612 F.3d 1160 (11th Cir. 2010), 08-10997, United States v. Irey

Docket Nº:08-10997.
Citation:612 F.3d 1160
Opinion Judge:CARNES, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. William IREY, Defendant-Appellee.
Attorney:David Paul Rhodes, Tampa, FL, Peggy Morris Ronca, Orlando, FL, for Plaintiff-Appellant. William R. Ponall, Kirk N. Kirkconnell, Kirkconnell, Lindsey, Snure & Yates, P.A., Winter Park, FL, for Defendant Irey.
Judge Panel:Before DUBINA, Chief Judge, and TJOFLAT, EDMONDSON, BIRCH, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR, MARTIN and HILL,[*] Circuit Judges. HILL, Circuit Judge, concurring: TJOFLAT, Circuit Judge, specially concurring in part and dissenting in part: EDMONDSON, Circuit Judge, dissenting, i...
Case Date:July 29, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1160

612 F.3d 1160 (11th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellant,


William IREY, Defendant-Appellee.

No. 08-10997.

United States Court of Appeals, Eleventh Circuit.

July 29, 2010

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David Paul Rhodes, Tampa, FL, Peggy Morris Ronca, Orlando, FL, for Plaintiff-Appellant.

William R. Ponall, Kirk N. Kirkconnell, Kirkconnell, Lindsey, Snure & Yates, P.A., Winter Park, FL, for Defendant Irey.

Appeal from the United States District Court for the Middle District of Florida.


CARNES, Circuit Judge:

" The federal courts of appeals review federal sentences and set aside those they find ‘ unreasonable.’ " Rita v. United States, 551 U.S. 338, 341, 127 S.Ct. 2456, 2459, 168 L.Ed.2d 203 (2007) (citing United States v. Booker, 543 U.S. 220, 261-63, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). With that statement the Supreme Court opened its opinion in the Rita case. Later in the opinion the Court was more specific and emphatic:

In sentencing, as in other areas, district judges at times make mistakes that are substantive. At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur. Our decision in Booker recognized as much.

Rita, 551 U.S. at 354, 127 S.Ct. at 2466-67. We believe that the Supreme Court meant what it said in the Rita opinion and elsewhere about our duty to correct sentencing mistakes. At the same time, we recognize that our substantive review of sentences is deferential and that we only look to see if the district court abused its discretion by committing a clear error in judgment. Even so, the sentence in this case can withstand review only if deference amounts to abdication, if sentencing discretion is unbridled, and if " unreasonable" is a hollow term. The sentence that the district court imposed is a clear error in judgment, a mistake, and it is our responsibility to " correct such mistakes when they occur."

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The sentence is substantively unreasonable primarily, but not solely, because of the nature and extent of William Irey's criminal conduct. The steady stream of criminal cases flowing through this Court brings us many examples of man's inhumanity to man, and we see a depressingly large number of crimes against children. But the sexual crimes that Irey committed against some of the most vulnerable children in the world set him apart. He raped, sodomized, and sexually tortured fifty or more little girls, some as young as four years of age, on many occasions over a four- or five-year period. He also scripted, cast, starred in, produced, and distributed worldwide some of the most graphic and disturbing child pornography that has ever turned up on the internet.

The horrific nature of Irey's crimes resulted in an adjusted offense level that would have led to an advisory guidelines range of life imprisonment. Because the government had charged all of Irey's crimes in just one count, the statutory maximum was 30 years and that had the effect of reducing the guidelines range to 30 years as well. The district court, however, did not impose that sentence. Instead, after deciding that pedophilia was an " illness" that had impaired Irey's volition, and pronouncing that Irey himself was a victim, like all of the little children he had sexually violated for so long, the district court deviated downward from the 30-year guidelines range and imposed a sentence of only 17-1/2 years. Our duty to set aside unreasonable sentences requires that we set aside this one.

I. The Criminal Conduct

William Irey had a seemingly insatiable sexual appetite. Or as a psychiatrist he later retained would phrase it, Irey was " highly sexualized." While in Orlando, where he lived and had his business, Irey indulged his sexual appetite by consorting with prostitutes on a weekly basis. As the psychiatrist put it, Irey " engaged in other forms of sexually disordered behavior with prostitutes (e.g., sadomasochistic acts)." That went on for 15 years, despite the fact that he was married the entire time.

Starting in 2001 Irey began spending two weeks out of every month in China on business. On the weekends when he was there he would indulge himself in more " sexually disordered behavior" by traveling to brothels in different Asian countries. Early on he went to a brothel in Cambodia that featured underage girls and discovered that he enjoyed having sex with children. Over a period of four or five years, he " visited numerous brothels where they had underage children." Irey, who is 5'10" and weighs 200 pounds, was in his forties at the time. All of the children he sexually abused were underage girls; none of them was older than sixteen, and some of them were only four, five, or six years old.

Irey went to those brothels and had sex with the children " many many times," as he recounted it, during his numerous trips to that part of the world, and as time went on he became " more and more obsessed and was returning to Asia more and more often" to sexually abuse children. He paid the Cambodian brothels up to $1,500 for the use of each child, and he would typically buy two or three of the children at a time. When he was too busy in China on business to get away for weekend visits to Cambodia, Irey would sometimes pay to have some of the young girls flown to him so that he could sexually abuse them when he found the time. Irey's sexual violation of the children did not end until August of 2006 when law enforcement in this country finally caught up with him.

The little Cambodian children whom Irey victimized were " abjectly impoverished" and, as the district court noted, " perhaps the most vulnerable of the world's society." We know some of the

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details of what Irey did to them because law enforcement agents seized his computers and found that he had memorialized at least part of what he had done in photographs and videos for his later viewing pleasure. On one of his computer hard drives there were more than 1,200 images of Irey sexually abusing the children, and that number does not include the obscene images Irey produced of the children that do not show him in the picture. Differentiating the children in so many images taken over a period of years is difficult, but we know that Irey sexually victimized at least fifty different underage girls.1

The photographs and videos Irey produced reveal some details of how he violated and debased the children.2 There are images showing " Irey on a bed with several prepubescent female Asian children performing oral sex on him while he performs oral sex on them." Other images depict " Irey engaged in anal and vaginal intercourse with a prepubescent Asian female with the words ‘ 9 Yo Fuck’ marked on her body," and " an arrow is painted on her body which points to her vaginal area." Some of them show " the writing ‘ Front,’ ‘ Back,’ ‘ Brown,’ ‘ Back door,’ ‘ 9 Yo Fuck’ on prepubescent girls' bodies. The writing has arrows pointing to the vaginal and anal areas." Other images are of Irey " engaged in vaginal and anal intercourse with prepubescent Asian girls" who are " tied up and bound with black and grey duct tape." There are also images " of Irey with nude prepubescent children posing as trophies."

Irey's defilement of the little children did not stop at rape, sodomy, and humiliation. He also tortured them. There are images of " Irey inserting a plastic green/yellow glow stick, dildos, cockroaches and candy in the vaginal cavity of prepubescent Asian females." Some images show " Irey inserting a plastic tube into the vagina of a prepubescent Asian female. Several of the images show the plastic tube containing cockroaches crawling into the vagina of these children." One image shows him " performing vaginal intercourse on a prepubescent girl" and " [i]mbedded

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on the image [in all capitals] is the phrase: ‘ Big Cock Push Bug Deep Into 9 Yo Girl, She Hurt in Pane.’ "

If Irey felt any guilt about purchasing helpless little girls and subjecting them to pain and degradation, the images he recorded do not show it. In some of them he can actually be seen smiling as he inflicts the sexual abuse.

Irey did not use the massive amount of child pornography he produced only for his own prurient perusal; he did not keep it to himself. He used copies of the images he made to gain access to the collections of other purveyors of child pornography. Irey gave them copies of the pictures and videos he had produced showing his sexual violation and humiliation of the little Cambodian children in return for their waiver of the access fee to the collections they already had on their websites. Through that type of trade the operators of those websites were able to add Irey's graphic images to their collections, which led to those images being spread around the world. Irey in turn was able to save some money while expanding his collection of child pornography, and he was also able to minimize the use of his credit card, which made it easier for him to hide what he was doing from his wife.

II. The Capture and Conviction

Irey's use of the internet led to his capture. Federal agents intercepted and traced to Irey email messages that he had sent to an illegal website offering child pornography. In one of those emails, which Irey sent in mid-January 2006, he asked the website operator: " do you remember me from before. could I trade you some of my latest pics for 30 days on your site. Let me know a good address to send you some samples." About a month later, agents intercepted another email from Irey, which stated: " do you want trade some new...

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