United States v. Cates

• Decision Date: 25 July 2018
• Docket Number: No. 17-1423,17-1423
• Citation: 897 F.3d 349
• Parties: UNITED STATES of America, Appellee, v. Darrin CATES, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

897 F.3d 349

UNITED STATES of America, Appellee,

v.Darrin CATES, Defendant, Appellant.

No. 17-1423

United States Court of Appeals, First Circuit.

July 25, 2018

Ronald W. Bourget, Augusta, ME, and Law Offices of Ronald W. Bourget on brief for appellant.

Halsey B. Frank, United States Attorney, and Julia M. Lipez, Assistant United States Attorney, on brief for appellee.

Before Howard, Chief Judge, Selya and Barron, Circuit Judges.

SELYA, Circuit Judge.

A district court's factual findings at sentencing—as elsewhere—are typically reviewed for clear error. Those heights are difficult to scale. See United States v. Matthews, 749 F.3d 99, 105 (1st Cir. 2014). This case aptly illustrates the point.

Defendant-appellant Darrin Cates pleaded guilty to possession of child pornography, some of which depicted minors under twelve years of age. He now challenges his 120-month prison sentence. Concluding, as we do, that the defendant's assignments of error are impuissant, we affirm.

I. BACKGROUND

We rehearse the relevant facts and travel of the case (reserving some details for discussion in connection with specific issues). Since "this appeal trails in the wake of a guilty plea, we draw the facts from the undisputed portions of the presentence investigation report (PSI Report) ... and the transcripts of the sentencing hearings." United States v. Coleman, 884 F.3d 67, 69 (1st Cir. 2018).

At the times relevant hereto, the defendant—a self-employed website developer—resided in Winslow, Maine, with his wife and two daughters. In late 2014, the Maine State Police Computer Crimes Unit (MSPCCU) identified an internet protocol (IP) address registered to the defendant that had shared files associated with child pornography on BitTorrent, a peer-to-peer file-sharing network. The MSPCCU learned that, between September 15 and October 30, the defendant's IP address shared 36 torrents (large electronic files containing metadata on smaller files, which here numbered in the thousands). Based on its investigation, the MSPCCU obtained a search warrant and executed it at the defendant's residence on January 9, 2015. During the search, the defendant admitted to using the BitTorrent network to download "billions of images and videos" of child pornography over the preceding three years. The defendant's arrest followed, and a later forensic analysis of his external hard drive and USB flash drive revealed 826 pornographic images and 298 pornographic videos involving children between two and eleven years of age.

In due course, a federal grand jury sitting in the District of Maine handed up a single-count indictment charging the defendant with possession of child pornography. See 18 U.S.C. §§ 2252A(a)(5)(B), 2256(8)(A). On October 23, 2015, the defendant pleaded guilty.

When received, the PSI Report recommended a base offense level of 18 and suggested several adjustments. Pertinently, these included a five-level enhancement for "engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor," USSG § 2G2.2(b)(5), a two-level enhancement for "knowingly engag[ing] in distribution" of child pornography, id. § 2G2.2(b)(3)(F), and a three-level downward adjustment for timely acceptance of responsibility, see id. § 3E1.1.

At the disposition hearing, the district court considered the proposed adjustments. In mulling whether to apply the pattern of activity enhancement, the court relied on a series of MSPCCU interviews limned in the PSI Report. One such interview was with a woman (whom we shall call Jane Doe). After hearing of the defendant's arrest, Doe called the police and reported that, in 1997, the defendant—then her mother's boyfriend—had sexually abused her when she was seven or eight years old. In an interview with the MSPCCU two days later (January 13, 2015), Doe related the details of two sexual encounters. During the first such encounter, the defendant allegedly forced Doe to sit next to him while he masturbated. During the second such encounter, the defendant allegedly forced Doe to perform oral sex on him.

Doe went on to admit that she did not report the defendant's conduct to the authorities until 2001 (when she was twelve years old). At that time, she described three incidents in which the defendant allegedly forced her to touch and rub his penis with her hand and mouth.¹ She said that she had performed these acts because the defendant had threatened to hit her (as he had done in the past). In an interview with the police the following day, the defendant denied Doe's allegations. No charges were brought.

When the MSPCCU confronted the defendant regarding Doe's allegations following his January 2015 arrest, the defendant initially denied any sexual contact with Doe. Later in the same interview, though, he described an encounter where Doe had reached for and touched his penis. According to the defendant, he had been "embarrassed" by the incident and left the room immediately after it happened.

On June 13, 2016, the Department of Homeland Security (DHS) interviewed Doe.² In this interview, Doe was able to recall that the defendant forced her to touch his erect penis through his jeans and, several days later, forced her to watch him masturbate to pornography and then forced her to perform oral sex on him.

The defendant did not deny Doe's allegations at sentencing, and the district court imposed a five-level enhancement for "engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor." The court also imposed a two-level enhancement for "knowingly engag[ing] in the distribution of child pornography," finding that the defendant "distributed child pornography in a shared directory available for download over a peer-to-peer network and knew he was doing so." The court based this finding on, among other things, the premise that although "there's no evidence that [the defendant] actively distributed any pornography to anyone ... [he made] his platform available for others to receive pornography that was on his computer."

The court further found that the defendant had timely accepted responsibility for the offense of conviction and had neither falsely denied nor frivolously contested any relevant conduct. Accordingly, the court granted a three-level downward adjustment for acceptance of responsibility.

As adjusted, the defendant's total offense level was 35. Coupled with his placement in criminal history category I, this offense level yielded a guideline sentencing range of 168 to 210 months. The court reviewed the pertinent sentencing factors, see 18 U.S.C. § 3553(a), and attempted to balance the defendant's conduct against what it perceived to be the aggregate severity of the child pornography guidelines. In the end, the court imposed a below-the-range sentence: a 120-month term of immurement. This timely appeal ensued.

II. ANALYSIS

In this venue, the defendant challenges both the five-level enhancement for "engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor," USSG § 2G2.2(b)(5), and the two-level enhancement for "knowingly engag[ing] in [the] distribution" of child pornography, id. § 2G2.2(b)(3)(F). We examine these challenges separately.

At the outset, we pause to set the standard of review in place. For preserved claims of sentencing error, "we review the sentencing court's ‘interpretation and application of the sentencing guidelines’ de novo, [and] the court's ‘factfinding for clear error.’ " United States v. Ortiz-Carrasco, 863 F.3d 1, 3 (1st Cir. 2017) (quoting United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015) ). So, too, we review only for clear error a sentencing court's findings based on inferences drawn from discerned facts. See United States v. Nuñez, 852 F.3d 141, 144 (1st Cir. 2017). In undertaking appellate review of the defendant's claims of error, we remain mindful that "the government bears the burden of proving sentence-enhancing factors by a preponderance of the evidence." Id.

A. Pattern of Activity.

Through the pattern of activity enhancement, a defendant's offense level may be increased by five levels "[i]f the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor." USSG § 2G2.2(b)(5). The commentary to the sentencing guidelines—which we generally treat as authoritative unless it conflicts with federal law, see Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) —supplies a gloss. It defines a "pattern of activity" as "any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant." USSG § 2G2.2, cmt. n.1. In this case, the sentencing court found the requisite pattern of activity based on Doe's allegations about the 1997 encounters.

The defendant attacks this finding on three fronts. All of these attacks fail.

1. Catch-22. The defendant's most ferocious attack posits that he was unable to refute the facts underlying the pattern of activity enhancement without jeopardizing his offense-level reduction for acceptance of responsibility. See USSG § 3E1.1. He says that he was trapped in a "catch-22": if he contested Doe's allegations about the 1997 encounters and did not prevail, he might be subject not only to the five-level pattern of activity enhancement but also to the loss of the three-level acceptance of responsibility reduction. Forcing him to choose between challenging the enhancement and retaining the reduction, his thesis runs, was fundamentally unfair.

The defendant does not identify the legal doctrine upon which this argument is premised. We assume, favorably to the defendant, that he is mounting an argument under the Due Process Clause. See U.S. Const. amend. V ; see also Kandamar v. Gonzales, 464 F.3d 65, 69 (1st Cir. 2006) (analyzing non-specific unfairness claim as due process claim). Because this argument was made below and turns on a question of law, it engenders de novo review. See United States v....