U.S. v. Bentley

• Decision Date: 25 June 2007
• Docket Number: No. 06-CR-155-LRR.,06-CR-155-LRR.
• Citation: 492 F.Supp.2d 1050
• Parties: UNITED STATES of America, Plaintiff, v. James Howard BENTLEY, Defendant.
• Court: U.S. District Court — Northern District of Iowa

492 F.Supp.2d 1050

UNITED STATES of America, Plaintiff, v. James Howard BENTLEY, Defendant.

No. 06-CR-155-LRR.

United States District Court, N.D. Iowa, Cedar Rapids Division.

June 25, 2007.

Sean R. Berry, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.

SENTENCING MEMORANDUM

READE, Chief Judge.

                TABLE OF CONTENTS
                I.  INTRODUCTION ....................................................................1052
                 II.  RELEVANT PROCEDURAL BACKGROUND ..................................................1052
                III.  THREE-STEP PROCESS ..............................................................1053
                 IV.  THE ISSUES ......................................................................1054
                  V.  CONSTITUTIONAL ISSUES ...........................................................1054
                      A.  Burden of Proof — Fifth Amendment .....................................1054
                      B.  Videotaped Interviews — Sixth Amendment ...............................1055
                 VI.  ADVISORY SENTENCING GUIDELINES ISSUES ...........................................1056
                      A.  Victims Under the Age of Twelve — USSG § 2G2.1(b)(1)(A) ..........1056
                      B.  Victims Under Defendant's Custody, Care or Supervisory Control —
                USSG § 2G2.1(b)(2) .............................................1057
                      C.  Exploitation of More Than One Minor — USSG § 2G2.1(c)(1) .........1057
                      D.  Vulnerable Victim — USSG § 3A1.1(b)(1) ...........................1058
                      E.  Acceptance of Responsibility — USSG § 3E1.1 ......................1059
                      F.  Repeat and Dangerous Sex Offender — USSG § 4B1.5 .................1060
                      G.  Substantially Under-Represented Criminal History-USSG § 4A1.3 ..........1061
                VII.  CONCLUSION ......................................................................1061
                

I. INTRODUCTION

The matter before the court is the sentencing of Defendant James Howard Bentley.

II. RELEVANT PROCEDURAL BACKGROUND

On February 7, 2007, Defendant was charged in a six-count Second Superseding Indictment (docket no. 54).¹ Counts 1 and 2 charged Defendant with Sexual Exploitation of a Child, in violation of 18 U.S.C. § 2251(a) and (e). Counts 3 and 4 charged Defendant with Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Counts 5 and 6 charged Defendant with Interstate Transportation of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1).

On March 1, 2007, after a three-day trial,² a unanimous federal jury found beyond a reasonable doubt that Defendant was guilty on all six counts. With respect to Counts 1, 3 and 5, the jury found that Defendant produced, possessed and transported sexually explicit photographs of a ten-year-old girl, J.G. With respect to Counts 2, 4 and 6, the jury found that Defendant produced, possessed and transported sexually explicit photographs of J.G.'s infant sister, L.G.

On May 10, 2007, the United States Probation Office filed a Presentence Investigation Report ("PSIR"). On June 4 2007, Defendant filed a sentencing memorandum. On June 5, 2007, Defendant supplemented his sentencing memorandum. On June 6, 2007, the government filed its sentencing memorandum.

On June 12, 2007, the court held a sentencing hearing ("Hearing"). Assistant United States Attorney Sean R. Berry represented the government. Attorney Mark R. Brown represented Defendant, who was personally present. At the Hearing, the court pronounced sentence in a manner consistent with the instant Sentencing Memorandum.³

III. THREE-STEP PROCESS

The Sentencing Guidelines are no longer mandatory. United States v. Haack, 403 F.3d 997, 1002 (8th Cir.) (discussing United States v. Booker; 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)), cert. denied, 126 S.Ct. 276 (2005). They are advisory. Id. The Eighth Circuit Court of Appeals has explained that, in the post-Booker world, "there are essentially three steps to determining an appropriate sentence." United States v. Sitting Bear, 436 F.3d 929, 934 (8th Cir.2006).

First, the district court should determine the applicable Sentencing Guidelines range without consideration of any [Sentencing] Guidelines departure factors, because the [Sentencing] Guidelines remain an important sentencing factor. See 18 U.S.C. § 3553(a)(4). Second, the district court, where appropriate, should consider the departure provisions contained in Chapter 5, Part K and/or § 4A1.3 of the [Sentencing] Guidelines, as those sentencing provisions have not been excised by Booker. The resulting range is the post-Booker advisory [Sentencing] Guidelines range. Third, the district court should consider the rest of the § 3553(a) factors in determining whether to impose the "Guidelines sentence" as determined in the prior steps or a "non-Guidelines sentence" driven by the other § 3553(a) considerations, and sentence the defendant accordingly. Haack, 403 F.3d at 1003; see also United States v. Denton, 434 F.3d 1104, 1114 (8th Cir.2006) (reviewing the sentence imposed by the district court under the three-part Haack methodology).

Id. at 934-35. At the Hearing, the court adhered to this three-step process.⁴

IV. THE ISSUES

At the Hearing, there were a large number of contested issues, including two constitutional issues and seven advisory Sentencing Guidelines issues.

The two constitutional issues were (1) whether, under the Due Process Clause of the Fifth Amendment to the United States Constitution, the court should make its factual findings by a preponderance of the evidence or by clear and convincing evidence and (2) whether, under the Confrontation Clause of the Sixth Amendment to the United States Constitution, the court may consider the videotaped statements of J.G. and A.M.

With respect to the advisory Sentencing Guidelines issues, the court considered whether it should (1) apply a four-level enhancement, pursuant to USSG § 2G2.1(b)(1)(A) (2003),⁵ because Defendant's victims "had ... not attained the age of twelve years"; (2) apply a two-level enhancement, pursuant to USSG § 2G2.1(b)(2), because Defendant's victims were in his "custody, care, or supervisory control"; (3) apply the Special Instruction at USSG § 2G2. 1(c)(1), because Defendant's "offense involved the exploitation of more than one minor"; (4) apply a two-level enhancement, pursuant to USSG § 3A1.1, because Defendant's victims were "vulnerable victims"; (5) apply a two-level decrease, pursuant to USSG § 3E1.1, for acceptance of responsibility; (6) apply an enhancement, pursuant to USSG § 4B1.5, for being a repeat and dangerous sex offender; and (7) depart upward, pursuant to USSG § 4A1.3, for substantially underrepresented criminal history.

V. CONSTITUTIONAL ISSUES

A. Burden of Proof — Fifth Amendment

At the Hearing, Defendant argued that the court was required to make its factual findings under a clear-and-convincing-evidence standard. Defendant did not present the court with any legal authority in support of such standard; however, the court assumed Defendant grounded his request in the Due Process Clause of the Fifth Amendment. The government urged the court to apply a preponderance-of-the-evidence standard.

The Eighth Circuit Court of Appeals has repeatedly and unequivocally held that "due process is satisfied when sentencing facts are found by a preponderance of the evidence." United States v. Miller, 214 Fed.Appx. 630, 631, 2007 WL 216293 (8th Cir.2007), petition for cert. filed, ___ U.S. ___, 127 S.Ct. 3074, ___ L.Ed.2d ___ (2007); see also United States v. Johnson, 450 F.3d 831, 833 (8th Cir.2006) ("It is clearly established in this circuit that sentencing enhancements must be proven by a preponderance of the evidence. ..."). "[J]udicial fact-finding using a preponderance[-] of[-]the [-]evidence standard is permitted provided that the [Sentencing Guidelines] are applied in an advisory manner." United States v. Bah, 439 F.3d 423, 426 n. 1 (8th Cir.2006); see also United States v. Garcia-Gonon, 433 F.3d 587, 593 (8th Cir.2006) ("Under an advisory [Sentencing] Guidelines regime, sentencing judges are only required to find sentence-enhancing facts by a preponderance of the evidence.")

Accordingly, the court made its factual findings at the Hearing under a preponderance-of-the-evidence standard.

B. Videotaped Interviews — Sixth Amendment

At the Hearing, the government offered into evidence Exhibit 1 and Exhibit 2. Exhibit 1 and Exhibit 2 are videotaped interviews of J.G. and A.M., respectively, at St. Luke's Hospital's Child Protection Center in Cedar Rapids, Iowa. Defendant was not present when such interviews were videotaped, and the minors did not make any sworn statements. Further, neither videotape was part of the trial record.⁶ In the videotapes, J.G. and A.M. allege that Defendant sexually abused them.

Defendant objected to the admission of the videotaped interviews. Defendant argued that admitting the interviews would violate his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Defendant claimed that he has a right to confront the witnesses against him at sentencing. The government argued that neither the Confrontation Clause nor Crawford apply at the time of sentencing.

The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. Const. amend. VI. In Crawford, the Supreme Court held that the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unable to testify, and the defendant had had a prior opportunity for cross-examination." 541 U.S. at 53-54, 124 S.Ct. 1354.

The Eighth Circuit Court of Appeals has repeatedly held — before and after Crawford — that the Confrontation Clause does not apply at sentencing. See, e.g., United States v. Fleck, 413 F.3d 883, 894 (8th Cir.2005); United...