United States v. Zobel

• Citation: 696 F.3d 558
• Decision Date: 04 January 2013
• Docket Number: No. 11–3341.,11–3341.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David Jeremy ZOBEL, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

696 F.3d 558

UNITED STATES of America, Plaintiff–Appellee,

v.David Jeremy ZOBEL, Defendant–Appellant.

No. 11–3341.

United States Court of Appeals,Sixth Circuit.

Argued: April 19, 2012.

Decided and Filed: Oct. 11, 2012.

Rehearing and Rehearing En Banc Denied Jan. 4, 2013.^*

ARGUED:Sandra J. Finucane, Gahanna, Ohio, for Appellant. Brent G. Tabacchi, United States Attorney's Office, Dayton, Ohio, for Appellee. ON BRIEF:Sandra J. Finucane, Gahanna, Ohio, for Appellant. Brent G. Tabacchi, United States Attorney's Office, Dayton, Ohio, for Appellee.

Before: MOORE, GIBBONS, and ALARCÓN, Circuit Judges.^*

GIBBONS, J., delivered the opinion of the court, in which ALARCÓN, J., joined. MOORE, J. (pp. 578–79), delivered a separate dissenting opinion.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendant-appellant David Zobel appeals his sentence for knowingly coercing and enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). After Zobel pled guilty, the district court imposed a sentence of 150 months of imprisonment, which represented a 15 month upward variance from the upper-end of the Guidelines range. The district court also imposed several special conditions of supervised release for life, which prohibit Zobel, inter alia, from having contact with minors absent prior judicial approval, loitering in areas where children tend to congregate, and possessing or viewing pornography or materials that are “sexually explicit or suggestive.” Zobel argues that his sentence—both the term of incarceration and several special conditions—was both procedurally and substantively unreasonable.

For the reasons that follow, we vacate the part of the special condition that bans possessing or accessing “sexually suggestive” materials, affirm the remainder of the sentence, and remand for resentencing proceedings consistent with this opinion.

I.

Beginning in approximately December 2008, Zobel engaged in a series of sexually explicit online chats with numerous minor females from around the country. Zobel resided in Ann Arbor, Michigan, and one of those minor females, J.C., resided in Xenia, Ohio. In January 2009, Zobel used online chatting and text messaging to persuade J.C. to perform oral sex on him. Zobel either knew that J.C. was under sixteen years of age or recklessly disregarded her age. J.C. was thirteen years old.

Early in the morning on June 2, 2009, Zobel exchanged a series of text messages with J.C. in which J.C. informed Zobel that she and a friend of hers, B.B., had run away from home. J.C. informed Zobel that B.B. was fourteen years old and “cute.” In fact, B.B. was only twelve years old. Zobel responded: “Maybe I should drive down and get you 2 a hotel room....” J.C. replied: “[I]f you come down here [B.B.] will do whatever you want.” The two fixed a place to meet in Xenia. Zobel then asked: “And u guys will do ANYTHING I want?”

Zobel then drove from Ann Arbor to Xenia to pick up the girls. Zobel drove them to a parking garage in Toledo, Ohio, where he had both J.C. and B.B. perform oral sex on him. He also took pictures of the girls posing in their bras and with their bare breasts exposed. Zobel then gave each of the girls twenty dollars and left them in the parking garage.

Shortly afterwards, Toledo police found J.C. and B.B., who stated that a man named David had picked them up in Xenia and driven them to Toledo, where he had them perform oral sex on him. Police located Zobel and obtained a search warrant for his apartment. Agents discovered that around the time that Zobel was engaging in these sexual activities with minors, he was downloading child pornography onto his home computer from the Internet. He had downloaded at least sixty-one images of child pornography onto his computer.

Zobel was charged in a five-count indictment. Count one charged Zobel with knowingly persuading and enticing J.C., a minor, to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). Count two charged a violation of the same statute for enticing B.B. to engage in sexual activity. Counts three through five charged Zobel with interstate travel with intent to engage in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b). Pursuant to the plea agreement, Zobel pled guilty to count one of the indictment and the government agreed to move to dismiss counts two through five. In his plea agreement, Zobel agreed that a sentence of imprisonmentbetween 120 and 180 months and supervised release up to life would be appropriate. The government agreed to recommend that Zobel be sentenced within the Guidelines range, so long as the court did not calculate a total adjusted offense level of less than 31. The district court accepted Zobel's guilty plea.

The Pre-sentence Investigation Report (PSR) set an adjusted offense level of 31, with a Criminal History category of I. Given the statutory minimum sentence for Zobel's crime, this offense level yielded a Guidelines range of 120–135 months of imprisonment. The parties did not object to this calculation.

Prior to sentencing, the district court conducted a hearing at which Dr. David Roush, who had performed a psychological evaluation of Zobel for approximately six hours over two days, testified. Among other diagnostics, Roush had administered the Static–99 test, which assists in predicting sexual and violent recidivism for sexual offenders by measuring ten risk factors. Roush added to his assessment two risk factors not present in the Static–99—Zobel's self-admitted addiction to pornography and his use of child pornography. Without these two additional risk factors, Zobel would have presented a low to moderate risk of recidivism, but with these factors, he presented a moderate to high risk of recidivism. Roush justified his addition of these two risk factors based on his twenty years of experience working with sexual offenders. Roush stated that although empirical data supported his decision to add these two risk factors, he could not cite and did not include in his report any supportive studies or research. Finally, Roush added that he was particularly concerned that Zobel, after J.C. initially told him she was sixteen years old, had researched the age of consent in Ohio and then, after he discovered that J.C. was actually underage, still engaged in sexual behavior with her and B.B.

The district court conducted a sentencing hearing two months later. At the sentencing hearing, the district court began by observing that Zobel's case was “somewhat different” in part because Zobel had “acted out against young children” while also accessing child pornography. It noted that Zobel, while not forcing himself upon the minors, had “carefully cultivated [and] ... manipulated them.” The court adopted the calculations of the PSR, agreeing that Zobel's Guidelines range was 120–135 months.

After correctly calculating the applicable Guidelines range, the district court examined a number of the 18 U.S.C. § 3553(a) factors. It recognized Zobel's need for treatment while incarcerated and considered whether Zobel's sentence would be disproportionate to those of similarly situated defendants on a national level. The court then focused on Zobel's history and characteristics and the nature and circumstances of the offense. In examining these factors, the court noted Zobel's family background, as well as his self-admitted addiction to pornography and his use of child pornography. It also observed that the crime was “horrible” in part because the minors “had issues and problems of their own”—and Zobel “t[ook] advantage of the[se] vulnerabilities.”

The court then focused on “the safety of the community because in reality that's what it comes down to.” In so doing, the court found that “Dr. Roush's addition of two factors to the Static–99 is not contraindicated from the standpoint of a forensic psychologist.” Although the court remarked that it would have liked to have reviewed the authority upon which Roush relied to justify adding Zobel's addiction to pornography and use of child pornography as risk factors, the court did note that Roush testified “within a reasonable psychological certainty that ... it is psychologically proper ... to add [such] risk factors....” As a result, the court concluded that “the bottom line is that [Zobel] does represent a moderate risk to the community.” The court further observed that Zobel specifically researched the age of consent in Ohio and, after finding out J.C.'s true age, “still continued to engage in inappropriate sexual behavior” with both her and her friend B.B. It noted that Zobel had driven over three hours from Ann Arbor to Xenia, giving him ample time to reconsider what he had planned to do, but he instead went forward and “used these women for whatever purposes he had in mind [and] simply discarded them and went on his way.”

Drawing upon all of these observations, the district court sentenced Zobel to 150 months in prison—a 15 month upward variance above the upper-end of the Guidelines range. The court also imposed a number of special conditions. Zobel now challenges both his sentence of incarceration and these special conditions as procedurally and substantively unreasonable.

II.

Zobel argues that his 150–month, above-Guidelines sentence was procedurally unreasonable because the district court failed to adequately “explain why any of its cited reasons individually or in combination justified an upward variance.” As a general matter, we review the reasonableness of a sentence under the deferential abuse-of-discretion standard. United States v. Battaglia, 624 F.3d 348, 350 (6th Cir.2010). But here, the district court, after rendering the sentence, asked Zobel's counsel if he had any further objections, and Zobel's counsel answered, “no.” As a result, we review the procedural reasonableness of Zobel's sentence for plain error. United States v. Phillips, 516 F.3d 479, 487 (6th Cir.2008). For an error to be plain, Zobel “must...