United States v. Joseph Torrence ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3703
_____________
UNITED STATES OF AMERICA
v.
JOSEPH TORRENCE,
a/k/a Joseph Terrence
Joseph Torrence,
Appellant
_____________
No. 17-2173
_____________
UNITED STATES OF AMERICA
v.
STEVEN LOCKS, JR.,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 2-15-cr-00538-001 & 2-15-cr-00538-002)
District Judge: Honorable Michael M. Baylson
Submitted: February 5, 2018
Before: CHAGARES, SCIRICA, and COWEN, Circuit Judges.
(Filed: March 2, 2018)
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OPINION*
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CHAGARES, Circuit Judge.
In this matter, we consider the appeals of Steven Locks, Jr. and Joseph Torrence,
co-defendants convicted of crimes involving the sexual exploitation of a three-year old
child. Following the co-defendants’ guilty pleas, the United States District Court for the
Eastern District of Pennsylvania imposed upon Locks a sentence of 300 months of
imprisonment, a lifetime term of supervised release, a fine of $600, and a special
assessment of $600. Locks Appendix (“App.”) 116–18. The District Court sentenced
Torrence to 324 months of imprisonment, a lifetime term of supervised release, and a
special assessment of $500. Torrence App. 50–52. Locks appeals the procedural
reasonableness of his sentence, and Torrence appeals both the procedural and substantive
reasonableness of his. Locks Brief (“Br.”) 3; Torrence Br. 2. For the reasons that follow,
we will affirm the District Court’s sentences.
I.
As this Opinion is non-precedential and we write only for the parties, our factual
recitation is abbreviated. In August 2015, Philadelphia police discovered sexually
explicit photographs of a three-year old girl on a mobile phone belonging to Locks. The
police also discovered text messages between Locks and Torrence, in which they
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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discussed taking sexually explicit photographs of the child. After further investigation,
the police determined that the child was the niece of a woman in whose house Locks was
living. Torrence had convinced the woman to allow Locks, who needed a place to live,
to stay there and help care for that child and other children who were residing in the
house. Soon after Locks began helping with childcare responsibilities, Torrence started
asking him to take sexually explicit photographs of the child. In the course of an
extremely graphic exchange between the two men, Torrence told Locks to sexually touch
the child and photograph the act in question. We need not delve with great specificity
into the appalling details of these communications. It suffices to note that (1) both men
participated in graphic, sexual discussions regarding the child; (2) in response to
Torrence’s requests, Locks took photographs of the child’s vagina, labia, and anus; and
(3) at least one such photograph depicts Locks’ hand spreading the child’s legs open in
order to take a focused image of that area of her body. Locks transmitted those images to
Torrence, who acknowledged receipt via text message.
A grand jury returned an eleven-count indictment charging Locks and Torrence
with various federal crimes pertaining to child sexual abuse and the production,
transmission, and possession of child pornography. Locks App. 16–24. Both men
pleaded guilty. For Locks, the mandatory minimum term of imprisonment was fifteen
years, and, without factoring in statutory maximum sentences, the United States
Sentencing Guidelines (the “Guidelines”) range was life imprisonment. Locks Br. 10.
Torrence’s convictions subjected him to a Guidelines range of 324 to 405 months of
incarceration, with a 180-month mandatory minimum term on three counts. As noted
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previously, Locks ultimately received a sentence of 300 months of imprisonment, and
Torrence received a sentence of 324 months of imprisonment. Torrence did not object at
or after sentencing. Following sentencing, Locks and Torrence timely appealed.
II.
The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Because neither party preserved
the issues raised on appeal, our procedural reasonableness review of the District Court’s
sentencing is for plain error. See United States v. Flores-Mejia, 759 F.3d 253, 255 (3d
Cir. 2014) (en banc).1 We review the substantive reasonableness of the sentence for
abuse of discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).
III.
With respect to procedural reasonableness, district courts at sentencing “must give
‘meaningful consideration’ to all of the statutory factors in 18 U.S.C. § 3553(a).” 2
1
To establish plain error, the movant:
must show that (1) the District Court erred; (2) the error was clear or obvious,
rather than subject to reasonable dispute; and (3) the error affected the
appellant’s substantial rights, which in the ordinary course means that there
is a reasonable probability that the error affected the outcome of the
proceedings. . . . If all three elements are established, then the Court may
exercise its discretion to award relief. . . . That discretion should be exercised
only in cases where the error “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.”
United States v. Calabretta, 831 F.3d 128, 132 (3d Cir. 2016) (quoting United States v.
Stinson, 734 F.3d 180, 184 (3d Cir. 2013)), abrogated in part on other grounds by
Beckles v. United States, 137 S. Ct. 886 (2017).
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United States v. Olhovsky, 562 F.3d 530, 547 (3d Cir. 2009) (quoting United States v.
Cooper, 437 F.3d 324, 329 (3d Cir. 2006)). However, the court need not “discuss and
make findings as to each of the § 3553(a) factors if the record makes clear the court took
the factors into account in sentencing.” Cooper, 437 F.3d at 329. District courts must
also “acknowledge and respond to any properly presented sentencing argument which has
colorable legal merit and a factual basis.” Flores-Mejia, 759 F.3d at 256 (quoting United
States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012)). Failure to meaningfully consider the
§ 3553(a) factors or an appellant’s colorable arguments is grounds for remand and
resentencing; id., however, “[t]here are no magic words that a district judge must invoke
when sentencing,” Cooper, 437 F.3d at 332. “The touchstone of ‘reasonableness’ is
whether the record as a whole reflects rational and meaningful consideration of the
factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571
(3d Cir. 2007).
A district court’s sentence is substantively reasonable, “wherever it may lie within
the permissible statutory range,” if it “was premised upon appropriate and judicious
consideration of the relevant factors.” United States v. Schweitzer, 454 F.3d 197, 204
(3d Cir. 2006). We will not reverse a sentence on grounds of substantive
unreasonableness “unless no reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the district court provided.” Tomko,
562 F.3d at 568.
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A.
We turn first to Locks, who is appealing only the procedural reasonableness of his
sentence. Locks argues that the District Court committed procedural error by ignoring
relevant sentencing factors. He notes the District Court’s statement that sentencing
factors besides deterrence “are irrelevant here.” Locks Br. 11, 14–15; Locks App. 114–
15. Locks also argues that the District Court failed to adequately consider his history and
characteristics, particularly as evidenced by the report of forensic psychologist Dr.
Singer. Locks Br. 15.
At sentencing, the District Court considered the sentencing guidelines and
then stated:
[T]he conduct of the defendant went above and beyond what you would call
minimum conduct and [he] committed a number of different crimes, all of
which are very serious in nature.
So, the case requires substantial punishment. The defendant is of
limited intelligence. He is competent, we had concerns about that. We have
an examination. And a finding of competency . . . .
So, the other sentencing factors are irrelevant here. This is a case in
which deterrence is very important. Congress has made it clear that crimes
against minors are to be dealt with very severely by judges in federal court.
This is a very aberrant behavior. It’s very criminal in its conduct, and
there in my view is some likelihood of an individual who would do this might
do it again. So, I think there is some dangerousness to the defendant having
done these acts without any reason or any background. He was prodded by
Mr. Torrence. I still believe that he is very culpable, but he is less culpable
than Mr. Torrence, and for that reason I’m going to impose a sentence that is
slightly lower than the one that Mr. Torrence.
But another reason is that Mr. Locks is substantially younger. And I
think for the safety of others, that he needs to be incarcerated for substantial
period of time so that when he comes out he will be an elderly adult, a senior
citizen so to speak that he will hopefully have had a lot of time to think about
what he did was very wrong, and he’ll be on very intensive supervisory
release as well.
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So, those are some of the factors that I think are applicable here. And
I think that if there is any aspect for rehabilitation, or for education for Mr.
Locks it needs to take place in a custodial institution.
Locks App. 114–15. This statement makes clear that, despite the colloquial assertion that
only one sentencing factor is relevant, the District Court fully considered all of the
relevant factors. The District Court noted the nature of the offense, the intelligence and
relative culpability of Locks, the “examination” of Locks’ psychological status and re-
offense risk, the need for the sentence to reflect the seriousness of the offense, the need to
deter his conduct and protect the public, the need to provide him education, and the
sentencing range for this type of offense. It then referred to “factors” in the plural as
applicable to the case. Though the District Court’s discussion of these factors is
somewhat short, it sufficiently demonstrates meaningful consideration.
As for the Singer report, it concluded that Locks presented a low risk of
reoffending. Locks Br. 9–10. Locks argues that this situation is akin to that in United
States v. Olhovsky, 562 F.3d 530 (3d Cir. 2009). In that case, Olhovsky pleaded guilty to
possession of child pornography and was sentenced to six years of imprisonment. Id. at
532. At sentencing, the district court received a psychological evaluation, which
concluded that Olhovsky had “made substantial progress in treatment,” is in a “low risk
range” for reoffending, and “presents within the limits of risk appropriate for outpatient
management.” Id. at 540. Nevertheless, the Olhovsky district court characterized him in
the following manner:
He’s young and as the psychologists have admitted, they don’t know what
he’s going to do. He certainly has indicated pedophile proclivities in the past
and they can’t tell me whether or not he will be a pedophile in the future.
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...
There is only, as far as I’m concerned, one significant mitigating
factor in Mr. Olhovsky’s favor, his youth. He might stand some chance but,
you know something, he also could turn around and again become a predator
— a pedophile monster, and this Court is not prepared to impose any sentence
which, one, denigrates the significance of the conduct which Mr. Olhovsky
has done, suggest that this does not warrant substantial, indeed, potentially
draconian punishment . . . .
As far as the Court is concerned, it is the best hope that this society
has for Mr. Olhovsky given how it appears that prior effects have largely
failed. I understand [the defense is] presenting arguments that the past few
years have been successful in some manner or other but, quite frankly, the
Court is unpersuaded that that is an overwhelming predictor of success.
Id. at 542 (emphasis and alterations in original). On appeal, we remanded for
resentencing, concluding in relevant part that the district court’s sentence was not
procedurally reasonable. Id. at 553. We noted that “[t]he court’s suggestion that
Olhovsky ‘could turn around and become again a predator — a pedophile monster,’ and
its statement that a sentence must not ‘denigrate, the significance of the conduct,’”
demonstrate a focus “on incapacitation, deterrence and punishment to the exclusion of
other sentencing factors.” Id. at 543–45. We also described how a fair comparison
between the examining physician’s report and the Olhovsky district court’s
characterization of the situation shows that that characterization is unreasonable. See id.
at 550 (noting that the report clearly established that treatment had been successful, in
direct contrast to the district court’s assertion that it had largely failed). Finally, we
observed that psychologists necessarily deal in probabilities of future behavior rather than
certainties, discrediting the district court’s rationale that its sentence is supported because
psychologists cannot conclude with certainty that an offender will not be a pedophile in
the future. Id.8
The situation here is quite unlike that in Olhovsky. The Olhovsky district court’s
misapprehension of the psychological report indicates that it did not meaningfully
consider that document and the relevant factors therein. In contrast here, although the
District Court made rather short shrift of its reasoning that Locks still presents a danger to
the public, it did not demonstrate a misunderstanding of the psychological report or an
improper focus solely on punishment, incapacitation, and deterrence. It is also notable
that our review of this case is for plain error, whereas in Olhovsky, our review fell under
the general abuse of discretion standard.
Applying that plain error standard, we cannot conclude that the District Court
erred. The court meaningfully considered the § 3553(a) factors and Locks’ colorable
arguments. Consequently, we will affirm the sentence that the District Court imposed
upon Locks.
B.
We next consider Torrence’s appeal of the procedural and substantive
reasonableness of his sentence. As a preliminary matter, we must determine whether
Torrence preserved his procedural issue for appeal. At sentencing, Torrence did not
object to the procedural reasonableness of the District Court’s sentence. He now urges us
to conclude that he preserved that issue for appeal by “present[ing] his arguments fully in
a Presentence memorandum . . . [and before the District Court] at the sentencing hearing.
Torrence Reply Br. 3. He argues that because the District Court did not inquire after
sentencing whether there were objections to procedural matters, “counsel will be hard
pressed to advance arguments to the sentencing court after the sentencing proceedings are
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concluded and the sentence has been pronounced.” Id. at 4. In defense of this position,
he cites footnote 8 of our recent en banc Opinion in Flores-Mejia, in which we
“encourage[d] district courts” to make such enquiries, but did not “make this a
requirement that district judges must follow.” Flores-Mejia, 759 F.3d at 258 n.8. The
application of this footnote is clear, and we see no reason to upset the Flores-Mejia
holding that “in a criminal prosecution, unless a relevant objection has been made earlier,
a party must object to a procedural error after the sentence is pronounced in order to
preserve the error and avoid plain error review.” Id. at 258. Torrence failed to object and
therefore failed to preserve the issue. As a result, we review the procedural
reasonableness of his sentence for plain error.
Torrence argues that the District Court’s sentencing was procedurally
unreasonable because it “appeared to rely exclusively upon the seriousness of
[Torrence’s] conduct.” Torrence Br. 11. In the next sentence of the brief, Torrence
offers a seemingly contradictory assertion that “[a]ccording to the District Court, the
Appellant had failed to exhibit remorse, constituted a danger and a public safety risk, was
without possibility of rehabilitation and required specific deterrence.” Id. This alone
suggests that the District Court did not exclusively rely upon the seriousness of the
offense. In fact, the District Court noted: (1) the seriousness of the offense; (2) the need
for significant punishment; (3) Torrence’s prior conviction for statutory rape; (4)
Torrence’s denial about his conduct but ability to recognize and comprehend other
concepts; (5) the conclusion that having considered the psychiatric exam, Torrence is
“obviously just in denial about the criminal conduct that led to his guilty plea;” (6) that
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Torrence committed the relevant offense when he was almost 60 years old; (7) that
Torrence constitutes a public safety risk; (8) the need for deterrence; and (9) that the
Court does not “see any possibility of rehabilitation for [him] outside of a custodial
institution.” Torrence App. 49–50. Particularly in light of the fact that our review is for
plain error, this discussion constitutes a meaningful consideration of all the § 3553(a)
factors.
In addition, Torrence argues that the District Court did not consider mitigation
evidence, specifically the report of psychologist Dr. Lorah, who concluded that
Torrence’s risk of future illegal sexual behavior is moderate, and character evidence
provided by his family that his conduct was aberrational. Torrence Reply Br. 12, 15–16.
He also applies these same arguments to his position that the District Court erred with
respect to the substantive reasonableness of his sentence. Id. at 17. The District Court
noted that in light of the psychological exam and Torrence’s behavior in court, it found
him to be “in denial about the criminal conduct” at issue. Torrence App. at 49. The
District Court also expressly responded to the family witnesses point, stating that
“perhaps Mr. Torrence wasn’t committing these crimes when he was with their children
with him, and just was doing this with someone he didn’t think would be — would be
reported, or he wouldn’t be discovered.” Torrence App. 49–50. For those reasons,
Torrence’s arguments that the District Court did not adequately address his arguments is
unavailing.
Finally, Torrence argues in a footnote that the District Court erred by not
addressing the pre-sentence report at the sentencing hearing and by failing to enunciate
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the Guidelines range for the record. Although the sentencing rationale was not grounded
in specific reference to the pre-sentence report, that is not a requirement for sentencing.
Moreover, there is no disagreement that the Guidelines range was clear and understood
by both parties. Thus, there is no procedural error.
As noted above, we will not reverse a sentence on grounds of substantive
unreasonableness “unless no reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the district court provided.” Tomko,
562 F.3d at 568. The facts of this case do not meet that high burden. Torrence
committed a particularly serious and harmful crime — inducing the sexual exploitation of
a child — and was found to be at risk for reoffending and a danger to society. Notably,
his sentence was at the bottom end of the Guidelines range. The District Court’s
reasoning and the facts of this case plainly support this sentence; therefore, his sentence
was substantively reasonable, and the District Court did not err.
IV.
Finally, Locks and Torrence argue that the District Court improperly imposed the
sentences as a result of its revulsion rather than an analysis of the relevant factors. See
Locks Br. 17–19 n.8; Torrence Br. 7. Crimes involving the sexual exploitation of
children, by their nature, may be considered particularly shocking. When tasked with
sentencing the perpetrators of such crimes, the courts must act without passion or
prejudice. We reassert that “revulsion over these crimes cannot blind us as jurists to the
individual circumstances of the offenders who commit them.” Olhovsky, 562 F.3d at
552. Nevertheless, a sentencing court’s expression of revulsion does not necessarily
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invalidate its reasonable sentencing. In this matter, despite any implicit disgust one
might discern from the District Court, we conclude that it acted with procedural and
substantive reasonableness.
V.
For the reasons stated above, we will affirm the sentences imposed upon Locks
and Torrence.
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