Argued: September 19, 2014.
Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Michael F. Urbanski, District Judge. (5:11-cr-00045-MFU-1).
Russell Darren Bostic, BOSTIC & BOSTIC, PC, Harrisonburg, Virginia, for Appellant.
Nancy Spodick Healey, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
Darcy Katzin, Child Exploitation & Obscenity Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Timothy J. Heaphy, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Before DIAZ and THACKER, Circuit Judges, and Paul W. GRIMM,United States District Judge for the District of Maryland, sitting by designation. Judge Grimm wrote the opinion, in which Judge Diaz and Judge Thacker joined.
GRIMM, District Judge:
John Stuart Dowell, having pleaded guilty to twelve counts of production of child pornography and one count of transportation of child pornography, appeals his 960-month sentence. On appeal, Dowell argues that his sentence violates the Eighth Amendment's prohibition of cruel and unusual punishment and is both procedurally and substantively unreasonable under 18 U.S.C. § 3553(a).
We hold that the district court erred in its Guidelines calculation when it incorrectly applied an upward adjustment for a " vulnerable victim" pursuant to U.S.S.G. § 3A1.1(b)(1) based upon one of the victims' age-related cognitive development and psychological vulnerability, factors that already were incorporated into an upward adjustment for the young age of Dowell's victims pursuant to U.S.S.G. § § 2G2.1(b)(1) and 2G2.2(b)(2). However, because we find that error to be harmless and reject the remainder of Dowell's challenges, we affirm.
The relevant facts are undisputed. In late 2010 and early 2011, John Stuart Dowell was staying at a residence in Frederick
County, Virginia. Over that time, Dowell recorded several videos of himself engaging in escalating sexual contact with a three-year-old girl (" Minor A" ) and displaying the genitals of a five-year-old girl (" Minor B" ), both of whom lived in the residence. The videos were stored on Dowell's personal computer and posted on the Internet, where Danish law enforcement officers discovered them and notified the Bureau of Immigration and Customs Enforcement of the videos' existence in August 2011. Around that same time, a relative of Dowell's turned over some of the same video clips to the Federal Bureau of Investigation and identified Dowell, the residence, and the children in the videos. An arrest warrant was issued and Dowell was arrested on October 26, 2011 at his residence in California.
A forensic examination of Dowell's computers uncovered over 70,000 pornographic images and videos, of which approximately seventy-five percent depicted child pornography or child erotica, and an additional ten percent comprised sexually explicit drawings of minors. The examination also revealed several videos of Minor A and Minor B, including depictions of Dowell touching, licking, and kissing the genital area of Minor A and exposing the genitals of Minor B. On December 14, 2011, a federal grand jury initially returned an indictment charging Dowell with one count of production of child pornography in violation of 18 U.S.C. § § 2251(a) and 2251(e). A superseding indictment was returned on April 25, 2012, charging Dowell with twelve counts of production of child pornography -- ten with respect to Minor A and two with respect to Minor B -- and one count of transportation of child pornography in violation of 18 U.S.C. § § 2252(a)(1) and (b)(1). On October 3, 2012, Dowell entered a plea of guilty to each count of the superseding indictment.
During a lengthy sentencing hearing lasting over seven and one-half hours and comprising over 250 pages of transcript, the district court heard testimony regarding the quantity and nature of pornographic material on Dowell's computer and viewed the videos that he had produced of Minor A and Minor B. The court also heard expert testimony from a psychologist, who expressed the opinion that Dowell is a pedophile, " sexually attracted to females, nonexclusive type" -- meaning that he is attracted to adults as well as to children. J.A. 210. The psychologist also opined that, although the relevant evaluative measures suggested that Dowell was a relatively low risk to reoffend, those measures often are incomplete and pedophilia nevertheless is a chronic condition that is unlikely to go away as Dowell ages.
The court also heard argument on certain enhancements recommended in Dowell's Pre-Sentence Report (the " PSR" ). As relates to this appeal, Dowell argued against the PSR's recommendation to apply both a five-level enhancement with respect to count thirteen for transportation of child pornography because Dowell " engaged in a pattern of activity involving the sexual abuse or exploitation of a minor" pursuant to U.S.S.G. § 2G2.2(b)(5) and an additional five-level adjustment to the total offense level for " engag[ing] in a pattern of activity involving prohibited sexual conduct" pursuant to U.S.S.G. § 4B1.5(b)(1). J.A. 348-49; see id. at 361. Relying on the well-established principle that double counting is authorized unless the Guidelines expressly prohibit it, the district court applied both increases.
At sentencing, Dowell also challenged the PSR's recommendation that he receive an enhancement for a " vulnerable victim" pursuant to U.S.S.G. § 3A1.1(b)(1) with respect to counts one through ten and count thirteen, which was added in response to an earlier objection to the PSR by the Government. Dowell contended that, because the age of the victims already was accounted for by enhancements for victims under twelve years of age contained in U.S.S.G. § § 2G2.1(b)(1)(A) and 2G2.2(b)(2), the vulnerable victim adjustment could not be applied simply because Dowell's victims were considerably younger than twelve. Relying on United States v. Jenkins, 712 F.3d 209 (5th Cir. 2013), and United States v. Wright, 373 F.3d 935 (9th Cir. 2004), the district court concluded that, " though the characteristics of being an infant or toddler tend to correlate with age, they can exist independently of age, and are not the same thing as merely not having attained the age of 12 years." J.A. 171. Accordingly, the district court applied the vulnerable victim enhancement with respect to Minor A based on her cognitive development and " unique concerns about the moral and psychological development of the child" that, though related to her age, can exist independently of age and " recognize a vulnerability beyond age per se." Id.
Following the testimony, arguments from counsel, and Dowell's allocution, the court calculated Dowell's Guidelines range as follows:
With respect to counts one through twelve, the court adopted the recommendations of the PSR, applying a vulnerable victim enhancement to counts one through ten relating to Minor A, as well as several other sentencing enhancements that are not challenged on appeal. This yielded a total offense level of 40 with respect to seven counts (counts one to three, five to seven, and ten); a total offense level of 42 with respect to three counts (counts four, eight, and nine); and a total offense level of 38 with respect to two counts (counts eleven and twelve). For count thirteen, the court rejected the PSR's recommendation for an enhancement for distribution of child pornography under § 2G2.2(b)(3)(F), but otherwise adopted the PSR's findings, including a vulnerable victim adjustment because of Minor A's extremely young age and an enhancement for a pattern of activity involving the sexual abuse of a minor pursuant to § 2G2.2(b)(5), yielding a final offense level of 42 for that count.
Pursuant to the Sentencing Guidelines' provisions for multiple counts, § 3D1.4, the court applied a five-level increase. The court then decreased the offense level by three levels for acceptance of responsibility under § 3E1.1(a)-(b), yielding an offense level of 44. The court then applied an additional five-level increase under § 4B1.5(b)(1) for a pattern of activity involving prohibited sexual conduct, yielding a final total offense level of 49, which pursuant to Chapter 5, Part A of the Sentencing Guidelines, is treated as a level 43, the highest possible offense level. For all criminal history categories, the Guidelines range for level 43 is life imprisonment.
Both the Government and the PSR recommended a total sentence of 4,560 months, calculated by adding the statutory maximum for each count consecutively pursuant to U.S.S.G. § 5G1.2. However, the district court found the recommended sentence to be unrealistic and not required by § 5G1.2, and, in light of Dowell's age, determined that a sentence of 960 months was tantamount to a life sentence. As the district court explained, " under this guideline range the defendant will be 127 years [old] when this term runs out . . . . Given his age, there's no practical reason, no reason under the guidelines or the case law, to calculate the guidelines to run any
additional sentences consecutive beyond the 960 months." J.A. 308.
After considering the Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553(a), the court imposed what it characterized as a Guidelines sentence of 960 months' imprisonment, calculated as " the extent necessary to produce a combined sentence equal to the total punishment of life." J.A. 307. In explaining its reasoning, the court said, " [a]s regards that three-year-old child, this crime is predatory. This crime is premeditated. This crime is calculated. This crime was designed to get that child to a point where she, in her young, young, young, and undeveloped cognitive state, became interested in this behavior," id. at 311, and noted as well that the videos that Dowell made in Virginia had been distributed as far away as Denmark. The court also found that " this defendant spent ten years involved in child pornography, touched these children, molested this one girl, videoed it, and kept right on viewing it until he was arrested. To protect the public from Mr. Dowell . . . demands a life term." Id. at 313. Dowell appealed.
Dowell challenges his sentence as a violation of the Eighth Amendment's prohibition of cruel and unusual punishment on the grounds it is disproportionate to the severity of his crimes. We review de novo constitutional claims, including whether a sentence is proportional under the Eighth Amendment. United States v. Myers, 280 F.3d 407, 416 (4th Cir. 2002).
The Eighth Amendment states: " Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. " The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution's ban on cruel and unusual punishments is the 'precept of justice that punishment for crime should be graduated and proportioned to [the] offense.'" Graham v. Florida, 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910) (emendation in original)). Accordingly, a disproportionate sentence may be cruel and unusual even if it is not " inherently barbaric." Id.
[A] court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.
Solem v. Helm,
463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). A defendant may raise two types of Eighth Amendment challenges to his sentence: He may raise an " as-applied" challenge on the grounds that " the length of a certain term-of-years sentence [is] disproportionate 'given all the circumstances in a particular case,'" or he may raise a " categorical" challenge asserting " that an entire class of sentences is disproportionate based on 'the nature of the offense' or 'the characteristics of the offender.'" Unit ...