U.S. v. Vowell

• Decision Date: 29 January 2008
• Docket Number: No. 06-5742.,No. 06-6535.,06-5742.,06-6535.
• Citation: 516 F.3d 503
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter Franklin VOWELL (06-5742), and Katherine Sue Pratt (06-6535), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

516 F.3d 503

UNITED STATES of America, Plaintiff-Appellee, v. Walter Franklin VOWELL (06-5742), and Katherine Sue Pratt (06-6535), Defendants-Appellants.

No. 06-5742.

No. 06-6535.

United States Court of Appeals, Sixth Circuit.

Argued and Submitted: November 2, 2007.

Decided and Filed: January 29, 2008.

ARGUED:

Edwin A. Perry, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. Dan L. Newsom, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

ON BRIEF:

Randolph W. Alden, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, Stephen A. Sauer, Memphis, Tennessee, for Appellants. Dan L. Newsom, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: BATCHELDER, COLE, and GRIFFIN, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Co-Defendants/Appellants Katherine Sue Pratt ("Pratt") and Walter Franklin Vowell ("Vowell") appeal the sentences imposed by the district court after they pleaded guilty to coercing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct and possession of child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252(a)(4)(13) respectively. The district court sentenced. Pratt to 240 months on count one and 120 months on count two, to be served concurrently, followed by a lifetime of supervised release. It sentenced Vowell to 540 months on count one and 240 months on count two, to run consecutively, for a total of 65 years in federal prison, followed by a lifetime of supervised release.

Both Vowell and Pratt filed timely, appeals, challenging the procedural and substantive reasonableness of their respective sentences. Pratt also claims that the district court plainly erred by failing to notify her of its intention to sentence her above the Guidelines range. Because we conclude that both sentences were reasonable, and that Pratt had adequate notice of the district court's intention to sentence her above the Guidelines range, we. AFFIRM both sentences.

I. FACTUAL BACKGROUND

A. Offense conduct

Vowell's mother brought his and Pratt's conduct to the attention of the authorities when she found a videotape depicting sexual acts between Vowell and a prepubescent child. In the course of their investigation, Tennessee Bureau of Investigation agents discovered the facts that follow, which neither Vowell nor Pratt disputes.

Vowell was Pratt's live-in boyfriend at the time of the criminal actions giving rise to this prosecution. The two made a videotape containing three separate instances, on three separate dates; of Vowell, a forty year-old man, sexually molesting Pratt's then eight year-old daughter, "K.T.," while Pratt—wearing a hood over her head to hide her identity from her child—operated the camera. During the first two encounters, K.T. appears to be drugged and asleep. The tape shows Vowell committing various sexual acts against. K.T., including fondling, digital to genital contact, oral to genital contact, and attempted genital and anal penetration of the child. Several times Pratt's voice is clearly audible on the tape, including one occasion when she asks Vowell if he is "getting tired."

During the third videotaped sexual encounter, K.T. is awake and responds to Vowell's sexual commands. Vowell and K.T. both performed oral to genital contact, and Vowell attempted genital to genital penetration. At several points, Pratt zoomed the camera in for close-up views of Vowell sexually assaulting her eight year-old child. Vowell believed that he and Pratt could sell the tapes for up to $3,000, and the two intended to do so. The videotaped encounters, however, were not the only instances of Vowell's sexual misconduct. Vowell told Pratt that he had sexually assaulted K.T. on other occasions. In particular, on one occasion Vowell forced K.T. to perform oral sex on him before he would give her money to purchase books at a book fair. K.T. protested, telling Vowell that she did not want to have to do things like that anymore.

After learning of the investigation, Vowell fled. He stole a car in Dyersburg, Tennessee, and, after abandoning that car, eventually ended up in Florida. Law enforcement apprehended him there on February 16, 2005, after he stole his employer's car.

B. The sentencing hearings

Vowell was the first of the defendants to be sentenced. The district court explained in detail the Guidelines' calculation contained in the Presentence Report ("PSR"), which yielded a total offense level of 32 and a range of 188-235 months' incarceration for the two counts. But the court pointed out that, notwithstanding the Guidelines' range, the statutory minimum sentence for violating 18 U.S.C. § 2251(a) is 300 months.¹

In response to Vowell's objections to the application of two special offense characteristics—the offense involved distribution for pecuniary gain and the offense involved a pattern of sexual abuse of a minor—the district court heard the testimony of an agent of the Tennessee Bureau of Investigation who had taken Pratt's voluntary statement at the outset of the investigation into the offenses. The agent explained what that statement and the videotape contained, and on the basis of that information, the district court overruled Vowell's objections. The court then specifically considered and discussed the 18 U.S.C. § 3553(a) factors, emphasizing the abusive and heinous nature of Vowell's conduct, the lasting damage he had inflicted on his victim, and, given Vowell's prior statutory rape conviction, the significant need to protect the community. Next, the district court pointed out that Vowell needed treatment because he is a threat to children. Lastly, the court emphasized the need for punishment in this case, particularly because of the harm Vowell caused K.T. and the need to combat the child pornography industry. The district court then imposed its sentence: consecutive terms of 45 years' incarceration on count one and 20 years' incarceration on count two, to be followed by a lifetime period of supervised release. The court reiterated that Vowell had essentially destroyed the life of K.T., and that Vowell's sentence "is to make sure that you do not have an opportunity to abuse another child." Before the district court, Vowell raised no objection to the sentence.

Several months later, the district court sentenced Pratt. According to undisputed information in the PSRs, both K.T., the victim of the sexual assaults perpetrated and recorded by the defendants, and B.T., her minor brother, have suffered serious psychological and emotional damage as a result of the defendants' conduct. K.T., now 11 years old, and her older brother, B.T., now age 14, were living in foster homes at the time of Vowell's sentencing hearing, but were living with Pratt's sister, Mary Jones Reed ("Jones Reed"), at the time of Pratt's sentencing. Both children are receiving counseling due to significant behavioral problems. K.T. blames herself for the terrible abuses committed against her. Furthermore, B.T. blames K.T. for sending Pratt to prison. At Pratt's sentencing hearing, Jones Reed testified that she believes the abuse K.T. has suffered will affect K.T. for the rest of her life. In addition to hearing testimony from Jones Reed, the district court heard testimony from a psychologist who had examined Pratt. Finally, the court heard the testimony of Ms. Pratt herself.

The district court calculated Pratt's base offense level at 33 for count one and 29 for count two. Adjusting the offense level for multiple counts, the district court found that her Guidelines range was 168-210 months, but noted that violation of 18 U.S.C. § 2251(a) carried a mandatory minimum sentence of 15 years' incarceration. The district court then discussed at length the 18 U.S.C. § 3553(a) factors before deciding Pratt's sentence.

The district court began by emphasizing that Pratt had not only permitted but had assisted Vowell in assaulting her daughter on multiple occasions, and that the abuse would not have stopped but for the intervention of law enforcement. Acknowledging that Pratt had been diagnosed as having a dependent personality and as suffering from feelings of helplessness, the district court found that society needed to be protected from Pratt, and that Pratt needed to be protected from herself. The district court noted that counsel for the Government had already detailed many of the § 3553(a) factors, and that the court did not need to repeat all of them. That said, the court did examine the kinds of sentences available for the offenses and Pratt's specific characteristics, explaining that it had "to impose a sentence that is sufficient but not greater than necessary to satisfy the various sentencing objectives." The court explained that, in light of the seriousness of the offense as well as Pratt's history, the Guidelines range did not yield a sufficient sentence. Therefore, the district court sentenced Pratt to 20 years in prison, with supervised release for life. And the court specifically ordered that Pratt receive intensive psychological and mental health treatment, with the hope that this treatment would provide Pratt the opportunity to recover eventually from her psychological problems and to lead a normal life.

II. STANDARD OF REVIEW

We review sentences imposed by the district court for reasonableness. United States v. Conrad Smith, 474 F.3d 888, 892 (6th Cir.2007) (citing United States v. Collington, 461 F.3d 805, 807 (6th Cir.2006)). We afford sentences within the applicable Guidelines range the presumption of reasonableness. United States v. Foreman, 436 F.3d 638, 644 (6th Cir.2006). That does not mean, however, that a sentence outside of the Guidelines range— either higher or lower—is presumptively unreasonable. Id.; Collington, 461 F.3d at 808. A sentence outside the Guidelines carries with it no legal...