U.S. v. Irving

• Decision Date: 28 January 2009
• Docket Number: Docket No. 07-1312.
• Parties: UNITED STATES of America, Appellee, v. Stefan IRVING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

554 F.3d 64

UNITED STATES of America, Appellee, v. Stefan IRVING, Defendant-Appellant.

Docket No. 07-1312.

United States Court of Appeals, Second Circuit.

Argued: May 30, 2008.

Final briefs submitted November 13, 2008.

Decided: January 28, 2009.

Katherine Polk Failla, Assistant United States Attorney, New York, N.Y. (Michael J. Garcia, United States Attorney for the Southern District of New York, Stephen A. Miller, Assistant United States Attorney, New York, NY, on the brief), for Appellee.

Cheryl J. Sturm, Chadds Ford, PA, for Defendant-Appellant.

Before: KEARSE, SACK, and RAGGI, Circuit Judges.

KEARSE, Circuit Judge:

This case returns to us on the appeal of defendant Stefan Irving from an order of the United States District Court for the Southern District of New York, Lewis A. Kaplan, Judge, entered on remand following a decision of this Court which (a) upheld Irving's convictions, (b) postponed consideration of his sentencing challenges, and (c) remanded to the district court pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005) ("Crosby"), cert. denied, 549 U.S. 915, 127 S.Ct. 260, 166 L.Ed.2d 202 (2006), for consideration of resentencing in light of United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Irving was convicted, following a jury trial, on two counts of traveling outside the United States with intent to engage in a sexual act with a minor, in violation of 18 U.S.C. § 2423(b) (counts 1 and 2); one count of aggravated sexual abuse, to wit, traveling outside the United States with intent to engage in a sexual act with a minor under the age of 12 years, in violation of 18 U.S.C. § 2241(c) (count 3); one count of knowingly receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) (count 4); and one count of knowingly possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (count 5). He was sentenced principally to concurrent 262-month prison terms on each count, to be followed by two concurrent five-year terms of supervised release on counts 3 and 4 and, concurrently, three concurrent three-year terms of supervised release on counts 1, 2, and 5; he was ordered to pay a $200,000 fine. On the Crosby remand, the district court declined to resentence Irving.

On this appeal, Irving contends that his sentence is unreasonable, asserting that the district court (a) applied the wrong sections of the United States Sentencing Guidelines (1998) ("Guidelines") in calculating the base offense levels for his crimes, (b) improperly increased his offense level on the ground of vulnerability of his victims, and (c) failed to consider, as required by 18 U.S.C. § 3553(a)(6), the need to avoid unwarranted sentencing disparities. In addition, in response to a request from this Court to address a double jeopardy question, Irving contends that his conviction on either count 4 or count 5 should be vacated on the ground that receipt of child pornography and possession of child pornography are the same crime for purposes of double jeopardy, and that his conviction on both counts thus violates the Double Jeopardy Clause.

For the reasons that follow, we reject all of Irving's contentions and affirm the order of the district court.

I. BACKGROUND

Irving is a formerly-licensed pediatrician who was convicted in 1983 of attempted sexual abuse of a seven-year-old boy. See generally United States v. Irving, 452 F.3d 110, 114 (2d Cir.2006) ("Irving II"), superseding, on rehearing, United States v. Irving, 432 F.3d 401 (2d Cir.2005) ("Irving I"). In the late 1990s, Irving became a target of a federal investigation into individuals suspected of traveling to Mexico for the purpose of engaging in sexual acts with children. The present prosecution centered on Irving's travel to Mexico in 1998 and to Honduras in 1999 and his later receipt and possession of child pornography.

A. The Evidence at Irving's Trial

The evidence presented at Irving's trial is discussed in Irving II, familiarity with which is assumed. Addressing Irving's initial appeal from the judgment of conviction, our description of the evidence with regard to his Mexico trip included the following:

In May 1998 Irving traveled to Acapulco, Mexico to visit Castillo Vista del Mar, a guest house that served as a place where men from the United States could have sexual relations with Mexican boys. When defendant visited, seven or eight boys ranging in age from eight to 20 years old were residing there. Irving learned of Castillo Vista del Mar from Robert Decker—its then manager, and a friend from the 1970s.

Decker testified that prior to visiting, Irving asked if specific boys—whom he knew from previous visits—would be there. Decker said Irving specifically asked about an eight-year-old boy. Decker testified further that he saw Irving fondle some of the boys who lived at the guest house while swimming with them. He also stated he saw defendant go upstairs to his bedroom at various times with different boys. Decker said that during Irving's visit the two of them discussed a previous trip to Honduras that Irving had taken, trips to the beaches he took while there, and the boys he met. One of the boys at the guest house when Irving visited, Jesus Santiago Percastegui, corroborated relevant portions of Decker's testimony. Although unable to identify Irving in court, this witness stated that he saw "Esteban" (the name by which he knew Irving) at the beach caressing two other boys that lived at the guest house and twice go upstairs to his room with them.

Decker admitted while he was in Mexico he experienced financial difficulties, and that Irving gave him ATM cards, connected to an account he funded, up until Decker's September 2000 arrest. Irving gave Decker over $5,000 in support over the years. The two men also communicated regularly. Irving provided Decker with Internet web addresses of sites containing child pornography and on one occasion gave him images of boys engaged in sex acts with each other, with men, or by themselves. Irving told Decker he preferred prepubescent boys, under the age of 11, and that he preferred oral sex or fondling.

452 F.3d at 114-15 (emphases added).

On Irving's return to the United States from Mexico, a customs search of his luggage turned up, inter alia, computer diskettes containing "[i]mages of child erotica." Id. at 115. As to Irving's 1999 trip to Honduras, his personal journal described, inter alia, "details [of] his activities while there, particularly his luring of a 12-year-old boy back to his hotel with him and the sexual activities in which they engaged." Id. at 116.

In a search in 2003 pursuant to a warrant, agents found, inter alia, 76 video files on Irving's home computer, which had been downloaded on two days in July 2000. The government introduced the hard drive of that computer at trial. The video files "revealed `prepubescent boys engaging in various sexual acts with each other and in other cases of sexual acts by themselves.'" Id.

B. The Verdicts and Sentence

The jury found Irving guilty on all five of the counts against him: (1) traveling to Mexico with the intent to engage in a sexual act with a minor, in violation of 18 U.S.C. § 2423(b); (2) traveling to Honduras with the intent to engage in a sexual act with a minor, in violation of the same section; (3) traveling to Honduras with the intent to engage in a sexual act with a minor under the age of 12, in violation of 18 U.S.C. § 2241(c); (4) receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B); and (5) possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

The district court sentenced Irving using the 1998 version of the Guidelines, as the defense requested. As set forth in greater detail in Part II.B.1. below, with respect to counts 1, 2, and 3 (collectively the "travel counts"), the court used the base offense level provided in § 2A3.1, which applies to crimes of sexual abuse, or attempted sexual abuse, of children; and, as discussed in Part II.B.3., it increased that level pursuant to § 3A1.1(b)(1) on the ground that Irving knew that the children he abused were homeless and without parental supervision, and hence were unusually vulnerable. To determine Irving's base offense level for counts 4 and 5 (collectively the "child pornography counts"), the court looked to Guidelines § 2G2.2, which applies to, inter alia, receiving material involving the sexual exploitation of a minor. See Part II.B.2. below.

Applying the grouping rules for multi-count convictions, the court concluded that Irving's total offense level for all counts combined was 36. Given his criminal history category of II, the recommended Guidelines range was 210-262 months. Denying both Irving's motion for a downward departure and the government's motion for an upward departure, the court sentenced Irving at the top of the recommended range to 262 months' imprisonment, stating that Irving was "a predator" who had "abused . . . a lot of children" (Sentencing Transcript ("S.Tr.") 34); that he was "an extremely dangerous individual with respect to . . . sexual abuse of children" (id. at 39); and that Irving had shown himself to be quite proficient at abusing children, including "providing financial support, at least for a while, to keep the house in Acapulco, Ca[s]tillo Vi[st]a del Mar, open so that the service of providing young kids hustled off the streets of Acapulco to American pedophiles could go on" (id.).

The court also referred to Irving's conviction some 20 years earlier for attempted sexual abuse of a seven-year-old boy, pointing out that Irving, "as a school physician, [had taken] of that position to abuse the kids [he was] supposed to be caring for." (Id. at 40.) Thus, Irving "ha[d] spent a lifetime doing a great deal of harm to a great many extremely vulnerable children." (Id. at 39-40.)

Further, the court noted that the record contained no indication that Irving conceded...