U.S. v. Gardner

• Decision Date: 12 August 2011
• Docket Number: No. 07–5947.,07–5947.
• Citation: 649 F.3d 437
• Parties: UNITED STATES of America, Plaintiff–Appellant,v.Daniel Roy GARDNER, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

649 F.3d 437

UNITED STATES of America, Plaintiff–Appellant,

v.Daniel Roy GARDNER, Defendant–Appellee.

No. 07–5947.

United States Court of Appeals, Sixth Circuit.

Argued: April 26, 2011.Decided and Filed: Aug. 12, 2011.

ARGUED: Blanche Bong Cook, Assistant United States Attorney, Nashville, Tennessee, for Appellant. Jennifer Lynn Thompson, Nashville, Tennessee, for Appellee. ON BRIEF: S. Carran Daughtrey, Courtney D. Trombly, Assistant United States Attorneys, Nashville, Tennessee, for Appellant. Jennifer Lynn Thompson, Nashville, Tennessee, for Appellee.Before: GIBBONS and WHITE, Circuit Judges; OLIVER, Chief District Judge.^*

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

The government appeals the district court's decision not to apply a fifteen-year mandatory minimum sentence under 18 U.S.C. § 2252A(b)(1) following defendant-appellee Daniel Roy Gardner's guilty plea for receipt and possession of child pornography. For the reasons that follow, we affirm the district court's decision.

I.

Gardner, born in Idaho Falls, Idaho, in 1952, left home in 1970 and served in the United States Navy for twenty-one years. He lived in Chesapeake, Virginia, from 1991 to 1994 and then in Greenbrier, Tennessee, from 1994 to 2002. In 2002, he moved to Goodlettsville, Tennessee, where he resided at the time of his arrest.

In 1974, Gardner married Candan Yilmazdalay, with whom he had a daughter, Pride. Pride suffered from neurofibrosarcoma, a condition in which tumors develop in cells surrounding the peripheral nervous system. Pride battled the condition from infancy and ultimately died of it in 1998.

On April 20, 2005, computer security equipment at RenTech, Inc., a data processing company located in Nashville, Tennessee, detected the presence of child pornography on the company's computer network. The child pornography was traced to Gardner's office computer, and the FBI was notified. Six days later the FBI visited Gardner at his home, where he consented to a search. Agents seized over 600 images and forty-nine videos of minors engaged in sexually explicit conduct or being sexually abused while held in bondage. After agents advised him of his Miranda rights, Gardner confessed to downloading the pornographic material, for which he said he had “a need, maybe an addiction.”

Prior to searching Gardner's house, Craig Dickhaus, a special agent in the violent crimes task force for the United States Immigration and Customs Enforcement (“ICE,” formerly the United States Customs Service), ran a criminal background check on Gardner and discovered that he had a previous arrest for aggravated sexual battery and a conviction for sexual battery in Virginia. An official at RenTech confirmed the Virginia conviction to Dickhaus and stated that the victim was Gardner's daughter, Pride. When Dickhaus questioned Gardner about the Virginia conviction, he allegedly stated: “Unfortunately our daughter was the sexual—object of my sexual desire at the time.” Gardner also told Dickhaus that his daughter was between fifteen and seventeen years old at the time.

Federal investigators began to search for files related to Gardner's Virginia conviction. Because most of the files had been destroyed, initially the investigators were able to locate only copies of an indictment and a judicial order of conviction from the Circuit Court of Chesapeake, Virginia. The indictment, which referenced docket number 92–821, stated:

On or about December 21, 1991, in the City of Chesapeake, Virginia, the accused, Daniel Ray Gardner, then being over the age of eighteen years, maintaining a custodial or supervisory relationship over a child under the age of eighteen, not legally married to such child with lascivious intent, did knowingly and intentionally sexually abuse such a child, in violation of Section 18.2–370.1 of the Virginia Code.

The indictment charged Gardner with violating Section 18.2–370.1 of the Virginia Code, “Taking indecent liberties with child by person in custodial or supervisory relationship.” Va.Code Ann. § 18.2–370.1. The judicial order, which referenced docket number 92–821, stated that Gardner was charged with “aggravated sexual battery” and found Gardner guilty of “sexual battery.” The judicial order also noted that a pre-sentence report had been prepared, presented to the state circuit court, and given to Gardner's counsel who had the right “to cross-examine the Probation Officer as to any matter contained in the said report and to present any additional facts bearing upon the matter as they desired to present.” Following cross-examination of the probation officer and Gardner's presentation of additional facts, the state circuit court accepted the pre-sentence report and suspended sentence upon Gardner's good behavior for one year.

Federal authorities indicted Gardner on January 6, 2006, for knowingly receiving and possessing child pornography. The indictment mentioned that Gardner had “a prior conviction under the laws of the state of Virginia for a crime related to sexual abuse and sexual conduct involving a minor.” The indictment referenced 18 U.S.C. § 2252A(b)(1), which provides an enhanced minimum sentence of fifteen years for persons receiving or possessing child pornography who “ha[ve] a prior conviction ... under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U.S.C. § 2252A(b)(1).

As the case proceeded through pre-trial motions, however, practically no additional evidence of Gardner's prior Virginia conviction was unearthed. This lack of evidence prompted Gardner to file a motion on November 6, 2006, to strike reference to the previous conviction because the Virginia pre-sentence report and plea-colloquy had been destroyed, and the only other evidence found up to that point—notably a report from the division of police—was not evidence the government could use to justify a sentence enhancement under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

The government responded on November 27, 2006, that Gardner's motion was premature. Then, at a hearing on December 5, 2006, the government's attorney announced that “the Circuit Court in Chesapeake, Virginia ... actually does have a sealed record of the defendant's case. Particularly, it contains the probation report that is specifically referenced in ... [the] order from 1994.” The district court took no action on the motion to strike at that time, but the district court announced that it would

look to ... any transcript of the plea colloquy, any plea agreement where he pled to this, and I'm not quite sure about a probation record.

It will really depend on what the probation record was whether that particular record contains the relevant admissions by the defendant to the probation officer where—whether I feel that this record was relied on and kind of imported into the order where the judge found him guilty of sexual battery.

This order very carefully keeps out the aspect of a minor, that this was a battery of a minor; in my view, very carefully keeps out, and that's not what he pled to.

And so I think this is a very fine line that the Court must walk, and I want to make sure that I do it correctly. And you're telling me that there are more records, and so I really don't think I can decide this issue today.

The Virginia pre-sentence report (“VA PSR”) arrived, and upon examination, the parties learned that the report contained information relevant to determining the facts underlying Gardner's previous conviction. Specifically, the VA PSR, quoting the report from the division of police, narrated the alleged offense:

According to Chesapeake Police file material, on January 5, 1992, Pride Gardner reported to Diana Hack a Child Protective Service Worker that her father, the subject, had been massaging her body all over including her breast and vaginal area with lotion. She further indicated that on occasion he had shaved her pubic area stating that she had too much hair around her vagina.

Still quoting the division of police report, the VA PSR also stated that Gardner said:

I turned myself in to family advocacy Portsmouth Naval Hospital. I was told to call Child Protective Services. I then called Social Services and made an appointment to give a statement. I was directed to move from the residence by the weekend and did so. I scheduled an arrest date with Detective Moore. I have been attending individual therapy, marriage counselling [sic] and family therapy since disclosure in January 92.

The VA PSR noted that Gardner was charged with “Aggravated Sexual Battery” but found guilty of “Indecent Liberties With a Child Custodian.” Significantly, this is different from the “Sexual Battery” of which the judicial order stated that he was found guilty.

Gardner pled guilty to receipt and possession of child pornography on February 15, 2007. During the plea hearing, however, Gardner's attorney made clear that he would contest sentence enhancement factors, including the prior conviction enhancement: “in addition, your Honor, ... we had objected to the prior conviction for a sexual offense against a minor, and we just want to make the record clear that although he's pleading guilty to the indictment ... we intend to dispute that fact.”

Before sentencing, a federal Pre–Sentence Report (“PSR”) was prepared for the federal case. The PSR noted Gardner's Virginia conviction and incorporated facts from the VA PSR. The PSR found that the minimum sentence provision of 18 U.S.C. § 2252A(b)(1) applied and recommended a 180–month sentence. After Gardner objected to this part of the PSR, the government filed its Sentencing Memorandum and defended application of the fifteen-year minimum sentence. The government cited the facts contained in the VA PSR and quoted the judicial order confirming Gardner's Virginia conviction in which the state Circuit Court judge noted, “[t]he report of the Probation...