U.S. v. Pauley

• Decision Date: 28 December 2007
• Docket Number: No. 07-4270.,07-4270.
• Citation: 511 F.3d 468
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Larry PAULEY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

511 F.3d 468

UNITED STATES of America, Plaintiff-Appellant, v. Larry PAULEY, Defendant-Appellee.

No. 07-4270.

United States Court of Appeals, Fourth Circuit.

Argued December 5, 2007.

Decided December 28, 2007.

ARGUED: Robert Booth Goodwin, II, Assistant United States Attorney, Office of the United States Attorney, Charleston, West Virginia, for Appellant. Benjamin Lee Bailey, Bailey & Glasser, L.L.P., Charleston, West Virginia, for Appellee. ON BRIEF: Charles T. Miller, United States Attorney, Charleston, West Virginia, for Appellant. Eric B. Snyder, Deirdre H. Purdy, Bailey & Glasser, L.L.P., Charleston, West Virginia, for Appellee.

Before WILLIAMS, Chief Judge, MOTZ, Circuit Judge, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge HAMILTON wrote the opinion, in which Chief Judge WILLIAMS and Judge MOTZ joined.

OPINION

HAMILTON, Senior Circuit Judge:

Larry Pauley pled guilty to one count of possessing photographs that contained images of child pornography, 18 U.S.C. § 2252A(a)(5)(B). At sentencing, the district court determined that Pauley's Guidelines range was 78 to 97 months' imprisonment. After considering this range in conjunction with the factors set forth in 18 U.S.C. § 3553(a), the district court sentenced Pauley to forty-two months' imprisonment. Finding no abuse of discretion, we affirm the sentence imposed by the district court.

I

Pauley was an art teacher at Hayes Junior High School in St. Albans, West Virginia from August 1971 until he moved to a similar position at St. Albans High School in September 2003. While he was teaching at Hayes Junior High School in the 2002-2003 school year, Pauley was approached by a female eighth-grade student (the victim) who asked whether he was interested in paying her money if she took nude photographs of herself. Pauley agreed to the victim's proposal and, thereafter, the victim, using a Polaroid camera she owned, took nude photographs of herself and sold them to Pauley. A similar transaction was proposed by the victim and consummated by the parties later in the 2002-2003 school year.

For the 2003-2004 school year, both Pauley and the victim were at St. Albans High School. In September 2003, the victim approached Pauley and asked if he was interested in paying her money to take more nude photographs of herself. Pauley responded in the affirmative. Consequently, Pauley purchased more nude photographs of the victim during that month.

Some time before October 1, 2003, the victim approached Pauley with a proposal of a different kind. This time, the victim asked Pauley if he was interested in paying the victim and her friend, who was also a student at St. Albans High School, to take nude photographs of themselves together. Pauley told the victim that he was willing to pay both the victim and her friend for such photographs.

On October 1, 2003, Pauley gave the victim his Polaroid camera and some film, and the victim placed these items in her school locker. Later that day, the victim's friend reported to school personnel that Pauley was willing to pay her and the victim money to take nude photographs of themselves together. An investigation by school personnel and the St. Albans Police Department ensued. During a search of the victim's locker, school personnel discovered the camera and the film Pauley had given the victim. After the execution of a search warrant at Pauley's home, police officers recovered the photographs that the victim took of herself. Seventeen of the twenty-five photographs taken were determined to contain images of child pornography. None of the photographs included the face of the victim.

On August 10, 2004, the government filed a one-count information charging Pauley with possessing photographs that contained images of child pornography, id. § 2252A(a)(5)(B). On September 13, 2004, pursuant to a written agreement with the government, Pauley pled guilty.

In preparation for sentencing, a presentence report (PSR) was prepared by the probation office. Using the November 2003 edition of the United States Sentencing Commission's Guidelines Manual (USSG), the probation officer calculated Pauley's Guidelines range as follows. For his offense, Pauley's base offense level was 15, USSG § 2G2.4(a). However, because the offense involved causing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, the probation officer applied the Sexual Exploitation of a Minor Guideline, USSG § 2G2.1, see USSG § 2G2.4(c)(1) (providing for cross-reference to USSG § 2G2.1), which resulted in an offense level of 27. The probation officer added two more levels because the photographs involved a victim who had attained the age of twelve years but had not attained the age of sixteen years, USSG § 2G2.1(b)(1)(B). Because the victim, as a student at St. Albans High School, was arguably within Pauley's supervisory control, the probation officer increased Pauley's offense level by two levels pursuant to USSG § 2G2.1(b)(2). The probation officer also increased the offense level by two levels because, in the probation officer's view, the victim was vulnerable under USSG § 3A1.l(b)(1). After giving Pauley a three level reduction for acceptance of responsibility, USSG § 3E1.1, the probation officer calculated Pauley's offense level to be 30. This offense level, coupled with a criminal history category of I, produced a recommended Guidelines range of 97 to 121 months' imprisonment.

At sentencing, the district court sustained Pauley's objection to the vulnerable victim enhancement. This reduced Pauley's Guidelines range to 78 to 97 months' imprisonment. After allowing the parties to present arguments as to what they believed the appropriate sentence should be, the district court considered the Guidelines range and § 3553(a) factors, ultimately concluding that the circumstances of the case warranted a downward variance to a sentence of forty-two months' imprisonment. According to the district court, the extent of the downward variance was supported by the following facts as they related to the § 3553(a) factors: (1) in buying the nude photographs each time, Pauley initially was approached by the victim with such a proposal; (2) fewer than two dozen pornographic photographs were taken with the victim's Polaroid camera; (3) the victim's face did not appear in any of the photographs; (4) Pauley displayed deep remorse; (5) besides the criminal conduct at issue, Pauley was a model citizen and a good father and teacher; (6) as a result of his conviction, Pauley lost his teaching certificate and his state pension; (7) Pauley agreed to a lifetime of supervised release; (8) no other child pornography was found in Pauley's house; and (9) the counseling Pauley would receive during incarceration would rehabilitate him, allow him to lead a productive life upon release, and make further crimes by Pauley extremely unlikely.

II

On appeal, the government contends that the sentence imposed by the district court is unreasonable. More specifically, the government contends that the district court did not offer compelling reasons justifying the substantial variance from the advisory Guidelines range of 78 to 97 months' imprisonment. Alternatively, the government claims that the sentence must be vacated because the district court placed excessive weight on one of the § 3553(a) factors.

A

Before the enactment of the Sentencing Reform Act of 1984(SRA), as amended, 18 U.S.C. § 3551 et seq., 28 U.S.C. § 991 et seq., a sentencing court enjoyed wide discretion in imposing a criminal sentence. Mistretta v. United States, 488 U.S. 361, 363, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Because the vast majority of federal criminal statutes have only a maximum term of years (and a maximum monetary fine), a sentencing court was permitted to impose any term of imprisonment and any fine up to the statutory maximums. Given this wide discretion, the sentencing court's "determination as to what sentence was appropriate met with virtually unconditional deference on appeal." Id. at 364, 109 S.Ct. 647. Consequently, there was little, if any, appellate review of the sentence imposed by the sentencing court. Cf. Dorszynski v. United States, 418 U.S. 424, 431, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974) ("[O]nce it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end.").

The passage of the SRA radically changed the sentencing landscape. The SRA created the United States Sentencing Commission and authorized the Sentencing Commission to establish and implement sentencing policies for the federal criminal justice system. See 28 U.S.C. § 991(a) (establishing the Sentencing Commission "as an independent commission in the judicial branch of the United States"); id. § 991(b)(1) (noting that one of the purposes of the Sentencing Commission is to "establish sentencing policies and practices for the Federal criminal justice system"). At Congress' direction, the Sentencing Commission developed the Sentencing Guidelines to reduce judicial discretion, thereby creating more uniformity in sentences of similarly situated offenders. See id. § 994(a)(1) (directing Sentencing Commission to promulgate Sentencing Guidelines); see also United States v. Booker, 543 U.S. 220, 253, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (noting that "Congress' basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity"). Thus, the purposes of the Guidelines are to "provide direction as to the appropriate type of punishment-probation, fine, or term of imprisonment-and the extent of the punishment imposed." Stinson v. United States, 508 U.S. 36, 41, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).

Application of the Sentencing Guidelines by the sentencing court involves a multi-step process through which the sentencing court assesses the seriousness...