U.S. v. Ausburn

• Citation: 502 F.3d 313
• Decision Date: 10 September 2007
• Docket Number: No. 06-2250.,06-2250.
• Parties: UNITED STATES of America v. David AUSBURN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

502 F.3d 313

UNITED STATES of America v. David AUSBURN, Appellant.

No. 06-2250.

United States Court of Appeals, Third Circuit.

Argued June 8, 2007.

Filed September 10, 2007.

Lisa B. Freeland, Esquire, Federal Public Defender, Karen Sirianni Gerlach, Esquire (argued), Assistant Federal Public Defender, Office of Federal Public Defender, Pittsburgh, PA, for Appellant.

Mary Beth Buchanan, Esquire, United States Attorney, Laura Schleich Irwin, Esquire (argued), Assistant United States Attorney, Robert L. Eberhardt, Esquire, Office of United States Attorney, Pittsburgh, PA, for Appellee.

Before: SMITH and GREENBERG, Circuit Judges, and POLLAK,^* District Judge.

OPINION OF THE COURT

POLLAK, District Judge:

David Ausburn appeals from the sentence imposed after he pled guilty to using a telephone and a computer to persuade a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b). The most salient feature of that sentence is a 144-month term of imprisonment—more than double the top end of the advisory range under the Sentencing Guidelines ("guidelines" or "U.S.S.G."). Ausburn argues that: (1) the District Court's failure to provide advance notice of its intent to sentence him above the advisory guidelines range violated the Due Process Clause; and (2) the District Court's sentence was unreasonable.¹

The District Court did not provide a statement of reasons sufficient to allow us to review whether Ausburn's sentence was reasonable under the circumstances; therefore, we must vacate the sentence and remand for a new sentencing proceeding. This result is plainly required by our previous decisions, see, e.g., United States v. Kononchuk, 485 F.3d 199, 204-205 (3d Cir.2007); United States v. Jackson, 467 F.3d 834, 841 (3d Cir.2006); United States v. Cooper, 437 F.3d 324 (3d Cir.2006), and hence does not itself call for treatment in a precedential opinion. However, we have chosen to write precedentially in order to address Ausburn's due process argument. As discussed below, we find this argument unavailing for substantially the reasons stated in United States v. Vampire Nation, 451 F.3d 189, 195-98 (3d Cir.2006) (holding that advance notice of potential sentencing variances is not required under Federal Rule of Criminal Procedure 32(h)), cert. denied, ___ U.S. ___, 127 S.Ct. 424, 166 L.Ed.2d 300 (2006).

I.

A.

Ausburn met the minor victim in this case sometime prior to January 2003, when he responded to a call at her home while on the job as a police detective with the West Homestead Police Department ("WHPD") in Allegheny County, Pennsylvania.² Ausburn contends that he began his relationship with the girl and her family for the purpose of acting as a role model and positive influence in the girl's life. However, in or around January 2003, Ausburn began a sexual relationship with the girl, who was then fourteen years old. The relationship lasted from January 2003 until early 2005 (although Ausburn was ultimately charged based only on his conduct from January to February of 2003).

In January 2005, a confidential source provided United States postal inspectors with printed copies of several e-mails exchanged between Ausburn and the minor victim in January and February of 2003.³ The e-mails referred obliquely to the sexual nature of their relationship. After a preliminary investigation, including an interview with the minor victim, the inspectors confronted Ausburn with the e-mails on February 3, 2005. On February 4, 2005, Ausburn confessed to a sexual relationship with the minor victim and to the use of e-mail and the telephone in furtherance of that relationship.

B.

On August 3, 2005, the government filed a criminal information in the United States District Court for the Western District of Pennsylvania charging that "[f]rom in and around January, 2003, until in and around February, 2003," Ausburn, "using a facility and means of interstate and foreign commerce, specifically a telephone and a computer, did knowingly persuade, induce, entice and coerce an individual [under eighteen] to engage in [illegal] sexual activity," in violation of 18 U.S.C. § 2422(b). After agreeing to plead guilty to this charge, Ausburn moved in the District Court for the production of a Presentence Investigation Report ("PSR") prior to his change-of-plea hearing, "in contemplation of scheduling a change of plea and sentence together in one proceeding." The court agreed and ordered the Probation Office to prepare a PSR.

The PSR: (1) made factual findings as to, inter alia, "offense conduct," "offender characteristics," and "victim impact"; and (2) calculated a total offense level of twenty-five and an advisory sentencing range of fifty-seven to seventy-one months under the 2002 guidelines. Although there is a presumption that the guidelines in effect at the time of sentencing will be applied, see U.S.S.G. § 1B1.11(a) (2004), the PSR found that application of the 2004 guidelines—which were in effect when the PSR was prepared in October 2005—would have resulted in a harsher sentencing range (seventy to eighty-seven months) than that called for under the 2002 guidelines. Therefore, pursuant to U.S.S.G. § 1B1.11(b)(1) (2004), the less punitive provisions found in the 2002 guidelines manual were applied to avoid an ex post facto violation.

Ausburn filed written objections to the PSR's application of the 2002 guidelines, arguing instead that the District Court should apply what was essentially a hybrid of the 2002 and 2004 guidelines.⁴ In the alternative, Ausburn stated that "the next fairest approach" would be to follow "the view of both counsel during plea negotiations" and apply the 2002 guidelines, but without a two-offense-level enhancement recommended by the PSR for "the victim [being] in the custody, care, or supervisory control of the defendant."⁵ This would have resulted in a total offense level of twenty-three and a sentencing range of forty-six to fifty-seven months.

Ausburn offered two additional arguments that seemed to relate to the court's sentencing discretion under 18 U.S.C. § 3553(a), rather than the guidelines calculation per se. First, he argued that under the post-Booker, advisory-guidelines scheme, "a sentence consistent with" his suggested guidelines analysis was "appropriate in the discretion of the Court." Second, he argued that "two recent cases in this district suggest an appropriate sentencing range for Mr. Ausburn." In the first case, United States v. Bricker, Crim. No. 04-326 (W.D. Pa., judgment entered Sept. 1, 2005), a defendant who used "motion-activated cameras" to record "child pornography" had been sentenced to thirty months' imprisonment. In the second case, United States v. Kenrick, Crim. No. 04-291 (W.D. Pa., judgment entered Nov. 10, 2005)—which had been decided by the district judge sitting in Ausburn's case—the defendant received a sentence of forty-six months imprisonment for a sexual offense involving a minor.⁶ In light of these cases, Ausburn argued that the "appearance of fairness," the "goal of uniformity in sentencing," and the statutory need to avoid unwarranted sentencing disparities all "militate[d] in favor of applying one of the more lenient Guidelines analyses in this case."

Finally, Ausburn objected to two factual contentions in the PSR: (1) he sought inclusion of additional e-mails from the minor victim which he stated "serve[d] to encourage the relationship"; and (2) he objected to the PSR's finding as to the duration and extent of his sexual relationship with the minor victim.

The government filed a brief response in which it endorsed the PSR's guidelines calculation, stating that "[t]he government believes that a sentence within the Guideline range . . . is reasonable." The government "request[ed] that the Court sentence Defendant within the Guideline range."

The District Court entered "Tentative Findings and Rulings" on March 28, 2006, overruling Ausburn's objections and adopting the PSR's recommended advisory sentencing range of fifty-seven to seventy-one months. As to Ausburn's argument that a combination of 2002 and 2004 guidelines provisions should be applied,⁷ the court noted that "[i]t is not our prerogative to override the decisions of the United States Sentencing Commission about which guidelines apply to certain statutory provisions."⁸ As to Ausburn's second argument concerning his reliance on the range of forty-six to fifty-seven months contemplated during plea negotiations, the court stated that it was not obligated "to protect [the parties] from mistaken beliefs about which guidelines manuals either party believed would apply during preliminary plea discussions that were never consummated." As to the balance of Ausburn's legal objections, the court noted its awareness that "the Sentencing Guidelines are only advisory" and stated that "although this Court will use the guidelines calculations approach [from the PSR] in determining an advisory guideline range, this Court will also consider defendant's arguments in fashioning an appropriate sentence."

As to Ausburn's factual objections, the court first noted its responsibility under Federal Rule of Criminal Procedure 23(i)(3)(B) to resolve such objections unless "no such finding is necessary because the matter in controversy will not be taken into account in sentencing." The court then stated that "because [Ausburn's suggested] corrections [to the PSR] have no impact upon the guidelines calculation, the court need not resolve any alleged conflicts." Further, the court also noted that it "accept[ed] the accuracy of the fact findings of the [PSR] which are not in dispute." Finally, the court stated that, in light of the tentative findings and rulings, "[s]hould defendant wish not to go forward with his open plea, it is certainly within his rights to do so at this time."

C.

Ausburn's combined change-of-plea and sentencing hearing was held on March 31, 2006. In the first part of the proceeding, the...