U.S. v. Dean

• Decision Date: 16 March 2011
• Docket Number: No. 09–16133.,09–16133.
• Citation: 635 F.3d 1200
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Jack Furman DEAN, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

635 F.3d 1200

22 Fla. L. Weekly Fed. C 1906

UNITED STATES of America, Plaintiff–Appellee,

v.Jack Furman DEAN, Jr., Defendant–Appellant.

No. 09–16133.

United States Court of Appeals, Eleventh Circuit.

March 16, 2011.

Christine A. Freeman, Patricia Vanessa Kemp, Fed. Pub. Def., Montgomery, AL, for Defendant–Appellant.Nathan D. Stump, Montgomery, AL, for Plaintiff–Appellee.Appeal from the United States District Court for the Middle District of Alabama.Before DUBINA, Chief Judge, ANDERSON, Circuit Judge, and MOODY, ^* District Judge.ANDERSON, Circuit Judge:

This case is an appeal of Dean's conviction under 18 U.S.C. § 1466A(a)(2) for producing child pornography and under 18 U.S.C. § 2252A(a)(5)(B) for possessing child pornography. Dean pled guilty to the offenses and the United States District Court for the Middle District of Alabama sentenced him to thirty years imprisonment by imposing a twenty-year sentence under § 1466A(a)(2) to run consecutive with a ten-year sentence under § 2252A(a)(5)(B). After sentencing, Dean moved for a new trial, arguing inter alia that § 1466A(a)(2) is facially invalid because it is substantially overbroad in violation of the First Amendment. The court rejected his motion.

Dean now appeals, arguing that § 1466A(a)(2) is unconstitutionally overbroad on its face¹ and that his sentence is substantively unreasonable. After carefully considering the parties' briefs, thoroughly investigating the record, and hearing oral arguments, we reject Dean's arguments and affirm the district court's decision.

I. BACKGROUND

Dean sexually abused his stepdaughter from the time she was age eleven until she was age twenty-seven, and he recorded 245 episodes of abuse on video. Dean produced at least fifty-eight of these recordings while the victim was a minor. The recordings show Dean digitally penetrating her vagina and engaging in oral-vaginal contact with her while she was asleep at age eleven. The victim became conscious of the abuse at age thirteen, when Dean began to ask her to undress in front of him. The abuse progressed to the point that, before the victim had reached eighteen years of age, Dean had instructed his own minor daughters to record videos of the victim naked, performed oral and vaginal sex on her, and invited another adult male to engage in sexual intercourse with her. In some of the videos of the victim as a minor, Dean beat her to the point that she cried and begged him to stop.

The abuse continued at great physical and psychological cost to the victim for several years. The victim required three rectal surgeries to correct damage that Dean caused by penetrating her anus. All the while, Dean coerced her into complying and remaining silent by threatening to kill or leave her mother and by reminding her that no one had believed her stepsister when she had reported sexual abuse. In May of 2007, Dean called the victim once again and threatened to kill her mother and her husband if she did not come to his barbershop, where he tied her to the wall with ropes and violently penetrated her vagina with a bottle. It was after this incident that the victim reported Dean to the police, who arrested Dean and confiscated the recordings that form the basis for convicting him for the production and possession of child pornography under 18 U.S.C. §§ 1466A(a)(2) and 2252A(a)(5)(B), respectively.

Dean pled guilty to both charges, but at sentencing he objected to consecutive sentences, arguing that the possession count was a lesser included offense of the production count. The district court instructed him to raise this objection in a motion for new trial. In filing this motion, Dean also argued for the first time that 18 U.S.C. § 1466A(a)(2) violates the First Amendment because it is facially overbroad.² The district court denied the motion, and Dean has appealed to this Court arguing that the statute is overbroad on its face in violation of the First Amendment and that his sentence is substantively unreasonable.

II. STANDARD OF REVIEW

We review the constitutionality of a statute de novo. United States v. Knight, 490 F.3d 1268, 1270 (11th Cir.2007). Dean bears the burden to prove that § 1466A(a)(2) violates the First Amendment, because “[t]he overbreadth claimant bears the burden of demonstrating, from the text of [the law] and from actual fact, that substantial overbreadth exists.” Virginia v. Hicks, 539 U.S. 113, 122, 123 S.Ct. 2191, 2198, 156 L.Ed.2d 148 (2003) (second alteration in original, internal quotation marks omitted).

We review the reasonableness of a sentence imposed under the United States Sentencing Guidelines Manual under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 56, 128 S.Ct. 586, 600, 169 L.Ed.2d 445 (2007). The burden to establish unreasonableness also falls on Dean as the party challenging the sentence. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005).

III. DISCUSSION

A. Substantial Overbreadth

Dean argues that § 1466A(a)(2) is facially overbroad because it criminalizes materials that are neither child pornography nor obscenity and therefore criminalizes materials protected by the First Amendment. Dean does not, however, carry his burden to establish that any such overbreadth is substantial. Thus, his argument fails.

Overbreadth doctrine “prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S.Ct. 1389, 1404, 152 L.Ed.2d 403 (2002); see United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 1838, 170 L.Ed.2d 650 (2008); Weaver v. Bonner, 309 F.3d 1312, 1318 (11th Cir.2002). The Supreme Court describes facial invalidation for overbreadth as “strong medicine” that “has been employed by the Court sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). The Court has “vigorously enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep,” before it may be invalidated. Williams, 553 U.S. at 292, 128 S.Ct. at 1838. As noted above, it is Dean's burden as challenger to prove substantial overbreadth. Virginia v. Hicks, 539 U.S. 113, 122, 123 S.Ct. 2191, 2198, 156 L.Ed.2d 148 (2003).

Overbreadth analysis must begin with construction of the statute because “it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” Williams, 553 U.S. at 293, 128 S.Ct. at 1838. Dean argues that the statute is overbroad because it reaches to materials other than child pornography and obscenity. Therefore, we begin our analysis by defining these categories and determining whether the statute exceeds them.

Indecent materials are generally entitled to First Amendment protection unless they constitute child pornography or obscenity. Ashcroft, 535 U.S. at 251, 122 S.Ct. at 1402. The Supreme Court established in New York v. Ferber, 458 U.S. 747, 759–64, 102 S.Ct. 3348, 3355–58, 73 L.Ed.2d 1113 (1982), that child pornography is not protected by the First Amendment because it is produced using actual minors, and because the government's interest in preventing the sexual exploitation and abuse of children is sufficient to justify the criminalization of child pornography. Because the distribution of pornography depicting actual minors is “intrinsically related to the sexual abuse of children,” the Court held that such distribution was also outside the protection of the First Amendment. Id. at 759–61, 102 S.Ct. at 3355–57. However, Ferber limits the category of unprotected child pornography to “works that visually depict sexual conduct by children below a specified age.” Id. at 764, 102 S.Ct. at 3358. For example, Dean's criminal conduct in this case constitutes unprotected child pornography because he produced videos of his stepdaughter being sexually abused when she was a minor.³

The Supreme Court established in Miller v. California that obscenity is not protected by the First Amendment. 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Miller limits the category of obscenity to material that meets all three requirements: 1) “the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,” 2) the average person, applying contemporary community standards, would find that “the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by ... law,” and 3) “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Id. at 24, 30, 93 S.Ct. at 2615, 2618 (internal quotations and citations omitted).

The challenged statute in this case provides in relevant part:

(a) In general.—Any person who ... knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—

...

(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and

(B) lacks serious literary, artistic, political, or scientific value;

or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1)....

18 U.S.C. § 1466A(a). We note that the statute prohibits specific sexual acts, and that it incorporates only one of the three Miller prongs—i.e., the statute does not prohibit sexually explicit images that have serious literary, artistic, political, or scientific value.

We do not doubt that § 1466A criminalizes some speech that is neither child pornography nor obscenity and therefore has the potential to be overbroad. Unlike other child pornography...