U.S. v. Pugh

• Decision Date: 31 January 2008
• Docket Number: No. 07-10183.,07-10183.
• Citation: 515 F.3d 1179
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Bruce Clayton PUGH, a.k.a. sknowgirl, a.k.a. alabamaprincess4, pgugh, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

515 F.3d 1179

UNITED STATES of America, Plaintiff-Appellant, v. Bruce Clayton PUGH, a.k.a. sknowgirl, a.k.a. alabamaprincess4, pgugh, Defendant-Appellee.

No. 07-10183.

United States Court of Appeals, Eleventh Circuit.

January 31, 2008.

David Andrew Sigler, Mobile, AL, for U.S.

Carlos Alfredo Williams and Kristen Gartman Rogers, Fed. Pub. Defenders, Mobile, AL, for Pugh.

Appeal from the United States District Court for the Southern District of Alabama.

Before MARCUS and PRYOR, Circuit Judges, and HANCOCK^*, District Judge.

MARCUS, Circuit Judge:

This appeal tests the nature and extent of appellate review over sentencing under the new regime of advisory Sentencing Guidelines. After thorough review, we are constrained to conclude that even under the most recent Supreme Court precedent, affording substantial deference to the district court's sentencing determinations, the district court abused its discretion by imposing a probationary sentence on the defendant in this case.

Here, the government appealed from the non-custodial sentence of defendant Bruce Clayton Pugh ("Pugh"), who downloaded on his computer over a period of several years at least 68 images of child pornography, as well as videos of an adult male raping an infant girl and of a young girl performing oral sex on an adult male. The advisory Sentencing Guidelines range recommended for the offense to which Pugh pled guilty—knowing possession of images of child pornography that were mailed, shipped or transported by computer in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A)—was 97 to 120 months' imprisonment. The district court nevertheless sentenced Pugh to a five-year probationary term. In so doing, the district court relied heavily on Pugh's history, characteristics and motive in imposing a non-custodial sentence for a crime that fell on the high end of the. Guidelines sentencing table. But in our view, the district court did not provide a sufficiently compelling justification to support the degree of its variance, nor did it give any apparent weight to many other important statutory factors embodied by Congress in 18 U.S.C § 3553(a) that must be considered at sentencing. As we see it, this probationary sentence utterly failed to adequately promote general deterrence, reflect the seriousness of Pugh's offense, show respect for the law, or address in any way the relevant Guidelines policy statements and directives. Accordingly, we hold that this sentence is unreasonable, and therefore vacate and remand so that the district court can re-calculate the defendant's sentence.

I.

The presentence report ("PSI") presented the following basic facts. During an investigation conducted in Oklahoma in May 2003, the FBI learned that Warren Paul Perkins, III, had emailed child pornography images to the America OnLine ("AOL") screen name "moonkiss." The FBI traced that screen name to Joyce Pugh, the defendant's sister and housemate, and obtained a warrant to search the computer systems and other related computer components owned by the Pughs. During a search of the Pugh home in Selma, Alabama in September 2003, a police detective observed several images of nude pubescent children in provocative poses in Pugh's computer files.

When interviewed on the day of the search by an FBI agent, Pugh said he downloaded child pornography images but then deleted them. Pugh added that he may have forwarded child pornography to the "list me" areas in chat rooms. Pugh told the FBI that he entered chat rooms on the Internet pretending to be an underaged female and that people would then email him child pornography images. He also admitted that he once saw an image on his computer of a man having sex with a two- or three-year old who had a dog collar around her neck.

A subsequent forensic examination of Pugh's computer by the FBI revealed some 70 images of child pornography, including a horrifying video of an infant girl being raped by an adult male, a video of a young girl performing oral sex on an adult male, and an image of male and female children engaged in sex acts with an adult male. There were ten known child victims—young boys and girls whose identities have been established by the government—in the images found on the defendant's computer.

The FBI interviewed Pugh again in March 2005. At this time, Pugh told the investigators that he went to the chat rooms pretending to be an underaged girl using the screen name "sknowgirl." Some users would send Pugh child pornography thinking he was a young girl. When erotica pictures came to him from other users, Pugh would separate them, save them, and send them to other users under the pretense that he was the subject of the pictures. According to Pugh, men were always trying to pick him up over the Internet, and he justified his pretense by thinking that he was keeping the men away from "real children."

He said that everyone in the chat rooms sent him child pornography images, even though he asked them for adult pornography. Pugh explained that he actively sought adult "bondage" and "scat" pornography,¹ not the child pornography that others sent him, and that he never looked for child pornography on the Internet. Pugh offered that he did not want the pictures, which did not arouse him; rather, he only wanted to talk. However, he knew that his pretense would in fact cause people to send him child pornography.

In a January 2006 indictment, Pugh was charged by a federal grand jury sitting in the Southern District of Alabama with receipt and distribution of images of child pornography by computer in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1) (count one); possession of images of child pornography that had been mailed, shipped or transported by computer in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A) (count two); and receipt of obscene matter by interactive computer service in violation of 18 U.S.C. § 1462 (count three). In March 2006, Pugh pled guilty to the possession count embodied in Count Two, pursuant to a written plea agreement.

As part of the plea agreement, Pugh admitted to "knowingly possess[ing] a computer[] and compact disc which contained more than 3 images of child pornography ..." in violation of 18. U.S.C. § 2252A(a)(5)(B). Pugh further admitted that a forensic examination of his computer revealed that he had approximately 68 images and two videos of child pornography, which had been downloaded from the internet using AOL.

These images included the following:

yungcumpusjpg: a video of a female infant with an adult male penis penetrating the infant's vagina. The adult male has ejaculated and semen is on the surface of the infant's labia.

xxxjob.mpeg: a video of a child approximately 12 years of age performing oral sex on an adult male.

(1).jpg: phot[o] of a boy and girl both of whom are approximately 8 years of age and the girl has the penis of an adult male in her mouth.

Pugh also admitted to connecting to the internet using AOL, visiting chat rooms pretending to be an underaged child, and viewing the child pornography sent to him by others in the chat rooms.

Using the 2002 Guidelines Manual, as supplemented on April 30, 2003, the probation officer determined Pugh's base offense level to be 17 under U.S.S.G. § 2G2.2. The offense level then was enhanced 2 levels under U.S.S.G. § 2G2.2(b)(1) because the material involved prepubescent minors or minors under age 12; 5 levels under U.S.S.G. § 2G2.2(b)(2)(B) because the offense involved distribution for the receipt of child pornography but not for pecuniary gain; 4 levels under U.S.S.G. § 2G2.2(b)(3) because the material portrayed sadistic or masochistic conduct or other depictions of violence; 2 levels under U.S.S.G. § 2G2.2(b)(5) for use of a computer or interactive computer service; and 3 levels under U.S.S.G. § 2G2.2(b)(6) for more than 150 but fewer than 300 images.² Subtracting 3 levels for acceptance of responsibility under U.S.S.G. § 3E1.1, Pugh's adjusted offense level was 30, and his criminal history category was level I. Thus, the advisory Sentencing Guidelines yielded a range of 97-120 months' imprisonment.

At the sentencing hearing, the district court adopted the PSI as published. Pugh's counsel then called John Frank Warren, III, Ph.D., ("Warren") to testify concerning Pugh's mental state and likelihood of recidivism. Warren, a clinical and forensic psychologist, testified that in his opinion, Pugh presented a "low-risk" on a "low-moderate-high" risk assessment scale, which measures an offender's risk of re-offending, but recognized that "no one is a no risk." Warren also opined that Pugh was not a pedophile, and was not addicted to child pornography, but rather, was addicted to adult pornography, an addiction that developed as a result of an abusive home life. Warren observed that in the late 1990s, Pugh had sought mental health treatment for his pornography addiction, but none of the therapists or the psychiatrist he met with addressed his concerns, and eventually, he stopped going.

Warren further suggested that Pugh would be "easy pickings for more predatory or sociopathic peers" in a prison setting and that a prison sentence could lead Pugh to "more maladaptive coping and, arguably, a higher risk status following additional victimization." According to Warren, Pugh is receiving treatment from a psychologist in Selma, Alabama.

Warren acknowledged that he had viewed a video from Pugh's computer in which an adult male raped an infant female, and admitted that this experience would have a "horrible impact" on the child victim. Warren also explained that the impact on the children depicted in the other pornographic images on Pugh's computer was "very detrimental," and offered, "that's the reason we have laws about child pornography." Finally, when questioned by the district court, Warren testified he had not diagnosed most defendants in the prior child pornography cases he worked on as pedophiles—in fact, he had...