U.S. v. Duane

• Decision Date: 17 July 2008
• Docket Number: No. 06-6536.,06-6536.
• Citation: 533 F.3d 441
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Joseph DUANE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

533 F.3d 441

UNITED STATES of America, Plaintiff-Appellee, v. John Joseph DUANE, Defendant-Appellant.

No. 06-6536.

United States Court of Appeals, Sixth Circuit.

Argued: November 27, 2007.

Decided and Filed: July 17, 2008.

ARGUED: Henry Louis Sirkin, Sirkin, Pinales & Schwartz, Cincinnati, Ohio, for Appellant. Madison T. Sewell, Assistant United States Attorney, Louisville, Kentucky, for Appellee. ON BRIEF: Henry Louis Sirkin, Jennifer M. Kinsley, Scott Ryan Nazzarine, Sirkin, Pinales & Schwartz, Cincinnati, Ohio, for Appellant. Terry M. Cushing, Monica Wheatley, Assistant United States Attorneys, Louisville, Kentucky, for Appellee.

Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge; BELL, Chief District Judge.^*

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

John Joseph Duane appeals his sentence for receiving and possessing child pornography in violation of 18 U.S.C. § 2252(a)(2) and (a)(4). Duane contends that: (1) calculating his sentence using the 2005 Sentencing Guidelines violated the Ex Post Facto Clause; (2) the district court erred in enhancing Duane's sentence pursuant to U.S.S.G. § 2G2.2(b)(4) for receiving and possessing sadistic images; and (3) his sentence is unreasonable. For the following reasons, we affirm.

I.

On November 10, 2005, federal agents lawfully obtained Duane's computer. The agents found 3,728 images of child erotica, 674 images of child pornography, and 15 images of sadistic child pornography. Duane eventually pled guilty to receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) arising out of internet transactions that occurred on March 15 and April 12, 2003, and possessing child pornography in violation of § 2252(a)(4) based on images that remained on his computer when it was obtained on November 10, 2005.

Using the 2005 Sentencing Guidelines, the Presentence Investigation Report ("PSR") calculated Duane's base offense level as 22 pursuant to U.S.S.G. § 2G2.2(a)(2). This calculation accounted for receiving child pornography pursuant to 18 U.S.C. § 2252(a)(2). The PSR then added two levels because some material involved a prepubescent minor; added four levels because the offense involved materials that portrayed sadistic conduct; added two levels because the offense involved the use of a computer; added five levels because the offense involved more than 600 images; subtracted two levels because Duane had no intent to traffic in child pornography; and subtracted three levels because Duane accepted responsibility. All told, the PSR recommended an adjusted offense level of 30. Given Duane's criminal history category I, this resulted in a Guidelines range of 97-121 months.

Duane filed a Sentencing Memorandum with the district court, objecting to the use of the 2005 Guidelines and to the § 2G2.2(b)(2) sadistic image enhancement. Duane also argued that he should be sentenced below the Guidelines range because: (1) he had zero criminal history points; (2) the majority of images on his computer consisted of child erotica, not pornography; (3) he was 57 years old, yet had no history of previous sexual misconduct; (4) he did not touch any children and was not at risk to do so in the future; and (5) he was amenable to treatment.

At the sentencing hearing, the district court overruled Duane's objections to the use of the 2005 Guidelines and to the § 2G2.2(b)(2) enhancement. First, citing United States v. Barton, 455 F.3d 649, 655 n. 4 (6th Cir.2006), it determined that calculating Duane's Guidelines range using the 2005 Guidelines did not implicate the Ex Post Facto Clause because the Guidelines "inform ... but do not control" the court's sentence. Second, it determined that the § 2G2.2(b)(2) enhancement for possessing sadistic images was appropriate regardless of the number of images Duane possessed or whether he intended to possess these images.

Duane's expert witness, Dr. Breeding, testified that Duane was not at risk for committing bodily contact sex offenses but was likely to remain involved with pornography. He also testified that Duane would be amenable to treatment for "sexual addiction," recommended a two-year program, and opined that there would not be any clinical benefit to a longer period of incarceration.

Before announcing Duane's sentence, the district court noted that

in looking at the 3553(a) factors, we're counseled to consider the nature and circumstances of the offense, certainly other things, the history and characteristics of the defendant, and the other factors. The sentence needs to reflect the seriousness of the offense and provide deterrence, protect the public.

The district court then emphasized the seriousness of Duane's crime and that it was "not because the defendant ... has ever acted out the things that are portrayed on some of these pictures or that he has tried to contact or molest a child...." Instead, the crime was serious because it involved "little children," and "there is a market for this stuff because people like Mr. Duane acquire it, and that market drives victimization of these children." The court acknowledged that the images ranged from "masochistic portrayals of deviancy" to "so-called erotica[,]" but noted that "even [the latter] is a terrible victimization...." In addition, the district court added that "[d]eterrence should be part of the sentencing factor here," given that child pornography is produced "for the gratification and purchase by Mr. Duane and unfortunately others." The district court also recognized that it was "obliged to consider" the recommended Guidelines range, and that "[t]here's no doubt that Mr. Duane needs treatment and assistance while serving this sentence so that he does not re-offend, and I believe that that will be provided for him."

The court eventually sentenced Duane to 97 months of imprisonment, explaining that this sentence was "sufficient given Mr. Duane's age to make certain that he is not further involved in this disgusting business," and "sufficient to meet sentencing objectives of punishment, incapacitation, [and] general deterrence."

Before adjourning the hearing, the district court initiated the following dialogue with Ms. Lawless (the government's attorney) and Ms. Wyrosdick (Duane's attorney):

Court: Are there any objections that I haven't heard to this sentence,

Ms. Lawless? Ms. Lawless: Not for the United States, Your Honor.

The Court: Ms. Wyrosdick?

Ms. Wyrosdick: No, sir.

The Court: All right. Then that sentence announced will be imposed.

II.

Duane first contends that calculating his Guidelines range using the 2005 Guidelines violated the Ex Post Facto Clause of the Constitution because two of the three offenses he was sentenced for occurred prior to the enactment of the 2005 Guidelines. Duane received child pornography in violation of 18 U.S.C. § 2252(a)(2) on two occasions in 2003. He continued to possess child pornography in violation of § 2252(a)(4) on November 10, 2005, after the 2005 Guidelines had gone into effect November 1, 2005. Using the 2005 Guidelines, the PSR calculated Duane's base offense level as 22 and applied a five-level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(7)(D), because the offense involved more than 600 images. Under the 2002 Guidelines in effect when Duane received the images, Duane's base offense level would have been 17, and would not have been enhanced based on the number of images he possessed. See U.S.S.G. § 2G2.2 (2002). Duane argues that this retroactive application of the 2005 Guidelines violated the Ex Post Facto Clause. Again, the district court determined, based on United States v. Barton, 455 F.3d 649, 655 n. 4 (6th Cir.2006), that the Ex Post Facto Clause was not implicated because the advisory Guidelines "inform ... but do not control" the court's sentencing determination.

Ex post facto challenges present questions of law that the court reviews de novo. United States v. VanHoose, 437 F.3d 497, 500 (6th Cir.2006). The Ex Post Facto Clause "forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred." Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); see also Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ("[A]ny statute which ... makes more burdensome the punishment for a crime, after its commission, is prohibited as ex post facto.") (internal citation and quotation marks omitted). The purpose of the clause is to protect citizens against a "lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Weaver, 450 U.S. at 30, 101 S.Ct. 960.

Resolving Duane's claim potentially involves two distinct constitutional inquiries: (1) whether the retroactive use of a revised version of the Guidelines implicates the Ex Post Facto Clause now that the Guidelines are advisory post-Booker; and (2) if so, whether the application of U.S.S.G. § 1B1.11(b)(3) — under which a revised version of the Guidelines is used if a defendant is convicted of offenses occurring before and after that version became effective—violates the Ex Post Facto Clause. We address each issue in turn.

A.

The first issue is whether a change to the Guidelines even implicates the Ex Post Facto Clause. Prior to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), this court held that "where Congressional revision of the ... Guidelines `changes the legal consequences of acts completed before its effective date' to the detriment of the convict," to satisfy ex post facto concerns, "the Guidelines in effect at the time of the criminal act must be applied." United States v. Kussmaul, 987 F.2d 345, 351-52 (6th Cir.1993) (quoting in part Miller v. Florida, 482 U.S. 423, 431, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987)). Therefore, at least prior to Booker, the use of a revised version of the Guidelines assigning a greater base offense level to a defendant...