United States v. Michael
| Citation | 12 F.4th 858 |
| Decision Date | 13 September 2021 |
| Docket Number | No. 19-1885,19-1885 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Colin J. MICHAEL, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Rebecca L. Kurz, Asst. Fed. Public Defender, Kansas City, MO, argued (Laine Cardarella, Fed. Public Defender, on the brief), for defendant-appellant.
Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (Timothy A. Garrison, U.S. Atty., on the brief), for plaintiff-appellee.
Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
In 2016, Colin Michael pled guilty to possessing child pornography in violation of 18 U.S.C. § 2252(a)(4). The district court, relying heavily on the mitigating fact that Michael suffers from Asperger's syndrome, imposed a 5-year probationary sentence. Months later, Michael was arrested for a probation violation. Michael appeared before a different judge,1 who revoked Michael's probation and sentenced him to 96 months’ imprisonment. On Michael's first appeal, we concluded that the district court procedurally erred and remanded the case for re-sentencing. United States v. Michael, 909 F.3d 990 (8th Cir. 2018) (per curiam). On remand, the district court again imposed a 96-month sentence. Michael appeals, arguing that his sentence is substantively unreasonable. We affirm.
Michael pled guilty to possessing child pornography. His conviction involved possession of about 1,200 images and 80 videos of child pornography. Some of the material was sadistic or masochistic while other material featured infants and toddlers. The district court sentenced Michael to a probationary term of 5 years. His sentence was a significant downward variance from his applicable Sentencing Guidelines range of 97 to 120 months. The district court based its variance on (1) its policy disagreements with the Sentencing Guidelines for child pornography offenses, and (2) Michael's Asperger's syndrome, which put his mental capacity around that of a 13- or 14-year old.2
About four months later, the conditions of Michael's probation were modified after his supervising probation officer alleged that Michael lied during a polygraph examination and had unauthorized contact with children. Six months after that, Michael was arrested for violating the terms of his probation. According to the probation officer's report, Michael violated the terms of his probation by possessing (adult) pornography, using a television to try to access child pornography, and lying about his conduct during a polygraph test taken as part of his sex offender therapy.
When Michael was arrested, his case had been reassigned to a different district judge. Following a hearing, the district court revoked Michael's probation and sentenced him to 96 months’ imprisonment. Michael appealed, and we concluded that the district court committed procedural errors by not finding the grade of Michael's probation violation and not considering the appropriate Sentencing Guidelines’ policy statements. We also concluded the sentence was substantively unreasonable based on the record before us at that time, which did not indicate the district court was aware of Michael's Asperger's syndrome. We remanded the case for re-sentencing.
On remand, the district court reimposed the same sentence. In fashioning its sentence, the court focused on the danger that Michael posed to the community, noting his: (1) possession of a book entitled Youthful Prey: Child Predators Who Kill ; (2) watching television shows involving sex crimes against children and being aroused by them; (3) lack of honesty about sexual partners; (4) fantasies about young boys and girls; (5) driving to stores that sell pornographic material but not going inside; (6) consuming alcohol to the point of intoxication; (7) accessing adult pornography; and (8) trying to access child pornography.
Given Michael's conduct, the district court found that Note 3 of § 7B1.4 of the Sentencing Guidelines was applicable because it recognized that an upward departure from the revocation table may be warranted in the case of a grade C violation associated with a high risk of new felonious conduct. The court explained Michael's actions were "significant red flags and significant violations, posing "a grave risk to the community." The court further explained that although Michael reported he had not had sexual contact with a child, his conduct was escalating to the point that he was again seeking out child pornography while participating in sex offender treatment.
Based largely on the danger to the community, the district court imposed a 96-month sentence. Michael appeals the reasonableness of his sentence.
We review "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) ; see also United States v. Misquadace, 778 F.3d 717, 718–19 (8th Cir. 2015). A district court abuses its discretion by failing "to consider a relevant factor that should have received significant weight, giv[ing] significant weight to an improper or irrelevant factor, or consider[ing] only the appropriate factors but commit[ting] a clear error of judgment in weighing those factors." United States v. Leonard, 785 F.3d 303, 306–07 (8th Cir. 2015) (per curiam) (citation omitted).
In support of his claim that the sentence is substantively unreasonable, Michael notes that the applicable revocation Guidelines range was 3 to 9 months’ imprisonment. However, we have held that, on revocation of probation, a sentence that falls within the original Sentencing Guidelines range for the underlying crime of conviction "is presumptively reasonable." United States v. Holdsworth, 830 F.3d 779, 786 (8th Cir. 2016). Where, like here, the district court imposed a sentence below the original Guidelines range, "it is nearly inconceivable that the court abused its discretion in not varying downward still further." United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009).
When a probationary sentence is revoked, applying the presumption of reasonableness to a term of imprisonment falling within the original Sentencing Guidelines range for the underlying crime of conviction is natural. Probation is different than supervised release. In the case of a supervised release violation, defendants have already served a term of incarceration on their underlying crime of conviction. In contrast, in the case of a probation violation, defendants have not served a term of incarceration. A defendant ought not be placed in a better position to challenge the reasonableness of a Guidelines sentence for a crime of conviction after violating probation than he is before breaching the court's trust. United States v. Verkhoglyad, 516 F.3d 122, 135 (2d Cir. 2008).
We have recognized that when Congress broadened 18 U.S.C. § 3565 to allow the revoking court to resentence the defendant under Subchapter A, it permitted the district court to begin the sentencing process anew and impose any sentence appropriate under that subchapter. United States v. Tschebaum, 306 F.3d 540, 543–44 (8th Cir. 2002). Section 3565 expressly provides that the revoking court is to consider both the factors found in § 3553(a) and Subchapter A.
Here, the district court, aware of Michael's Asperger's diagnosis and its tendency to impair individuals’ insight and cause fixation problems, decided to give greater weight to the risk to the public arising from Michael's fascination with violence against children and his persistent attraction to child pornography. The court was concerned that Michael's conduct was escalating and that he posed a threat to the community. Undoubtedly, a different reasonable jurist sentencing Michael could analyze this case differently.
The dissent isolates various evidence leading to the conclusion that the district court made unsupported findings. We do not believe the district court did so. The television show referenced by the dissent depicted crimes against children and Michael was sexually aroused by it. The book entitled Youthful Prey: Child Predators Who Kill contained subject matter that the court found was "the highest level of child abuse." It was permissible for the court to consider this evidence when fashioning its sentence.
It is important to not give too much weight to Michael's lack of success in finding child pornography with searches on YouTube. That Michael, while participating in sex offender treatment, continued to use identical search terms as those that he previously used to obtain child pornography, is something a sentencing judge could permissibly consider when determining the appropriate sentence.
Given the evidence before the district court and the explanation for the sentence, Michael's sentence was not substantively unreasonable. We affirm.
Nearly three years ago, we remanded this case for resentencing based on both procedural error and substantive unreasonableness. We did so because it was unclear from the record whether the district court considered Michael's diagnosis of Asperger's syndrome,3 and it appeared that the 96-month sentence may have been based on facts not in the record.4 The case is before us again. Because I believe the record does not support the rationale given for the reimposed 96-month sentence, I respectfully dissent.
Although Michael's sentence falls one month below the original Guidelines range, the Guidelines are just "the starting point and the initial benchmark" for crafting an appropriate sentence. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The sentencing court must also weigh the § 3553(a) factors and "make an individualized assessment based on the facts presented." Id. at 49–50, 128 S.Ct. 586. Of course, "the fact that [an appellate court] may have...
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