U.S. v. Poynter

• Decision Date: 26 July 2007
• Docket Number: No. 05-6508.,05-6508.
• Citation: 495 F.3d 349
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Avery Vinson POYNTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

495 F.3d 349

UNITED STATES of America, Plaintiff-Appellee, v. Avery Vinson POYNTER, Defendant-Appellant.

No. 05-6508.

United States Court of Appeals, Sixth Circuit.

Argued: April 4, 2007.

Decided and Filed: July 26, 2007.

ARGUED: Jerry W. Gilbert, Coy, Gilbert & Gilbert, Richmond, Kentucky, for Appellant. John Patrick Grant, Assistant United States Attorney, Lexington, Kentucky, for Appellee. ON BRIEF: Jerry W. Gilbert, Coy, Gilbert & Gilbert, Richmond, Kentucky, for Appellant. Charles P. Wisdom, Jr., Assistant United States Attorney, Lexington, Kentucky, for Appellee.

Before: SILER and SUTTON, Circuit Judges; JORDAN, District Judge.^*

SUTTON, J., delivered the opinion of the court, in which JORDAN, D. J., joined. SILER, J. (p. 359-60), delivered a separate dissenting opinion.

OPINION

SUTTON, Circuit Judge.

Avery Poynter, 36 years old, pleaded guilty to traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with two minors. After calculating a guidelines range of 188-235 months and considering the § 3553(a) factors, the district court imposed a 720-month sentence (the statutory maximum) because Poynter was a repeat child sex offender. Unable to conclude that this variance resulted from a reasonable application of § 3553, we reverse.

I.

On May 4, 1989, Avery Poynter pleaded guilty in Kentucky state court to committing four counts of sodomy in the second degree with an eleven-year-old male. The court sentenced Poynter to a 20-year term of imprisonment, but the State released him on parole four years later after he completed Kentucky's sex offender treatment program in prison.

In October 2003, Poynter traveled from Kentucky to Tennessee to have sex with a fourteen-year-old male. In December, he met the same minor in Indiana and, after the two traveled to Kentucky, they again had a sexual encounter. In April 2004, Poynter traveled to Indiana with another fourteen-year-old male for another sexual foray. The next month, the two traveled to Florida for the same purpose.

After the police caught Poynter, he pleaded guilty to four counts of traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor. 18 U.S.C. § 2423(b). Accounting for adjustments based on his supervisory control over the victims, U.S.S.G. § 2A3.2(b)(2)(B), and on his multiple counts of conviction, id. § 3D1.4, the district court set Poynter's initial offense level at 28 and his criminal history category at III, creating a guidelines range of 97-121 months. Because Poynter was convicted of a sex crime and had previously "sustain[ed] at least one sex offense conviction," the district court applied the mandatory minimums of the "Repeat and Dangerous Sex Offender Against Minors" sentencing guideline. U.S.S.G. § 4B1.5(a). The district court therefore increased Poynter's final offense level to 32 (including a two-level adjustment for acceptance of responsibility), see id. § 4B1.5(a)(1)(B)(ii), and increased his criminal history to category V, see id. § 4B1.5(a)(2). All of these adjustments considered, Poynter was left with a guidelines range of 188-235 months.

At the sentencing hearing on August 18, 2005, the district court heard testimony from Poynter's victims and from the mother of the second victim. The district court acknowledged receiving a letter from Poynter's parents, and Poynter spoke on his own behalf. Poynter "apologize[d] to [his] victims, as well as [his] family"; he recognized that "this has been a problem for [him] for many years" and that he had already gone "back into counseling with the counselors"; he welcomed "anything that [the] Federal [Government] has to offer"; and he said that he did not "intend" to "ever hav[e] another victim." JA 41-42.

In sentencing Poynter, the district court acknowledged the guidelines range of 188-235 months and the statutory maximum of 720 months. See 18 U.S.C. §§ 2423(b), 2426(a). The court recognized that it must "impose a sentence . . . that is sufficient but not greater than necessary to comply with the purposes" of 18 U.S.C. § 3553(a)(2). JA 46. It then analyzed the § 3553(a) factors in exercising its independent judgment about what an appropriate sentence would be. Reflecting on the "seriousness of the offense," see § 3553(a)(2)(A), the court said that "[t]he protection of children in our society deserves the highest priority," JA 46, and observed that Poynter "used alcohol and other drugs to seduce these victims" and that he had "victimized multiple children," JA 49; see § 3553(a)(1). Reflecting on the need to impose a "just punishment" and "to promote respect for the law," see § 3553(a)(2)(A), the court focused on Poynter's criminal history: "You did do it once before. . . . You did not learn your lesson. And so I think that the just punishment component of this has been ratcheted upwards." JA 46; see § 3553(a)(1). Consistent with the need to "protect the public from further crimes," see § 3553(a)(2)(C), the district court stated that "[t]he only way I can be sure that [children] are protected is for [Poynter] to be in custody." JA 47.

As for rehabilitation, see § 3553(a)(2)(D), the court said that Poynter should participate in the federal sex offender treatment program but doubted that Poynter would ever recover because sex crimes are "highly recidivistic." JA 49. The court also noted that the "statutory maximum" protected against "unwarranted sentencing disparities," JA 47; see § 3553(a)(6), and that "[t]here is no restitution that [Poynter] can pay to these victims that can make them whole," JA 47; see § 3553(a)(7).

In choosing the statutory maximum (720 months or 60 years), the court emphasized the need for "adequate deterrence," see § 3553(a)(2)(B), explaining that sex crimes are "highly recidivistic," that Poynter "forgot the lessons [he] learned in counseling," that "[o]ne slip is one too many" and that the harm here is so great that it "outweighs in the Court's judgment [Poynter's] ten-year compliance." JA 48. The court added that it was "aware of the guideline range top—capping out at 235 months," see § 3553(a)(4)—but that it had "chosen the statutory maximum because [it] believe[d] that Mr. Poynter is unsafe to children" as a repeat offender. JA 52. "It is my intention," the court concluded, "that he either not ever be released from prison or be released from prison at such an age that it would be highly unlikely that he will ever commit this offense again. If he can't control himself, I think the Court needs to impose a sentence that will control him." JA 52-53. The court also imposed a lifetime term of supervised release.

II.

Since United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we have distinguished between procedural and substantive reasonableness. See United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). No one questions the district court's adherence to the procedural requirements of post-Booker review: It properly calculated the guidelines range, recognized that those guidelines were advisory and thoroughly considered the factors listed in § 3553(a). See United States v. Davis, 458 F.3d 491, 495 (6th Cir. 2006). The court also stated "the specific reason for the imposition of a sentence" outside the guidelines range, 18 U.S.C. § 3553(c)(2)—"that [Poynter] either not ever be released from prison or be released from prison at such an age that it would be highly unlikely that he will ever commit this offense again." JA 52.

The substantive reasonableness of this sentence is another matter—a point that Poynter not only contests but contests with some force. In asking whether a sentence reasonably comports with the substantive demands of § 3553, we face a tug of war between two competing sets of considerations. On one side, we face several limitations in second-guessing the district court's decision. Unlike the trial court, we did not see the defendant, the victims or family members testify at the sentencing hearing. And unlike the trial court, most appellate judges have little experience sentencing individuals. While trial judges sentence individuals face to face for a living, we review transcripts for a living. No one sentences transcripts. All of this suggests that we should acknowledge the trial courts' comparative advantages—its ring-side perspective on the sentencing hearing and its experience over time in sentencing other individuals— and give considerable deference to their sentencing decisions. See Rita v. United States, ___ U.S. ___, 127 S. Ct. 2456, 2469, 168 L.Ed.2d 203 (2007) ("The sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court."); Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) ("District courts have an institutional advantage over appellate courts in making [sentencing] determinations, especially as they see so many more Guidelines cases than appellate courts do.").

On the other side, one of the principal functions of the Sentencing Reform Act of 1984 was to eliminate "unwarranted sentenc[ing] disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). District court judges cannot correct that problem within their circuit or even within their own court (so long as two or more judges sit there), much less nationwide, because "different judges (and others) can differ as to how best to reconcile the disparate ends of punishment." Rita, 127 S. Ct. at 2464. Reasonableness review thus permits "appellate courts to minimize sentencing disparities between and among district courts (and between and among courts of appeals)," Davis, 458 F.3d at 495, or, to use the words of Booker, to "iron out sentencing differences" among trial judges, Booker, 543 U.S. at 263, 125 S.Ct. 738; see also United States v. Sriram, 482 F.3d 956, 962 (7th Cir. 2007) ("[Booker]...