Gama-Gon-
(2005). Furthermore, in light of our deference zalez, 469 F.3d 1109, 1110 (7th Cir. 2006).
to a sentencing judge’s discretion under Book-
er, we will rarely declare that such a sentence 9
Even circuits that do not presume that a guide-
is unreasonable. Id. 8 line sentence reflects consideration of all of the §
3553(a) factors afford district courts broad discre-
tion in sentencing where the appropriate consider-
7 ation has taken place. See United States v.
See United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006) (opining that guideline sen- Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006)
tences are not per se reasonable). (en banc) (pointing out that, even after consider-
ation of the factors, multiple sentences could be
8
“[I]f the district judge does use the Guidelines, “reasonable,” and “[a]ssuming a plausible ex-
then the sentence is unlikely to be problematic. . . planation and a defensible overall result, sentencing
. It will be the rare sentence indeed that was re- is the responsibility of the district court”), cert.
quired under the Guidelines before Booker bot denied, 127 S. Ct. 928 ( 2007); United States v.
Forbidden afterward, when discretion has gone up Cooper, 437 F.3d 324, 330-32 (3d Cir. 2006)
(continued...) (continued...)
4
Here, we discern no such error. Nikonova that her sentence is unduly harsh, does not
focuses on three of the § 3553(a) factors that provide a just punishment, and is unnecessary
she believes render her sentence unreasonable: to protect the public.
(1) the nature and circumstances of her offense
as well as her history and characteristics; The sentencing record shows that the dis-
(2) promotion of respect for the law and pro- trict considered these factors and balanced
vision of just punishment; and (3) deterrence them adequately. The court discussed sen-
and protection of the public. See § 3553- tencing as a “balance of tragedies” and noted
(a)(1), (2)(A), (B). The district court, how- that, although Nikonova might be an atypical
ever, afforded appropriate weight to each of defendant, her offense falls “within the heart-
these factors, did not consider any other, ir- land of cases involving possession of child por-
relevant, factors, and balanced the factors nography.” The court also indicated that it did
reasonably. not entirely credit Nikonova’s explanation that
she was motivated predominantly by academic
With respect to the nature and circumstanc- concerns and noted that there was little evi-
es of her offense as well as her history and dence of working hypotheses or other indicia
characteristics, Nikonova points out that of a research paper in progress.
(1) she had only thirteen images; (2) she was
motivated primarily by intellectual rather than The district court’s disposition is reason-
sexual interest; (3) she exhibits no sexually de- able, and the judgment of sentence is AF-
viant traits; (4) child pornography does not FIRMED.
give rise to the same social condemnation in
her country of origin, Russia, as it does in the
United States; and (5) her status as an excep-
tional student who has received numerous
honors and consistently engaged in productive
extracurricular employment from a young age
renders her an atypical defendant. She also ar-
gues that her status as a deportable alien ren-
ders her subject to harsher conditions of con-
finement than she would experience otherwise
and that she faces persecution on her return to
Russia. She contends that these facts indicate
9
(...continued)
(rejecting presumption of reasonableness but recog-
nizing that a guideline sentence is more likely than
a non-guideline sentence to be reasonable, and
reviewing for abuse of discretion). Although we
take a different approach to ascertaining whether
the § 3553(a) factors have been considered, we
agree with these circuits that a district court enjoys
broad discretion where there is reason to believe
that it has, in fact, considered the factors.
5