United States v. Rogers

• Decision Date: 09 March 2021
• Docket Number: No. 18-13532,18-13532
• Citation: 989 F.3d 1255
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joshua Lane ROGERS, a.k.a. Joshua Laine Rogers, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

989 F.3d 1255

UNITED STATES of America, Plaintiff-Appellee,

v.Joshua Lane ROGERS, a.k.a. Joshua Laine Rogers, Defendant-Appellant.

No. 18-13532

United States Court of Appeals, Eleventh Circuit.

March 9, 2021

Tom Haggerty, Assistant U.S. Attorney, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, Lisa Tobin Rubio, U.S. Attorney Service - SFL, Miami, FL, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, U.S. Attorney Service - SFL, Miami, FL, for Plaintiff-Appellee.

Lydia Pittaway, Pittaway Law, PLLC, Fort Pierce, FL, for Defendant-Appellant

Joshua Lane Rogers, pro se.

Before JORDAN, JILL PRYOR, and BRANCH, Circuit Judges.

BRANCH, Circuit Judge:

Joshua Rogers appeals his 360-month total sentence imposed after he pleaded guilty to two counts of production of child pornography in violation of 18 U.S.C. § 2251(a), and one count of distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2). He raises various challenges to his sentence, including that "the district court improperly attributed a four-level enhancement under [U.S.S.G.] § 2G2.2(b) [(4)] for sadism/masochism for three separate images.^{[1 ]}" Because only one image that meets the requirements of § 2G2.2(b)(4) is necessary to support the enhancement and we conclude that the photograph showing Rogers's hand around the minor's throat depicted violence for purposes of the application of the sadism/masochism enhancement, we affirm the district court as to this issue.

Additionally, Rogers argues that the application of both U.S.S.G. §§ 2G2.2(b)(5) and 4B1.5 constitutes impermissible double counting and the application of U.S.S.G. § 2G2.2(b)(6) was arbitrary. He also challenges the exclusion of certain evidence at his sentencing hearing, and the substantive reasonableness of his sentence. Because we conclude there was no reversible error and the sentence is substantively reasonable, we affirm.

I. Background

In December 2017, a federal grand jury indicted Rogers on five counts of production of child pornography, in violation of 18 U.S.C. § 2251(a) and (e) (Counts 1 through 5) and five counts of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1) (Counts 6 through 10). Pursuant to a written plea agreement, Rogers pleaded guilty to Counts 3, 5, and 9, in exchange for the government agreeing to dismiss the remaining counts following sentencing and to recommend a guidelines reduction for acceptance of responsibility.

As part of the plea agreement, the parties stipulated to the following factual basis. On September 3, 2017, Florida's St. Lucie County law enforcement responded to a missing person/juvenile runaway report made by the parents of S.W., a 16-year-old female. S.W. had run away from home the day before. A few weeks later, on September 27, 2020, law enforcement observed Rogers² at a Dunkin’ Donuts with S.W. as his passenger. S.W. told law enforcement that she met Rogers online and had been staying with Rogers at his home since she ran away from her home. S.W. stated that she and Rogers used alcohol, marijuana, and methamphetamine while she was staying with him, and that they engaged in vaginal intercourse and oral sex. S.W. indicated that Rogers had recorded some of their sexual activity, and he had recently posted a personal ad on Craigslist that included images of S.W. and solicited group sex.

Law enforcement executed a search warrant on Rogers's home and seized his cell phone, a laptop, and various drug paraphernalia. A forensic analysis of the cell phone and Rogers's Google Drive account revealed hundreds of videos and photographs depicting sexual conduct between S.W. and Rogers. All of the images were produced between August 29, 2017 and September 25, 2017. Rogers distributed many of the images and videos to other individuals via various electronic means.

Following Rogers's guilty plea, the United States Probation Office prepared a presentence investigation report ("PSI") using the 2016 Guidelines Manual. Rogers's applicable base offense level was 22. Numerous guidelines enhancements were applied, including a four-level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(4), because the offense involved material that portrayed sadistic or masochistic conduct or other depictions of violence;³ a five-level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(5), because Rogers engaged in a pattern of activity involving sexual abuse or exploitation of a minor;⁴ a two-level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(6), because a computer was used for the possession, transmission, receipt, or distribution of the child pornography;⁵ and another five-level enhancement, pursuant to U.S.S.G. § 4B1.5(b)(1), because the offenses of conviction were for covered sex crimes and the defendant engaged in a pattern or practice of activity involving prohibited sexual conduct.⁶ Rogers's resulting total offense level was 42, which, when combined with his criminal history category of V, resulted in a guidelines range of 360 to 960 months’ imprisonment.⁷

Rogers raised numerous factual and legal objections to information contained in the PSI. As relevant to this appeal, he objected to the U.S.S.G. § 2G2.2(b)(4) enhancement, arguing that none of the images or videos portrayed sadistic or masochistic conduct. The government maintained that the enhancement was appropriate because one of the pictures depicted Rogers's hand around the throat of the minor victim as she lay nude on the bed and he appeared to be choking her.

At the sentencing hearing, Rogers renewed his objection to the application of the U.S.S.G. § 2G2.2(b)(4) enhancement. The district court viewed the photograph depicting Rogers's hand around S.W.’s neck, as well as three videos. After hearing argument on the propriety of the enhancement, the district court found that "the choking event" photograph qualified for the enhancement. Rogers did not raise any other legal objections to the guidelines calculation, and the district court adopted the PSI.

During the sentencing hearing, Rogers's counsel sought to cross-examine the lead detective as to how the police knew S.W. would be at the Dunkin’ Donuts on September 27, 2017, and whether S.W. was an identified victim in two state cases of statutory rape involving other adult men. The government objected to this line of questioning based on Federal Rule of Evidence 412.⁸ Rogers's counsel contended that she should be allowed to introduce testimony regarding the two pending statutory rape cases because those cases also involved S.W. using drugs and going to adult men's houses to have sex, which she argued was relevant because the government had referred to S.W. repeatedly as an "innocent victim" in its sentencing memorandum. The district court stated that it would "consider the fact that she was in touch with the victim advocate in similar scenarios before, that is using drugs with older men—in the presence of older men, not that she had sex with them, but in the presence of older men that—and that there are cases pending, I'm going to consider it to that extent."

The government requested a 50-year sentence. The defense argued for a below guidelines sentence of the mandatory-minimum term of 15 years’ imprisonment, noting that Rogers had no prior history of sexual offenses and had extensive support from his mother and friends. The district court imposed a total sentence of 360 months’ imprisonment, followed by supervised release for life.⁹ Rogers's counsel objected to the substantive reasonableness of the sentence. This appeal followed.

II. Standards of Review

"We review de novo the interpretation and application of the Guidelines, and we review underlying factual findings for clear error. For a factual finding to be clearly erroneous, we must be left with a definite and firm conviction that the court made a mistake." United States v. Tejas , 868 F.3d 1242, 1244 (11th Cir. 2017) (internal citation omitted).

"When interpreting the guidelines, we apply the traditional rules of statutory construction." United States v. Fulford , 662 F.3d 1174, 1177 (11th Cir. 2011) (quotations omitted). "The language of the Sentencing Guidelines, like the language of a statute, must be given its plain and ordinary meaning, because [a]s with Congress, we presume that the Sentencing Commission said what it meant and meant what it said." Id.

"We review unpreserved sentencing objections only for plain error." United States v. Corbett , 921 F.3d 1032, 1037 (11th Cir. 2019). To establish plain error, a defendant must show: (1) an error; (2) that was obvious; and (3) that affected the defendant's substantial rights; and (4) that seriously affected the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano , 507 U.S. 725, 732–36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

"We review the evidentiary rulings of the district court for clear abuse of discretion." United States v. Machado , 886 F.3d 1070, 1085 n.14 (11th Cir. 2018).

We review the reasonableness of a sentence for abuse of discretion. Gall v. United States , 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The appellant bears the burden of demonstrating that the sentence is unreasonable in light of the record and the 18 U.S.C. § 3553(a) sentencing factors. United States v. Tome , 611 F.3d 1371, 1378 (11th Cir. 2010). We will vacate a sentence as substantively unreasonable only if "we ‘are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.’ " United States v. Irey , 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quoting United States v. Pugh , 515 F.3d 1179, 1191 (11th Cir. 2008) ).

III. Discussion

A. Whether the district court erred in applying the U.S.S.G. § 2G2.2(b)(4) enhancement

Rogers argues that the photograph examined by the district court, which...