U.S. v. Duhon

• Decision Date: 17 February 2006
• Docket Number: No. 05-30387.,05-30387.
• Citation: 440 F.3d 711
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. David Vincent DUHON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

440 F.3d 711

UNITED STATES of America, Plaintiff-Appellant, v. David Vincent DUHON, Defendant-Appellee.

No. 05-30387.

United States Court of Appeals, Fifth Circuit.

February 17, 2006.

COPYRIGHT MATERIAL OMITTED

Camille Ann Domingue, Asst. U.S. Atty. (argued), Lafayette, LA, for U.S.

Rebecca L. Hudsmith, Fed. Pub. Def. (argued), Lafayette, LA, for Duhon.

Appeal from the United States District Court for the Western District of Louisiana.

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

The Government appeals the district court's post-Booker, non-Guideline sentence. We hold that the sentence is unreasonable with regard to the sentencing factors enumerated in 18 U.S.C. § 3553(a) (2000).

I. BACKGROUND

Appellee David Duhon pleaded guilty to one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(2000). Duhon submitted a factual stipulation in connection with his plea. He acknowledged that FBI agents found images of children engaged in sexually explicit activity on his computer. Duhon admitted that he had downloaded the pictures from the Internet.

A. THE PRESENTENCE REPORT AND FIRST SENTENCING HEARING

The presentence report ("PSR") determined a base offense level of fifteen. U.S.S.G. § 2G2.4 (2002).¹ It recommended three two-level enhancements under section 2G2.4(b) because (1) the material involved minors under twelve, (2) the offense involved the possession of ten or more images, and (3) Duhon used a computer. The PSR also subtracted three levels for acceptance of responsibility. U.S.S.G. § 3E1.1. Thus, it arrived at an adjusted offense level of eighteen. Given Duhon's category I criminal history, the PSR calculated the Guideline range at twenty-seven to thirty-three months imprisonment.

Duhon objected to the PSR's suggested enhancements for the age of the children and number of images involved, citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). He argued that these facts had neither been admitted to nor found by a jury beyond a reasonable doubt. He also moved for a downward departure, claiming that a back injury he suffered in 1987 was an extraordinary physical impairment that warranted a sentence below the applicable Guideline range. See U.S.S.G. § 5H1.4.

At a sentencing hearing on August 25, 2004, the district court denied Duhon's motion for a downward departure. Considering Duhon's Blakely motion, the court decided to stay sentencing until the Supreme Court issued its ruling in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Before adjourning, the court expressed hostility toward the Sentencing Guidelines, lamented Congress's criminalization of possessing child pornography, and promised that he would give Duhon "the lowest sentence I can give consistent with my oath."

B. THE POST-BOOKER SENTENCING HEARING

Following the Booker ruling, the sentencing was reconvened on February 28, 2005. Over the Government's objection, the district court ruled that Booker precluded it from using facts not admitted by Duhon to enhance his sentence, even under an advisory regime. The court calculated a Guideline range without using the enhancements for the age of the children or the number of images involved in the offense. This calculation resulted in an offense level of fourteen and an advisory term of imprisonment of fifteen to twenty-one months. The court announced, however, that it would not follow the Guidelines, characterizing them as "totally discretionary." It stated that it would use the discretion granted by Booker to "deviate from the United States Sentencing Commission Guidelines and impose a sentence that . . . is appropriate based on the facts."² The court explained why it thought a lesser sentence was appropriate and sentenced Duhon to sixty months probation.

The Government reiterated its objection to the court's calculation of the Guideline range. The court responded that it would have imposed the same sentence regardless of which advisory Guideline range was correct. The Government claims on appeal that the probationary sentence imposed by the district court is unreasonable.

II. STANDARD OF REVIEW

The district court's interpretation of the Guidelines, even after Booker, is reviewed de novo. See United States v. Smith, 440 F.3d 704 at n. 2 (5th Cir.2006). We accept the district court's findings of fact unless clearly erroneous. United States v. Creech, 408 F.3d 264, 270 n. 2 (5th Cir.2005). The ultimate sentence is reviewed for "unreasonableness" with regard to the statutory sentencing factors enumerated in section 3553(a). Booker, 125 S.Ct. at 765.³

In an opinion filed concurrently with this one, we address non-Guideline sentences like that at issue here. See Smith, 440 F.3d 704. Before imposing a non-Guideline sentence, a district court must consider the Sentencing Guidelines. Id. at 707; United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.2005). This consideration requires that the court calculate the appropriate Guideline range. E.g., Smith, 440 F.3d at 707. Additionally, the court should articulate fact-specific reasons for its sentence. Mares, 402 F.3d at 519. Those reasons should be "consistent with the sentencing factors enumerated in section 3553(a)." Smith, 440 F.3d at 707. The court need not make "a checklist recitation of the section 3553(a) factors." Id. at 707. However, "the farther a sentence varies from the applicable Guideline sentence, the more compelling the justification based on factors in section 3553(a) must be." Id. (internal quotation marks omitted).

In reviewing for reasonableness, we assess whether the statutory sentencing factors support the sentence. Id. at 707; see United States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir.2005). A non-Guideline sentence is unreasonable where it "(1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors." Smith, 440 F.3d at 707-08; see Long Soldier, 431 F.3d at 1123; United States v. Haack, 403 F.3d 997, 1004 (8th Cir.2005).

III. DISCUSSION

The sentence at issue does properly take into account two section 3553(a) factors. First, under subsection (1), the sentence reflects the history and characteristics of the defendant. In imposing its sentence, the court emphasized Duhon's lack of criminal record and letters on his behalf from family and friends. It explained its belief that Duhon was unlikely to reoffend. Second, the court reasoned that Duhon's psychiatric rehabilitation would be best served with a probationary sentence that would allow him to continue treatment with his current psychologist. This was consistent with subsection (2)(D)'s mandate to consider the need to provide the defendant with medical care in the most effective manner.

Under section 3553(a), however, a sentence must be supported by the totality of the relevant statutory factors. United States v. McBride, 434 F.3d 470, 477 (6th Cir.2006). The sentence at issue fails to account for factors that should have received significant weight and accords significant weight to an improper or irrelevant factor. Specifically, the sentence (1) does not adequately take into account the Sentencing Guidelines, (2) fails to sufficiently reflect the seriousness of Duhon's offense, and (3) improperly gives weight to the Guideline sentence of a differently-situated codefendant. As a result, the sentence is unreasonable.

A. FAILURE TO ADEQUATELY ACCOUNT FOR FACTORS

1. The Sentencing Guidelines

a. The Guideline Range

It is undisputed that the district court failed to determine the correct Guideline range. We have held that the applicable range "should be determined in the same manner as before Booker/Fanfan" and that a judge may still find all the facts supporting a sentence. Mares, 402 F.3d at 519. Thus, the court's conclusion that it could not adjust Duhon's Guideline range upwardly based on facts neither admitted by Duhon nor proven beyond a reasonable doubt was incorrect. The correct sentencing range was twenty-seven to thirty-three months imprisonment, not the fifteen to twenty-one months considered by the court.

Duhon argues that this error was harmless because the court stated that it would have imposed the same non-Guideline sentence regardless of the Guideline range. Duhon is correct that the sentence was imposed in spite of rather than "as a result of an incorrect application of the sentencing guidelines." 18 U.S.C. § 3742(f). In Villegas, we recognized that section 3742(f) survives Booker. Under that statute, we review de novo and vacate a sentence imposed "as a result" of a Guidelines error without reaching the sentence's ultimate reasonableness. Villegas, 404 F.3d at 362. Because Duhon's non-Guideline sentence did not directly "result" from the Guidelines error, it need not be vacated under Villegas based solely on the miscalculation.

But it does not follow from this that the error in calculating the Guideline range is irrelevant to our second-step review for reasonableness. Mares recognized that if the district court commits a "legal error" in required sentencing procedures, the sentence may not merit the "great deference" ordinarily accorded on reasonableness review. 402 F.3d at 520. Among those sentencing procedures required by Mares is that the district court calculate the Guideline range before imposing a non-Guideline sentence. Id. at 519; United States v. Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir.2005).

This requirement reflects Booker's mandate that sentencing courts "take account" of the Guidelines along with other sentencing goals. Booker, 125 S.Ct. at 764-65 (emphasis added). In light of its duty to "account" for the Guidelines, the court's statement that it would impose the same sentence regardless of which range applied, makes the sentence more, rather than...