U.S. v. Blackie
| Decision Date | 21 November 2008 |
| Docket Number | No. 07-2002.,07-2002. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kerry Vaughn BLACKIE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ON BRIEF: Brian Patrick Morley, Fraser, Trebilcock, Davis & Dunlap, Lansing, Michigan, for Appellant. Julie Ann Woods, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.
Before: MOORE and SUTTON, Circuit Judges; ALDRICH, District Judge.*
ALDRICH, D.J., delivered the opinion of the court, in which MOORE, J., joined. SUTTON, J. (p. 404), delivered a separate opinion concurring in part and concurring in the judgment.
Kerry Blackie pled guilty to a single count of possession of visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). The district court imposed a sentence of 42 months, which is outside the advisory Sentencing Guidelines range. Blackie appeals his sentence, alleging that the district court: (1) improperly considered the factors set forth in 18 U.S.C. § 3553(a); (2) imposed a sentence outside the Guidelines range without stating its reasons for doing so as required by 18 U.S.C. § 3553(c)(2); and (3) failed to provide notice of its intent to depart from the Guidelines range as required by Federal Rule of Criminal Procedure 32(h).
For the reasons set forth below, we VACATE Blackie's sentence and REMAND the case for resentencing consistent with this opinion.
In October 2005, the Bureau of Immigration and Customs Enforcement (ICE) began investigating a child pornography website known as "illegal CP," which revealed numerous subscriber records. Those records indicated that Blackie purchased a 20-day membership to "illegal CP" for $79.99. (J.A. at 253; PSR at 4).
In October 2006, ICE agents, assisted by officers of the Lansing, Michigan Police Department, executed a search warrant at Blackie's residence and seized two computers and a thumb drive. Numerous images of minors engaged in sexually explicit conduct were found on the hard drives and thumb drive. Twenty-two of those images are referenced in the one-count indictment. In April of 2007, Blackie signed a plea agreement and pled guilty. (J.A. at 254-56; PSR at 5-7).
A pre-sentence report (PSR) was subsequently prepared. The PSR recommended a Sentencing Guidelines base offense level of 18 with a four-level enhancement for masochistic content pursuant to U.S.S.G. § 2G2.2(b)(4), a two-level enhancement for the number of images pursuant to U.S.S.G. § 2G2.2(b)(7)(A), a two-level enhancement for material involving minors who had not reached the age of twelve pursuant to U.S.S.G. § 2G2.2(b)(2), and a two-level enhancement for the use of a computer for the possession or receipt of the material pursuant to U.S.S.G. § 2G2.2(b)(6). (J.A. at 258; PSR at 9). Finally, a two-level reduction was awarded for acceptance of responsibility. (J.A. at 259; PSR at 10).
The recommended adjusted offense level was therefore 25 with a criminal history category of I. The Sentencing Guideline range was calculated at 57 to 71 months. (J.A. at 275). After consideration of the factors under 18 U.S.C. § 3553(a), the PSR recommended a sentence of 48 months. (J.A. at 275).
Prior to the sentencing hearing, Blackie filed a motion seeking a "downward departure or variance" to a non-custodial sentence because he had been the sole parent and caregiver of his 15-year-old daughter for the past 13 years. (J.A. at 157). The court declined to render a separate ruling on the motion, noting that it would consider Blackie's family situation as part of the "sentencing matrix." (J.A. at 232).
At the sentencing hearing, the district court acknowledged the PSR's recommended adjusted offense level of 25 and a criminal history category of I. (J.A. at 233). After hearing from the government and from Blackie, the court rejected or reduced two of the PSR's enhancement recommendations. First, the court found that "the vast majority of materials not only viewed, but downloaded were not that of masochistic material." (J.A. at 242). Therefore, the judge continued, "this court believes that to really add four points to this total is really much too high an amount to add to it." (J.A. at 242-43). Second, the court rejected the enhancement for the number of images because the 22 images that Blackie downloaded were not comparable to other cases where thousands of images were downloaded and sold to the public. "So therefore, this Court believes that the guideline calculation that has driven this case has been higher than common sense would indicate in this case it should be." (J.A. at 243).
The court's revision of the PSR's recommended enhancements resulted in an adjusted offense level of 20 with a Sentencing Guideline range of 33 to 41 months. However, the judge never stated in open court any calculation of the new offense level or Guideline range. The court then addressed additional § 3553(a) factors, including the seriousness of the offense and the need for deterrence. The court found that "in balance, a sentence which imposes that of 42 months' custody in the Federal Bureau of Prisons balances all these considerations together." (J.A. at 244). At no time did the court acknowledge that the sentence imposed was in excess of the Guideline range.
Following the pronouncement of the sentence, the judge asked the parties if they had "any legal objection to the sentence imposed." (J.A. 245). The government objected to the sentence. The defense, however, had no objection.
We review for reasonableness Blackie's claim that the district court failed to consider his family ties and responsibilities at sentencing because he had raised the issue prior to and during the sentencing hearing, thus preserving it for appeal. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). "Assuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Id. "The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." Id.
We review Blackie's remaining claims for plain error because he did not object to the district court's sentence on those grounds. "If a party does not clearly articulate any objection and the grounds upon which the objection is based, when given this final opportunity to speak, then that party will have forfeited its opportunity to make any objections not previously raised and thus will face plain error review on appeal." United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.2004). "Providing a final opportunity for objections after the pronouncement of sentence, `will serve the dual purpose[s] of permitting the district court to correct on the spot any error it may have made and of guiding appellate review.'" Id. (quoting United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990)). See also United States v. Vonner, 516 F.3d 382 (6th Cir.2008) (en banc). This rule is especially important where, as here, the defendant may not know if he will have reason to object until the sentence is handed down.
Here, the district judge provided the parties an opportunity to object following the imposition of the sentence. Because Blackie did not object to his sentence based on a potential disparity, a departure or variance outside the Guidelines range, or a Rule 32(h) violation, we now review those claims for plain error.
The Supreme Court provides the analytical framework for determining plain error. United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Blackie must establish that (1) an error occurred, (2) that the error was "plain," (3) that the error affected substantial rights, and (4) that "the error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Id. at 734-37, 113 S.Ct. 1770.
Blackie argues that the district court failed to properly consider the factors set forth in 18 U.S.C. § 3553(a). "Under this Circuit's post-Booker protocol, the sentencing court must: (1) correctly calculate the advisory guidelines sentencing range, (2) consider the other § 3553(a) factors, and (3) impose a sentence that is sufficient but not greater than necessary to comply with the purposes of § 3553(a)." United States v. Lanesky, 494 F.3d 558, 561 (6th Cir.2007). "The court need not recite these factors but must articulate its reasoning in deciding to impose a sentence in order to allow for reasonable appellate review." United States v. Kirby, 418 F.3d 621, 626 (6th Cir.2005).
Section 3553(a) requires the sentencing court to consider the following factors: (1) "the nature and circumstances of the offense and the history and characteristics of the defendant"; (2) "the need for the sentence ... to reflect the seriousness of the offense, to promote respect for the law, ... to provide just punishment," and to provide the defendant with training, medical care, or other treatment; (3) "the kinds of sentences available"; (4) the applicable advisory Guidelines range; (5) relevant policy statements by the Sentencing Commission; (6) "the need to avoid unwarranted sentenc[ing] disparities"; and (7) "the need to provide restitution to ... victims." 18 U.S.C. § 3553(a).
Specifically, Blackie argues that the court failed to properly consider factors (5) and (6).
Blackie argues that the district court did not properly consider his family circumstances before sentencing him. Reviewing for reasonableness, we find that this claim is without merit.
While the Guidelines are no longer mandatory, the sentencing court "must still...
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