USA v. Battaglia

• Decision Date: 05 November 2010
• Docket Number: No. 08-4275.,08-4275.
• Citation: 624 F.3d 348
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ross BATTAGLIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

624 F.3d 348

UNITED STATES of America, Plaintiff-Appellee,

v.Ross BATTAGLIA, Defendant-Appellant.

No. 08-4275.

United States Court of Appeals,Sixth Circuit.

Nov. 5, 2010.

ON BRIEF: Vanessa F. Malone, Office of the Federal Public Defender, Northern District of Ohio, Cleveland, Ohio, for Appellant. Danel R. Ranke, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: GILMAN and GRIFFIN, Circuit Judges; ROSE, District Judge. ^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

Ross Battaglia pled guilty to two counts of knowingly receiving and distributing child pornography and to one count of possessing child pornography. The district court applied a five-level enhancement under the U.S. Sentencing Guidelines (U.S.S.G.) because it found that Battaglia had “[d]istribut[ed child pornography] for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B). In other words, the court found that Battaglia had traded or attempted to trade child pornography. The court then considered the sentencing factors set forth in 18 U.S.C. § 3553(a), which includes the Guidelines range, and sentenced Battaglia to 140 months' imprisonment.

On appeal, Battaglia argues that the trading enhancement amounts to double counting because both the enhancement and the two counts of knowingly receiving and distributing child pornography punish him for the same thing-distributing child pornography. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

Battaglia's guilty plea on the three counts of child pornography were consolidated into one Guidelines calculation in the Presentence Report (PSR) because U.S.S.G. § 3D1.2 provides that these offenses are to be grouped. The PSR determined, among other things, that the base offense level under U.S.S.G. § 2G2.2(a) was 22 and that a five-level enhancement was warranted by U.S.S.G. § 2G2.2(b)(3)(B) because Battaglia had traded child pornography.

At sentencing, Battaglia did not protest the alleged double counting. He instead argued that the trading enhancement was not warranted because the government failed to prove that he had distributed or received a specific image in trade. In response, the government contended that it did not need to prove which particular images had been traded; rather, it had to prove only that trading or attempted trading had occurred. To satisfy this burden, it proffered (1) a written statement by Battaglia admitting that he had traded child pornography over the internet, and (2) two emails sent from Battaglia's email account that strongly implied that he had traded child pornography over the internet. The district court concluded that the five-level enhancement for trading was appropriate and included it in the Guidelines calculation. Along with other enhancements and reductions, this resulted in a total offense level of 37.

Based on offense level 37 and criminal history category II, Battaglia's initial Guidelines range was 235 to 293 months' imprisonment. But the district court determined that Battaglia's criminal history was overstated and therefore departed downward to criminal history category I. That departure resulted in a Guidelines range of 210 to 262 months of imprisonment. After considering other sentencing factors, the court decided that even this range was too harsh. It ultimately sentenced Battaglia to 140 months' imprisonment, followed by a lifetime term of supervised release. Battaglia now appeals his sentence.

II. ANALYSIS

A. Standard of review

If a district court asks counsel “whether they have any objections to the sentence just pronounced that have not previously been raised,” then any sentencing objections raised for the first time on appeal are reviewed under the plain-error standard. United States v. Novales, 589 F.3d 310, 313 (6th Cir.2009) (citation omitted). But if the court vaguely asks whether the parties have anything more to add, such an inquiry has been found not to give the parties sufficient opportunity to object to the sentence, and later objections are reviewed under a less deferential standard. Id. (holding that the question “So is there anything else on these?” did not give the parties a sufficient opportunity to object to the sentence).

After rejecting Battaglia's argument that the government had not met its burden with regard to the trading enhancement, the district court asked Battaglia's counsel: “[A]s to the PSR, are there any other objections?” Battaglia's counsel answered, “No....” Then, after pronouncing sentence, the court asked whether there was “[a]nything more,” to which both sides responded in the negative. We need not decide whether the district court's inquiry constituted a sufficient opportunity for Battaglia to object to his sentence because his sentence should be affirmed even under a less deferential standard of review than the plain-error standard.

On appeal, criminal sentences are reviewed for both substantive and procedural reasonableness. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Reasonableness is determined under the deferential abuse-of-discretion standard. Novales, 589 F.3d at 314.

In determining procedural reasonableness, we review whether the district court properly calculated the Guidelines range, treated the Guidelines as advisory, considered the 18 U.S.C. § 3553(a) factors, selected a sentence based on a reasonable determination of the facts, and adequately explained the sentence, including an explanation for any variance from the Guidelines range. Novales, 589 F.3d at 314. The court's legal interpretation of the Guidelines are reviewed de novo, but its factual findings are reviewed under the clearly-erroneous standard. United States v. Bolds, 511 F.3d 568, 579 (6th Cir.2007). Although the district court need not explicitly reference each of the § 3553(a) factors, there must be sufficient evidence in the record to affirmatively demonstrate that the court gave each of them consideration. United States v. Simmons, 501 F.3d 620, 625 (6th Cir.2007).

B. Discussion

“[D]ouble counting occurs when precisely the same aspect of the defendant's conduct factors into his sentence in two separate ways.” United States v. Moon, 513 F.3d 527, 542 (6th Cir.2008) (citation and internal quotation marks omitted). But no double counting occurs if the defendant is punished for distinct aspects of his conduct. Id. Once double counting occurs, we must determine if the double counting is impermissible. United States v. Farrow, 198 F.3d 179, 194 (6th Cir.2000). Double counting is allowed “where it appears that Congress or...