United States v. Andrew Ramey ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-1339
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UNITED STATES OF AMERICA,
Appellant
v.
ANDREW RAMEY
_____________
On Appeal from the United States District Court
for the District of New Jersey
(No. 3-16-cr-00121-001)
District Judge: Honorable Anne E. Thompson
Submitted pursuant to Third Circuit LAR 34.1(a)
November 14, 2017
Before: CHAGARES, VANASKIE, and FUENTES, Circuit Judges.
(Filed: January 19, 2018)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
CHAGARES, Circuit Judge.
In this appeal, the Government challenges a sentence imposed by the United States
District Court for the District of New Jersey. Andrew Ramey, the appellee and defendant
in the underlying criminal action, argues that the District Court acted within its discretion
when it applied a downward variance and sentenced him to 30 days of imprisonment for
possession of child pornography. For the reasons stated below, we will vacate the
sentence and remand for resentencing.
I.
As this Opinion is non-precedential and we write mainly for the parties, our
factual recitation is abbreviated. In 2012, a law enforcement investigation discovered
that Ramey possessed over 250 child pornography videos, some of which involved
toddlers. Ramey was arrested and charged with possession of child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B). He pleaded guilty to the offense, admitting in
his plea agreement that the material “involved a prepubescent minor or a minor under the
age of 12” and that “[t]he offense involved 600 or more images.” App. 144. Having
accessed the videos via a peer-to-peer file sharing network, Ramey also admitted that his
offense involved distribution of child pornography. Id. The Probation Department and
the parties agreed that the applicable sentencing range under the United States Sentencing
Commission Guidelines (“the Guidelines”) was 63 to 78 months of imprisonment.
At his sentencing hearing, Ramey requested that the District Court apply a
variance and sentence him to probation. He argued, inter alia, that the Guidelines are
flawed with respect to child pornography cases, that there were no “sadistic or
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masochistic images” in his collection, that this is his first offense, and that he “had some
developmental cognitive issues growing up.” App. 12–16. Ultimately, the District Court
imposed a sentence of only 30 days of imprisonment and a subsequent five-year term of
supervised release.
Providing an explanation for the variance, the District Court theorized that
Congress did not intend to punish defendants like Ramey for the victimization of children
in child pornography:
The horror of the victims’ suffering, unfortunately, cannot be visited,
addressed with punishment directly to the persons who actually acted out so
as to physically assault these children. This is a unique crime because the
punishment is directed toward persons such as this defendant who were the
viewers, customers who chose to look at the material that was produced . . .
from this victimization of these children. So, unfortunately, we do not have
before the court for punishment the persons who actually physically injured
and assaulted these children. It’s a unique situation with child pornography
offenses. We have before us somebody who went into his computer and went
to software and some mysterious peer-to-peer association and finds images
and for months was looking, peering at these images of the horror that the
victims were suffering and his offense is the looking, going into his computer
to look at this.
Now, that’s what we have with this kind of offense and the offender
in this particular case it would seem to me is probably not the person that
Congress had in mind who should be punished for the horror and the
suffering that these children went through.
App. 27–28. The District Court’s explanation then concluded with a brief discussion of
the four-year gap between Ramey’s arrest and sentencing, his childhood development,1
1
The District Court did not specify how Ramey’s developmental issues impacted his
offense or culpability. At sentencing, the court stated that “[t]here was a learning
disability that was spotted” and that Ramey had an “unusual [childhood] behavior of
eating pencils and tissues, a predilection for touching walls and photographs . . . in some
kind of tactile exploration, fixation, as yet unexplained.” App. 29. The court continued,
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the support of his siblings, the harm that incarceration would inflict on him, and the lack
of deterrent value of incarceration under these circumstances. App. 28–30. The
Government objected and then timely filed this appeal.2
II.
The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction over this appeal pursuant to 18 U.S.C. § 3742(b). “We review sentences for
abuse of discretion, and review them for both procedural and substantive
reasonableness.” United States v. Grober, 624 F.3d 592, 599 (3d Cir. 2010) (citing
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc)).
III.
Our review of the District Court’s sentencing is deferential; however, that
deference is not limitless. Although the Guidelines are advisory and “there is no
mandatory script for sentencing,” United States v. Goff, 501 F.3d 250, 256 (3d Cir.
2007), a district court must follow a three-step sentencing process. It must first “correctly
calculate the defendant’s Guidelines range.” United States v. Merced, 603 F.3d 203, 215
(3d Cir. 2010). Next, it must “rule on any motions for departures.” Id. Finally, “after
“[r]eading through this presentence report there is something that is not the normal
development that evidently has never been addressed.” Id.
2
About a month after the Government filed its Notice of Appeal, Ramey submitted a
request to the District Court that, in accordance with Local Appellate Rule 3.1, it issue a
written amplification of its sentencing decision. The District Court responded on May
26, 2017 with a letter addressed to counsel. App. 128–30. The brief letter was untimely
as it was filed more than thirty days after the notice of appeal was docketed. See 3d Cir.
L.A.R. 3.1. Furthermore, it provided little extra explanation and is insufficient for the
same reasons that the justification for the substantial downward variance articulated at the
original sentencing was deficient.
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giving both parties an opportunity to argue for whatever sentence they deem
appropriate,” the court must exercise its discretion with “meaningful consideration” of
the sentencing factors contained in 18 U.S.C. § 3553(a). Id.
We have twice reversed this same District Court for extraordinary downward
variances in cases involving the possession of child pornography. See Goff, 501 F.3d at
262 (“[A] sentence of four months is a drastic reduction and unreasonable in light of the
facts and circumstances revealed in the record.”); United States v. Lychock, 578 F3d 214,
229 (3d Cir. 2009) (“We conclude that, by ignoring relevant factors and failing to offer a
reasoned explanation for its departure from the Guidelines, the District Court once again
‘put at risk the substantive reasonableness of any decision it reached.’ . . . That risk of
unreasonableness was realized, under the particular circumstances of this case, in
Lychock’s sentence of probation.”) (quoting Goff, 501 F.3d at 256). In both Goff and
Lychock, we detailed the significant harm caused by possession of child pornography, the
seriousness of the offense, and the clarity with which Congress has expressed its view on
the matter.
On this third occasion to consider the District Court’s drastic sentencing
reductions, we reiterate that the possession of child pornography alone, even absent any
physical contact between the offender and a minor, is an extremely serious crime that
causes substantial harm. See United States v. Williams, 553 U.S. 285, 307 (2008)
(“Child pornography harms and debases the most defenseless of our citizens.”). As we
noted in Goff, “[t]he simple fact that the images have been disseminated perpetuates the
abuse initiated by the producer of the materials” and “[c]onsumers such as Goff who . . .
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possess child pornography directly contribute to this continuing victimization.” 501 F.3d
at 259. Moreover, possession creates a market for child pornography that incentivizes
further production of such materials. Id. As such, there is no “mere” or “passive” act of
possessing child pornography. To possess such material is to victimize children in a
significant and active manner.
A.
We first consider procedural unreasonableness. In this analysis, we must ensure
that the District Court “‘committed no significant procedural error, 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.’” Tomko, 562 F.3d at 567
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). A significant variance from the
Guidelines range “requires a more significant justification than a minor one.” Grober,
624 F.3d at 599 (citing Gall, 552 U.S. at 50).
The extraordinary variance here, which is 98% below the bottom of the applicable
Guidelines range, necessitates a careful and significant justification; however, the District
Court proceeded in a conclusory fashion. The conclusion that Ramey “is probably not
the person that Congress had in mind who should be punished for the horror and the
suffering that these children went through” is troubling, particularly because Congress
has criminalized possession of child pornography as a separate offense from the physical
abuse of children.
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To the extent that the District Court asserted a policy disagreement with the
Guidelines, that reasoning must fail. Although a district court is permitted to vary from
the Guidelines based on such a policy disagreement, its rationale should “take into
account all of the sentencing factors, not just one or two of them in isolation” and it must
provide “sufficiently compelling reasons to justify” the variance.3 Merced, 603 F.3d at
221. Although the District Court offered a brief discussion of the § 3553(a) factors, it
failed to provide compelling justifications for its sentence based upon the factors as a
whole. Instead, the District Court offered vague descriptions of Ramey’s individual
characteristics and largely unsupported conclusions regarding deterrence and the harm of
incarceration. App. 28–30. Thus, the District Court’s sentencing in the instant case was
procedurally unreasonable.
B.
Though we may remand based solely upon our conclusion that the District Court’s
sentencing was procedurally unreasonable, we will also consider substantive
unreasonableness as we did in Goff and Lychock. Our substantive review of a sentence
is based upon the totality of the circumstances, Merced, 603 F.3d at 214, and we will
vacate a sentence on substantive grounds only if “no reasonable sentencing court would
have imposed the same sentence on that particular defendant for the reasons the district
3
A district court need not, however, “recite and make findings as to every one of the §
3553(a) factors, as long as the record makes clear that the factors have been considered in
deciding the sentence.” Merced, 603 F.3d at 222.
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court provided.” Tomko, 562 F.3d at 568. Our consideration of substantive
unreasonableness is guided by the § 3553(a) factors. Merced, 603 F.3d at 214.
Although the District Court relied heavily upon the first § 3553(a) factor — the
nature and circumstances of the offense and the history and characteristics of the
defendant — that factor does not support the District Court’s downward variance. The
facts and circumstances here are similar to those in Goff and Lychock: possession of
hundreds of child pornography videos, some depicting prepubescent minors or those
under the age of 12; limited or nonexistent prior criminal history; and the ready support
of family members. In those prior cases, we found that comparable sentencing reductions
were substantively unreasonable, and the facts of this case do not warrant a different
result. Ramey’s learning disability and his exhibition of some unusual childhood
behaviors do not meaningfully distinguish the case, because while these facts might
warrant a reduction in sentencing, they do not support one of this magnitude.
In addition, as we recognized in Goff, “[s]ubsection (a)(2) requires consideration
of . . . the need . . . to ‘provide just punishment,’” which includes “the avoidance of
unwarranted sentencing disparities, as required by [subsection] (a)(6).” 501 F.3d at 258.
Here, the 98% downward variance from the bottom of the applicable Guidelines range
would provide little punishment at all and create a significant sentencing disparity, which
undercuts the interest in uniform sentencing practices and the perception of fair
sentencing. Thus, the second and sixth of the § 3553(a) factors gravitate strongly in favor
of remand.
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On balance, these and the remaining factors simply do not support the extreme
variance in this case. No reasonable court would impose a sentence of 30 days of
imprisonment on these facts. Thus, as we did in Goff and Lychock, we conclude that the
District Court’s sentence is substantively unreasonable.
IV.
For the reasons stated above, we will vacate the District Court’s sentence and
remand for resentencing in accordance with this Opinion.
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