United States v. Guest ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0163p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 07-1922
v.
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Defendant-Appellant. -
KENT GUEST,
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Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 05-90029—John Corbett O’Meara, District Judge.
Argued: March 6, 2009
Decided and Filed: May 4, 2009
Before: SILER, COOK, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: James L. Feinberg, LAW OFFICES, Detroit, Michigan, for Appellant. Daniel
R. Hurley, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: James L. Feinberg, LAW OFFICES, Detroit, Michigan, for Appellant. John
N. O’Brien II, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for
Appellee.
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OPINION
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McKEAGUE, Circuit Judge. Kent Guest was convicted and sentenced for crossing
state lines with the intent to engage in sexually illicit conduct. His advisory Guidelines
range was 151 months to 188 months in prison. The district court sentenced him to 120
months in prison, and Guest now argues for a remand in light of Gall and Kimbrough.
Because there is no indication in the record that the district court felt in any way constrained
by the standard of appellate review prior to Gall and Kimbrough, we affirm.
1
No. 07-1922 United States v. Guest Page 2
I.
Kent Guest met an undercover FBI agent in a Yahoo! chat room in July 2005. Guest
was a 55-year-old tool and die maker in Indiana. The undercover agent posted a profile to
the chat group, pretending to be a divorced mother with two young daughters living in
Michigan. The profile solicited those interested in sexual activity with her and her
daughters. The profile also said that she was looking for serious inquiries rather than
fantasy-based chat. Kent responded and expressed interest.
Guest contacted the agent again in August 2005 and suggested they plan to meet.
During the chat, Guest and the agent exchanged photographs, and Guest reaffirmed his
interest in the agent and her children. In a subsequent telephone call, Guest and the agent
arranged a meeting at a supermarket in Michigan in September 2005.
After Guest traveled from Indiana to the supermarket in Michigan, FBI agents
arrested him. Guest waived his Miranda rights and admitted traveling from Indiana with the
intent to meet someone. A search of his car revealed the photographs the agent had sent
1
Guest, Cialis, and an herbal sexual potency compound. Guest also admitted he intended
to have sex with the agent and her daughters.
Guest pleaded guilty to travel with intent to engage in illicit sexual conduct in
the Eastern District of Michigan. The Presentence Report (“PSR”) calculated an offense
level of 34, with a criminal history category of I. Neither party objected to the
calculations in the PSR.2
Guest was sentenced on July 17, 2007. After hearing arguments from both sides,
the district court imposed Guest’s sentence. The court calculated the advisory
Guidelines range as 151 months to 188 months. The court then responded to each of the
arguments put forward by Guest and the government. Guest had argued that the
adjustment for the number of children was excessive because the FBI could have created
1
Cialis is a prescription sexual potency drug.
2
Guest’s attorney objected to the PSR’s “ultimate conclusion” but not to the calculations in the
PSR.
No. 07-1922 United States v. Guest Page 3
just one fictitious child. In response, the court stated that it had “looked at the guidelines
and what they would be if they were two points less, although whatever I do in the way
of sentencing is not based upon that at all. I just want the record to reflect that I have
considered that.”3 The court also rejected Guest’s reliance on an entrapment defense,
as it was “clear from the record that even if one goes with nothing but what is in [Guest’s
attorney’s] papers and the presentence investigation report, that [Guest was] certainly
predisposed, and entrapment would not be an appropriate or an available defense.”
The court continued on to articulate its consideration of each of the sentencing
factors in 18 U.S.C. § 3553(a). After finishing its explanation of the reasons underlying
Guest’s sentence, the district court sentenced Guest to 120 months in prison, with three
years of supervised release, mandatory mental health treatment and participation in a
sexual deviancy program, restrictions on Guest’s use of the internet, and limitations on
his ability to be near children. Guest now appeals.
II.
Guest does not argue that his sentence was unreasonable. Guest instead argues
that the sentence should be remanded for further review in light of Gall and Kimbrough.
First, he argues that the district court was affected by the prospect of appellate review
as practiced before Gall and Kimbrough. Second, he argues that Gall and Kimbrough
overruled previous authority regarding sentencing entrapment and sentence
manipulation. We find no merit in either argument.
A. Remands in Light of Gall and Kimbrough
In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court “invalidated
both the statutory provision, 18 U.S.C. § 3553(b)(1), which made the Sentencing
Guidelines mandatory, and § 3742(e), which directed appellate courts to apply a de novo
standard of review to departures from the Guidelines.” Gall v. United States, 128 S. Ct.
3
If there had been only one child, Guest’s offense level would have been 32. If Guest’s offense
level had been 32, rather than 34, the advisory Guidelines range would have been 121 months to 151
months. The district court also observed that the Guidelines treat fictional children the same as real
children for purposes of sentencing enhancements.
No. 07-1922 United States v. Guest Page 4
586, 594 (2007). Booker brought about a “fundamental alteration of the sentencing
process.” United States v. Barnett, 398 F.3d 516 (6th Cir. 2005). Because of the
profound nature of the change wrought by Booker, the Booker remands were based on
a presumption that courts before Booker had committed plain error by applying a
mandatory Guidelines regime. Id. at 527-29.
The Supreme Court’s more recent sentencing decisions have not worked such a
sea change in the sentencing process. Instead, they corrected specific errors in appellate
practices that varied from the basic principles of Booker. See Gall, 128 S. Ct. at 594-95
(rejecting proportionality as an aspect of appellate review); Kimbrough v. United States,
128 S. Ct. 558, 575 (2007) (rejecting appellate rule that district courts could not reject
the Guidelines range based on a policy disagreement with the crack-powder sentencing
disparity). Unlike Booker, these decisions provide no basis for the presumption of error.
Instead, to justify a remand based on these decisions, an appellant must identify a
specific error in the proceedings below. See, e.g., United States v. Millbrook, 553 F.3d
1057, 1067 (7th Cir. 2009); United States v. Jenkins, 537 F.3d 1, 5-6 (1st Cir. 2008).
Typically, that error is either procedural or substantive unreasonableness. Guest does
not address either procedural or substantive unreasonableness in his appeal, but that does
not excuse him from the need to identify error in the sentence imposed.
Our decisions after Gall and Kimbrough also make clear that there should be
some indication of error in the record justifying remand. In United States v. Johnson,
the Sixth Circuit remanded to the district court for resentencing in light of Kimbrough.
553 F.3d 990, 996 (6th Cir. 2009). We noted that the district court’s statements on the
record indicated “that, although the disparity issue was before the court, the district
judge was not aware of his power to ‘reject and vary categorically from the crack-
cocaine Guidelines based on a policy disagreement.’” Id. at 996 n.1 (quoting Spears v.
United States, 129 S. Ct. 840, 844 (2009)). Because the district court did not appear
aware of its authority to vary from the crack-cocaine Guidelines, we remanded “to give
the district court an opportunity to impose a sentence with full recognition of its
authority to reject and vary from the crack-cocaine Guidelines based solely on a policy
No. 07-1922 United States v. Guest Page 5
disagreement with those Guidelines.” Id. at 992; see also Moore v. United States, 129
S. Ct. 4, 4 (2008).
Similarly, in United States v. McElheney, 07-6245, 2009 WL 361396, at *1 (6th
Cir. Feb. 13, 2009) (unpublished), the Sixth Circuit remanded because, “over an
objection from McElheney, the court applied this circuit's now-defunct ‘extraordinary
circumstances’ requirement.” The district court made clear it felt bound by the pre-Gall
standard of review, stating that “[i]f the Court wished to impose a sentence substantially
below the Sentencing Guidelines, it would have to offer a compelling justification based
on the relevant § 3553(a) factors that is in proportion to the extent of the variance.” Id.
We remanded for the district court to reconsider the sentence in light of Gall. See also
Millbrook, 553 F.3d at 1067 (holding that a remand is unnecessary where there was no
indication of error); Jenkins, 537 F.3d at 5-6 (same).
Unlike Johnson and McElheney, there is no evidence in the record here that the
district court based Guest’s sentence on any aspect of appellate review that was rejected
by the Supreme Court in either Gall or Kimbrough. The district court recited its
considerations under § 3553(a) and noted the arguments for a lesser sentence put forward
by Guest’s counsel. There is no indication that the district court had a policy
disagreement with any of the relevant Guidelines or that the prospect of appellate review
was a factor in its considerations.
Guest states that “[b]ecause the sentencing court was sympathetic and because
that court did impose a sentence below the calculated guidelines,” the district court
would have imposed a greater variance if it had known the result of Gall and
Kimbrough. This general assertion is not a sufficient basis for remand, as the supposed
sympathy is nothing more than the district court’s appropriate exercise of its discretion
in sentencing Guest. Guest also suggests that, because the district court noted it had
calculated what the Guidelines range would have been if there had been only one
fictional minor, the district court would have imposed a lesser sentence based on this
calculation if the court had known it had the authority to do so. Yet there is no
indication in the record that the district court thought its ability to vary the sentence
No. 07-1922 United States v. Guest Page 6
based on that consideration was in any way constrained. Instead, the district court
simply stated that “whatever I do in the way of sentencing is not based upon [the
calculation] at all. I just want the record to reflect that I have considered that.” The
district court, even before Gall and Kimbrough, was obligated to address the arguments
put forward by each party. See, e.g., United States v. Richardson, 437 F.3d 550, 554 (6th
Cir. 2006); United States v. Davis, 458 F.3d 505, 511 (6th Cir. 2006). The district court
fulfilled its obligation and acknowledged Guest’s argument on the record. Doing so did
not indicate that the district court was constrained by the prospect of appellate review;
if anything, it suggests that the district court fully understood its duties in sentencing
Guest.
As neither Gall nor Kimbrough mandates a remand based on mere conjecture that
the district court may have felt constrained by appellate review and Guest has not
identified any indication of error in the sentence imposed below, there is no basis for this
court to remand for resentencing.
B. Sentence Entrapment and Sentence Manipulation
Guest’s second argument for remand is that Gall and Kimbrough implicitly
overruled the Sixth Circuit’s jurisprudence on sentencing entrapment and sentence
manipulation. This argument plainly lacks merit. The Sixth Circuit has already
addressed sentencing entrapment and sentence manipulation after Gall and reaffirmed
that the Sixth Circuit does not recognize either defense.4 United States v. Lebreux, Nos.
06-4448, 06-4615, 07-3271, 07-3272, 2009 WL 87505, at *2 (6th Cir. Jan. 13, 2009).
Lebreux did not indicate that either Gall or Kimbrough would have an effect on whether
the Sixth Circuit recognized sentencing entrapment, nor can we identify any reason these
decisions would change our long-standing practice of declining to recognize either
4
Even if we were to recognize sentencing entrapment or sentence manipulation as a defense, both
would be inapplicable here. Guest has not shown any outrageous government conduct. His only basis for
entrapment or manipulation is the government’s choice to create two fictitious children and to make their
ages under twelve. The Sixth Circuit has approved the government’s use of fictional children in a similar
government operation. United States v. Hochschild, 442 F.3d 974, 976, 978 (6th Cir. 2006). Further, as
the government noted at sentencing, the government did not create the profile with Guest in mind and
Guest himself sought out other profiles involving young children.
No. 07-1922 United States v. Guest Page 7
defense. See United States v. Gardner, 488 F.3d 700, 716-17 (6th Cir. 2007); United
States v. Coleman, 188 F.3d 354, 361 n.6 (6th Cir. 1999) (en banc); United States v.
Watkins, 179 F.3d 489, 503 (6th Cir. 1999).
Alternatively, Guest argues that Gall and Kimbrough move the focus in
sentencing entrapment and sentence manipulation away from governmental conduct and
predisposition and place the focus on the defendant’s conduct. Yet Guest was personally
responsible for the conduct leading to his conviction. He sought out the agent’s profile
of a mother and two young children. He initiated contact with her multiple times. A
search of his car after his arrest disclosed sexual potency drugs and sexual potency
herbal supplements. As the district court found, the Guidelines clearly contemplate
culpability for Guest’s acts regardless of whether the children were real. UNITED STATES
SENTENCING MANUAL § 2G1.3, cmt. n.1 (2006). As such, there is no need to remand on
this issue.
III.
For the foregoing reasons, we AFFIRM the sentence imposed by the district
court.