United States v. Miller, No. 10-50500

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPRISCILLA R. OWEN
PartiesUNITED STATES OF AMERICA, Plaintiff—Appellee, v. AUBREY RUFFIN MILLER, Defendant—Appellant.
Decision Date13 December 2011
Docket NumberNo. 10-50500

AUBREY RUFFIN MILLER, Defendant—Appellant.

No. 10-50500


Dated: December 13, 2011

Appeal from the United States District Court
for the Western District of Texas

Before DAVIS, PRADO, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Aubrey Miller pled guilty to one count of transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1). The district court sentenced Miller to 220 months of imprisonment (18 years and 4 months), a term within the advisory Guidelines range and less than the statutory maximum of 240 months of imprisonment. The district court also imposed a twenty-five-year term of supervised release. Miller appeals his sentence and elements of his supervised release. We affirm.

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A grand jury indicted Miller on three counts. He ultimately pled guilty to Count One of the indictment: the knowing transportation or shipment of child pornography in violation of 18 U.S.C. § 2252(a)(1). The indictment described some of the materials found in Miller's possession. One example, among many, was a "video file depicting a nude minor female being anally raped by a nude adult male while a nude adult female holds the minor female in place." As part of his plea, Miller affirmed that the descriptions of child pornography set forth in the indictment were accurate.

For the purposes of Miller's Sentencing Guidelines calculation, he was attributed with possession of 495 images—45 still photos and 6 videos that were deemed under the Guidelines to contain 75 images each. Miller's offense level was determined to be 36 with a criminal history category of I, leading to an advisory Guidelines range of 188 to 235 months of imprisonment. Miller does not dispute the calculation of the Guidelines range.

Many of the facts relevant to this appeal are drawn from the presentence investigation report. Miller did not object to that report, nor does he contest the accuracy of its factual content on appeal. The report reflects that an investigation of an online service that provided child pornography to its paid subscribers led federal and local law enforcement to Miller. Investigators discovered the child pornography for which Miller has been convicted of transporting or shipping. Images were recovered both from his computer and from his cellular phone. When confronted, Miller told investigators that he had viewed child pornography, which he defined as "like adult, but using children as sex slaves."

The investigation revealed other attempts by Miller to acquire child pornography. Forensic investigators discovered Google searches on Miller's computer that included search terms such as "illegal child porn" and searches

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for six-year-old girls engaged in sexual activity. Miller admitted to investigators that he engaged in online "chats" with individuals he believed to be underage girls. Miller indicated to an investigator that a photo of one such girl, "Molly," could be found on his computer and that his computer password was "pedophile." In a "chat" with "Molly" recovered by forensic investigators, "Molly" indicated that she had previously sent Miller photos of herself at his request. When "Molly" asked which photo Miller preferred, he responded "'all an the naked ones [sic].'"

The investigation revealed that Miller attempted to trade child pornography he possessed for child pornography possessed by others. He sent one such request by email, with the subject line "I Love being a PEDOPHILE," in which Miller requested movies in exchange for six videos that he sent. Miller also admitted to using a web camera to communicate with a juvenile female on two occasions.

Miller admitted to investigators that he had previously been investigated for possession of child pornography while he served in the United States Navy. Miller admitted that his military career ended because he had used military computers to search for child pornography and to "chat" with underage females. While a member of the Navy, he had memberships to two commercial child pornography websites. He had acknowledged to Navy investigators that he used government computers to search and download adult and child pornography.

The investigation that led to the present conviction also revealed that a complaint had been filed with the National Center for Exploited Children indicating that an email address on Miller's computer had been used to solicit nude photographs from an individual posing online as a fourteen-year-old girl. In the messages, the emailer stated to the girl that he had previously engaged in sexual conduct with his eight-year-old niece. Miller notes on appeal that he has no nieces, and therefore contends that this "likely was a fantasy."

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Letters were also recovered in connection with the naval investigation. One of those letters led law enforcement to a girl who indicated that she had communicated with Miller when she was fourteen years old and that he was aware of her age. Miller asked her to send him a nude photo of her masturbating. Notes from the naval investigation also indicate that Miller interacted with a fourteen-year-old girl who said that Miller had requested nude photos, solicited her to meet in person, and told her that he enjoyed having sex with younger girls. Miller informed naval investigators that he was aroused looking at girls between the ages of ten and fifteen, and expressed a fear to the investigators that if not stopped he would become a "sexual predator" or a "child rapist." Miller received an Other Than Honorable Discharge from the Navy as a result of the investigation, though criminal charges were dismissed for a violation of the Speedy Trial Act.

The presentence investigation report suggests that Miller had a difficult childhood and had issues as an adult. With regard to his childhood, Miller stated that his mother suffers from bi-polar disorder, and Miller's mother believed that he may have been sexually abused as a child. With regard to Miller's potential to harm others, Miller's mother indicated that she believes Miller has anger issues and that he has been violent in the past, sentiments echoed by his aunt who stated that Miller often has serious and destructive outbursts. Both indicated that they believe Miller is a threat to others, especially children.

The presentence investigation report indicates that Miller viewed adult pornography before he commenced viewing child pornography. That report also reflects that Miller frequently accessed phone sex providers, in some cases amassing charges in excess of $100 per call.

Miller told the court at sentencing that while he was incarcerated awaiting sentencing, he had been raped. He asserted that this experience had helped him

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to empathize with the victims of child pornography and that now, the thought of viewing child pornography made him feel "sick to think of being a spectator" of such images.

Miller asked the district court to impose a sentence below the advisory Guidelines sentencing range of 188 to 235 months of imprisonment. The district court rejected that request and chose a sentence of 220 months, which Miller challenges as unreasonable. The district court also imposed a twenty-five-year term of supervised release, with conditions that included restrictions on possession of sexually stimulating materials, computer and Internet use, and use of photographic equipment and devices.

Miller appeals, contending his prison sentence is longer than necessary to satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a) and that certain restrictions imposed as part of his supervised release should be vacated. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.


Miller contends that his sentence of 220 months of imprisonment is substantively unreasonable. He voiced this objection in the district court, and we therefore review for an abuse of discretion.1 Our "review is highly deferential as the sentencing judge is in a superior position to find facts and judge their import under [18 U.S.C.] § 3553(a) with respect to a particular defendant."2

Congress has directed that in selecting a sentence, a district "court shall impose a sentence sufficient, but not greater than necessary, to comply with the

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purposes set forth in paragraph (2)" of 18 U.S.C. § 3553(a).3 Sentencing courts are further directed to consider "the nature and circumstances of the offense and the history and characteristics of the defendant."4

The arguments in support of Miller's contention that the length of his sentence is substantively unreasonable are multi-faceted. He first asserts that because the Sentencing Guidelines applicable to child pornography offenses are not based on empirical sentencing data, they are seriously flawed and can lead to unreasonable and disproportionate prison sentences. Miller acknowledges that our court has held that there is a rebuttable presumption that a sentence within the applicable advisory Guidelines range is reasonable, even if the applicable Guideline is not empirically based.5 Rebutting this presumption requires a "showing that the sentence does not account for a factor that should

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receive significant weight, [the sentence] gives significant weight to an irrelevant or improper factor, or it represents a clear error...

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