U.S. v. Geiner

• Citation: 498 F.3d 1104
• Decision Date: 20 August 2007
• Docket Number: No. 06-8055.,06-8055.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert GEINER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

498 F.3d 1104

UNITED STATES of America, Plaintiff-Appellee, v. Robert GEINER, Defendant-Appellant.

No. 06-8055.

United States Court of Appeals, Tenth Circuit.

August 20, 2007.

Loretta R. Green, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Cheyenne, WY, appearing for Defendant-Appellant.

Stuart S. Healy, III, Assistant United States Attorney (Matthew H. Mead, United States Attorney, with him on the brief), Office of the United States Attorney, Cheyenne, WY, appearing for Plaintiff-Appellee.

Before TACHA, Chief Circuit Judge, MURPHY, Circuit Judge, and LUNGSTRUM,^* District Judge.

TACHA, Chief Circuit Judge.

Defendant-Appellant Robert Geiner appeals his sentence of 210 months' imprisonment for attempted interstate transportation of child pornography and possession of child pornography. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1) and affirm.

I. BACKGROUND

Mr. Geiner was charged with attempted interstate transportation of child pornography (count one), in violation of 18 U.S.C. § 2252A(a)(2)(A) & (b)(1), and possession of child pornography (count two), in violation of 18 U.S.C. § 2252A(a)(5)(B) & (b)(2). He pleaded guilty to both counts, but did so without entering into a plea agreement. Because the proposed plea agreement required that Mr. Geiner stipulate to the application of certain enhancements under the United States Sentencing Guidelines (U.S.S.G. or Guidelines), Mr. Geiner rejected the agreement, electing to raise his arguments regarding the proper application of the Guidelines before the District Court. At his change of plea hearing, Mr. Geiner admitted that he knowingly possessed and attempted to distribute computer files containing child pornography by enabling the file-sharing feature on a computer software program called "bearshare," which he installed on his home computer. He also admitted that he obtained computer files containing child pornography by downloading them from other people using bearshare.

The U.S. Probation Office issued a Presentence Investigation Report (PSR) calculating an imprisonment range under the Guidelines of 210 to 262 months for count one and 210 to 240 months for count 2 based on a total offense level of 37 and a Criminal History Category of I. The total offense level included a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for committing an offense involving "distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain." As the PSR addendum reflects, Mr. Geiner objected to the application of this enhancement, arguing that it should not apply because he did not barter or agree with another for the exchange of a "thing of value" when he shared and downloaded files containing child pornography.

Mr. Geiner noted this same objection to the PSR at his sentencing hearing, arguing that, instead of applying the five-level enhancement, the court should apply the general two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for distribution that does not fall under one of the other § 2G2.2(b)(3) subsections. In response, the Government introduced the testimony of the special agent who investigated and interviewed Mr. Geiner.¹ The agent testified that Mr. Geiner had been using a software program called bearshare, a peer-to-peer file-sharing program that is available on the Gnutella File-Sharing Network. The agent explained that Mr. Geiner originally used this program to download images from others without enabling the sharing feature of the software program to allow others to access and download his computer files. Later, however, Mr. Geiner changed the software settings by clicking a box on the software's preferences page to facilitate the sharing of certain computer files with others.² According to the agent, Mr. Geiner had learned that he could download files from others at a faster speed if he permitted others to obtain files from him. As the agent explained, because Mr. Geiner permitted the sharing of his files, he became a "priority trader" when he sought files from other network users. As a priority trader, Mr. Geiner had the benefit of a faster downloading speed, which gave him the ability to obtain files containing child pornography more easily and efficiently. After hearing from both parties, the District Court decided that the enhancement applied to Mr. Geiner's case because he had made files containing child pornography available to the public in return for the ability to obtain child pornography at a faster speed.

After the court addressed Mr. Geiner's objections to the PSR, Mr. Geiner indicated that he wished to call witnesses to testify in his behalf. At this point, the District Court notified the parties that it intended to impose a sentence within the Guidelines, even though the court understood that the Guidelines are not mandatory and it may exercise its discretion to impose a sentence that meets the objectives of the sentencing factors delineated in 18 U.S.C. § 3553(a). The court noted that the Guidelines have "particular value to sentencing judges in this kind of case" and that it should not ignore the Guidelines when a Guidelines sentence meets the purposes of the factors in § 3553(a). In addition, the court explained that, because it intended to apply a Guidelines sentence, it would not consider "impermissible bases for departure." In response, Mr. Geiner's counsel indicated that she understood the court's intentions and that all of the testimony she planned to present was related to a ground for departure under the Guidelines, specifically diminished capacity under U.S.S.G. § 5K2.13.

After hearing Mr. Geiner's testimony and counsels' arguments concerning a departure based on diminished capacity, the court accepted the PSR's total offense level of 37 and decided to sentence Mr. Geiner within the Guidelines range contained in the PSR. Before imposing the sentence, the court asked the parties if they wished to make any additional objections. Neither party objected. The court subsequently sentenced Mr. Geiner to 210 months' imprisonment, the bottom end of the applicable range under the Guidelines.

On appeal, Mr. Geiner challenges his sentence on two grounds. He argues that the District Court erred in applying the enhancement under U.S.S.G. § 2G2.2(b)(3)(B) and that his sentence is both unreasonable and unconstitutional because the court did not consider the § 3553(a) factors.

II. DISCUSSION

We will set aside Mr. Geiner's sentence only if it is procedurally or substantively unreasonable in light of the statutory factors contained in 18 U.S.C. § 3553(a). See United States v. Hildreth, 485 F.3d 1120, 1127 (10th Cir.2007). A procedurally reasonable sentence reflects the sentencing court's calculation of the applicable advisory Guidelines range and its application of the § 3553(a) factors. See United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir.2007). In addition, to impose a procedurally reasonable sentence, the sentencing court must "afford defendants their rights under the Federal Rules of Criminal Procedure." Id. A sentence is substantively reasonable when it "reflects the gravity of the crime and the § 3553(a) factors as applied to the case." Id.

Moreover, although the Guidelines are now advisory, we accord a properly calculated Guidelines sentence a presumption of substantive reasonableness, see United States v. Kristl, 437 F.3d 1050, 1054-55 (10th Cir.2006) (per curiam), an approach the Supreme Court recently upheld as constitutional, Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). In holding that the courts of appeals may accord Guidelines sentences this presumption, the Supreme Court explained that the Guidelines "seek to embody the § 3553(a) considerations" and "reflect a rough approximation of sentences that might achieve § 3553(a)'s objectives." Id. at 2464. Consequently when a district court imposes a Guidelines sentence, it reflects the "double determination" of the district court and the Sentencing Commission regarding the proper sentence: "The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale." Id. at 2463. As the Court reasoned, an appellate presumption of reasonableness "simply recognizes the real-world circumstance that when the judge's discretionary decision accords with the Commission's view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable."³ Id. at 2465.

In affirming the use of an appellate presumption, the Court also emphasized the nonbinding nature of the presumption. Id. at 2463. It does not function like an evidentiary presumption, which requires one side to meet a particular burden of proof, and it does not allow for the especially strong deference appellate courts often grant an expert agency's factual findings. Id. The presumption simply reflects the increased likelihood that a Guidelines sentence will be reasonable because it represents the combined judgment of the sentencing court and the Sentencing Commission. Id. at 2465. With this in mind, we first determine whether the District Court correctly applied the Guidelines, reviewing the court's findings of fact for clear error and its legal conclusions de novo. See Kristl, 437 F.3d at 1054. We then address Mr. Geiner's argument that his sentence is unreasonable and unconstitutional.

A. Application of the Guidelines

The District Court applied a five-level increase to Mr. Geiner's sentence under U.S.S.G. § 2G2.2(b)(3)(B), which enhances a sentence based on "[d]istribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain." The application note to this section defines the type of distribution to which the...