United States v. Robinson

Citation669 F.3d 767
Decision Date27 February 2012
Docket NumberNo. 09–1959.,09–1959.
PartiesUNITED STATES of America, Plaintiff–Appellant, v. Rufus ROBINSON, Defendant–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

OPINION TEXT STARTS HERE

Prior Version Recognized as Invalid

18 U.S.C.A. § 3553(b)(1)

ARGUED: Kevin M. Mulcahy, Assistant United States Attorney, Detroit, Michigan, for Appellant. Kimberly W. Stout, Birmingham, Michigan, for Appellee. ON BRIEF: Kevin M. Mulcahy, Assistant United States Attorney, Detroit, Michigan, for Appellant. Kimberly W. Stout, Birmingham, Michigan, for Appellee.Before: COLE and ROGERS, Circuit Judges; SARGUS, District Judge. *

OPINION

SARGUS, District Judge.

Rufus Robinson pled guilty to knowingly possessing over 7100 images of child pornography on his computer. Some of the images involved the bondage, torture, and rape of prepubescent children. Under the Sentencing Guidelines, Robinson's recommended sentence was 78 to 97 months' imprisonment. The district court rejected that recommendation and imposed a sentence of one day in custody, a term of supervised release of five years, and a $100 special assessment. The United States contends that Robinson's sentence is both procedurally and substantively unreasonable. We agree that the sentence is substantively unreasonable, and vacate his sentence.

I. BACKGROUND

In April 2006, Robinson subscribed to an online website which allowed him, for a fee, to access large amounts of child pornography. Robinson used a credit card and paid a fee to subscribe to the site. As part of a national investigation, agents from the Bureau of Immigration and Customs Enforcement (“ICE”) later identified the website as a pay-for-subscription child pornography website. ICE agents gathered the credit card information for the subscribers of the site, including Robinson.

In October 2007, ICE agents came to Robinson's home and informed him that he was suspected of possessing child pornography. Robinson permitted the agents to conduct a forensic preview as well as a full examination of both computers located in his residence. He told the agents that he lived alone and was the only person with access to the computers. Between the two computers and a collection of CDs and DVDs, agents found over 7100 images of child pornography. Some of the images involved the bondage, torture, and rape of prepubescent children.

Robinson later pled guilty without a plea agreement to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). In calculating the applicable Sentencing Guidelines range, the parties agreed that the U.S. Probation Office had correctly determined, under U.S.S.G. § 2G2.2(a)(1), that Robinson's base offense level was 18. Two levels were added because the material depicted prepubescent juveniles; four levels were added because the material portrayed sadomasochistic or violent content; two levels were added for the use of a computer; and five levels were added because the offense involved more than 600 images. This netted to an offense level of 31, which was reduced by three levels for Robinson's acceptance of responsibility. Robinson had no significant criminal record and scored no criminal history points, which placed him in Criminal History Category I. Robinson's adjusted offense level was 28, which, with a criminal history category of I, resulted in a guidelines range of 78 to 97 months. The Presentence Report (“PSR”) recommended a sentence within the guidelines range. Neither Robinson nor the government objected to the PSR.

Prior to sentencing, Robinson was examined by Dr. Dennis P. Sugrue, a psychologist. In a narrative report (“Report”), Dr. Sugrue described in detail Robinson's psychological condition, reported the results of three psychometric tests, and rendered a series of conclusions and opinions. The first psychometric finding reported the results of a Millon Clinical Multiaxial Inventory–III (“MCMI III”). The MCMI III is “designed to identify both acute and characterological psychiatric conditions.” (Report at 6.) Dr. Sugrue concluded from the MCMI III that Robinson did not suffer from “antisocial or sociopathic tendencies.” ( Id.)

The second test, Multiphasic Sex Inventory II—Adult Male Form (“MSI II”), is designed to measure the sexual characteristics of an adult male sex offender. From an examination of Robinson's responses, Dr. Sugrue found that Robinson was not addicted to pornography, and either did not or could not “acknowledge ever having had sexual fantasies or desire involving children that would lead him to seek child pornography. He nevertheless acknowledges having sought and obtained pornography involving children.” (Report at 7.)

The third test, STATIC–99, is designed to assist in the prediction of sexual and violent recidivism for sexual offenders. The test produces estimates of future risk based upon the number of risk factors present in any one individual, primarily measuring prior sex offenses or crimes of violence. As Dr. Sugrue notes, “the STATIC–99 and most other risk assessment scales have not been normed for individuals possessing child pornography.” (Report at 8.) Dr. Sugrue found that “Robinson scored in the lowest risk category relative to other adult male sex offenders.” ( Id.)

Incorporating the results of the three tests into a conclusive summary, Dr. Sugrue noted that Robinson did not appear to be a pedophile. The conclusions offered by Dr. Sugrue, however, related solely to the question of whether Robinson is a pedophile and whether he is likely to sexually abuse a child, a crime for which he was not charged. Dr. Sugrue concluded that, to date, the only scientifically valid method of determining the risk of new offenses involving child sex offenses is based upon the presence of prior, similar offenses. Based on Robinson's testing failure to show evidence of an antisocial personality, his lack of criminal history, and scoring in the lowest risk category, Dr. Sugrue stated that [o]ffenders who score in the low range of risk assessment inventories are generally considered appropriate for community supervision and treatment.” (Report at 10.) In addition, Dr. Sugrue did not conclude that Robinson suffered from any significant mental health disorder.

At sentencing, Robinson's counsel urged the district court to vary from the guidelines range and consider a lengthy probationary term. Robinson's counsel asked the district court to consider that, per the report of Dr. Sugrue, Robinson was neither dangerous nor a predator. Further, Robinson's counsel requested the court take into account Robinson's initial cooperation with investigating agents, his lack of criminal history, his attendance at counseling, and his painful, debilitating back condition. The government requested a sentence within the guidelines range, emphasizing that Robinson and others created a market for child pornography. In its sentencing memorandum, the government asserted that the willingness of Robinson to pay a subscription to a child pornography website provided direct financial incentive to producers of such materials and could have led to the abuse of actual children.

The district court began by correctly calculating the sentencing guidelines range. It then reviewed in considerable detail the sentencing factors set forth in 18 U.S.C. § 3553(a). The court noted that Robinson had no criminal history points, was in need of continued counseling, and would be categorized as a felon for the rest of his life. The district court then stated:

And obviously dangerousness is a factor. And for the reasons that I have concluded that you're going to be deterred by the fact that you have a felony conviction and have gone through this experience, it also leads me to the conclusion you're not going to be dangerous to anybody. And that's supported by what I consider to be a very comprehensive report attached to the Sentencing Memorandum, the psychological report.

(R. 25 at 16.) The district court further noted:

And now I'm going to refer to what has been marked as Exhibit B, which is a psychological evaluation of Rufus R. Robinson—that is you—that's dated September 26th of 2008. And I'm not going to read the entire thing. I am going to summarize.

The things I'm going to summarize include that you were given what the writer refers to as psychometric findings. In other words, you were given objective tests that are recognized in the field to predict as best as anything can or to evaluate your dangerousness. And the writer found that: “It is important to note that there was no evidence on Mr. Robinson's MCMI profile to suggest the presence of antisocial or sociopathic tendencies.” MCMI stands for Millon Clinical Multiaxial Inventory III. That's the third part of it.

And they did another test or another set of inventory questions that show that you weren't deceiving or lying on the test. They are control questions. And it goes in great detail. And because of the detail of this report and because I'm including it in the record, I'm going to seal this transcript for obvious reasons—well, for the same reasons I sealed the presentence memorandum for the Defendant. And overall the conclusion—and this is at page eight. “On the STATIC–99, Mr. Robinson scored in the low risk category relevant to other adult male sex offenders. Offenders who score in this low range are generally considered appropriate for community supervision and treatment.”

And then, finally, in the writer's conclusions and recommendations at pages 9 and 10, it includes a conclusion that you're not a pedophile and gives the reasons of—gives his reasons of how he got to that conclusion. And, therefore, I am comfortable in varying to the degree that I'm varying.

(R. 25 at 23–25.) Finally, the court concluded:

But I think the important part of the report is the answer to the first question posed by the writer, which was is he a pedophile or not. And the conclusion was, not.

(R. 25 at 26.) The...

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