United States v. Wade Pine , 318 F. App'x 84 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-30-2009
USA v. Wade Pine
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1840
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"USA v. Wade Pine" (2009). 2009 Decisions. Paper 1648.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 08-1840
__________
UNITED STATES OF AMERICA
v.
WADE RANDALL PINE,
Appellant.
__________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 07-176)
(District Judge: Christopher C. Conner)
__________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 6, 2009
Before: BARRY and GREENBERG, Circuit Judges,
and ACKERMAN, Senior District Judge.*
(Filed: March 30, 2009)
*
Honorable Harold A. Ackerman, Senior United States District Judge for the
District of New Jersey, sitting by designation.
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__________
OPINION OF THE COURT
__________
ACKERMAN, Senior District Judge.
Defendant Wade Randall Pine appeals his 78-month sentence for possession of
child pornography on the basis that the District Court failed to give sufficient
consideration to his history of mental illness and his need for correctional treatment. In
balancing the statutory sentencing factors under 18 U.S.C. § 3553(a), the District Court
provided a thoughtful and detailed explanation for Pine’s sentence, which properly took
into account Defendant’s psychological condition and need for appropriate treatment. We
will affirm.
On August 27, 2007, Pine pled guilty to possession of child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B). At sentencing, Defendant did not object to the
guideline calculations contained in the presentence investigation report (PSR) and did not
move for a downward departure. The PSR recommended a total offense level of 28 with
a criminal history category of I, yielding an advisory guideline range of 78 to 97 months.
The District Court adopted the PSR’s guideline calculation and, after considering the
sentencing factors set forth in 18 U.S.C. § 3553(a), declined Defendant’s request for a
downward variance and sentenced Pine to 78 months in prison, to be followed by a 10-
year term of supervised release. Additionally, the District Court imposed a $500 fine and
a $100 special assessment.
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In appealing the sentence, Defendant only contests the District Court’s balancing
of the § 3553(a) factors, arguing that the District Court failed to properly account for
defense testimony regarding Defendant’s history of mental illness, his need for
individualized counseling, and the assessment of a defense psychiatrist that Defendant
was unlikely to physically approach someone in a predatory manner. The District Court
had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. §
1291 and 18 U.S.C. § 3742(a). United States v. Lloyd, 469 F.3d 319, 321 (3d Cir. 2006)
(citations omitted).
This Court reviews the reasonableness of the District Court’s sentence for abuse of
discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007); Lloyd, 469 F.3d at 321. In
order for this Court to find the District Court’s sentence reasonable, this Court must find
that the District Court “gave meaningful consideration” to the sentencing factors set forth
in 18 U.S.C. § 3553(a). United States v. Smith, 445 F.3d 713, 716 (3d Cir. 2006) (quoting
United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)). The District Court “need not
discuss every argument made by a litigant,” nor must it make express findings for each of
the § 3553(a) factors, so long as “the record makes clear the court took [them] into
account in sentencing.” Smith, 445 F.3d at 716 (quoting Cooper, 437 F.3d at 329); see
also United States v. Goff, 501 F.3d 250, 255 (3d Cir. 2007).
Section 3553(a) requires the District Court to consider, inter alia:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; [and]
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(2) the need for the sentence imposed
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner[.]
18 U.S.C. § 3553(a). In this case, the record establishes that the District Court gave
meaningful consideration to the sentencing factors and propounded a reasonable sentence.
The District Court properly assessed the seriousness of the offense, noting that
Defendant possessed more than three thousand images of child pornography, many of
which included sexually explicit images of prepubescent children. (App. at 114.) On the
basis of Defendant’s unsworn statements at the sentencing hearing that he viewed child
pornography as a “collector’s item” and that he was a victim of internet pop-up
advertisements (App. 83–84), the court concluded that Defendant “does not appreciate
and has no real sense of remorse that this child pornography involves the sexual
exploitation of children.” (App. 116.) The court also noted that Defendant had been
gainfully employed for the past twenty years, that he had no prior criminal history, and
that he “has lived in a very controlled environment his entire life” with “overprotective”
parents. (App. 116–17.) Nevertheless, “the sheer volume of child pornography
possessed” convinced the District Court that Pine posed “a clear risk to the community
and a likelihood of recidivism.” (App. 117–18.) Accordingly, the District Court
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concluded that “a sentence at the low end of the guideline range is appropriate and
necessary to achieve the objectives set forth in [§ 3553(a)] without being greater than
necessary to achieve those objectives.” (App. 118.) The period of supervised release, the
court further noted, “will allow for the monitoring of Mr. Pine’s conduct and help protect
the community.” (Id.)
With regard to Defendant’s need for correctional treatment, the District Court
acknowledged that Pine had been diagnosed as suffering from “severe depression” and
“suicidal ideation.” (App. 117.) Although Pine continued to undergo counseling, the
court noted that “his prognosis for improvement is guarded.” (Id.) The District Court
ultimately determined that Defendant “[was] in need of intense psychiatric treatment,
which can be provided at specialized programs and facilities offered by the Bureau of
Prisons.” (App. 118.)
Defendant argues that the District Court failed to properly consider the sentencing
testimony of Dr. John Hume, a psychiatrist who opined that Defendant was not a risk of
becoming a child predator and that Defendant would be vulnerable to mistreatment in
prison. These “unique” circumstances, Defendant argues, warrant a downward variance.1
1
Although Defendant requests a “downward departure,” he does not base his argument on
a specific guideline provision or the District Court’s calculation of his total offense level under
the U.S. Sentencing Guidelines. This Court has recognized that such arguments, attacking the
District Court’s exercise of discretion in balancing the § 3553(a) factors to determine an
appropriate sentence, are requests for a variance, not departure. See, e.g., United States v.
Severino, 454 F.3d 206, 209 (3d Cir. 2006).
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Defendant also suggests that the District Court did not sufficiently focus on his history of
mental illness and his need for correctional treatment, given that § 3553(a)(2)(D) counsels
sentencing courts to weigh the need “to provide the defendant with . . . medical care, or
other correctional treatment.” Neither contention demonstrates that the District Court
abused its discretion.
Defendant cannot show that the District Court failed to give meaningful
consideration to the § 3553(a) factors. Although it did not specifically address Dr.
Hume’s testimony, the District Court did give ample consideration to Defendant’s unique
psychological condition and his need for continuing therapy. The court acknowledged the
negative impact of Defendant’s overprotective parents, his clinical depression, and the
grim prognosis for recovery. The court further determined that Defendant needed
continuing psychiatric treatment and deemed the federal Bureau of Prisons capable of
providing that treatment. Just because the defense psychiatrist prescribes that Defendant
receive continuing treatment in a non-prison environment, that fact does not oblige the
District Court to accept this conclusion.2 Indeed, most defendants convicted of crimes
would prefer therapy to prison, if given their druthers.
Furthermore, Dr. Hume’s testimony regarding Defendant’s non-predatory nature
borders on the irrelevant. Defendant’s implicit argument that possession of child
2
This is especially true where the defense psychiatrist bases his recommendation without
knowledge of the sex offender treatment programs provided by the Federal Bureau of Prisons.
(Cf. App. 68.)
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pornography is a lesser crime than more direct forms of sexual abuse has no bearing on
the District Court’s assessment of the seriousness of Pine’s crime—possessing more than
3,000 images of child pornography— and the need for the sentence to deter Pine and
others from committing the same. Cf. Goff, 501 F.3d at 259 (noting that the defendant’s
lack of a propensity to molest children “is, in one sense, irrelevant” to the District Court’s
assessment of the seriousness of the crime of possessing child pornography). The court
recognized that Defendant possessed a substantial volume of child pornography and
determined, based on its evaluation of the record and Pine’s statements at the hearing, that
Pine was likely to continue collecting child pornography in the future. In light of this
record, we cannot say that the District Court’s sentence was unreasonable.
Defendant would have this Court apply the imprecise calculus of § 3553(a) as a
rigid mathematical formula that requires the District Court to “show its work” on each
sub-factor. Yet, we have never read the sentencing factors to impose such a burden. See,
e.g., Smith, 445 F.3d at 716 (quoting Cooper, 437 F.3d at 329). The record clearly
establishes that the District Court gave meaningful consideration to Defendant’s unique
characteristics, offense history, and the need for the sentence to reflect the seriousness of
the offense, deter future misconduct, and provide Defendant with continuing
psychological treatment. There was no error here. We will affirm.
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