897 F.3d 645 (5th Cir. 2018), 17-40661, United States v. Halverson

Docket Nº:17-40661
Citation:897 F.3d 645
Opinion Judge:E. GRADY JOLLY, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee v. Howard William HALVERSON, Defendant-Appellant.
Attorney:Paula Camille Offenhauser, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, Jason Edmund Corley, Esq., Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Brownsville, TX, for Plai...
Judge Panel:Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.
Case Date:July 30, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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897 F.3d 645 (5th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee

v.

Howard William HALVERSON, Defendant-Appellant.

No. 17-40661

United States Court of Appeals, Fifth Circuit

July 30, 2018

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Appeal from the United States District Court for the Southern District of Texas, Jose Rolando Olvera, U.S. District Judge

Paula Camille Offenhauser, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, Jason Edmund Corley, Esq., Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Brownsville, TX, for Plaintiff-Appellee.

Julie Ann Epps, Esq., Canton, MS, for Defendant-Appellant.

Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.

OPINION

E. GRADY JOLLY, Circuit Judge:

Howard William Halverson pleaded guilty to possessing child pornography after law enforcement officers found that he possessed 1,863 images of child pornography. He appeals only his sentence. He assigns four errors in his sentence. We find no reversible errors and affirm the judgment of the district court.

I.

Halverson was charged with possessing images and videos of child pornography involving a prepubescent minor or a minor who had not attained 12 years of age, in violation of 18 U.S.C. § § 2252A(a)(5)(B) and (b)(2). He pleaded guilty to that charge, without the benefit of a plea agreement. Halverson, represented by counsel, agreed with and signed the government’s factual-summary sheet. That summary stated that Halverson "knowingly possessed multiple digital images containing visual depictions of minors engaged in sexually explicit conduct." In fact, he possessed 1,863 images.

At his sentencing hearing, the government argued that a five-level enhancement applied to Halverson based on his distributing the pornographic material to others, not for pecuniary gain, but to receive more images of child pornography from those with whom he shared his images. See U.S.S.G. § 2G2.2 (b)(3)(B) (2016). Homeland Security Investigations Special Agent Baker, who acted undercover, testified in support of the enhancement. Baker said that Halverson was well-educated in computer systems and that Halverson’s use of peer-to-peer network applications gave him preferential access to more child pornography. Baker explained that the result of Halverson’s increased sharing would allow him to receive preferential access to his requested downloads. Baker said that Halverson made great efforts to conceal his computer activities; indeed, he possessed documents instructing how to avoid child pornography investigation. Baker further testified that Halverson shared complete files with him, not reconstructed fragments. But Baker stated that Halverson had not sought anything from him in exchange for sharing files. Nevertheless, the district court granted the government’s request for the enhancement.

At the time of the final presentence report ("PSR"), the government had indicated that Halverson would receive a three-level reduction for acceptance of responsibility: two for "clearly demonstrat[ing] acceptance of responsibility" and one for "assist[ing] authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his

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intention to enter a plea of guilty." See U.S.S.G. § 3E1.1(a)-(b). But, at sentencing, the government refused to move for the assisting-authorities one-level reduction for four reasons: (1) Halverson did not adequately negotiate with the victims’ attorneys, (2) Halverson did not agree that he helped distribute child pornography, (3) Halverson lied about his military service, and (4) Halverson would not help authorities open his other two hard drives. Notwithstanding the government refusal, Halverson requested the court grant him this reduction; the court declined and granted only the other two-level acceptance-of-responsibility reduction.

As a result of these sentencing adjustments (along with various other enhancements not relevant here), Halverson’s base offense level was 34. Combined with his criminal history category of I, the court used a Guidelines range of 151 to 188 months. See U.S.S.G. ch. 5, pt. A (sentencing table). The government requested that the court sentence Halverson within the Guidelines range, while Halverson urged a non-Guidelines sentence for time served.

Ultimately, the district court sentenced Halverson to 60 months— which was a downward variance of 91 months— followed by a lifetime of supervised release. The district court discussed the seriousness of the offense and said that the harm could not be understated. The court said, nonetheless, that it gave "a just sentence in this case" based on Halverson’s "age of 70 years and lack of criminal history prior to this crime." The court told Halverson: "Make no mistake that your age and lack of criminal history are playing a role in my sentencing with the very valid concern brought up by your attorney that applying a guideline sentence would be, in this Court’s opinion, a death penalty sentence." Then it said, "For that reason, the Court will grant a variance."

The district court further sentenced Halverson to a lifetime of supervised release. Particularly significant to this appeal is one condition of his supervised release, forbidding him to "subscribe to any computer online service nor ... access any Internet service during the length of his supervision unless approved in advance in writing by the United States Probation Officer ."

Finally, the court required Halverson to pay restitution of $50,317.00. The restitution was calculated by awarding six victims $5,000 plus $1,409 per image possessed by Halverson, unless that amount exceeded the amount sought by the victim.1

Halverson timely appealed.

II.

We first take up Halverson’s contention that the district court erred by adding a five-level enhancement for "distribut[ing] in exchange for any valuable consideration, but not for pecuniary gain." U.S.S.G. § 2G2.2(b)(3)(B). To be sure, he

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is correct. The district court erred by applying our holding in United States v. Groce, 784 F.3d 291 (5th Cir. 2015), instead of an intervening amendment of the Guidelines. The district court believed that it was required to follow our precedent rather than the amendment. The court happened to be incorrect, but, as discussed below, the error was harmless.

A.

Before turning to the merits of Halverson’s claim, we provide the standard of review. We review the reasonableness of sentencing decisions under a two-step process.

First, we determine whether the district court committed a significant procedural error, reviewing "the district court’s interpretation or application of the sentencing guidelines de novo, and its factual findings for clear error." Id. at 294 (quoting United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011) ). If there was a procedural error, remand is required unless the government can establish that the error was harmless. See United States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009). "[T]he harmless error doctrine applies only if the proponent of the sentence convincingly demonstrates both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing." United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010). To satisfy its burden to prove harmless error, the government "must point to evidence in the record that will convince us that the district court had a particular sentence in mind and would have imposed it, notwithstanding the error." Id. at 718 (quoting United States v. Huskey, 137 F.3d 283, 289 (5th Cir. 1998) ).

Second, if there is no procedural error or the error was harmless, this Court reviews the substantive reasonableness of the sentence under an abuse-of-discretion standard. Groce, 784 F.3d at 294.

B.

1.

As stated earlier, the district court committed a significant procedural error by applying our holding from Groce — which said that defendants who knowingly use peer-to-peer file sharing software "engage[ ] in the kind of distribution contemplated by § 2G2.2(b)(3)(B)," id. — instead of the amended Guideline, which clarified § 2G2.2(b)(3)(B) and states: "The defendant distributed in exchange for any valuable consideration" means the defendant agreed to an exchange with another person under which the defendant knowingly distributed to that other person for the specific purpose of obtaining something of valuable consideration from that other person, such as other child pornographic material...

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