United States v. Hamilton
| Docket Number | 21-14266 |
| Decision Date | 02 May 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BRESHAWN HAMILTON, a.k.a. 2k20wit_rabbitt, a.k.a. rabbitt1340000, a.k.a. keysavage_22, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:21-cr-60010-RS-1
Before ROSENBAUM, JILL PRYOR, and TJOFLAT, Circuit Judges.
Breshawn Hamilton appeals his total 40-year sentence and lifetime term of supervised release, imposed after he pleaded guilty to various counts of enticing a minor to engage in sexual activity, sending extortionate interstate communications, and possessing and producing child pornography. On appeal, he argues that the District Court erred in applying an enhancement pursuant to U.S.S.G. § 2G2.1(b)(4). The government responds that even if the District Court erred the alleged error in calculating Hamilton's guideline range was harmless because his total offense level would have remained the same without the enhancement. Hamilton also contends that the District Court erred by failing to separately state its reasons for imposing a lifetime term of supervised release. For the reasons explained below, we affirm the District Court's sentence.
A grand jury in the Southern District of Florida returned a 20-count superseding indictment against Breshawn Hamilton in 2021. The grand jury indicted Hamilton on: five counts of enticement of a minor, in violation of 18 U.S.C. § 2422(b) (Counts 1 through 5); five counts of production of child pornography in violation of 18 U.S.C. § 2251(a) (Counts 6 through 10); three counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) (Counts 11 through 13); two counts of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2) (Counts 14 and 15); three counts of sending extortionate interstate communications, in violation of 18 U.S.C. § 875(d) (Counts 16 through 19); and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count 20).
Hamilton pleaded guilty to Counts 1, 3, 6, 8, 9, 10, 16, 18, 19, and 20. In exchange, the remaining charges (Counts 2, 4, 5, 7, 11- 15, and 17) were to be dismissed after sentencing. The District Court accepted the plea and adjudged Hamilton guilty.
The probation office created a presentence investigation report ("PSR") pertaining to Hamilton. In calculating Hamilton's offense level, the PSR grouped Counts 1 and 16 into "Count Group 1" because they involved the same victim, Victim 1. Likewise, Counts 9 and 18 were grouped into "Count Group 2," as both pertained to Victim 5. The remaining counts were not grouped, and each formed a "Count Group" on its own, each dealing with Hamilton's conduct towards a specific and distinct victim.
The offense levels for each Count Group are summarized below[1]:
Count Group
Adjusted Offense Level
40
38
40
38
40
40
18
46
Count Group 8 contained Count 20 of the Indictment-possession of material involving the sexual exploitation of minors in violation of 18 U.S.C. § 2252(a)(4)(B). The base offense level for a violation of § 2252(a)(4)(B) is 32.[2] Pursuant to § 2G2.1(b)(1), the PSR assessed a four-level increase because the offense involved a minor who was under 12 years old. The PSR also assigned Hamilton a two-level increase under § 2G2.1(b)(2)(A) because the offense involved the commission of a sexual act or sexual contact, a two-level increase under § 2G2.1(b)(3) for knowingly engaging in distribution, and a two-level increase under § 2G2.1(b)(6)(B) because the offense involved the use of a computer or an interactive computer service to engage in sexually explicit conduct with a minor. Finally, as relevant here, the PSR enhanced Hamilton's base offense level by four levels because "the offense involved material that por-tray[ed] (A) sadistic or masochistic conduct or other depictions of violence; or (B) sexual abuse or exploitation of an infant or toddler." § 2G2.2(b)(4). These enhancements resulted in an adjusted offense level of 46 for Count Group 8.
Starting with Count Group 8, which was the highest offense level, the PSR then calculated the combined adjusted offense level for all count groups using § 3D1.4.[3] This four-level increase led to a combined adjusted offense level of 50. Under § 4B1.5(b)(1), that combined adjusted offense level received a five-level enhancement because Hamilton was a repeat and dangerous sex offender against minors. Hamilton also received a reduction of three levels for acceptance of responsibility under § 3E1.1. Hamilton's final total offense level was 52; however, pursuant to Chapter 5, Part A, of the Sentencing Guidelines, in instances where the total offense level is calculated in excess of 43, the offense level is to be treated as level 43, so the PSR listed Hamilton's total offense level as 43.
Hamilton had zero criminal history points, which equated to a criminal history category of I. Based on a total offense level of 43 and a criminal history category of I, the guideline imprisonment term, according to the PSR, was life. The guideline range for supervised release was five years to life.
Hamilton filed numerous objections to the PSR. As relevant here, he objected to the enhancement for engaging in sadistic or masochistic conduct under § 2G2.1(b)(4), arguing that there was no evidence to support that enhancement. The government did not specifically address this objection in its response, simply saying: "See previous responses in opposition to Hamilton's earlier objections."[4]
At sentencing, Hamilton's counsel objected to the computations of his total offense level, but agreed with the statutory maxi-mums for the charges. The government maintained that Hamilton's offense level was properly calculated. The government further requested that the District Court overrule all of Hamilton's objections to the PSR and impose a sentence of life. The Court overruled Hamilton's objections to the PSR.
After affording Hamilton his right of allocution, the Court imposed its sentence. The Court said:
These were children involved here. . . . And I do have to consider still the factors under [18 U.S.C. §] 3553 and also with respect to that he was 19 or 20, his age, but yet also the allegation that he has been a victim of sexual assault himself.
Hamilton's age and status as a sexual assault victim, however, did not mitigate "the totality of the circumstances." The Court also remarked that while Hamilton was a first-time offender, he was also not a "first time offender in the true sense" because there were seven young girls who had been victimized by Hamilton over a period of time.
The Court stated that it would not grant Hamilton's request for the statutory minimum sentence, but it did not feel that a life sentence was appropriate either, given Hamilton's age and history. According to the Court, its job was to "sentence [Hamilton] to a sufficient time I think is reasonable, sufficient but not greater than necessary to achieve the factors, [and] that's what I'm going to do." The Court "considered the statements of all the parties, the presentence report, which contains the advisory guidelines and the statutory factors as set forth in 18 United States Code Section 3553(a)."
The District Court sentenced Hamilton to 40 years' imprisonment-40 years for each of Counts 1 and 3; 30 years each for Counts 6, 8, 9, and 10; two years for each of Counts 16, 18, and 19; and 20 years for Count 20, all to be served concurrently. Upon release from prison, Hamilton would be placed on supervised release for a term of life. The Court asked the parties if there were objections to the Court's findings of fact or to the way the sentence was pronounced; defense counsel renewed its previously made objections but otherwise made no additional objections. Final judgment was entered against Hamilton.
Hamilton timely appealed. He raises two arguments on appeal. The first is that the District Court erred in overruling his objection to the four-level increase under U.S.S.G. § 2G2.1(b)(4) because he claims there was no evidence that the offense involved material portraying "sadistic or masochistic conduct or other depictions of violence" or "sexual abuse or exploitation of an infant or toddler." § 2G2.1(b)(4). Second, Hamilton argues-for the first time on appeal-that the District Court erred because it did not state its reasons for imposing a term of supervised release of life. We address each argument in turn.
Hamilton's first argument on appeal-that the District Court erred in overruling his objection to the four-level increase in his base offense level under U.S.S.G. § 2G2.1(b)(4)-is a challenge to the procedural reasonableness of his sentence. We review a sentence's reasonableness for abuse of discretion, regardless of whether that sentence falls inside or outside of the guideline range. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597 (2007).
To be procedurally reasonable, a district court must properly calculate the guideline range, treat the Sentencing Guidelines as advisory, consider the § 3553(a) factors, not consider clearly erroneous facts, and adequately explain the chosen sentence. Id. Because the Guidelines treat any offense level over 43 as being 43, an erroneous application of the Guidelines is harmless if the offense level otherwise stays above 43. United States v. Sarras, 575 F.3d 1191, 1220 n.39 (11th Cir. 2009); United States v. Sanchez, 30 F.4th 1063, 1076 (11th Cir. 2022).
Under the 2018 Sentencing Guidelines Manual, when determining the combined offense level, the district court must determine the number of units by counting the highest offense level as one unit....
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