United States v. Fowler

• Decision Date: 27 January 2020
• Docket Number: No. 18-4755,18-4755
• Citation: 948 F.3d 663
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. John Michael FOWLER, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

948 F.3d 663

UNITED STATES of America, Plaintiff – Appellee,

v.John Michael FOWLER, Defendant – Appellant.

No. 18-4755

United States Court of Appeals, Fourth Circuit.

Argued: December 10, 2019

Decided: January 27, 2020

ARGUED: Cullen Oakes Macbeth, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Daniel Alan Loveland, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Robert K. Hur, United States Attorney, Paul E. Budlow, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Before WILKINSON, THACKER, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Thacker and Judge Rushing joined.

WILKINSON, Circuit Judge:

Appellant John Michael Fowler argues that the district judge erred by mentioning the possible impact of good-time credits, and inaccurately calculating the potential impact of such credits, when sentencing him for the production and possession of child pornography. Fowler also argues that his final sentence was longer than needed to serve the proper purposes of sentencing. We disagree on all counts. The charges against Fowler stemmed from horrific conduct—his sexual abuse of two young girls. The district judge’s mention of good-time credits was tied to 18 U.S.C. § 3553(a) factors, such as the need to protect the public, that he was required to consider during sentencing. By carefully weighing many relevant factors, the judge reached a substantively reasonable sentence of 40-years’ imprisonment.

I.

A.

The facts of this case are not contested. John Michael Fowler sexually abused two young girls. He filmed and photographed some of this abuse, leading to the case at hand. One victim was his girlfriend’s daughter ("Jane Doe 1" or "Jane"). Fowler began living with his girlfriend ("K.M.") and Jane in 2013. Between 2013 and 2014, Fowler sexually abused Jane, who was seven to eight years old at the time.

Fowler did not end his abuse of Jane until he moved out of the house in late 2014, despite almost being caught for abusive activities over a year earlier. In September 2013, a concerned citizen called the police on Fowler after seeing him behave suspiciously toward Jane on public transportation. Police responded and found that Fowler was carrying a concealed weapon; they arrested him on a weapons charge. During an interview shortly afterwards, Jane told the police that Fowler was sexually abusing her at home. Four days later, she recanted when interviewed at the Baltimore City Child Abuse Center (the "BCAC"). According to K.M., Jane had seen K.M. placed in handcuffs the night of Fowler’s arrest, and believed that K.M. would go to jail and that she would go to foster care if she told the truth about Fowler’s abuse. Despite this "near miss," Fowler’s sexual abuse of Jane continued.

Over a year later, in December 2014, Jane was diagnosed with chlamydia, a sexually transmitted disease, which both Fowler and K.M. had recently been treated for. Jane was interviewed at the BCAC a second time but, once again, did not disclose Fowler’s continued abuse. Fowler stopped abusing Jane after he moved out at the end of 2014.

Several years later, in January 2017, ten-year-old Jane found a laptop at her home containing a video created by Fowler in 2014. The video showed Jane and her similarly aged cousin ("Jane Doe 2") singing and dancing while wearing only underwear. It briefly showed Fowler, also in underwear. Fowler’s voice can occasionally be heard in the video: at one point, he directed the girls to take off their underwear. They did so and continued dancing. After finding the video, Jane was interviewed at the BCAC a third time.

During this third interview, Jane described the abuse she had suffered at Fowler’s hands. Details included the following: Fowler offered Jane money to touch his penis; he put her hands on his penis; he put his penis on her chest; he attempted to put his penis in her vagina and in her bottom; and his abuse occurred only when her mother was out of the house.

The BCAC also interviewed Jane Doe 2, who disclosed that she had been abused by Fowler when she was around eight years old. Specifically, one night while sleeping over at Jane’s house, she woke up to find Fowler taking a picture of her vagina with a cell phone; at the time, she was sleeping in a t-shirt without underwear, as was Jane. Jane Doe 2 also saw Fowler take pictures of Jane’s vagina that night. Jane Doe 2 did not spend another night at Jane’s house until after Fowler moved out.

In February 2017, officers from the FBI and the Baltimore City Police Department seized Fowler’s laptop while executing a search warrant at his home. Fowler was interviewed the same day. He denied sexually abusing Jane, but investigators found at least four images showing such abuse on his laptop. Each image corresponds to a count in Fowler’s indictment.

• Count 1: Image showing a nude Jane touching Fowler’s erect penis.

• Count 2: Image showing Fowler and Jane, both nude, where Jane is holding an object that is touching Fowler’s penis.

• Count 3: Image appearing to show Fowler raping Jane. A naked Fowler lies on top of a naked Jane with his torso positioned between her legs. This image was taken from the side, and Fowler appears to penetrate Jane.

• Count 4: Image appearing to show Fowler raping Jane. A naked Jane sits on top of a naked Fowler. Fowler’s genitals are in contact with Jane’s, and he appears to penetrate her.

Fowler was charged with five counts in his indictment. For the four counts described above, he was charged with the production of child pornography in violation of 18 U.S.C. § 2251(a). Count Five charged Fowler with the possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2).

B.

Without reaching a plea agreement, Fowler pleaded guilty to all five counts. A production conviction carries a mandatory minimum sentence of 15-years’ imprisonment and a maximum of 30-years’ imprisonment, 18 U.S.C. § 2251(e), and a possession conviction carries no mandatory minimum sentence and a maximum of 20-years’ imprisonment, 18 U.S.C. §§ 2252(a)(4)(B), (b)(2). Thus, Fowler faced a maximum potential sentence of 140-years’ imprisonment.

Both Fowler and the government submitted sentencing memoranda. Fowler requested an all-concurrent sentence of 15-years’ imprisonment, the mandatory minimum, followed by supervised release. His sentencing memorandum focused on his difficult childhood and his diagnoses of neurocognitive defects. The government requested a sentence of 50-years’ imprisonment. Its sentencing memorandum focused on Fowler’s abhorrent conduct and the impact on his child victims. It requested a sentence lower than the 140-year statutory maximum, after "tak[ing] into consideration the mitigating factors present, namely the defendant’s disturbing childhood and his mental-health challenges." S.J.A. 212.

At Fowler’s sentencing hearing on October 15, 2018, the district judge determined that the Sentencing Guidelines recommended life imprisonment for Fowler, based on his criminal history category of I and total offense level of 43. Both parties addressed the court. The government highlighted Fowler’s egregious conduct, the abuse of trust integral to his crimes, and the "opportunistic" aspects of his behavior. J.A. 69. It also discussed the ongoing impact of Fowler’s abuse on his victims, particularly Jane’s struggles with depression and anxiety. Consistent with its sentencing memorandum, the government requested a sentence of 50-years’ imprisonment.

Once again, the defense requested a sentence of 15-years’ imprisonment, asking the court to balance the harm caused by Fowler against "[his] acceptance of responsibility, his profound history of trauma, the circumstances that led to this offense, and his amenability to treatment and supervision." J.A. 49. During the hearing, the district judge asked the defense questions about Fowler’s time in foster care as a child, his mental health issues, his employment history, and his eligibility for government benefits; the defense provided in-depth answers. In response to the government’s proposed sentence, the defense argued that a sentence of 50-years’ imprisonment would be "life-equivalent" and inappropriate as a matter of policy. J.A. 65.

The district judge recognized that Fowler was "a troubled individual" who has "had serious mental health issues" and "suffered extraordinarily in [ ] life." J.A. 71. However, the judge also noted that Fowler had "laid great pain upon the victims of this offense," J.A. 71, which "cannot be ignored, nor minimized, nor can the matter of public outrage not be minimized, nor can the matter of protection of the public be minimized," J.A. 73. The judge agreed with the defense that a life-equivalent sentence would be "very inappropriate," but also noted that a 15-year sentence would be "grossly inappropriate." J.A. 74-75.

After the district judge provided a detailed synopsis of the factors he was balancing in this case, J.A. 71-75, he described a portion of his thought process as follows:

[I]t occurred to me that what is proportionate, what protects the public, what provides sufficiently severe punishment, but yet, at the same time, gives [Fowler] some light somewhere at the end of the tunnel, I think is around his 60th birthday, which, when crunching numbers, means that, with a sentence of 40 years’ imprisonment, which is 480 months, that allowing that 20% knockoff perhaps for good-time credit, that it would mean that ultimately he would serve perhaps 32 years of a 40-year sentence -- who knows. That’s up to the Bureau of Prisons. I can’t control that -- from the age of 28. And the ultimate release date is more in the vicinity of his 60th birthday, not his 70th birthday.

J.A. 75. In the end, the judge sentenced...