U.S. v. Bain

• Decision Date: 08 August 2008
• Docket Number: No. 07-2981.,07-2981.
• Citation: 537 F.3d 876
• Parties: UNITED STATES of America, Appellee, v. Donald W. BAIN, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

537 F.3d 876

UNITED STATES of America, Appellee, v. Donald W. BAIN, Jr., Appellant.

No. 07-2981.

United States Court of Appeals, Eighth Circuit.

Submitted: April 15, 2008.

Filed: August 8, 2008.

Kent Allen Simmons, argued, Davenport, IA, for appellant.

Shannon Leigh Olson, AUSA, argued, Des Moines, IA, Joel W. Barrows, AUSA, on the brief, Davenport, IA, for appellee.

Before GRUENDER, BALDOCK,¹ and BENTON, Circuit Judges.

PER CURIAM.

Donald W. Bain, Jr., pled guilty to one count of receiving and distributing child pornography (Count 1), and one count of possession of child pornography (Count 2), 18 U.S.C. §§ 2252(a)(2), 2256. The district court² sentenced him to 210 months imprisonment on Count 1, and 120 months on Count 2, to be served concurrently. Bain appeals the sentence. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b)(1), this court affirms.

I.

On February 9, 2005, the FBI, acting on a tip from the Norwegian government, executed a search warrant at Bain's house. Agents seized three computers and numerous floppy disks containing 496 images and digital movies depicting minors engaged in sexual acts. Bain admitted to the FBI that he traded child pornography files from his home, using the file sharing program "Kazaa."

After being indicted, Bain was placed on pre-trial release, with supervision and an unsecured appearance bond. He was allowed to travel outside the country several times, with permission of the court. He underwent two psychological examinations, each concluding that he did not meet the criteria for a diagnosis of pedophilia, and that he presented low risk of re-offense.

The PSR determined the base offense level as 22. This was increased two levels because some material involved minors under age 12, U.S.S.G. § 2G2.2(b)(2); five levels because he traded the material for more child pornography, U.S.S.G. § 2G2.2(b)(3)(B); four levels because some material portrayed sadism, masochism, or other depictions of violence, U.S.S.G. § 2G2.2(b)(4); two levels because he used a computer to receive and distribute material, U.S.S.G. § 2G2.2(b)(6); and five levels because the offense involved more than 600 images,³ U.S.S.G. § 2G2.2(b)(7)(D). After a three-level decrease for acceptance of responsibility, Bain's total offense level was 37. With a criminal history category I, this translates to a guidelines range of 210 to 262 months.

At sentencing, Bain requested the statutory minimum sentence of 60 months, arguing the § 3553(a) factors. The district court responded:

I can't do that. Hang on. In order to go below the Guidelines pursuant to 3553 which are viewed in the Eighth Circuit now as affirmed by the United States Supreme Court as presumptively reasonable, there's got to be a ground for a variance. I mean, what are the grounds for a variance of as much as two-thirds to three-fourths of the sentence under the Guidelines? People who cooperate and put their life at risk, if the Court gives them more than 45 or 50 percent off for putting their life at risk, the Court of Appeals reverses that as an unreasonable sentence. Here what would the grounds be for a variance of the magnitude you are talking about?

Bain told the court that "a grounds for variance that make it acceptable in the Guidelines does not exist." He went on to explain that his character, history, and the fact that he would not re-offend are reasons "that a long sentence is not necessary." The court did not respond.

After the government asked for the low end of the guidelines range, the court stated:

You knew when you were doing it that it was wrong, you just didn't know how serious the punishment is for this offense and so you are right, you have— you're going to pay dearly, your wife is going to pay dearly, everybody associated with you is going to pay dearly and it is painful because you were by all accounts very successful, a contributing member to your community, certainly to your workplace, it is harsh.

The court then considered the § 3553 factors, concluding that "a sentence at the bottom of the range is sufficient to address the essential sentencing considerations."

II.

Reviewing a sentence, this court must "first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range." Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). "If the decision was `procedurally sound,' we then review the `substantive reasonableness of the sentence' under the abuse-of-discretion standard considering the totality of the circumstances." United States v Alvizo-Trujillo, 521 F.3d 1015, 1017 (8th Cir.2008), citing Gall, 128 S.Ct. at 597.

A.

Bain argues that the district court procedurally erred by applying a presumption of reasonableness to the guidelines range in violation of Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), and by requiring extraordinary circumstances to justify a non-guidelines sentence in violation of Gall, 128 S.Ct. 586.

The district court twice referenced a presumption of reasonableness. First, after Bain asked for the statutory minimum sentence the court replied, "In order to go below the Guidelines pursuant to 3553 which are viewed in the Eighth Circuit now as affirmed by the United States Supreme Court as presumptively reasonable, there's got to be a ground for a variance." (emphasis added). Second, when announcing the sentence the court stated, "The Sentencing Guidelines are presumed reasonable here in the Eighth Circuit Court of Appeals. They are not mandatory, but they are based on extensive study and refinement." (emphasis added).

Bain's sentencing occurred one month after the Supreme Court decided Rita. See Rita, 127 S.Ct. 2456 (decided June 21, 2007). "Trial judges are presumed to know the law and to apply it in making their decisions." Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Presumably, the district court realized that the presumption of reasonableness is only an appellate presumption, and this was its meaning when it stated that the guidelines are presumed reasonable in the Eighth Circuit, as affirmed by the Supreme Court. See United States v. Gray, 533 F.3d 942, 943 (8th Cir.2008) (noting Rita was "hardly [an] obscure decision[] likely to have been overlooked by federal sentencing judges. . . ."). The district court here did not commit Rita error. Cf. United States v. Burnette, 518 F.3d 942, 946-47 (8th Cir.2008) (district court's statement before Rita that a "sentence within the guidelines is presumed reasonable" was plain error after Rita), petition for cert. filed, No. 07-11317 (June 4, 2008).

Although the district court did not apply a presumption of reasonableness to the guidelines range, it committed Gall error by requiring extraordinary circumstances to justify the requested non-guidelines sentence.

Before Gall, this circuit "discourage[d] drastic reductions [in sentences] absent extraordinary circumstances, especially when the sentencing guidelines already significantly reflect the mitigating factors." United States v. Gonzalez-Alvarado, 477 F.3d 648, 651 (8th Cir.2007). Bain's sentencing occurred four months before Gall "reject[ed][] an appellate rule that requires `extraordinary' circumstances to justify a sentence outside the Guidelines range." Gall, 128 S.Ct. at 595. The Court also "reject[ed] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence." Id.

Taking the district court's comments in light of the circuit law at the time, the court undoubtedly believed that extraordinary circumstances were required to justify Bain's requested sentence. When he asked for the statutory minimum, the district court said "I can't do that," noting that when district courts give reductions of "more than 45 or 50 percent off [the guideline range] for [defendants] putting their life at risk, the Court of Appeals reverses. . . ." The fact that the district court twice mentioned the appellate presumption of reasonableness reinforces that it felt constrained by this circuit's (then) strict percentage review, and did not independently consider Bain's arguments that a 60-month sentence was sufficient but not greater than necessary to meet the sentencing goals of § 3553. See Gall, 128 S.Ct. at 595, 597 (district court "must make an individualized assessment based on the facts presented"); Burnette, 518 F.3d at 946-47 (district court's statement that the Court of Appeals is very tough on variances and "sentences below the guidelines range to amount to anything are not easily accomplished" was error after Rita and Gall). The district court erred here. By requiring extraordinary circumstances, it misapprehended its authority to issue a non-guidelines sentence. See United States v. Tabor, 531 F.3d 688, 692 (8th Cir.2008) ("[S]ignificant procedural error occurs if the district court fails to understand the scope of its authority and discretion at sentencing.").

B.

If not preserved, procedural sentencing errors are reviewed only for plain error. See Burnette, 518 F.3d at 946. Bain asserts he preserved error by "informing the judge of the course of action he wished the judge to take, and by stating the exact sentence sought."⁴

This circuit requires more than a request for a non-guidelines sentence in order to preserve Rita or Gall error; the defendant must object to the district court's erroneous application of the law. See United...