United States v. Duke

Decision Date05 June 2015
Docket NumberNo. 14–30559.,14–30559.
Citation788 F.3d 392
PartiesUNITED STATES of America, Plaintiff–Appellee v. Elliott DUKE, Defendant–Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Camille Ann Domingue, Assistant U.S. Attorney (argued), Daniel J. McCoy, U.S. Attorney's Office, Lafayette, LA, for PlaintiffAppellee.

Cristie Gautreaux Gibbens, Assistant Federal Public Defender (argued), Federal Public Defender's Office, Lafayette, LA, for DefendantAppellant.

Appeal from the United States District Court for the Western District of Louisiana.

Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.

Opinion

PER CURIAM:

Elliot Duke (Duke) pled guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). The district court sentenced Duke to 240 months in prison, the statutory maximum, and imposed several special conditions of supervised release, including one unconditional, lifetime ban on accessing computers capable of Internet access and another prohibiting contact with individuals under the age of 18. On appeal, Duke challenges the procedural and substantive reasonableness of his sentence and the above-referenced conditions of his supervised release. For the reasons stated herein, we AFFIRM the procedural and substantive reasonableness of Duke's sentence, VACATE two special conditions of supervised release, and REMAND for resentencing proceedings consistent with this opinion.

I.

The following facts are taken from the presentence investigation report (PSR), to which neither Duke nor the Government objected. On May 14, 2013, detectives from the Vernon Parish Sheriff's Department in Leeville, Louisiana, were contacted by an individual claiming that his landlord, Duke, had been viewing child pornography. Duke's tenant reported seeing several sexually explicit images on Duke's laptop, including one involving a two- to four-year-old child.

Based on this information, detectives secured a search warrant for Duke's residence. Once advised that the detectives were at his residence to execute a search warrant, Duke expressed his willingness to cooperate and consented to the search. He admitted to possessing child pornography on his computer and to trading such images with other individuals over the Internet. After verifying that his computer contained images of child pornography, detectives took Duke into custody for further questioning.

While in custody, Duke again admitted to possessing child pornography on his computer with at least one image depicting a two-year-old child. He also admitted to having rape fantasies. Finally, after detectives found sexually explicit images of a teenage girl on his cellphone, Duke admitted that he had begun an online relationship with a young girl in Alabama who represented that she was 16 years old. Over the course of the one and one-half months that they were involved, the two engaged in sexual online conversations, which transitioned into exchanging sexual text messages and pictures.

A subsequent investigation conducted with Duke's consent by Homeland Security Investigations uncovered over 50 emails between Duke and another individual in which several images containing child pornography were exchanged. A forensic investigation of Duke's two laptops (only one contained images of child pornography) revealed 168 videos and 187 still images of child pornography.

Duke was then charged with one count of possessing child pornography (18 U.S.C. § 2252A(a)(5)(B) ), four counts of receipt of child pornography (18 U.S.C. § 2252A(a)(2)(B) ), and four counts of distribution of child pornography (18 U.S.C. § 2252A(a)(2)(B) ). Pursuant to a written plea agreement, Duke pled guilty to one count of receipt of child pornography.

The PSR determined that Duke's base offense level under the United States Sentencing Commission Guidelines Manual (the Guidelines) was 22 with a criminal history category of I. After several enhancements were assessed and a three-level reduction for acceptance of responsibility was credited, Duke's total offense level was 37. The resulting Guidelines range was 210 to 262 months imprisonment, but because the statutory maximum was 240 months, the Guidelines range became 210 to 240 months.

In anticipation of his sentencing hearing, Duke submitted a sentencing memorandum in which he requested a downward variance, citing personal characteristics such as his physically and emotionally abusive childhood, mental illness, and his service in the United States Army, for which he renounced his United Kingdom citizenship. Furthermore, he argued, the Guidelines range was inherently unreasonable because it failed to distinguish between the various child pornography offenses. The Government argued in opposition that the Guidelines range was presumptively reasonable and that a within-Guidelines sentence was warranted under the circumstances.

Duke reasserted his arguments for a downward variance at sentencing, which the district court rejected when sentencing him to the statutory maximum of 240 months imprisonment. The district court also imposed a lifetime term of supervised release with several conditions. The district court explained that it considered the PSR, Duke's sentencing memorandum and the Government's opposition, his character letters, and the factors contained in 18 U.S.C. § 3553 in imposing sentence.

In a written Statement of Reasons (SOR), the district court further explained Duke's sentence, stating that Duke was “actively engaged in child pornography with other [sic] via the internet, with some videos and images involving rape of toddlers,” that Duke entertained rape fantasies, and that he had established contact with a 16 year-old girl with whom he exchanged sexually explicit pictures. Duke objected at sentencing to two special conditions of supervised release: (1) that he is “not to have access to any computer that is capable of internet access”; and (2) that he is “to have no contact with anyone under the age of 18.” He also objected to the substantive reasonableness of his sentence.

On appeal, Duke challenges the procedural and substantive reasonableness of his sentence and the above-referenced special conditions of his supervised release.

II.

Duke first contends that his sentence is procedurally and substantively unreasonable. We review the reasonableness of the imposed sentence for abuse of discretion. United States v. Mondragon–Santiago, 564 F.3d 357, 361 (5th Cir.2009). Under this review, we must first determine whether the district court committed any significant procedural error, such as “failing to adequately explain the chosen sentence.” Id. at 360. If the district court's decision is procedurally sound, we will then “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

Duke failed to object to the procedural reasonableness of his sentence before the district court. Therefore, we review his challenge to the procedural reasonableness of his sentence for plain error. See Mondragon–Santiago, 564 F.3d at 361. Under plain error review, we must decide (1) if there was error, (2) if it was plain, (3) if the error affects substantial rights, and (4) if allowing that error to stand seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Alvarado, 691 F.3d 592, 598 (5th Cir.2012). However, because Duke objected to the substantive reasonableness at sentencing, we review his substantive challenge under the usual, abuse of discretion standard. Mondragon–Santiago, 564 F.3d at 361.

A.

Duke contends that the district court procedurally erred by failing to adequately articulate reasons for its imposed sentence at the sentencing hearing. Specifically, Duke argues that his valid arguments and the mitigating evidence he offered in support of his request for a downward variance required more than the district court's “boilerplate statement” that it had considered the § 3553 factors.

While the sentencing court is required to state “the reasons for its imposition of the particular sentence,” 18 U.S.C. § 3553(c), a full explanation of the sentencing factors is not required in every case. Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). When, as here, the district court imposes a within-Guidelines sentence, “little explanation” is required to make this showing. United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). However, more is required if the parties provide legitimate and nonfrivolous arguments supporting a departure or variance. Mondragon–Santiago, 564 F.3d at 362. In such instances, a district court “will normally go further and explain why [it] has rejected those arguments.” Rita, 551 U.S. at 357, 127 S.Ct. 2456. Nevertheless, such explanations need not be extensive. Id. Instead, [t]he sentencing judge should set forth enough to satisfy the appellate court that [s]he has considered the parties' arguments and has a reasoned basis for exercising h[er] own legal decisionmaking authority.” Id. at 356. We have concluded that § 3553(c)'s ultimate goal is to “permit effective appellate review of sentencing.” United States v. Gore, 298 F.3d 322, 325 (5th Cir.2002).

Assuming without deciding that the district court failed to give adequate reasons at sentencing, it did provide further justification for the sentence imposed in its written SOR. In its written SOR, the district court explained:

The sentence addresses the nature and circumstances of the offense and the history and characteristics of the defendant, as well as the need for the sentence to reflect the seriousness f[sic] the offense, and to afford adequate deterrence to criminal conduct. This defendant was actively engaged in child pornography with other [sic] via the internet, with some videos and images involving rape of toddlers. The defendant admitted to rape fantasies. He had also established contact
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