US v. Russell, No. 08-3120.

• Decision Date: 02 April 2010
• Docket Number: No. 08-3120.
• Citation: 600 F.3d 631
• Parties: UNITED STATES of America, Appellee v. Mark Wayne RUSSELL, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

600 F.3d 631

UNITED STATES of America, Appellee v. Mark Wayne RUSSELL, Appellant.

No. 08-3120.

United States Court of Appeals, District of Columbia Circuit.

Argued January 12, 2010.

Decided April 2, 2010.

Tony Axam Jr., Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs was A.J. Kramer, Federal Public Defender. Neil H. Jaffee, Assistant Federal Public Defender, entered an appearance.

Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Roy W. McLeese III, Mary B. McCord, and Julieanne Himelstein, Assistant U.S. Attorney.

Before: HENDERSON and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Concurring opinion filed by Circuit Judge HENDERSON.

Concurring opinion filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge:

Defendant Mark Russell pleaded guilty to one count of travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b) (2006). The district court sentenced him to 46 months of imprisonment and 30 years of supervised release. A special condition of his supervised release specifies that Russell may not "possess or use a computer for any reason." Russell challenges the duration of his supervised release and the computer restriction, arguing that each is substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We affirm the length of the supervised release, but vacate the computer restriction and remand for resentencing.

* * *

In June 2006, using a computer at his home in Columbia, Maryland, Russell entered an internet chat room and initiated a conversation with an individual identifying herself as a 13-year old girl; "she" was actually a member of the District of Columbia Metropolitan Police Department. Three days later, Russell again engaged the "child" in an online chat. Over the course of their second chat, Russell performed a solo sex act live via webcam and invited the "child" to have sex with him. The purported child, in response, provided her address in Washington, D.C., and said that her mother would not be home until seven or eight that evening. Russell drove to the address, parked his car, and e-mailed the "child" to say he had arrived. After a period of waiting, he began to drive away, at which point he was arrested.

Russell was 46 when he was sentenced, and approximately 50 at the time of his release. He had worked as an applied systems engineer at Johns Hopkins University for ten years before becoming unemployed at the end of April 2006. Before this arrest, he had had no contact with the law. According to his wife of 23 years, the mother of their three children, he had been depressed in the period just before his arrest.

30-Year Term of Supervised Release. Russell challenges the 30-year term of his supervised release as substantively unreasonable. The parties initially spar over the proper standard of review. The government, though acknowledging that counsel posed an adequate objection to the conditions of supervised release, contends that it did not embrace the term. We assume in the government's favor that Russell's objection in fact went only to the conditions.

We held in United States v. Bras, 483 F.3d 103 (D.C.Cir.2007), that we review claims of substantive unreasonableness for abuse of discretion, regardless of whether an objection on those terms was made. Id. at 113. Noting that reasonableness is simply "the standard of appellate review," we quoted the 7th Circuit's discussion of the point:

To insist that defendants object at sentencing to preserve appellate review for reasonableness would create a trap for unwary defendants and saddle busy district courts with the burden of sitting through an objection—probably formulaic—in every criminal case. Since the district court will already have heard argument and allocution from the parties and weighed the relevant § 3553(a) factors before pronouncing sentence, we fail to see how requiring the defendant to then protest the term handed down as unreasonable will further the sentencing process in any meaningful way.

Id. (quoting United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir.2005)); see also United States v. Vonner, 516 F.3d 382, 389-90 (6th Cir.2008) (no duty to object to sentence on grounds of substantive unreasonableness). Such a requirement would indeed yield a "formulaic" statement. Substantive reasonableness is the catch-all criterion under which the reviewing court monitors (deferentially—for abuse of discretion) whether the district court has given reasonable weight to all the factors required to be considered. Presumably all (or virtually all) defendants would prefer a shorter sentence, a shorter period of supervised release, and less restrictive conditions. It would hardly alert the district court to anything new for defense counsel to say that defendant sought a more favorable sentence. By contrast, unnoticed errors of the sort characterized by the Supreme Court in Gall as procedural, "such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range," 552 U.S. at 51, 128 S.Ct. 586, would normally be reviewed for plain error. In re Sealed Case, 527 F.3d 188, 191-93 (D.C.Cir.2008) (applying plain error review, in the absence of objection at trial, to a sentencing judge's failure to provide an explanation of the sentence); see also Vonner, 516 F.3d at 386-88.

The government argues that in the absence of objection we should apply plain error in reviewing a substantive reasonableness challenge to the duration of supervised release, citing United States v. Sullivan, 451 F.3d 884 (D.C.Cir.2006). In Sullivan, we reviewed a challenge to the substantive reasonableness of a condition of supervised release for plain error. Id. at 894. See United States v. Love, 593 F.3d 1, 8 (D.C.Cir.2010) (like Sullivan, applying plain error review to substantive reasonableness challenge of a condition of supervised release). Whatever the precedential effect of Sullivan and Love may be with respect to discretionary conditions, they do not address the applicable standard with respect to the duration of supervised release. On this question, we find the reasoning in Bras to be persuasive and thus proceed under an abuse of discretion standard.

Appellate review of the duration of supervised release parallels review of a term of imprisonment. While in the latter we inquire whether the district court abused its discretion in applying the factors mandated by 18 U.S.C. § 3553(a), Gall, 552 U.S. at 56, 128 S.Ct. 586, here we ask whether the court abused its discretion in applying the factors specified by 18 U.S.C. § 3583(c) for fixing a term of supervised release. These are in fact simply a subset of those specified in § 3553(a), namely:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—...

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant;

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;...

(4) the applicable Sentencing Guidelines range based on the defendant's offense and criminal history;

(5) pertinent policy statements issued by the Sentencing Commission; and

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a), cross-referenced in 18 U.S.C. § 3583(c).

The Sentencing Guidelines provide that violators of § 2423(b) (such as Russell) should receive a term of supervised release ranging from three years to life. U.S.S.G. § 5D1.2(b)(2). In United States v. Law, 528 F.3d 888 (D.C.Cir.2008), we held that sentences within the applicable Guidelines range are presumed reasonable. Id. at 902; see Gall, 552 U.S. at 51, 128 S.Ct. 586 (allowing courts of appeal to apply such a presumption); Rita v. United States, 551 U.S. 338, 350-51, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (same).

Russell does not challenge Law directly, but argues that Rita, in saying that an appellate presumption of reasonableness for within-Guidelines sentences was permissible under the Sixth Amendment, relied on logic that is inapplicable here. He says that Rita is premised on an assumption "that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve § 3553(a)'s objectives." Appellant's Br. at 15 (quoting Rita, 551 U.S. at 350, 127 S.Ct. 2456). Here that condition is absent, he thinks, because the broad range of three years to life does not serve § 3553(a)(6)'s goal of "avoiding unwarranted sentencing disparities among defendants with similar conduct." Id.

In embracing a presumption in favor of within-Guidelines sentences, the Rita Court faced—and rejected—the objection that such a presumption might so constrain sentencing judges' discretion on the basis of judge-found facts as to deny defendants their Sixth Amendment rights as construed by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny. See 551 U.S. at 350, 127 S.Ct. 2456 (alluding to Justice Souter's dissent), id. at 391, 127 S.Ct. 2456 (Souter, J., dissenting). Such an objection would be at its minimum, perhaps nil, where the presumption is applied to so broad a sentencing range (and one based entirely on the offense of conviction, quite independent of judge-found facts).

Affirmatively, the Rita Court found a presumption of...