United States v. Jones

¶4OWEN, Circuit Judge:

¶5Robert Jones pleaded guilty to possession of child pornography in violation of 18 U.S.C § 2252A(a)(5)(B). At sentencing, which occurred after the United States Supreme Court decided United States v. Booker,1the district court sentenced Jones to the statutory maximum prison term of 120 months,2 which was beyond the 46-to-57 month range calculated under the Guidelines. Jones challenges his sentence on three grounds, claiming, for the first time on appeal, that (1) in violation of Federal Rule of Criminal Procedure 32(h), he did not receive notice before sentencing that an upward departure was contemplated or notice of the grounds for that departure, (2) the district court based its decision to depart upwardly on impermissible factors, and (3) the sentence is unreasonable. Because we conclude that plain error has not been shown, we affirm Jones’s sentence.

¶6I

¶7Jones pleaded guilty to the possession of child pornography that has been transported in interstate commerce, which constitutes a violation of 18 U.S.C. § 2252A(a)(5)(B). At his plea hearing, Jones specifically admitted to each element that established this crime, and he also admitted to all facts contained in the presentence report (“PSR”). Prior to the sentencing hearing, the Supreme Court decided Booker, which rendered the Sentencing Guidelines effectively advisory.3 The district court understood the Guidelines to be advisory at the time of sentencing and upwardly departed from the range calculated under the Guidelines citing several factors including prior arrests that did not result in convictions and “aggravating circumstances ... not adequately taken into consideration by the sentencing commission.” Jones appeals his sentence.

¶8II

¶9Because the issue of whether the district court considered impermissible factors in deciding to depart upwardly from the Guidelines range informs our consideration of Jones’s other contentions, we turn to it first. The PSR prepared by United States Probation reflects that Jones was indicted on February 26, 2004 for allegedly possessing child pornography on January 28, 2004. On February 22, 2004, he was arrested on state charges of two counts of sexual battery based on allegations that he inserted his penis in the mouth of a five-year-old and in the mouth of a six-year-old while babysitting. The PSR also reflected that Jones had been charged in 1993 with the rape of his four-year-old niece but that those charges had been dismissed. The sentencing hearing for Jones’s conviction of the federal crime at issue in this case was held in March 2005. The two state sexual battery charges were pending at that time.

¶10*434United States Probation determined Jones’s base offense level to be 15 pursuant to U.S.S.G. § 2G2.4. After certain enhancements4 and a three-point reduction for acceptance of responsibility, Jones’s total offense level was calculated to be 23. Because Jones had a criminal history category of I, the Guidelines imprisonment range was 46 to 57 months.5

¶11The district court did not include a written statement in the judgment setting forth the reasons for the upward departure but did orally state its reasons at the sentencing hearing. It is clear the court considered the prior arrests in deciding to impose the maximum statutory sentence.6 The Guidelines expressly provide in a policy statement that “[a] prior arrest record itself shall not be considered for purposes of an upward departure ....”7 While the Guidelines contemplate that a district court may base an upward departure on “[pjrior similar adult criminal conduct not resulting in a criminal conviction,”8 they also contemplate that there must be “reliable information” of such conduct.9 Arrests, standing alone, do not constitute reliable information under either the Guidelines or our precedent pre-dating the Guidelines.10 The district court did not find that Jones actually committed the rape of a child in 1993 or that Jones committed the sexual batteries of which he had been accused at the time of sentencing. Had there been such findings, supported by evidence, the district court could have considered those facts in determining the likelihood that Jones would commit crimes in the future. But absent such evidence and findings, it was error to take the mere fact of prior arrests into account. The government’s contentions to the contrary are not well-taken.

¶12Ill

¶13Had Jones apprised the district court of his objection to consideration of prior arrests, we would have a roadmap from the *435Supreme Court, at least prior to the Booker decision. In Williams v. United States, the district court had erred in relying on prior arrests among other factors in imposing an upward departure.11 The Supreme Court granted certiorari to decide “whether a reviewing court may affirm a sentence in which a district court’s departure from the guideline range is based on both valid and invalid factors.”12

¶14The Court explained that in reviewing a departure from a Guidelines range “the reviewing court is obliged to conduct two separate inquiries.”13 The first is under 18 U.S.C. § 3742(f)(1).14 If the sentence was “imposed either in violation of law or as a result of an incorrect application of the Guidelines,” a remand is required.15 If remand is not required under that section, the reviewing court should determine under § 3742(f)(2) if “the resulting sentence [is] an unreasonably high or low departure from the relevant guideline range.”16 Accordingly, we first consider § 3742(f)(1).

¶15The Williams decision held that a departure from a Guidelines range based on a factor that the Sentencing Commission has expressly rejected as an appropriate ground for departure “is an incorrect application of the Guidelines” within the meaning of 18 U.S.C. § 3742(f)(1).17 However, Williams concluded that because the statute only requires remand “if the sentence was ‘imposed as a result of an incorrect application,’ ” remand is not automatic.18 The Court reasoned that if the district court did not “intend[] to depart from the Guidelines, a sentence is imposed ‘as a result of an incorrect application ... when the error results in the district court selecting a sentence from the wrong guideline range.”19 But if the district court intended to depart from the guideline range, “a sentence is imposed ‘as a result of a misapplication of the Guidelines if the sentence would have been different but for the district court’s error.”20 The Court then said, “in determining whether a remand is required under § 3742(f)(1), a court of appeals must decide whether the district court would have imposed the same sentence had it not relied upon the invalid factor or factors.”21

¶16*436The Supreme Court further held in Williams that the “harmless error” rule applies,22 despite the dissenting opinion’s assertion that “appellate review of departure sentences under § 3742 does not accommodate ‘harmless-error’ review.”23 Citing Federal Rule of Criminal Procedure 52(a), Williams concluded:

[T]he party challenging the sentence on appeal, although it bears the initial burden of showing that the district court relied upon an invalid factor at sentencing, does not have the additional burden of proving that the invalid factor was determinative in the sentencing decision. Rather, once the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, ie., that the error did not affect the district court’s selection of the sentence imposed.24

¶17The Williams decision did not directly discuss whether the “would-have-been-a-different-sentence” inquiry is altered when appellate review is for plain error. But based on the Court’s reliance on Rule 52(a), its discussion of harmless error, and its pointed rejection of the dissenting opinion’s position, it would seem that a defendant challenging a sentence for the first time on appeal should have a different burden, consistent with Rule 52(b)’s “subtle but important” difference, as articulated in the Supreme Court’s decision in United States v. Olano.25

¶18The decision in Olano set forth three “limitation[s] on appellate authority under Rule 52(b),” which are that there must be error, the error must be plain, and the plain error must affect substantial rights.26 Even when these elements are present, “the court of appeals has authority to order correction, but is not required to do so,” and “the standard that should guide the exercise of remedial discretion under Rule 52(b)” is whether “the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ”27 We have little difficulty in concluding that consideration of the mere fact of prior arrests was error and that it was plain. Whether the consideration of prior arrests in conjunction with other, permissible, factors affected Jones’s substantial rights and whether, assuming it did, the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings” are more complex questions.

¶19Olano explained that when a defendant has failed to call a complaint to the district court’s attention and review is for plain error, the burden of establishing prejudice is generally shifted.28 “Normally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the ‘affecting substantial rights’ prong of Rule 52(b).”29 Prejudicial means “it must have affected the outcome of the *437district court proceedings.”30

¶20Pre-Booker, this circuit reviewed a district court’s upward departure in United States v. Ravitch, and said “where we have concluded that ‘[i]f the case were remanded the trial judge could reinstate the same sentence,’ we have upheld the defendant’s sentence although the district court’s stated reasons for departing evidence a mistaken application of the Sentencing Guidelines.” 31 Thus, based on this circuit’s preBooker precedent, the inquiry in Williams and Koon under Rule 52(a) shifts from whether the district court would have imposed the same sentence32 to an inquiry under Rule 52(b) of whether the district court could have imposed the same sentence.33

¶21Post-Booker, in United States v. Ville-gas, this circuit articulated the Rule 52(b) standard somewhat differently in the context of misapplication or misinterpretation of an enhancement under the Guidelines.34 We said that the inquiry “is whether the defendant can show a reasonable probability that, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence.”35 This seems more consistent with the discussion in Williams of an appellate court’s authority to affirm a sentence “when the district court, once made aware of the errors in its interpretation of the Guidelines, may have chosen a different sentence,” and Williams’s admonition that the selection of a sentence is left to the district court:

In practical effect, therefore, the divergence of the dissent’s interpretation of the statute [including the could-have-based-its-departure-on-the-remaining-factors inquiry] from our own is in the degree of an appellate court’s authority to affirm a sentence when the district court, once made aware of the errors in its interpretation of the Guidelines, may have chosen a different sentence. Although the Act established a limited appellate review of sentencing decisions, it did not alter a court of appeals’ traditional deference to a district court’s exercise of its sentencing discretion. The selection of the appropriate sentence from within the guideline range, as well as the decision to depart from the range in certain circumstances, are decisions that are left solely to the sentencing court.... The development of the guideline sentencing regime has not changed our view that, except to the extent specifically directed by statute, “it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriate*438ness of a particular sentence.”36

¶22The inquiry set forth in Ravitch— whether the district court could have imposed the same sentence — is an objective one. The inquiry under Villegas — whether there is a reasonable probability that, but for the misapplication of the guidelines, a lesser sentence would have been imposed — is more subjective. We need not resolve whether the two can be harmonized or which standard governs because a remand is not required under either.

¶23The record as a whole does not indicate that it is reasonably probable Jones would have received a lesser sentence if the district court had not considered the prior arrests. At sentencing, Jones admitted that a file on his computer contained 989 still images and 45 movies involving child pornography. The Guidelines provide for increasing the level of the offense of possessing child pornography based on the number of images:

If the offense involved—

(A) at least 10 images, but fewer than 150, increase by 2 levels;

(B) at least 150 images, but fewer than 300, increase by 3 levels;

(C) at least 300 images, but fewer than 600, increase by J levels;

(D) 600 or more images, increase by 5 levels.37

¶24The district court stated that “the facts found are ... of the kind not sufficiently contemplated by the sentencing commission.” The court stated that it had considered the Guidelines, the factors enumerated in 18 U.S.C. § 3553, as well as subsection 3553(b)(2), which the court noted dealt with child crimes and sexual offenses, and the court explained that when it finds “that there exists [sic] aggravating circumstances of a kind or to a degree not adequately taken into consideration by the sentencing commission, then I can give a sentence that is greater than that described in the , sentencing guidelines.” The district court acknowledged the prior rape allegation and pending charges against Jones and said it was considering those factors in the sentence. But the district court also said, “I believe that in this particular case, under 3553, that this is a very serious offense,” then repeated, “[t]his is a very serious offense.” The most reasonable interpretation of the references to “offense” means the child pornography offense since the reference is to a single offense. The court continued, “I don’t know in this defendant’s case whether any sentence will deter him from any future criminal conduct, but I do know that to the extent I have any authority I’m going to protect the public from further crimes by this defendant, and that is one of the options I have and one of the responsibilities I have.” This discussion and the pointed “to the extent I have any authority” statement indicate that it is not reasonably probable that the district court would have imposed a lesser sentence if it had ignored the prior arrests.

¶25Consistent with the inquiry in Ravitch, the district court could reinstate the same sentence if we were to remand because that sentence was not unreasonable for reasons we discuss more fully in our analysis under 18 U.S.C. § 3742(f)(2).

¶26IV

¶27Having concluded that a remand is not required under 18 U.S.C. § 3742(f)(1), we must determine whether remand is re*439quired under § 3742(f)(2).38 We are persuaded that Booker does not alter the way in which an upward departure is reviewed under § 3742(f)(2) for plain error. The remedial opinion in Booker did not sever or excise 18 U.S.C. § 3742(f)(3), which directs that a court of appeals “shall affirm [a] sentence” unless it is “described in paragraph (1) or (2)” of § 3553(f). We are to reverse and remand an upward departure from a Guidelines range that was “based on an impermissible factor” only “if [the court of appeals] determines that the sentence is too high.”39 The statutory “too high” requirement is the equivalent of the “unreasonableness” standard set forth in Booker. The remedial opinion in Booker expressly recognized that not every appeal in the wake of that decision would “lead to a new sentencing hearing ... because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the ‘plain-error’ test.”40 The requirement in Booker that courts of appeals review sentences “across the board” for unreasonableness41 does nothing to undercut Rule 52(b)’s burden-shifting when review is for plain error.

¶28We must determine, therefore, whether the district court could reasonably have imposed the maximum statutory sentence, 120 months, for Jones’s offense based on the record before it. As Booker directs,42 we are guided by the factors set forth in 18 U.S.C. § 3553(a),43 and although we are not bound by the Guidelines or policy statements, we consult and take them into account.44 The policy statement in the Guidelines regarding upward departures in child crimes and sexual offenses is contained in U.S.S.G. § 5K2.0(a)(l)(B).45

¶29*440Jones did not object to any of the factual statements in the PSR, and the district court adopted those statements as its findings of fact. The PSR reflects that Jones was in possession of 989 still images of child pornography and 42 movies. Since November 2003, the commentary to the Guidelines has provided that each movie is considered to have 75 images of child pornography.46 Based on that commentary, Jones was in possession of 4,139 images of child pornography. The Guidelines provide for increasing the level of the offense of possessing child pornography based on the number of images:

If the offense involved—

(A) at least 10 images, but fewer than 150, increase by 2 levels;

(B) at least 150 images, but fewer than 300, increase by 3 levels;

(C) at least 300 images, but fewer than 600, increase by U levels;

(D) 600 or more images, increase by 5 levels.47

¶30These Guidelines are advisory only, and the district court could have reasonably concluded that the possession of 4,139 images of child pornography was “an aggravating circumstance, of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that, in order to advance the objectives set forth in 18 U.S.C. § 3553(a)(2), should result in a sentence different from that described.”48 After considering the factors in § 3553(a), the district court could reasonably have concluded that the maximum statutory sentence was necessary to reflect the nature and seriousness of Jones’s offense and was necessary to protect the public from further crimes.

¶31It is unclear whether the district court imposed a “Guidelines” sentence within the meaning of the Court’s recent decisions in United States v. Duhon49 and United States v. Smith,50which would include a departure from a sentencing range calculated under the Guidelines based on the factors set forth in section 5K2.0 of the Guidelines,51 or a “non-Guidelines” sentence within the meaning of those decisions, which would be a departure that is not based on the factors set forth for departures within the Guidelines themselves.52 In the case before us today, the *441district court stated that “as I understand the status of the law at this time, I’m bound by the statute and not the guidelines,” indicating that it might not have based the sentence on the factors for departure contained in the Guidelines. But the district court also stated that it intended “to depart from the ... guidelines” due to “aggravating circumstances ... not adequately taken into consideration by the sentencing commission,” a sentencing factor found in section 5K2.0 of the Guidelines 53 as well as in a statute applicable to child crimes and sexual offenses, 18 U.S.C. § 3553(b)(2)(A)(I).54 We need not determine whether the sentence Jones received was a Guidelines or non-Guidelines sentence because in either case, under the totality of the relevant statutory factors,55 the sentence was not unreasonable. The sentence adequately takes into account the factors set forth in 18 U.S.C. § 3553(b)(A), and all the factors listed in § 3553(a),56 which we are to consider under 18 U.S.C. § 3742(e) and Booker in determining if a sentence is unreasonable.57

¶32Although our review to determine whether the district court could have imposed the sentence that it did is an objective one, we note that the district court did in fact express permissible factors, in addition to the impermissible factors of prior arrests, in imposing the maximum statutory sentence.58 Even post-Booker, a sen*442teneing court must “enumerate particular reasons for a departure from the sentencing range.”59 The district court could have more particularly enumerated its reasons, and we again urge district courts to do so when departing from a Guidelines range. And, assuming that the district court imposed a non-Guidelines sentence, we emphasized in Mares that district courts should “carefully articulate” the reasons for imposing a non-Guidelines sentence.60

¶33Jones contends that the extent of the departure was unreasonable. Even when the Guidelines were mandatory, the Supreme Court recognized that “[t]he development of the guidelines sentencing regime has not changed our view that except to the extent specifically directed by statute, ‘it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.’ ”61 This circuit has sustained upward departures from the Guidelines that were proportionately greater than the departure at issue here and departures of the magnitude at issue here.62 The same factors that lead us to conclude that a departure was not unreasonable also lead us to conclude that the extent of the departure was not unreasonable.

¶34Jones has not challenged the district court’s failure to set forth in writing in the judgment and order of commitment its reasons for the upward departure as required by § 3553(c)(2).63 This requirement remains binding post -Booker.64We note that had Jones raised this issue, § 3742(f)(2) provides that if “the district *443court failed to provide the required statement of reasons in the order of judgment and commitment” and the court of appeals “determines that the sentence is too high,” the court of appeals “shall set aside the sentence and remand.”65 But as discussed above, the sentence is not “too high.”

¶35V

¶36Finally, Jones contends that his sentence should be reversed because the district court did not give him notice prior to the sentencing hearing that it was considering an upward departure and that he had no notice of the grounds for that departure. Our review is for plain error since this issue was raised for the first time on appeal.

¶37Rule 32(h) provides:

Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s rehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.66

¶38We will assume, without deciding, that the district court did not comply with this rule.

¶39One of the purposes of Rule 32(h) is to “ ‘promot[e] focused, adversarial resolution of the legal and factual issues relevant to fixing Guidelines sentences.’ ”67 Jones contends that had he received prior notice, he would have pointed out to the district court that reliance on prior arrests was prohibited. He offers no other basis to support his contention that he was prejudiced by the lack of notice. For the reasons already considered, we cannot say that it was reasonably probable that the district court would have chosen a lesser sentence had it not relied on the prior arrests.68 At best, the record indicates that it is equally plausible that the district court would have imposed the same sentence as it is plausible that the court would not have.69

¶40For the foregoing reasons, we AFFIRM Jones’s sentence.