United States v. Roberts

• Decision Date: 03 April 2014
• Docket Number: No. 13–2222.,13–2222.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Walter Richard ROBERTS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

747 F.3d 990

UNITED STATES of America, Plaintiff–Appellee

v.Walter Richard ROBERTS, Defendant–Appellant.

No. 13–2222.

United States Court of Appeals,

Eighth Circuit.

Submitted: Dec. 16, 2013.

Filed: April 3, 2014.

Kyra E. Jenner, AUSA, Fort Smith, AR, for Plaintiff–Appellee.

Craig L. Henry, Texarkana, TX, for Defendant–Appellant.

Before WOLLMAN, LOKEN, and KELLY, Circuit Judges.

LOKEN, Circuit Judge.

In February 2012, an adult man notified Texarkana, Arkansas, police that Walter Richard Roberts, a long-time youth baseball coach, had sexually abused the man on more than 100 occasions between 1986 and 1992, when the victim was between 9 and 14 years old. An investigation revealed that Roberts had abused many other boys. On one occasion in 1988 or 1989, Roberts sexually abused one boy on a fishing trip that crossed the Arkansas border into Texas. As that offense was within the applicable federal statute of limitations, Roberts was charged with and pleaded guilty to one count of transporting a minor in interstate commerce with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). The district court,¹ varying upward, sentenced Roberts to 120 months in prison, the statutory maximum for a violation of § 2423(a) at the time Roberts committed the offense. Roberts appeals the sentence. We affirm.

I. An Ex Post Facto Clause Issue.

At sentencing, using the 1992 version of the Sentencing Guidelines, as the parties had agreed, the district court determined that his advisory guidelines range was 63 to 78 months in prison. The government urged an upward departure or variance based on aggravating factors and the victims' psychological injury. The government noted that, at the time of sentencing, a violation of § 2423(a) was punishable by a prison term of ten years to life, and the advisory guidelines range was 262 to 327 months in prison. The district court imposed an upward variance. In the course of a lengthy explanation for imposing the statutory maximum 120–month sentence, the court stated, “The maximum sentence you can serve is 10 years, but if you committed this crime today, you would be facing a much longer sentence.”

The Constitution's ex post facto clause, Art. I, § 9, cl. 3, is violated when the retroactive application of a change in the law creates “a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000) (quotation omitted). Roberts argues for the first time on appeal that the district court's reference to the increased punishment he would face if he committed the crime today demonstrates that intervening amendments to the Guidelines subjected him to a “substantial risk” of increased punishment. This contention is without merit.

At the time of Roberts's sentencing, there was disagreement among some circuits whether the ex post facto clause barred applying subsequent amendments to the now-advisory Guidelines. The Supreme Court resolved that conflict in Peugh v. United States, concluding that “[a] retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.” ––– U.S. ––––, 133 S.Ct. 2072, 2084, 186 L.Ed.2d 84 (2013). However, the court explained, although “application of a higher Guidelines range violates the Ex Post Facto Clause, sentencing courts will be free to give careful consideration to the current version of the Guidelines as representing the most recent views of the agency charged by Congress with developing sentencing policy.... The newer Guidelines [will be] one of many reasons a districtcourt might give for deviating from the older Guidelines.” Id. at 2087 (emphasis in original). Here, the district court applied the Guidelines the parties agreed were in effect at the time of Roberts's offense in determining his advisory range, and then it considered the current Guidelines in determining the final sentence. Thus, the court perfectly anticipated the decision in Peugh. There was no error, much less plain error.

II. Abuse of Sentencing Discretion.

Roberts argues the district court abused its sentencing discretion by failing adequately to explain a substantively unreasonable sentence. The failure-to-explain contention is frivolous. The court's explanation of its upward variance, which took up more than three pages of the sentencing transcript, came after three victims and two of their fathers testified to Roberts's extensive abuse of many young boys and the extreme, long-lasting emotional and psychological injuries he inflicted on his young victims. The court noted that Roberts as baseball coach, family friend, and family member had for many...