U.S. v. Autery

• Decision Date: 13 February 2009
• Docket Number: No. 07-30424.,07-30424.
• Citation: 555 F.3d 864
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jim Bryan AUTERY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

555 F.3d 864

UNITED STATES of America, Plaintiff-Appellant, v. Jim Bryan AUTERY, Defendant-Appellee.

No. 07-30424.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 20, 2008.

Filed February 13, 2009.

Karin J. Immergut and Gregory R. Nyhus, District of Oregon United States Attorney's Office, Portland, OR, for the plaintiff-appellant.

Wayne Mackeson, Portland, OR, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon, Robert E. Jones, District Judge, Presiding. D.C. No. CR-06-00387-REJ.

Before: DAVID R. THOMPSON, A. WALLACE TASHIMA, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge TASHIMA.

MILAN D. SMITH, JR., Circuit Judge:

Defendant-Appellee Jim Bryan Autery pled guilty to possession of child pornography and entered into a plea bargain that called for the imposition of a forty-one to fifty-one month prison sentence pursuant to the United States Sentencing Guidelines. The district court deviated from the Guidelines and imposed a sentence of five years probation. The government did not object to the sentence when the district court imposed it, but now appeals, arguing that the sentence is substantively unreasonable.

We hold that the appropriate standard of review under the circumstances of this case is abuse of discretion. Reviewing the sentence under that standard, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Based on evidence obtained in a U.S. Postal Service and Immigration and Customs Enforcement sting operation, Autery was indicted in September 2006 on two counts of attempted receipt of child pornography, one count of possession of child pornography, and a forfeiture allegation. Following Autery's arrest, federal agents found at least 150 images of child pornography¹ stored in Autery's personal computers.

Autery pled guilty in May 2007 to one count of possession of child pornography, a violation of 18 U.S.C. § 2252A(a)(5)(b), pursuant to a plea agreement. The presentence report (PSR) calculated Autery's offense level to be twenty-two, and his criminal history within Category I, yielding a Guidelines range of between forty-one and fifty-one months incarceration.

Autery was sentenced before United States District Judge Robert E. Jones on October 1, 2007. Both parties and the court accepted the accuracy of the PSR sentencing calculations. The government requested that the court impose a fifty-one month sentence—at the top of the Guidelines range—and the defense urged the court to impose a sentence at the bottom of the Guidelines range. The court did neither; it deviated from the Guidelines and sentenced Autery to no period of incarceration and five years of probation. In doing so, the court explained its decision both from the bench and in a "Statement of Reasons" in a Judgment in a Criminal Case order.

At sentencing, the court noted that it was "required to make the determinations under the sentencing guidelines and then after that, look at the guidelines as advisory only." The court then confirmed that pro-forma application of the Guidelines would yield a range of forty-one to fifty-one months incarceration.

The court began its analysis of the appropriate sentence by noting that Autery's was "a very difficult case" because there was "no evidence that [Autery] was purchasing evident child pornography involving real children"² (although the court stated that Autery believed they were real children). The court also noted that there was no evidence of Autery's ever abusing family members and that he did not "fit the profile of a pedophile." These facts, the court concluded, made Autery "totally different than what ... [the] court has normally experienced with people who are ordering this sort of child pornography."

The court also described what it considered to be Autery's redeeming personal characteristics: no history of substance abuse, no "interpersonal instability," no "sociopathic or criminalistic attitudes," and that he was motivated and intelligent. The court thought it critical that Autery enjoys the continuing support of his family, especially his wife and children.

The court acknowledged that child pornography is "terrible stuff" and that it believed Autery "ordered it knowing that it was wrong and illegal." But the court found that in several ways, Autery's case differed from the "hundreds and hundreds" of other child pornography cases the court had adjudicated.

The court also believed that Autery could not "be accommodated adequately in a federal institution," and that he needed "outpatient psychiatric monitoring and management" instead. Concluding its sentencing justification, the court stated that it decided on a sentence of probation only "after a lot of soul-searching." It further determined that imposing prison time would create "a much more disruptive situation and, actually, could be more damaging than the rehabilitation [regime the court believed would] work." The court also opined in its written "Statement of Reasons" that the sentence "is fully justified in this exceptional case."

The court observed that the five-year probationary sentence "would be subject to some very special conditions of supervision." It also warned Autery, saying, "believe me, if you have any violation [of those conditions], you'll be back before me and receive the maximum penalty allowed by law." Some of the conditions of probation included a prohibition on viewing any pornography whatsoever and on being within 100 feet of places where minors congregate unless approved by his probation officer. Autery was also not permitted to travel outside the State of Oregon without prior approval. He was required to participate in mental health evaluation and counseling, including psychotherapy, and to take any prescription drugs as directed. He was not permitted to possess any firearm, or to use any computer except for work, or, without approval, any other electronic media—such as a personal digital assistant or cellular phone—with Internet capability. In addition, Autery was not permitted to have "direct or indirect" contact with anyone under the age of eighteen, except his own children. Finally, Autery was required to register with the state sex offender registry.

After imposing sentence and discussing the terms of the probation, the court asked the government if it had anything else for the court. The government said it did not, and specifically, it did not object to the sentence or its method of determination. The government now appeals the sentence, challenging it as substantively unreasonable.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 18 U.S.C. § 3742(b)(3) and 28 U.S.C. § 1291.

Before deciding whether to uphold the district court's sentence, we must first determine the appropriate standard of review under the facts presented. After weighing Supreme Court authority, the views of other circuits, and public policy considerations, we hold that abuse of discretion is the proper standard of review in this case.

The government urges, without providing analysis, that the standard of review here is abuse of discretion. In support, it cites Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). Autery, without citing any authority, urges the court to employ a plain error standard.

Neither this circuit nor the Supreme Court has squarely addressed the proper standard of review where the appellant fails to object to the sentence's substantive reasonableness at sentencing. In Gall, the Court noted that after Booker, appellate review of sentencing decisions is limited to determining whether they are reasonable, Gall, 128 S.Ct. at 591, and that the abuse of discretion standard applies to review of all reasonableness sentencing questions. Id. at 594. However, the Court did not indicate whether this rule applies even where a party fails to object at sentencing to the substantive reasonableness of the sentence.

In United States v. Carty, we stated that the reviewing court "first consider[s] whether the district court committed significant procedural error, then ... consider[s] the substantive reasonableness of the sentence." 520 F.3d 984, 993 (9th Cir. 2008) (citing Gall, 128 S.Ct. at 597). However, Carty did not discuss the proper standard of review upon a party's failure to object to either alleged error.

In United States v. Sylvester Norman Knows His Gun, III, 438 F.3d 913 (9th Cir.2005) (Knows His Gun), we considered a closely related issue that provides a useful starting point for the next step of our analysis. In Knows His Gun, we held that a party's failure to object "on the ground that the district court did not sufficiently address and apply the factors listed in § 3553(a)" triggered plain error review.³ Id. at 918; see also United States v. Waknine, 543 F.3d 546, 553-54 & n. 4 (9th Cir.2008) (applying Knows His Gun and reversing in part where the district court failed to consider any § 3553(a) factors).

Knows His Gun and its progeny illustrate the crucial-but often-overlooked— distinction between procedural error and substantive reasonableness. See Carty, 520 F.3d at 993 (citing 18 U.S.C. § 3553(a)). In Carty, we held that "[o]n appeal, we first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence." Id. Elaborating, we explained that

[i]t would be procedural error for a district court to fail to calculate—or to calculate incorrectly—the Guidelines range; to treat the Guidelines as mandatory instead of advisory; to fail to consider the § 3553(a) factors; to choose a sentence based on clearly erroneous facts; or to fail adequately to explain the sentence selected, including any deviation from the Guidelines range.

Id. (emphasis added) (citing Gall, 128 S.Ct. at 597). But "[i]n determining substantive reasonableness, we are to consider the totality of...