United States v. Morais

• Decision Date: 13 March 2012
• Docket Number: No. 11–1793.,11–1793.
• Parties: UNITED STATES of America, Appellee, v. Stephen D. MORAIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

670 F.3d 889

UNITED STATES of America, Appellee,

v.Stephen D. MORAIS, Appellant.

No. 11–1793.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 17, 2011.Filed: March 13, 2012.

Angela Lorene Pitts, FPD, argued, Fayetteville, AR, for Appellant.

Dustin S. Roberts, USA, argued, Fort Smith, AR, for Appellee.

Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.

COLLOTON, Circuit Judge.

Stephen Morais pleaded guilty to two counts of receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2). The district court sentenced him to concurrent terms of 97 months' imprisonment and a lifetime of supervised release. The court also imposed a $15,000 fine. On appeal, Morais challenges his term of imprisonment, the imposition of a fine, and two special conditions of his supervised release. We affirm Morais's sentence, the fine, and one of the special conditions, but remand with instructions that the district court modify its written judgment to conform to its oral pronouncement of the other special condition of supervised release.

I.

In May 2009, a child abuse hotline received a report of suspicious behavior by Morais involving two sisters, three-year-old H.R. and six-year-old R.W. According to the report, R.W. and her brother, D.A., saw Morais take a photograph of H.R. with her pants removed. In subsequent interviews, R.W. and D.A. stated that Morais, who was acquainted with the children's family through church, used his cell phone to photograph H.R. at a park.

Law enforcement officers executed a search warrant at Morais's residence and seized, among other things, two cell phones, six computer thumb drives, and four laptop computers. Forensic examination of the computers and thumb drives revealed 8,200 images of child pornography, which Morais had acquired between January 1998 and May 2009. The examination of Morais's laptop computer also revealed sixteen images of H.R. with her genital area exposed. Morais admitted that he used his cell phone to photograph H.R. while her genitals were exposed, and he admitted downloading numerous images of nude children from the Internet and possessing them on his computers and digital storage devices.

A grand jury charged Morais with five counts of receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2), and one count of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Morais pleaded guilty to two counts of receiving child pornography.

The district court calculated an advisory guideline range of 97 to 121 months' imprisonment and a fine of $15,000 to $150,000, based on a total offense level of 30 and criminal history category I. The government suggested a sentence within the advisory guideline range, while Morais sought the statutory minimum sentence of 60 months' imprisonment on each count. He argued that the statutory minimum term was appropriate due to the “relatively tame” nature of the child pornography that he collected, and due to his diagnosis of autism. In support of the latter argument, Morais offered the testimony of Dr. James Stone, a neuropsychologist. Dr. Stone testified that Morais suffers from “mind blindness,” which makes it difficult for him to “perceive, predict, and react appropriately to another person's thoughts, emotions, et cetera, to be able to put yourself in another person's shoes, essentially.” The expert testified that Morais has difficulty with social interaction, that autistic individuals tend to collect things, and that Morais does not understand the “social basis” for the prohibition on child pornography. Dr. Stone also opined that Morais's autism placed him at risk of being victimized or manipulated in prison.

The district court sentenced Morais to 97 months' imprisonment on each count and imposed a $15,000 fine. The court also imposed a lifetime term of supervised release with several special conditions, two of which are relevant here. Special condition one provides that Morais shall, in certain circumstances, “submit to any means utilized by the probation office to track his whereabouts or location at any time.” Special condition four restricts Morais's access to the Internet.

II.

A.

Morais argues that the district court imposed a substantively unreasonable sentence. Citing his autism and the nature of the child pornography he possessed, Morais argues that the district court's sentence is greater than necessary to comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). We review the substantive reasonableness of a sentence under a deferential abuse-of-discretion standard, Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and we presume that a sentence imposed within the advisory guideline range is substantively reasonable. United States v. Ruelas–Mendez, 556 F.3d 655, 657 (8th Cir.2009).

The sentence imposed was not unreasonable. A district court has substantial discretion in determining how to weigh the § 3553(a) factors. The court here considered and rejected Morais's argument that the nature of his child pornography warranted a downward departure or variance. The court explained that it was “difficult to engage in any exercise of differentiation that one is more bad than the other,” and that such a distinction failed to provide adequate deterrence, promote respect for the law, or reflect the seriousness of the offense. Morais argues that the district court did not “specifically address” his arguments regarding the impact of his autism diagnosis. But whether the court adequately explained the sentence is a matter of procedural soundness, not substantive reasonableness, and in any event, “not every reasonable argument advanced by a defendant requires a specific rejoinder by the judge.” United States v. Gray, 533 F.3d 942, 944 (8th Cir.2008). On substance, the district court heard extensive testimony from Dr. Stone, who testified on cross-examination, that while autism was related to Morais's collecting tendencies, autism did not necessarily dictate the content of what he chose to collect. The court also posed questions to Dr. Stone, who testified that he had neither done nor seen any research on how individuals with autism fare in prison, calling it an “unstudied situation,” and who conceded that he was unaware whether Morais could receive appropriate treatment in prison. The record thus included sufficient reasons for the court reasonably to adopt the recommendation of the Sentencing Commission that a sentence of 97 months was appropriate.

B.

Morais next challenges the district court's imposition of a fine of $15,000. The court directed that during his term of incarceration, Morais must pay at least $25 quarterly or ten percent of his prison earnings, whichever is greater. The court ordered that after release, Morais must pay monthly installments of at least ten percent of his monthly household income, and in no case less than $200 per month. Morais objected at sentencing on the ground that he would be unable to pay a fine, because he lacked sufficient assets or prospects for employment. On appeal, Morais argues that the district court failed to address the relevant statutory or guideline factors, and erred in finding that he would be able to pay the fine. We review the district court's imposition of a fine and its determination of the amount of the fine for clear error. United States v. Allmon, 500 F.3d 800, 807 (8th Cir.2007).

The district court has statutory authority to impose a fine, 18 U.S.C. § 3571, and the sentencing guidelines recommend imposition of a fine in all cases, unless the defendant establishes that he is unable to pay and is not likely to become able to pay a fine. USSG § 5E1.2(a). In determining whether to impose a fine and the amount of any fine, the court must consider a number of factors under the governing statutes and the applicable sentencing guideline. See 18 U.S.C. §§ 3553(a), 3572(a); USSG § 5E1.2(d). The district court need not provide detailed findings on each of the factors, but the court must consider at least “the factors relevant to the particular case before it.” United States v. Berndt, 86 F.3d 803, 808 (8th Cir.1996). The court should make findings regarding the defendant's ability to pay, see Allmon, 500 F.3d at 807–08, and should not impose a fine that the defendant has little chance of paying. Berndt, 86 F.3d at 808.

The record at sentencing showed that Morais holds college degrees in math and physics. Although he had no assets and credit card debt of approximately $40,000 at the time of sentencing, Morais reported several instances of prior employment. He worked as a weapons mechanic in the United States Air Force from 1977 to 1981, and served in the Army Reserves from 1981 through 2006. The latter service included tours in Iraq and Kosovo. Before his deployment to Iraq in 2005, Morais worked part time as a math tutor at the University of Arkansas and part time at McDonald's restaurant, and he worked as a cashier at Wal–Mart in 2007 and 2008. At sentencing, Morais testified that he had “answered a lot of [his] math questions” during his incarceration, and had discovered something that “could actually be used as a product.” He explained that his discovery “can bring [him] a lot of money, possibly,” and he could “do that anywhere,” including in prison. Morais also stated that he had a potential job opportunity as an engineering consultant.

The district court overruled Morais's objection to imposition of a fine. The court remarked: “I recall ... [Morais] telling me he believes he has realistic ... aspirations of earning perhaps a million dollars. He may or may not be able to earn that, but I think the fine is realistic and so I'll overrule that objection.”

We see no clear error in the district court's conclusion that Morais could pay the minimum fine recommended by the sentencing guidelines through payments of $200 per month over his term of supervised release. The court's discussion...