U.S. v. Sims, No. 03-2151.

• Decision Date: 09 November 2005
• Docket Number: No. 03-2177.,No. 03-2151.
• Citation: 428 F.3d 945
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Stanley Howard SIMS, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

428 F.3d 945

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Stanley Howard SIMS, Defendant-Appellant/Cross-Appellee.

No. 03-2151.

No. 03-2177.

United States Court of Appeals, Tenth Circuit.

November 9, 2005.

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Tova Indritz, Albuquerque, NM, for Appellant.

David N. Williams, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the briefs), Albuquerque, NM, for Appellee.

Before EBEL, BALDOCK, and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

This case first arose in an Internet chat room where Stanley Howard Sims ("Defendant" or "Sims"), using the screenname "Nats565," began a sexually explicit conversation with "sweetthingforyou16"—a screenname Sims believed belonged to a 16-year-old girl named Sue and a 12-year-old named Kate. In fact, "sweetthingforyou16" was a middle-aged man in Springfield, Missouri, who had assumed the Internet profile of a teenage dancer named Sue as a gag and who represented himself as both Sue and Kate to Sims. For months, Sims and "sweetthingforyou16" exchanged Internet communications of a graphic sexual nature, with Sims sending sexually explicit images of himself and of other children to the girls. The FBI became involved, and Sims was ultimately arrested at a roller-skating rink in Missouri, where he had traveled to meet Sue and Kate.

After a jury trial, Sims was convicted of three counts. Count One involved attempting to entice a minor to engage in sexual acts in violation of 18 U.S.C. § 2422(b). Count Two involved traveling in interstate commerce for the purpose of engaging in sexual acts with a minor in violation of 18 U.S.C. § 2423(b). Count Three involved transporting child pornography by interactive computer system in violation of 18 U.S.C. § 2252(a)(1). The district court entered a judgment of acquittal on Count Four, which involved receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). Sims was sentenced to 37 months imprisonment and ordered to pay a $10,000 fine.

On appeal, Sims raises several issues including Fourth Amendment claims relating to the investigation of his conduct, First Amendment and other challenges to his convictions, and several sentencing arguments. The Government also cross-appeals aspects of Sims's sentence, including the district court's application of an acceptance of responsibility adjustment and the decision to grant a nine-level aberrant behavior departure.

After briefing in this case, Sims was permitted to file a supplemental brief with an argument that his sentence was constitutionally defective under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). After oral argument, this court permitted further briefing from both sides relating to United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM Sims's conviction but REVERSE his sentence and REMAND for resentencing.

BACKGROUND

At the time of the events in question, Sims was employed as an engineer at the National Transuranic Waste Program in Carlsbad, New Mexico. He had no prior criminal history. We review the facts only to the extent necessary to decide the issues presented in this appeal.

In September 1999, Sims, using the screen name "Nats565," began using an Internet chat room to converse with "sweetthingforyou16." As far as Sims knew, this screen name belonged to a 16-year-old girl named Sue Walker and was shared by a 12-year-old named Kate, whom Sue babysat. Over a period of five months, Sims communicated with "sweetthingforyou16" frequently, usually daily, in chat rooms and through instant messages. These conversations were of a sexual nature. He gave the girls his personal e-mail address, and Sims eventually began attaching sexually explicit images, of himself and of other children, to the e-mail messages.

In reality, Sims was actually communicating with Michael Walker, an adult male in Missouri. According to Walker, he created the profile "sweetthingforyou16," identifying himself as "Sue," a dancer, as a gag, and he was approached by "Nats565" in a Yahoo! chat room for persons interested in model airplanes. Walker posed as a 16-year-old named Sue and a 12-year-old named Kate, and he started saving the e-mails and images sent to "the girls" by Sims.

In October 1999, Sims began suggesting he would travel to Missouri to meet Sue and Kate. In his messages, he referred to previous encounters with other young girls and emphasized that he was gentle and would not hurt the girls.

After Walker reported his Internet communications to the National Center for Missing and Exploited Children, local police and the FBI became involved. The FBI ultimately assumed the identities created by Walker and, as "sweetthingforyou16," made plans for Sims and the girls to meet at a roller-skating rink in Missouri. Sims planned to pick up the girls, hide them in the back seat of his rental car, and go back to his motel to swim, engage in sexual acts, and take photographs. Sims was arrested on January 22, 2000, when he arrived at the roller-skating rink.

At the FBI office where he was taken, Sims signed a "Consent to Search" form, and his luggage, briefcase, hotel room, rental car, and personal belongings were searched—producing several cameras and film, gifts he bought for the girls, and assorted sexual paraphernalia and aids. Sims also made a statement to FBI at this time.

On the same day, Sims's home in New Mexico was searched, with the FBI seizing computer equipment, photographs, travel itineraries, and related items. A few days later, the FBI searched Sims's office, seizing other e-mail messages and travel itineraries. The FBI also obtained a warrant to search the contents of nineteen floppy disks found in Sims's possession at the time of his arrest, which produced several images of child pornography and other graphic e-mail messages. The grand jury returned a four-count indictment against Sims, charging him with:

• Count One—attempting to coerce and entice a minor to engage in sexual acts, 18 U.S.C. § 2422(b);

• Count Two—traveling in interstate commerce for the purpose of engaging in sexual acts with a minor, id. § 2423(b);

• Count Three—transporting by interactive computer system visual depictions of minors engaging in sexually explicit conduct, id. § 2252(a)(1); and

• Count Four—receiving visual depictions of minors engaging in sexually explicit conduct, id. § 2252(a)(2).

Sims pled not guilty.

After pre-trial motions, the district court suppressed Sims's post-arrest statement on Miranda grounds after finding that Sims had requested, but not been provided, an attorney. The court did admit the fruits of the consent search following his arrest after finding Sims's consent was voluntary and given before any request for an attorney. The court also admitted the fruits of the other warrant searches.

The jury convicted Sims on all four counts. The district court, however, had doubts about whether the government had established real children were depicted in the images that Sims received and therefore entered a judgment of acquittal only as to Count Four. United States v. Sims, 220 F.Supp.2d 1222 (D.N.M.2002) ("Sims I"); see also United States v. Sims, 252 F.Supp.2d 1255 (D.N.M.2003) ("Sims II") (denying motion to reconsider refusal to acquit as to Count Three). The district court sentenced Sims to 37 months imprisonment and a $10,000 fine.

Before trial, the district court noted that "there was evidence presented that Mr. Sims suffers from brain deterioration." Sims's Presentence Investigation Report ("PSR") indicates on May 16, 2000, a neurologist conducting an independent medical examination diagnosed Sims with Frontotemporal Dementia ("FTD"), a form of dementia which causes a progressive loss of basic cognitive abilities.

Sims raises several issues on appeal. He alleges three violations of his Fourth Amendment rights; asserts that the Government failed to prove beyond a reasonable doubt that the images relied on in Count Three were images of "real children" and that his convictions for Counts One and Two should be reversed because they allege impossible acts; and claims several errors in his sentence.

The Government cross-appeals, arguing that the district court erred in reducing Sims's sentence based on an acceptance of responsibility adjustment and in its application of an aberrant behavior departure.

Finally, Sims has supplemented his arguments with a claim that the use of judicial fact finding to enhance his sentence violates his Sixth Amendment rights under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Sims further argues that the court's application of the guidelines in a mandatory fashion is a non-constitutional error warranting re-sentencing.

DISCUSSION

I. FOURTH AMENDMENT ISSUES

We review the court's reasonableness conclusions under the Fourth Amendment de novo. United States v. Hernandez, 93 F.3d 1493, 1501 (10th Cir.1996). However, we accept the trial court's findings of fact unless clearly erroneous. Id. We review a denial of a motion to suppress in the light most favorable to the United States as the prevailing party. United States v. Gordon, 173 F.3d 761, 765 (10th Cir.1999).

A. Facts

Sims raises three Fourth Amendment issues, which require a brief review of the facts to analyze. First, early investigation into this case by the FBI and local law enforcement included two warrantless searches. The first occurred on January 10, 2000, when an information systems security manager at Sims's place of employment searched Sims's office computer remotely through the server. The district court suppressed the fruits of this search, finding that it had been done solely at the behest of law enforcement and that, absent a warrant, it violated Sims's Fourth Amendment rights.

The second warrantless...