United States v. Muhlenbruch

• Decision Date: 08 August 2012
• Docket Number: No. 11–2555.,11–2555.
• Parties: UNITED STATES of America, Appellee, v. Randall Frederick MUHLENBRUCH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

682 F.3d 1096

UNITED STATES of America, Appellee,

v.Randall Frederick MUHLENBRUCH, Appellant.

No. 11–2555.

United States Court of Appeals,

Eighth Circuit.

Submitted: April 17, 2012.

Filed: June 28, 2012.

Rehearing Denied Aug. 8, 2012.

Alfredo G. Parrish, argued, Des Moines, IA, for Appellant.

John S. Courter, USA, argued, Stephen H. Locher, USA, on the brief, Des Moines, IA, for Appellee.

Before BYE, BEAM, and BENTON, Circuit Judges.

BEAM, Circuit Judge.

This is defendant Randall Muhlenbruch's second appeal in this child pornography case. In the first appeal, United States v. Muhlenbruch, 634 F.3d 987 (8th Cir.), cert. denied,––– U.S. ––––, 132 S.Ct. 228, 181 L.Ed.2d 127 (2011)( MuhlenbruchI ), we held that Muhlenbruch's convictions for both receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2), and possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), violated the Double Jeopardy Clause. Muhlenbruch I, 634 F.3d at 1003–04. Therefore, we reversed and remanded with instructions for the district court to exercise its discretion to vacate one of Muhlenbruch's convictions and to resentence Muhlenbruch on the remaining count. Id. at 1004–05. On remand, the district court ¹ vacated the lesser-included possession count and imposed a below-Guidelines sentence of 120 months' imprisonment. Muhlenbruch appeals, asserting that (1) the district court erred when it chose to vacate the possession conviction instead of the receipt count; (2) his 120–month sentence is procedurally unsound and substantively unreasonable; and (3) several of his special conditions of supervised release are not reasonably related to his offense and involve a greater deprivation of liberty than necessary. We affirm.

I. BACKGROUND²

On remand, pursuant to our instructions in Muhlenbruch I, the district court held a hearing to decide which conviction to vacate and to resentence Muhlenbruch on the remaining count. At the hearing, the government argued that the court should vacate the lesser-included possession convictionto show deference to the jury's decision that Muhlenbruch committed the greater offense of receiving child pornography. In response, Muhlenbruch argued that the court should vacate the receipt count because, among other reasons, the evidence at trial was stronger on the possession count and the receipt count carried harsher penalties. After considering these arguments, the district court vacated the possession conviction, emphasizing that the jury found Muhlenbruch guilty of receiving child pornography and that the jury's finding was supported by Muhlenbruch's videotaped confession, among other evidence.

The district court then proceeded to resentence Muhlenbruch on the receipt count. Initially, the court calculated Muhlenbruch's advisory Guidelines range at 151 to 188 months' imprisonment based on a criminal history category of II and an offense level of 33. Then, the court sustained Muhlenbruch's motion for a downward departure based on an overstated criminal history and, applying a criminal history category of I, calculated a Guidelines range of 135 to 168 months' imprisonment. Muhlenbruch requested a downward variance, claiming the child pornography Guideline is not based on empirical research and emphasizing Muhlenbruch's good behavior in prison. The district court declined to vary downward on these bases, but did vary downward to a sentence of 120 months' imprisonment because the case had been pending for a long time. The court also imposed a five-year term of supervised release with various special conditions. Muhlenbruch appeals.

II. DISCUSSIONA. Vacatur of the Possession Conviction

Muhlenbruch argues that the district court erred when it vacated the lesser-included possession count instead of the receipt conviction. We review the district court's decision for an abuse of discretion. See United States v. Fischer, 205 F.3d 967, 970–71 (7th Cir.2000).

When the district court vacated the possession count, it explained that “it would be an inappropriate exercise of discretion to vacate [the receiving count]” given the jury's verdict and the evidence introduced at trial, including Muhlenbruch's videotaped confession. Based on this statement, Muhlenbruch contends the court failed to exercise its discretion and operated under the erroneous assumption that it was required to vacate the possession conviction. The record belies this argument. In addition to the statement highlighted by Muhlenbruch, the district court also expressly acknowledged that it had discretion to decide which count to vacate and reasoned that it had to “exercise that discretion with due regard for what the record shows.” Therefore, Muhlenbruch's argument on this point is without merit.

Next, Muhlenbruch claims that, based on the rule of lenity and other “principles of leniency,” the district court should have vacated the receipt conviction. We disagree. The rule of lenity “is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of [a statute],” Chapman v. United States, 500 U.S. 453, 463, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) (internal quotation omitted), and should not be applied as an “overriding consideration of being lenient to wrongdoers” in cases such as this. Id. (quotation omitted); Fischer, 205 F.3d at 971.

Our review of the resentencing transcript reveals that the district court carefully considered the parties' arguments and vacated the lesser-included possession conviction based on the jury's verdict and the evidence introduced at trial, including Muhlenbruch's videotaped confession. There was sufficient evidence to support the receipt conviction, Muhlenbruch I, 634 F.3d at 1000, and the district court acted well within its discretion when it decided to vacate the lesser-included possession count.³

B. 120–Month Sentence

Muhlenbruch argues that his 120–month below-Guidelines sentence is procedurally unsound and substantively unreasonable. In reviewing a sentence, we must first ensure that the district court committed no significant procedural error. United States v. Burnette, 518 F.3d 942, 945 (8th Cir.2008). Then, we review the sentence for substantive reasonableness under a deferential abuse-of-discretion standard. Id. at 946.

1. Procedural Error

During resentencing, Muhlenbruch requested a downward variance based on his postsentencing good behavior in prison. See Pepper v. United States, ––– U.S. ––––, 131 S.Ct. 1229, 1249, 179 L.Ed.2d 196 (2011) (holding that “evidence of a defendant's postsentencing rehabilitation at resentencing ... may, in appropriate cases, support a downward variance”). The district court rejected Muhlenbruch's request, explaining, “[T]he fact that someone is behaving themselves while in [prison] it seems to me is not extraordinary conduct. If there is extraordinary conduct, then I would certainly consider it, but it's not part of my decision on the variance today.” Based on this statement, Muhlenbruch argues that the district court committed procedural error by imposing an “extraordinary circumstances” standard to his request for a Pepper variance. See United States v. Lozoya, 623 F.3d 624, 626 (8th Cir.2010) (“[T]he Supreme Court has explicitly declared that extraordinary circumstances are no longer needed to justify a sentence outside the Guidelines range.” (internal quotations omitted)). Because Muhlenbruch failed to object to the district court's alleged application of an “extraordinary circumstances” standard, we review this issue for plain error. United States v. Bain, 586 F.3d 634, 639–40 (8th Cir.2009). Under plain error review, Muhlenbruch must show “(1) an error; (2) that is plain; and (3) that affects substantial rights.” Id. at 640 (quotation omitted). In addition, we will not reverse a plain error unless “(4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

Assuming without deciding that the district court committed error that is plain, Muhlenbruch cannot demonstrate that the error affects substantial rights—that is, he cannot show “there is a reasonable probability [he] would have received a lighter sentence but for the error.” Id. The district court considered the parties' argumentsand § 3553(a) factors, noted that it had reviewed Pepper, and expressly found that a 120–month sentence was appropriate given the “unique circumstances of this case.” It is not clear on this record what action the district court would have taken absent the alleged error and, therefore, Muhlenbruch “has not met his burden of showing a reasonable probability of a lower sentence.” Id. at 641.

2. Substantive Reasonableness

Muhlenbruch raises several arguments challenging the substantive reasonableness of his sentence, all of which are meritless. First, he argues that the district court gave too much weight to proper sentencing factors—i.e., the seriousness of the offense and the need for deterrence. But, the record reveals that the district court carefully considered the parties' arguments, considered all the § 3553(a) factors, and even granted a downward variance based on the length of time the case had been pending. The district court simply did not commit a “clear error of judgment” while weighing the § 3553(a) factors. United States v. Black, 670 F.3d 877, 882 (8th Cir.2012) (quotation omitted). Next, Muhlenbruch argues that the district court abused its discretion when it rejected his invitation to vary from the Guidelines range because the child pornography Guideline, U.S.S.G. § 2G2.2, and its enhancements are not based on empirical research.⁴ This argument is without merit because, “[a]ssuming that it may disregard the child pornography sentencing guideline on policy grounds, a district court is not required to do so.” Id. And, while Muhlenbruch's appellate brief continues his empirical assault on U.S.S.G. § 2G2.2, such arguments are “not properly made to this court.” United States v. Shuler, ...