United States v. Benet Schmidt ( 2014 )

Case: 12-30459 Document: 00512499757 Page: 1 Date Filed: 01/14/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-30459 January 14, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
BENET SCHMIDT, also known as Brazthumper,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:11-CR-62
Before JONES, WIENER, and GRAVES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Benet Schmidt pleaded guilty to one count of
engaging in a child exploitation enterprise in December of 2011. After the
district court sentenced Schmidt to 444 months of imprisonment, he timely
appealed, challenging his sentence on procedural and substantive grounds. We
affirm.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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I. FACTS AND PROCEEDINGS
Schmidt made several posts containing child pornography to a members-
only online bulletin board service called “Dreamboard.” That service’s
administrators required applicants for membership to submit a post
containing child pornography as part of the application. Such initial posts, like
those made by existing members, typically included sample images, a
description, and instructions for locating and downloading child pornography.
Members risked deletion of their Dreamboard accounts if they failed to post
child pornography regularly.
Dreamboard’s structure comprised several membership levels. Higher
levels afforded access to more child pornography; each member was entitled to
view posts made by other members of equal or lower membership levels.
“Administrators”—the highest level—approved or rejected membership
applications and promoted or demoted members based on the content and
number of their posts. There were four levels of membership below
Administrator: “Super VIP.,” 1 “Super VIP,” “VIP,” and “Member.” Only
members who posted child pornography that they had produced themselves
could attain the “Super VIP.” level.
According to the factual basis, Schmidt made 70 posts, most of which
were in the VIP area and thus available only to other VIP members and
members of higher rank. The factual basis also states that Schmidt’s “level of
membership was VIP.” It is not clear from the record, however, whether
Schmidt’s membership began at the VIP level or began at the Member level
and was subsequently elevated to the VIP level.
Schmidt pleaded guilty to one count of engaging in a child exploitation
enterprise. The parties do not dispute that the district court properly
1 The period in “Super VIP.” was part of that level’s label.
2
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calculated Schmidt’s Guidelines range as 240-293 months, given the statutory
minimum of 240 months and the statutory maximum of life. This range
reflects the 20-year statutory minimum, a total offense level of 38, and a
criminal history category of I. The total offense level in turn reflects a base
offense level of 35, a four-level enhancement for a victim under the age of 12,
a two-level enhancement for use of a computer, and a three-level reduction for
acceptance of responsibility.
At sentencing, Schmidt expressed remorse; apologized to the court, the
victims, and society at large; acknowledged that he was addicted to child
pornography; and expressed a desire to receive treatment for that addiction.
He did not ask for a below-Guidelines sentence, but he did request leniency.
Schmidt also characterized the child pornography he viewed as involving
underage victims who were “smiling,” and suggested that he did not “realize
that there was still abuse going on.” The government countered that Schmidt’s
characterization was “distorted,” describing his posts as depicting “the worst
kind of abuse of our very youngest children,” including four-year-old children
being violently sodomized by adult men. The government offered that, if the
contents of Schmidt’s images were placed along a continuum with those of all
other co-defendants, “a 3553(a) sentence versus a guideline sentence” would be
warranted.
The district court interrupted the government attorney’s remarks to note
that Schmidt did not produce child pornography, a fact which the government
attorney then acknowledged. At the conclusion of the government’s
presentation, the district court adopted the Guideline calculation from the
presentence investigation report (“PSR”) and stated that the Guidelines failed
to reflect the nature and severity of the abuse of the children depicted in
Schmidt’s posts. After the district court twice referred to Schmidt as a Super
VIP-level member of Dreamboard, Schmidt conferred with his counsel,
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prompting the district court to ask whether the court had misstated something.
Schmidt responded that he had been a VIP member, not a Super VIP member.
The court acknowledged the correction, then commented: “In this instance, I
have to look at the nature of the posts as well, because it tells me that you were
probably on the upswing, up the ladder, up the vine of membership levels that
was Dreamboard.” The district court adopted the factual findings from the
PSR and the addendum, then sentenced Schmidt to 444 months of
imprisonment and a life term of supervised release.
After pronouncing the sentence, the district court made several
explanatory comments. It described the content of Schmidt’s posts as “almost
unbelievable” and “rank[ing] at or near the top” “in terms of the kind of
material posted . . . because these children are in obvious distress being
sodomized by adult males.” The court noted that each act of distribution and
each viewing of child pornography constitutes a separate act of abuse against
the depicted child victims, and stated that it intended to protect the public from
Schmidt’s future crimes. The court repeated that the Guidelines “do not
adequately punish or describe . . . how vile this type of abuse is with children.”
It also stated that it had considered the sentencing factors listed in Title 18,
United States Code, Section 3553(a), and concluded that the Section 3553(a)
analysis was appropriate under the circumstances. It made specific reference
to the Guidelines and to Schmidt’s personal characteristics, including his lack
of criminal history, his involvement in the offense, and his addiction to child
pornography. With regard to that addiction, the district court stated that it
“appears to me to be progressive in kind and character, which is of serious
concern to this Court.” 2
The district court’s written Statement of Reasons also reflects its determination that
2
Schmidt’s sentence was appropriate based on six of the statutory factors: (1) the nature and
4
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II. STANDARD OF REVIEW
Schmidt made no objections to the PSR and made none during the
sentencing hearing or when his sentence was imposed. Thus, our review is for
plain error. 3 Only when a plain error affects both the defendant’s substantial
rights and the fairness, integrity, or public reputation of judicial proceedings
do we have discretion to correct it. 4
III. ANALYSIS
A. Procedural Error
A district court commits procedural error when it “select[s] a sentence
based on clearly erroneous facts.” 5 A district court may draw reasonable
inferences from the facts, and these inferences are factual findings that we
review for clear error. 6
Schmidt argues that the district court committed procedural error by
selecting his sentence on the basis of two erroneous factual findings: (1) The
circumstances of the offense and the history and characteristics of the defendant; (2) the need
to reflect the seriousness of the offense, to promote respect for the law, and to provide just
punishment; (3) the need to afford adequate deterrence; (4) the need to protect the public
from further crimes of the defendant; (5) the need to provide appropriate medical care or
other correctional treatment to the defendant; and (6) the avoidance of unwarranted
sentencing disparities among defendants.
3 United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
4 See Mondragon-Santiago, 564 F.3d at 357 (citing United States v. Mares, 402 F.3d
511, 520 (5th Cir. 2005)). Employing alternate phrasing, we have explained that plain-error
review comprises four determinations: “(1) if there was error, (2) if it was plain, (3) if the error
affects substantial rights, and (4) if allowing that error to stand seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Alvarado, 691 F.3d
592, 598 (5th Cir. 2012) (citing United States v. Olano, 507 U.S. 725, 732 (1993)).
5Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Scott, 654 F.3d
552, 555 (5th Cir. 2011) (citing United States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008)).
6 United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).
5
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Guidelines did not adequately address the content of Schmidt’s posts; and (2)
Schmidt was on the “upswing” of membership levels at Dreamboard. Schmidt
suggests further that the district court’s initial references to him as a Super
VIP member, although corrected by Schmidt’s counsel at the sentencing
hearing, nonetheless indicate “confusion” on the part of the court regarding the
degree of Schmidt’s involvement.
We cannot even assume arguendo that, by weighing the content of
Schmidt’s posts in fashioning his sentence, the district court made a factual
finding that could possibly constitute procedural error, because we made clear
in United States v. Dickson that a district court may “consider[] the nature of
the images” when sentencing a defendant for possession of child pornography. 7
In Dickson, we applied plain-error review to affirm the district court’s
application of a sentencing enhancement. 8 The defendant correctly objected to
the district court’s calculation of his base offense level, but we concluded that
the court had ample independent bases for imposing an 840-month sentence,
which was the statutory maximum and was significantly above the properly
calculated Guidelines range. 9 These independent bases included the sadistic
and violent content of the child pornography. 10 Here, the district court
committed no error, plain or otherwise, when it considered the violent content
of Schmidt’s posts. His claim of procedural error fails.
Schmidt’s remaining basis for claiming procedural error also fails. The
district court made the following remark at the sentencing hearing, with
7United States v. Dickson, 632 F.3d 186, 192 (5th Cir. 2011), cert. denied, 131 S. Ct.
2947 (2011).
8 Id. at 190-92.
9 Id.
10 Id.
6
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emphasis supplied: “In this instance, I have to look at the nature of the posts
as well, because it tells me that you were probably on the upswing, up the
ladder, up the vine of membership levels that was Dreamboard.” We disagree
with Schmidt’s contention that this remark was an unsupported
mischaracterization of his membership history. The district court assessed the
posts—not Schmidt’s history of membership promotions or the lack thereof—
and inferred from the posts that Schmidt “was probably on the upswing,” or
that he would likely have received a promotion at some point in the future but
for the intervention of law enforcement officers. As discussed above, the
district court’s consideration of the nature of the posts was proper under
applicable precedent. Neither did the district court plainly err when it inferred
that Schmidt likely would have received a future promotion on the basis of the
number of his posts, 70, and the graphically violent nature of the depicted
abuse. The district court did not select a sentence based on erroneous facts or
inferences, and therefore it did not procedurally err.
B. Substantive Error
In the next step of our bifurcated review, we consider the totality of the
circumstances, including the extent of the variance from the Guidelines range,
to assess the substantive reasonableness of Schmidt’s sentence. 11 The United
States Supreme Court has explained that, “[w]here the judge imposes a
sentence outside the Guidelines, the judge will explain why he has done so.” 12
Under some circumstances, a brief explanation will suffice, especially when the
issue is “conceptually simple.” 13 We have also explained that “a checklist
11Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Fraga, 704
F.3d 432, 439-40 (5th Cir. 2013).
12 Rita v. United States, 551 U.S. 338, 357 (2007).
13 Id.7
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recitation of the section 3553(a) factors is neither necessary nor sufficient for a
sentence to be reasonable.” 14
Our “review for substantive reasonableness is ‘highly deferential,’
because the sentencing court is in a better position to find facts and judge their
import under the § 3553(a) factors with respect to a particular defendant.” 15
The deference we owe the sentencing court is even greater when, as here, our
review is for plain error only. Moreover, although we “may consider the extent
of the deviation, [we] must give due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent of the variance.” 16 To
be sure, “[a] major departure should be supported by a more significant
justification than a minor one.” But “[t]he fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” 17 Ultimately, “[a] non-
Guideline sentence unreasonably fails to reflect the statutory sentencing
factors where it (1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing
factors.” 18 The Supreme Court has soundly rejected a formulaic or
14United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (citations omitted); see
also Fraga, 704 F.3d at 438-39.
15 United States v. Hernandez, 633 F.3d 370, 375 (5th Cir. 2011) (quoting United States
v. Key, 599 F.3d 469, 473 (5th Cir. 2010), cert. denied, 131 S. Ct. 997 (2011)).
16 Gall, 552 U.S. at 51.
17 Id. at 50-51. Generally, only within-Guidelines sentences are treated as
presumptively reasonable, but the court “may not apply a presumption of unreasonableness”
to sentences outside the guidelines. Id. at 51; see also United States v. Alvarado, 691 F.3d
592, 596-98.
18 Smith, 440 F.3d at 708.
8
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“mathematical approach” to evaluating the substantive reasonableness of a
variance, including an approach that attempts to quantify the variance and
the justification and ensure that they are proportional. 19 As we have
determined that the district court did not commit procedural plain error in
sentencing Schmidt, we conclude our review for substantive error by
addressing in turn each of the reasons Schmidt advances for such error.
Schmidt’s primary contention of substantive error is that the district
court’s reasoning is insufficient to justify the extensive variance. More
specifically, Schmidt urges that the district court clearly erred in balancing the
sentencing factors. He suggests that the district court should have given
greater weight to such factors as (1) the absence of evidence that he produced
child pornography, (2) the absence of evidence that he participated in setting
up or administering Dreamboard, and (3) the fact that letters of support
describe him as a warm person who suffers from psychological problems. In
the same vein, Schmidt claims that the district court should have given less
weight than it did to such factors as (1) the pain the child victims experienced,
(2) the victims’ ages, and (3) the conclusional inference that Schmidt was on
the “upswing,” as discussed above in the context of his claim of procedural
error. Schmidt suggests that the district court sentenced him “as if he [were]
the architect of the website and participated in sexual activity.”
The government responds that Schmidt’s sentence is substantively
reasonable because the district court appropriately weighed the relevant
factors, including (1) the nature of the images, (2) Schmidt’s admitted addiction
to child pornography, and (3) the level of his participation in Dreamboard. The
19 Gall, 552 U.S. at 46-51.
9
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government insists that the district court’s explanation of its reasoning
provides ample justification for the sentence it imposed.
The 151-month addition above the top of Schmidt’s advisory range
constitutes a 51.5% upward variance. When assessing the substantive
reasonableness of sentences, we have upheld some that were substantially
above, or multiples of, the top of the Guidelines range. 20 Schmidt cites no
opinion of this court reversing a sentence based on an error of judgment in
balancing the sentencing factors, whether under plain-error review or under
some more stringent standard. After considering the totality of the
circumstances, including the extent of the variance and the district court’s
justification, we conclude that the court did not plainly err in balancing the
sentencing factors when fashioning Schmidt’s sentence.
Schmidt implies that the district court sentenced him above the
Guidelines range without adequate notice. This contention fails because the
20 See, e.g., United States v. Lopez-Moreno, 12-41031, 2013 WL 3213531 (5th Cir. June
26, 2013) (unpublished) (per curiam) (finding no abuse of discretion in the imposition of a 96-
month sentence when the top of the advisory range was 57 months); United States v.
Gutierrez, 635 F.3d 148, 154-55 (5th Cir. 2011) (finding no abuse of discretion in the
imposition of a sentence of 50 months when the top of the advisory range was 21 months);
United States v. Williams, 517 F.3d 801, 805-13 (5th Cir. 2008) (finding no abuse of discretion
in the imposition of a 172-month sentence where the top of the advisory range as calculated
by the district court was 97 months and the top of the range as re-calculated on appeal was
121 months); United States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008) (finding no plain
error in the imposition of a 180-month sentence where the top of the advisory range was 51
months); United States v. Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir. 2008) (finding no
abuse of discretion in a 60-month sentence when the top of the advisory range was 27
months); United States v. Smith, 417 F.3d 483, 490–93 (5th Cir. 2005) (upholding a 120-
month sentence, the statutory maximum, when the top of the advisory range was 41 months);
United States v. Daughenbaugh, 49 F.3d 171, 174–75 (5th Cir. 1995) (affirming departure
from guidelines maximum of 71 months to sentence of 240 months).
10
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notice requirement of Rule 32(h) of the Federal Rules of Criminal Procedure
does not apply to variances. 21
Schmidt further suggests that his counsel unreasonably failed to file a
sentencing memorandum, to object to the pre-sentence investigation report,
and to object to the sentence at the sentencing hearing. These suggestions are
unavailing because Schmidt did not challenge the effectiveness of his counsel’s
assistance in the district court, instead offering these critical remarks for the
first time on appeal. “[T]he general rule in this circuit is that a claim for
ineffective assistance of counsel cannot be resolved on direct appeal when the
claim has not been raised before the district court since no opportunity existed
to develop the record on the merits of the allegations.” 22 Accordingly, we
decline to address this argument.
IV. CONCLUSION
Schmidt has failed to show that the district court committed plain error
in sentencing him. We therefore AFFIRM his sentence.
21Irizarry v. United States, 553 U.S. 708, 714 (2008); United States v. Jacobs, 635 F.3d
778, 782 (5th Cir. 2011).
22 United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.), cert. denied, 506 U.S. 1007(1992) (citations and quotation marks omitted); see also United States v. Cantwell, 470 F.3d
1087, 1091 (5th Cir. 2006).
11
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JAMES E. GRAVES, Circuit Judge, concurring:
Although I join in the opinion of the court, I write separately to address
my concern that Schmidt’s sentence appears to be unreasonably
disproportionate. See, e.g., United States v. Armstrong, 550 F.3d 382, 406 (5th
Cir. 2008) (explaining that a defendant may establish substantive
unreasonableness by identifying “a case in which a similarly-situated
defendant received a lower sentence”), overruled on other grounds by United
States v. Guillermo Balleza, 613 F.3d 432, 433 n.1 (5th Cir. 2010).
When Schmidt was sentenced on April 5, 2012, fifteen other defendants
had already been sentenced by the same judge for the same offense, 18 U.S.C.
§ 2252A(g), based on their involvement with the same bulletin board,
Dreamboard. 1 The average sentence imposed was 286.4 months of
imprisonment. Schmidt’s sentence of 444 months was the highest that had
been imposed up to that point, and was over 13 years above the average and
over 12 years above the maximum guidelines range. This is somewhat
surprising, given that Schmidt had no criminal history at all; that there was
1 Nine of these defendants were co-defendants charged in the same series of
indictments that included Schmidt, Case No. 5:11-CR-62 in the Western District of
Louisiana: Charles Pyeatte, sentenced on September 13, 2011, to 327 months, Doc. #315;
David Michael Whitten, sentenced on October 5, 2011, to 420 months, Doc. #344; Christopher
James Luke, sentenced on October 5, 2011, to 240 months, Doc. #346; Stephen Clinton
Kinney, sentenced on October 14, 2011, to 293 months, Doc. #353; Rush Frank Blankenship,
sentenced on December 1, 2011, to 240 months, Doc. #390; William L. Barton, sentenced on
January 5, 2012, to 327 months, Doc. #413; Anthony Paul Sowders, sentenced on January 5,
2012, to 324 months, Doc. #416; Gary Schneider, sentenced on January 12, 2012, to 240
months, Doc. #422; and Jamil Lamar Mosley, sentenced on January 17, 2012, to 240 months,
Doc. #423.
Six of these defendants were charged in a separate indictment, Case No. 5:10-CR-319
in the Western District of Louisiana: Timothy Gentry, sentenced on May 10, 2011, to 300
months, Doc. #427; Michael Biggs, sentenced on May 31, 2011, to 240 months, Doc. #430;
Michael Childs, sentenced on June 22, 2011, to 360 months, Doc. #438; Charles Edward
Christian, sentenced on July 14, 2011, to 265 months, Doc. #454; Micheal Thompson,
sentenced on September 13, 2011, to 240 months, Doc. #469; and Larry Ridley, sentenced on
October 26, 2011, to 240 months, Doc. #490.
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no allegation that he had ever personally produced child pornography or
otherwise abused children; that his membership level was equal to or lower
than that of most of these other defendants; and that he pled guilty and
cooperated with the government.
In imposing a sentence, a district court must consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The district
judge in this case acknowledged this requirement; at sentencing, he explained
that 72 people had been indicted in connection with Dreamboard, and
recognized that he must “look[] at the overall ranking of other people” and
“properly place [Schmidt] on the vine of membership of Dreamboard.”
The district judge stated that he must “look at the number of posts.”
However, none of the fifteen defendants sentenced before Schmidt had fewer
posts, and some of them had over ten times as many posts as Schmidt. 2 The
district judge also stated that he must “look at the [membership] level that
[Schmidt] occupied.” However, of the fifteen other defendants sentenced before
Schmidt, seven occupied the same VIP level as Schmidt, and three were
actually at the higher Super VIP level.
Of the reasons given by the district judge for Schmidt’s exceptionally
high sentence, only two could potentially distinguish Schmidt from the other
defendants listed above: the graphic, highly abusive nature of the pornography
2 The number of posts and membership levels are taken from the factual bases for
each defendant’s plea. In Case No. 5:11-CR-62, see Doc. #144-2 (Schneider); Doc #146-2
(Pyeatte); Doc #209-2 (Luke); Doc #216-2 (Kinney); Doc #220-2 (Whitten); Doc #229-2
(Sowders); Doc. #227-2 (Mosley); Doc. #298-2 (Blankenship); and Doc. #312-2 (Barton). In
Case No. 5:10-CR-319, see Doc. #320-2 (Childs); Doc. #396-2 (Christian); Doc. #423-2
(Thompson); and Doc. #453-3 (Ridley). The factual bases for Biggs and Gentry are
unavailable on the district court docket. Additionally, the factual basis for Schneider does
not state his number of posts.
13
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posted by Schmidt, and Schmidt’s admitted addiction to pornography,
including child pornography. 3 It is unclear, however, whether these factors
actually indicate any greater culpability or dangerousness on Schmidt’s part.
Anthony Paul Sowders, who was at the same membership level as Schmidt
with the same number of posts, received a much lower sentence of 327 months,
despite having personally exploited children to produce pornography. 4 David
Michael Whitten, at the same membership level and with sixteen times as
many posts as Schmidt, received a slightly lower sentence of 420 months,
despite the fact that he had repeatedly sexually abused a young child over a
ten-year period. 5
The district judge concluded, based on the extreme, hard-core nature of
Schmidt’s posts, that he was “on the upswing” in membership levels; this would
seemingly imply that Dreamboard members at higher membership levels
posted more extreme conduct and are therefore more culpable. However, three
of the defendants sentenced before Schmidt were already at the higher Super
VIP level; one of these defendants received the mandatory minimum of 240
months, and the other two received sentences under 300 months. 6 Finally,
several defendants who received much lower sentences than Schmidt posted
files with names that imply the sodomization of young children, which the
3 The district judge also relied on his finding that Schmidt was “probably on the
upswing” in membership levels. However, as the court’s opinion notes, this was an inference
based on the nature of Schmidt’s posts.
4 See the transcript of Sowders’ sentencing hearing, Case No. 5:10-CR-319, Doc. #470.
5 See the transcript of Whitten’s sentencing hearing, Case No. 5:10-CR-319, Doc. #379.
6Larry Ridley, sentenced to 240 months; Charles Edward Christian, sentenced to 265
months; and Stephen Clinton Kinney, sentenced to 293 months.
14
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district court characterized as being among the most extreme and disturbing
content. 7
Nevertheless, inasmuch as Schmidt’s counsel neither raised the issue of
disparity at sentencing nor objected to the reasonableness of the sentence
imposed, the district judge had no reason to further explain his rationale.
There may very well be compelling reasons why Schmidt’s sentence is
appropriate under the factors of 18 U.S.C. § 3553, regardless of any disparity
between co-defendants. Furthermore, because transcripts of the sentencing
hearings for many of the defendants sentenced before Schmidt are unavailable,
we are unable to consider the specific reasons the district judge relied upon in
imposing their sentences. Accordingly, I agree that the district judge did not
plainly err in sentencing Schmidt.
7See Ridley factual basis, Case No. 5:10-CR-319, Doc. #453-3 at 4; Thompson factual
basis, Case No. 5:10-CR-319, Doc. #423-2 at 4; Whitten factual basis, Case No. 5:11-62, Doc.
#220-2 at 4.
15