United States v. Fowler
| Decision Date | 21 April 2020 |
| Docket Number | Nos. 19-3070/3071,s. 19-3070/3071 |
| Citation | 956 F.3d 431 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Christopher T. FOWLER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ON BRIEF: Catherine Adinaro Shusky, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Michael E. Sullivan, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
Before: NORRIS, MOORE, and DONALD, Circuit Judges.
In 2018, Christopher T. Fowler ("Fowler") pled guilty to possession of child pornography and violations of the conditions of his supervised release from a previous conviction for the same. Under 18 U.S.C. § 3014, the district court ordered Fowler to pay a $5,000 special assessment for possession of child pornography. The district court also varied upward and sentenced Fowler to the maximum statutory penalty for violating the conditions of his supervised release. On appeal, Fowler challenges both the $5,000 special assessment and the court’s decision to vary upward to the maximum for the violation of the conditions on his supervised release. Because we find the district court committed plain error by failing to address Fowler’s ability to pay the assessment, we VACATE the district court’s imposition of the assessment and REMAND for a determination of indigency. However, we AFFIRM the district court’s sentence of Fowler on the violation of the conditions on his supervised release.
The facts in this case are undisputed. In 2010, Fowler pled guilty to one count of receipt and distribution of child pornography and one count of possession of child pornography. He was sentenced to 82 months’ imprisonment followed by 10 years of supervised release. After serving his sentence in prison, Fowler was released in 2015 and began serving his term of supervised release. Fowler repeatedly violated the conditions of his supervised release, first by testing positive for drugs and then by committing the same type of offense that landed him in prison in 2010. From June 14, 2016, to December 14, 2016, Fowler used a peer-to-peer file sharing program on his smartphone to gain access to child pornography, including graphic depictions of several children under the age of 10. The government charged Fowler with one count of receipt and distribution of child pornography under 18 U.S.C. § 2252(a)(2) and one count of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B).
In addition to his repeated drug use, Fowler committed several troubling acts while his case was pending. He made over fifty calls to his girlfriend in an attempt to get her to recant testimony that she had given at a detention hearing held in November 2017. During a phone call with his mother, Fowler also threatened to hurt his probation officer.
On May 8, 2018, Fowler pled guilty to possession of child pornography on the condition that the government would drop the count for receipt and distribution of child pornography. He signed a plea agreement, which included a waiver of appellate and post-conviction rights:
Defendant acknowledges having been advised by counsel of Defendant’s rights, in limited circumstances, to appeal the conviction or sentence in this case, including the appeal right conferred by 18 U.S.C. § 3742, and to challenge the conviction or sentence collaterally through a post-conviction proceeding, including a proceeding under 28 U.S.C. § 2255. Defendant expressly and voluntarily waives those rights, except as specifically reserved below. Defendant reserves the right to appeal: (a) any punishment in excess of the statutory maximum; [ ] or (c) [sic] the Court’s determination of Defendant’s Criminal History Category. Nothing in this paragraph shall act as a bar to Defendant perfecting any legal remedies Defendant may otherwise have on appeal or collateral attack with respect to claims of ineffective assistance of counsel or prosecutorial misconduct.
At the change of plea hearing, Fowler acknowledged that he understood this section of the plea agreement. During this same hearing, the prosecutor noted Fowler would be subject to a $5,000 special assessment under the Justice for Victims of Trafficking Act, but the prosecutor also stated that this special assessment was not mentioned in the written plea agreement. The prosecutor, however, noted that the special assessment could be waived if the court were to find that Fowler is indigent. The district court responded that it expected to hear arguments on this issue at sentencing, and Fowler’s counsel stated that he fully expected that Fowler would be deemed indigent.
The presentence investigation report (PSR) included some information about this $5,000 assessment and Fowler’s finances. Specifically, the PSR noted that the court shall assess this $5,000 assessment on any non-indigent person convicted of possession of child pornography, but otherwise neglected to address whether Fowler is indigent for purposes of this assessment. The PSR did, however, note that Fowler was appointed counsel after Fowler completed a financial affidavit indicating that he is indigent. Further, the PSR noted that, although Fowler had an associate degree in business from Glenville State College, and work history, including his most recent employment as a welder where he earned $24.80 per hour, Fowler was unemployed and owed money on almost, if not, all of his financial accounts.
At sentencing, the district court addressed both the new charges and the violation of supervised release that stemmed from Fowler’s 2010 conviction. During the sentencing hearing, defense counsel objected to the inclusion of an uncorroborated statement in a supervised release violation report from October 3, 2018, which alleged that Fowler had admitted to molesting a young girl and becoming sexually aroused while in contact with a two-year-old girl. The district court struck the language and noted that the statement had not weighed heavily on the court’s mind in determining the sentence. Later, the district court stated that the court did not care if Fowler had ever actually touched a child, noting that, by simply possessing child pornography, Fowler had victimized and abused children. Right before announcing Fowler’s sentence, the district court again noted that it had stricken that language from the record, but continued,
The district court then announced that it would sentence Fowler to serve a 120-month sentence for possessing child pornography, to serve a consecutive 36-month sentence for violating the terms of his supervised release, and to pay a $5,000 special assessment under the Justice for Victims of Trafficking Act. The district court specifically advised Fowler that he would have the opportunity to object to the special assessment, but Fowler did not and instead only objected to the 36-month sentence for violating the terms of his supervised release. During the sentencing hearing, no one mentioned Fowler’s finances although his attorney did discuss his education and work history, which were also detailed in the PSR as discussed above.
Fowler now raises two challenges on appeal: (1) the district court committed plain error by imposing the $5,000 special assessment under the Justice for Victims of Trafficking Act, and (2) the district court sentenced Fowler to a substantively unreasonable sentence when it considered the uncorroborated allegation that Fowler admitted to molesting a young girl. To the first challenge, the government argues that Fowler waived any challenge to the special assessment when he signed the plea agreement, which included the appellate waiver discussed above. Furthermore, the government argues that, even if not waived, the court did not commit plain error. To the second challenge, the government argues that the district court did not consider an impermissible factor. We address each issue in turn.
First, Fowler challenges the district court’s assessment of $5,000 against him as a part of his sentence for possession of child pornography. Under 18 U.S.C. § 3014, "the court shall assess an amount of $5,000 on any non-indigent person ... convicted of" offenses, including possession of child pornography. 18 U.S.C. § 3014(a)(3). Fowler argues that the district court committed plain error because it did not make any findings related to his indigency or non-indigency and because the record does not support a finding of non-indigency. Meanwhile, the government contends that Fowler waived any challenge to this $5,000 assessment under the plea agreement and further argues that the district court did not commit plain error because the record supports a finding of non-indigency. For the following reasons, we find that, Fowler did not waive his right to appeal the special assessment, and the district court committed plain error in failing to address indigency or Fowler’s ability to pay before imposing the assessment.
"This Court reviews the question of whether a defendant waived his right to appeal his sentence in a valid plea agreement de novo ." United States v. Smith , 344 F.3d 479, 483 (6th Cir. 2003). If there was no waiver, then we review Fowler’s claims for plain error because Fowler failed to object to the imposition of the $5,000 special assessment. See United States v. Wandahsega , 924 F.3d 868, 889 (6th Cir. 2019). To succeed under plain error review, a party must show "(1) error (2) that was obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings." United States v. Vonner , 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (internal quotations omitted).
First, we decide the waiver issue. Because we find that the special assessment was...
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