U.S. v. Nunemacher

• Decision Date: 30 March 2004
• Docket Number: No. 02-3380.,02-3380.
• Citation: 362 F.3d 682
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michael R. NUNEMACHER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 682

362 F.3d 682

UNITED STATES of America, Plaintiff-Appellant, v. Michael R. NUNEMACHER, Defendant-Appellee.

No. 02-3380.

United States Court of Appeals, Tenth Circuit.

March 30, 2004.

Richard A. Friedman, Appellate Section, Criminal Division, United States Department of Justice, Washington, DC (Eric F. Melgren, United States Attorney for the District of Kansas; Nancy Landis Caplinger and Alan G. Metzger, Assistant United States Attorneys for the District of Kansas, Wichita, KS, with him on the briefs), for Plaintiff-Appellant.

Stephen M. Joseph of Joseph & Hollander, P.A., Wichita, KS, for Defendant-Appellee.

Before SEYMOUR, McKAY, and O'BRIEN, Circuit Judges.

McKAY, Circuit Judge.

This is an appeal by the Government of the district court's decision to depart downward from the applicable Guideline sentencing range in a child pornography case. At the time of the offense, in April 2001, the Defendant was a sophomore at college living in the dormitory. The record reflects that, for a period of a few weeks, he possessed and distributed child pornography on his computer. During the time that Defendant was collecting and distributing child pornography, an FBI agent accessed his site and downloaded child pornography. Defendant did not know he was being investigated by the FBI at the time. After a few weeks, Defendant removed the software and destroyed all of the pornography files on his computer with the exception of a floppy disk that he destroyed a short time later. Five months later, he first learned of the FBI's investigation. Defendant admitted his guilt and cooperated with the FBI agents. After the FBI's initial contact with Defendant, he sought professional help and began sex offender treatment.

On October 30, 2001, Defendant was indicted with distribution and possession of child pornography. He entered into a written plea agreement in which the Government agreed to drop the distribution charge and to recommend that Defendant receive the maximum acceptance of responsibility reduction. The probation office calculated Defendant's sentencing range as 27-33 months' imprisonment based on a criminal history of I and an offense level of 18. The Presentence Report recommended no grounds for departure because Defendant had already received a significant benefit from not having the distribution charge counted in the calculation (which could have been done) and by receiving the acceptance of responsibility credit.

At the sentencing hearing on September 6, 2002, the district court departed downward and imposed a sentence of five years probation based on the limited duration of the offense, voluntary termination of illegal activities, diminished capacity, and post-offense rehabilitation. On appeal, the Government argues that the district court erred in finding valid grounds for departing downward in this case. Alternatively, the Government argues that even if there were valid grounds for departure, the district court's extent of departure was unreasonable.

The recent enactment of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 ("PROTECT Act"), Pub.L. No. 108-21, 117 Stat. 650 (April 30, 2003), changed the standard of review applicable to sentencing departures. We continue to accept the district court's findings of fact unless they are clearly erroneous, and we "give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e). However, "[w]here the district court departs from the sentencing guidelines, [we now] review de novo the district court's determinations under 18 U.S.C. § 3742(e)(3)(A) and (B)." United States v. Jones, 332 F.3d 1294, 1299 (10th Cir.2003). We have previously held that the new standard of review in 18 U.S.C. § 3742(e)(3)(A) and (B) applies to defendants who were sentenced prior to the enactment of the PROTECT Act. Id.

In Jones, we also detailed the framework to be used when reviewing a district court's sentencing departure including relevant cites to the new PROTECT Act. Since the PROTECT Act did not substantially change the substantive considerations for crimes other than child crimes or sexual offenses, see generally United States v. VanLeer, 270 F.Supp.2d 1318, 1322-23 (D.Utah 2003), the basic analytical framework remained essentially the same as before even though the considerations are now codified. See Jones, 332 F.3d at 1299 ("applicable analytical framework ... remains generally consistent with the four-part test set forth in [United States v. Collins, 122 F.3d 1297 (10th Cir.1997)]").

Unlike in Jones, the Defendant in our case is convicted of a child crime or sexual offense¹. For defendants convicted of child crimes or sexual offenses after the PROTECT Act went into effect on April 30, 2003, 18 U.S.C. § 3553(b)(2)² provides the new approach to determine whether a departure is "authorized." Since the PROTECT Act went into effect after sentencing in our case, we cannot apply 18 U.S.C. § 3553(b)(2). "[W]hen a new statute is passed, the general rule is that courts will not apply the statute in ways that would create new legal consequences for events completed before the statute was enacted." Daniels v. United States, 254 F.3d 1180, 1187 (10th Cir.2001); see also Landgraf v. USI Film Prod., Inc., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) ("presumption against retroactive legislation"); United States v. Mallon, 345 F.3d 943, 946 (7th Cir.2003) (noting that "[n]ew laws presumptively operate prospectively and do not alter the legal consequences of completed acts" in context of non-procedural aspects of the PROTECT Act); U.S.S.G. § 1B1.11(a) ("[t]he court shall use the Guidelines Manual in effect on the date that the defendant is sentenced."). However as noted infra, in Jones, we have decided that the new standard of appellate review does apply.³

Because we cannot retroactively apply 18 U.S.C. § 3553(b)(2) in this case, the pre-PROTECT Act framework, now codified in the PROTECT Act for crimes other than child crimes or sexual offenses and detailed in Jones, is applicable here even though Defendant is convicted of a child crime or sexual offense.⁴ In Jones, we outlined the four-part framework as follows:

First, we must ascertain whether the district court set forth, in a written order of judgment, its specific reasons for departure. 18 U.S.C. § 3742(e)(3)(A); 18 U.S.C. § 3553(c)(2). Second, we must consider whether the factors the district court relied upon "advance the objectives set forth in section 3553(a)(2)⁵," 18 U.S.C. § 3742(e)(3)(B)(i), and ensure that the district court's reliance on those factors did not violate any specific prohibition in the Guidelines, Koon v. United States, 518 U.S. 81, 106, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Our review under this second prong of the analysis is de novo. 18 U.S.C. § 3742(e);⁶ Collins, 122 F.3d at 1302-03. Third, we must consider whether the factors the district court relied upon were "authorized under section 3553(b)" [] and "justified by the facts of the case." 18 U.S.C. § 3742(e)(3)(B)(ii)-(iii). To determine whether the factors are "authorized," we look to 18 U.S.C. § 3553(b)(1), which provides that a district court may depart if "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." This third step in the analysis is commonly called the "heartland" determination. See Collins, 122 F.3d at 1303 (reviewing court must determine "whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland [sufficient to] warrant[] a departure"). We review de novo this "application of the guidelines to the facts" under 18 U.S.C. § 3742(e)(3)(B).⁷ See 18 U.S.C. § 3742(e). Finally, we must ask whether the district court's sentence "departs to an unreasonable degree from the applicable guidelines range." 18 U.S.C. § 3742(e)(3)(C); accord Collins, 122 F.3d at 1303 (reviewing court must determine "whether the degree of departure is reasonable"). In reviewing the degree of departure, we give due deference to the district court, 18 U.S.C. § 3742(e), and will not reverse absent an abuse of discretion. United States v. Goldberg, 295 F.3d 1133, 1138, 1141 (10th Cir.2002).

Jones, 332 F.3d at 1300 (footnotes in original).

Pursuant to Jones, the first determination on appellate review is whether the district court stated its reasons for a downward departure with specificity. The district court in our case had no warning of the future requirements when it entered its judgment and set forth its reasons orally at the sentencing hearing. "Whether this statement meets the specificity requirement of § 3553(c) [for the purposes of this appeal] is a matter we need not decide in this instance, because we conclude defendant must be resentenced in any event."⁸ Id. However, we caution the district court to be mindful of this requirement at resentencing.

Our second inquiry is whether the district court relied on permissible factors in its decision to depart downward. Permissible factors advance the objectives set forth in § 3553(a)(2) and may not violate any specific prohibition in the Guidelines. Jones, 332 F.3d at 1299. The district court relied on the following factors in its decision to depart downward: (1) "atypical conduct" including the limited duration of the offense, voluntary termination from the conduct prior to law enforcement contact, and cooperation with law enforcement agents; (2) rehabilitation efforts; and (3) diminished capacity. Aplt.App. at 96-98.

The Government argues that the above factors were not appropriate factors based on the record in this case. The Government does not appear to be arguing that these factors are never valid grounds for departure. Additionally, the Government admitted at sentencing that "the United States does agree that all...