U.S. v. Scott

• Citation: 426 F.3d 1324
• Decision Date: 27 September 2005
• Docket Number: No. 05-11843. Non-Argument Calendar.,05-11843. Non-Argument Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David William SCOTT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

426 F.3d 1324

UNITED STATES of America, Plaintiff-Appellee, v. David William SCOTT, Defendant-Appellant.

No. 05-11843. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

September 27, 2005.

Timothy R. Saviello (Fed. Pub. Def.), Stephanie Kearns (Fed. Pub. Def.), Fed. Def. Program, Inc., Atlanta, GA, for Scott.

Aaron M. Danzig, Amy Levin Weil, U.S. Atty., Atlanta, GA, for U.S.

Appeal from the United States District Court for the Northern District of Georgia.

Before BLACK, HULL and PRYOR, Circuit Judges.

HULL, Circuit Judge:

David William Scott appeals his 135-month sentence imposed after pleading guilty to: (1) use of an interstate facility to entice a minor for the purpose of sexual activity, in violation of 18 U.S.C. § 2422(b); (2) traveling in interstate commerce to engage in a sexual act with a person under the age of 18, in violation of 18 U.S.C. § 2423(b); and (3) crossing a state line with intent to engage in a sexual act with a person under the age of 12, in violation of 18 U.S.C. § 2241(c). On appeal, Scott argues that the imposition of a sentence of 135 months' imprisonment, at the low end of the advisory Guidelines range, was unreasonable. After review, we affirm.

I. BACKGROUND

A. Guilty Plea

Scott pled guilty to the above offenses without a plea agreement. During the plea colloquy, the government set forth the following facts, which Scott admitted as true.

In February 2004, FBI Agent Steve Paganucci, operating undercover, joined an online message board. The purpose of the message board was to allow adults with children to meet other adults for the purposes of arranging and having sex with children. Agent Paganucci posted a profile indicating that he had a six-year-old boy and a four-year-old-girl. The day that Agent Paganucci posted his profile, Scott sent an e-mail to Agent Paganucci.

Scott and Agent Paganucci engaged in e-mail correspondence over the next couple of months. In e-mail correspondence, Scott indicated that he wanted to have sex with Agent Paganucci's six-year-old boy and four-year-old girl. Scott explained that he had a niece that he was "working on," specifically stating, "Yeah, if you can get them trained young enough, they don't talk, but as I said, I wasn't even in the state for the first five years, didn't have much of a chance." Scott also stated in an e-mail, "A thought I had last night but forgot to include, I have discovered that a good way to make friends with small ones, (and most big ones for that matter, . . .), is to bring them gifts . . . Let's [sic] them know you are a friend and you are interested in them, so what would you recommend?" Agent Paganucci recommended stuffed animals.

On April 17, 2004, Scott traveled from his home in Tennessee to a prearranged meeting place in Marietta, Georgia, where he was arrested. A search of his car yielded two stuffed animals and sexual paraphernalia.¹ A search of his home computer yielded one image of child pornography.

B. The PSI

The Presentence Investigation Report ("PSI") detailed more of the e-mail correspondence between Scott and Agent Paganucci, who posed as the father of the two children. According to the PSI, Scott asked Agent Paganucci how far the two children were willing to go, and the FBI agent responded that he had sex with both of his children. In March 2004, Scott sent an e-mail to Agent Paganucci in response to a proposed plan of action. Scott stated, "Well, that's all up to you. Leave me to it, I'll fill both `em up in all locations . . . . More than once, time permitting . . . . You give me what you're cool with, and I'll stick to it." After Scott indicated that he preferred girls, Scott and Agent Paganucci agreed that Paganucci would bring only the female child to meet Scott at first. After Agent Paganucci indicated that he wanted his daughter done hard, Scott indicated that he was excited about getting to "bang hard" on a four-year-old girl.

The PSI suggested a base offense level of 27 for each of the three counts of conviction. See U.S.S.G. § 2A3.1(a) (2003). The PSI increased the offense level for each count by: (1) four levels under U.S.S.G. § 2A3.1(b)(2) because the children had not attained the age of twelve; (2) two levels under U.S.S.G. § 2A3.1(b)(6)(B) because the offense involved the use of a computer; and (3) three-levels under U.S.S.G. § 3D1.4 to account for the multiple counts and offense levels. Thus, the PSI recommended an adjusted offense level of 36 for each of the three counts of conviction.

Finally, the PSI suggested a three-level reduction in each count for acceptance of responsibility under U.S.S.G. § 3E1.1. With a total offense level of 33 and a criminal history category of I, Scott's Guidelines range was 135-168 months' imprisonment.²

C. Motion for Downward Departure

Prior to sentencing, Scott filed a written motion for a downward departure pursuant to U.S.S.G. § 5K2.0. Scott contended that the following factors, individually and collectively, warranted a downward departure: (1) a psychosexual evaluation by the Behavioral Medicine Institute ("BMI") (the services of which were retained by Scott) found that Scott was not a significant risk to children in the future, Scott was unlikely to attempt sexual interaction with children in the future, his conduct stemmed from depressive symptoms and interest and practice in fetishistic sexual activities, Scott did not meet the DSM-IV-R diagnosis for pedophilia, and, in testing, Scott did not show sexual interest in young boys or young girls; (2) Scott presented extraordinary family responsibilities, including caring for his father, who suffered from a degenerative heart disease; (3) Scott had been attacked in jail while in pre-trial custody because of the charges against him, and, since the attack, he had been in solitary confinement; (4) the requirement that he register as a sex offender upon his release from custody would diminish his ability to find employment; and, (5) in a similar case in which another defendant was found not to meet the diagnosis for pedophilia, another district court in the Northern District of Georgia departed downward and sentenced that defendant to probation.

D. Sentencing

At the March 3, 2005 sentencing hearing, Scott presented witnesses, including family and friends, and further argument in support of his motion for a downward departure under U.S.S.G. § 5K2.0. Additionally, Scott requested that the district court sentence him below the advisory Guidelines range based on the factors set forth in 18 U.S.C. § 3553(a).

As to the § 3553(a) factors, Scott first argued that a variance below the Guidelines range was appropriate in light of the nature and circumstances of the offense. See 18 U.S.C. § 3553(a)(1). Specifically, Scott submitted that: (1) there was no real victim because the children were fictitious; (2) there was no mention in the e-mail correspondence between Scott and Agent Paganucci that Scott intended to use the sexual paraphernalia found in his car; (3) Scott met Agent Paganucci in a public place where there could be no sexual contact and which would give Scott ample time to change his mind; and (4) at one point there was a break in the contact between Scott and Agent Paganucci, and the Agent reinitiated contact instead of Scott.

Scott next argued that a variance below the Guidelines range was appropriate in light of the history and characteristics of the defendant. See 18 U.S.C. § 3553(a)(1). Specifically, Scott asserted that he: (1) was "saveable" and not a danger to children in the future; (2) did not meet the definition of a pedophile; (3) accepted responsibility for his actions; (4) was depressed when he engaged in the e-mail correspondence with Agent Paganucci; (5) had the love and support of his family and friends; and (6) had no criminal history.

Scott also contended that a variance below the Guidelines range would reflect the seriousness of the offense, provide just punishment, and provide adequate deterrence. See 18 U.S.C. § 3553(a)(2)(A), (B). Specifically, Scott argued that there is a punishment aspect to the requirement that Scott register his name with the state as a convicted sex offender such that less incarceration is required to punish and deter future illegal conduct.

Finally, Scott claimed that under § 3553(a)(2)(D), the district court must consider whether the sentence provides the defendant with any necessary treatment, and in this case Scott needs counseling, which could be afforded to Scott on supervised release.

After considering Scott's arguments, the district court denied Scott's motion for downward departure pursuant to U.S.S.G. § 5K2.0. The district court then adopted the factual findings and statements in the PSI, including Scott's offense level, criminal history category, and Guidelines range of 135-168 months' imprisonment.

As to the § 3553(a) factors, the district court then acknowledged that pursuant to United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Guidelines were no longer mandatory and that it had "considered the argument made by counsel in that regard." The district court also noted that Scott's counsel had done "those things that might lessen [Scott's] sentence in this case." Additionally, the district court stated that it considered the age of the child, as follows:

Before coming to this Court, I was on the Superior Court in Dalton, Georgia for twenty years and I sentenced a lot of child molesters, and over the years I learned to take a lot of things into consideration in those cases; all the obvious things that you would normally take in consideration, but also take in consideration the age of the child, which makes an impression on me in this particular case.

Ultimately, the district court declined to sentence Scott below the advisory Guidelines range. Specifically, the district court sentenced Scott to 135 months' imprisonment, a sentence at the low end of the Guidelines range....