United States v. Colin Michael ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-1885
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Colin J. Michael
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: January 14, 2021
Filed: September 13, 2021
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Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
In 2016, Colin Michael pled guilty to possessing child pornography in violation
of 18 U.S.C. § 2252(a)(4). The district court, relying heavily on the mitigating fact
that Michael suffers from Asperger’s syndrome, imposed a 5-year probationary
sentence. Months later, Michael was arrested for a probation violation. Michael
appeared before a different judge,1 who revoked Michael’s probation and sentenced
him to 96 months’ imprisonment. On Michael’s first appeal, we concluded that the
district court procedurally erred and remanded the case for re-sentencing. United
States v. Michael, 909 F.3d 990 (8th Cir. 2018) (per curiam). On remand, the district
court again imposed a 96-month sentence. Michael appeals, arguing that his sentence
is substantively unreasonable. We affirm.
I. BACKGROUND
Michael pled guilty to possessing child pornography. His conviction involved
possession of about 1,200 images and 80 videos of child pornography. Some of the
material was sadistic or masochistic while other material featured infants and
toddlers. The district court sentenced Michael to a probationary term of 5 years. His
sentence was a significant downward variance from his applicable Sentencing
Guidelines range of 97 to 120 months. The district court based its variance on (1) its
policy disagreements with the Sentencing Guidelines for child pornography offenses,
and (2) Michael’s Asperger’s syndrome, which put his mental capacity around that
of a 13- or 14-year old.2
About four months later, the conditions of Michael’s probation were modified
after his supervising probation officer alleged that Michael lied during a polygraph
examination and had unauthorized contact with children. Six months after that,
Michael was arrested for violating the terms of his probation. According to the
1
The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
2
The district court also subsequently re-opened the record to add that it did not
“believe the federal penal system at this time is in a position to properly house . . .
defendants like this who have Asperger’s syndrome and have a limited mental
capacity.”
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probation officer’s report, Michael violated the terms of his probation by possessing
(adult) pornography, using a television to try to access child pornography, and lying
about his conduct during a polygraph test taken as part of his sex offender therapy.
When Michael was arrested, his case had been reassigned to a different district
judge. Following a hearing, the district court revoked Michael’s probation and
sentenced him to 96 months’ imprisonment. Michael appealed, and we concluded
that the district court committed procedural errors by not finding the grade of
Michael’s probation violation and not considering the appropriate Sentencing
Guidelines’ policy statements. We also concluded the sentence was substantively
unreasonable based on the record before us at that time, which did not indicate the
district court was aware of Michael’s Asperger’s syndrome. We remanded the case
for re-sentencing.
On remand, the district court reimposed the same sentence. In fashioning its
sentence, the court focused on the danger that Michael posed to the community,
noting his: (1) possession of a book entitled Youthful Prey: Child Predators Who Kill;
(2) watching television shows involving sex crimes against children and being
aroused by them; (3) lack of honesty about sexual partners; (4) fantasies about young
boys and girls; (5) driving to stores that sell pornographic material but not going
inside; (6) consuming alcohol to the point of intoxication; (7) accessing adult
pornography; and (8) trying to access child pornography.
Given Michael’s conduct, the district court found that Note 3 of § 7B1.4 of the
Sentencing Guidelines was applicable because it recognized that an upward departure
from the revocation table may be warranted in the case of a grade C violation
associated with a high risk of new felonious conduct. The court explained Michael’s
actions were “significant red flags and significant violations, posing “a grave risk to
the community.” The court further explained that although Michael reported he had
not had sexual contact with a child, his conduct was escalating to the point that he
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was again seeking out child pornography while participating in sex offender
treatment.
Based largely on the danger to the community, the district court imposed a 96-
month sentence. Michael appeals the reasonableness of his sentence.
II. ANALYSIS
We review “the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51 (2007); see also
United States v. Misquadace, 778 F.3d 717, 718–19 (8th Cir. 2015). A district court
abuses its discretion by failing “to consider a relevant factor that should have received
significant weight, giv[ing] significant weight to an improper or irrelevant factor, or
consider[ing] only the appropriate factors but commit[ting] a clear error of judgment
in weighing those factors.” United States v. Leonard, 785 F.3d 303, 306–07 (8th Cir.
2015) (per curiam) (citation omitted).
In support of his claim that the sentence is substantively unreasonable, Michael
notes that the applicable revocation Guidelines range was 3 to 9 months’
imprisonment. However, we have held that, on revocation of probation, a sentence
that falls within the original Sentencing Guidelines range for the underlying crime of
conviction “is presumptively reasonable.” United States v. Holdsworth, 830 F.3d
779, 786 (8th Cir. 2016). Where, like here, the district court imposed a sentence
below the original Guidelines range, “it is nearly inconceivable that the court abused
its discretion in not varying downward still further.” United States v. Lazarski, 560
F.3d 731, 733 (8th Cir. 2009).
When a probationary sentence is revoked, applying the presumption of
reasonableness to a term of imprisonment falling within the original Sentencing
Guidelines range for the underlying crime of conviction is natural. Probation is
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different than supervised release. In the case of a supervised release violation,
defendants have already served a term of incarceration on their underlying crime of
conviction. In contrast, in the case of a probation violation, defendants have not
served a term of incarceration. A defendant ought not be placed in a better position
to challenge the reasonableness of a Guidelines sentence for a crime of conviction
after violating probation than he is before breaching the court’s trust. United States
v. Verkhoglyad, 516 F.3d 122, 135 (2d Cir. 2008).
We have recognized that when Congress broadened 18 U.S.C. § 3565 to allow
the revoking court to resentence the defendant under Subchapter A, it permitted the
district court to begin the sentencing process anew and impose any sentence
appropriate under that subchapter. United States v. Tschebaum, 306 F.3d 540,
543–44 (8th Cir. 2002). Section 3565 expressly provides that the revoking court is
to consider both the factors found in § 3553(a) and Subchapter A.
Here, the district court, aware of Michael’s Asperger’s diagnosis and its
tendency to impair individuals’ insight and cause fixation problems, decided to give
greater weight to the risk to the public arising from Michael’s fascination with
violence against children and his persistent attraction to child pornography. The
court was concerned that Michael’s conduct was escalating and that he posed a threat
to the community. Undoubtedly, a different reasonable jurist sentencing Michael
could analyze this case differently.
The dissent isolates various evidence leading to the conclusion that the district
court made unsupported findings. We do not believe the district court did so. The
television show referenced by the dissent depicted crimes against children and
Michael was sexually aroused by it. The book entitled Youthful Prey: Child
Predators Who Kill contained subject matter that the court found was “the highest
level of child abuse.” It was permissible for the court to consider this evidence when
fashioning its sentence.
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It is important to not give too much weight to Michael’s lack of success in
finding child pornography with searches on YouTube. That Michael, while
participating in sex offender treatment, continued to use identical search terms as
those that he previously used to obtain child pornography, is something a sentencing
judge could permissibly consider when determining the appropriate sentence.
III. CONCLUSION
Given the evidence before the district court and the explanation for the
sentence, Michael’s sentence was not substantively unreasonable. We affirm.
KELLY, Circuit Judge, dissenting.
Nearly three years ago, we remanded this case for resentencing based on both
procedural error and substantive unreasonableness. We did so because it was unclear
from the record whether the district court considered Michael’s diagnosis of
Asperger’s syndrome,3 and it appeared that the 96-month sentence may have been
based on facts not in the record.4 The case is before us again. Because I believe the
3
Asperger’s syndrome has “been reclassified as one of the autism spectrum
disorders.” United States v. Michael, 909 F.3d 990, 991 (8th Cir. 2018).
4
In the first appeal, we were concerned that “the sentence may have been based
on facts not contained within the record” because we were “unable to find evidence
to support the sentencing judge’s comment that Michael ‘knows in his heart he was
viewing child pornography, just wasn’t caught.’” Michael, 909 F.3d at 995. To the
extent the district court made this finding again on remand, I continue to have the
same concern. At the post-remand sentencing hearing, the district court explained
that it had made the aforementioned statement “because when you plug in teen and
preteen when you’re on pornography, those can . . . and do pop up” and “the filters
are not sophisticated enough . . . to sterilize the YouTube videos.” I am unable to
find evidence in the record to support a finding that child pornography is available
on YouTube or that its search filters were not sufficiently sophisticated to prevent
Michael from accessing it.
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record does not support the rationale given for the reimposed 96-month sentence, I
respectfully dissent.
Although Michael’s sentence falls one month below the original Guidelines
range, the Guidelines are just “the starting point and the initial benchmark” for
crafting an appropriate sentence. Gall v. United States, 552 U.S. 38, 49 (2007). The
sentencing court must also weigh the § 3553(a) factors and “make an individualized
assessment based on the facts presented.” Id. at 49–50. Of course, “the fact that [an
appellate court] may have weighed some facts differently” is generally “insufficient
to justify reversal of the district court.” United States v. Garate, 543 F.3d 1026, 1029
(8th Cir. 2008) (cleaned up). We defer to district courts, who are in the best position
to weigh the evidence and fashion a reasonable sentence accordingly. But such
deference is inappropriate when the district court has placed significant weight on
facts unsupported by the record. See, e.g., United States v. Michael, 909 F.3d 990,
995 (8th Cir. 2018); United States v. Kane, 639 F.3d 1121, 1137 (8th Cir. 2011).
In this case, the district court’s primary concern on remand was “the need to
protect the community,” and it characterized this need as “extremely high” in
Michael’s case. More specifically, the district court explained that its “greatest
concern” was “not that [Michael] would reoffend by viewing child pornography,” but
rather, “the danger to the community” that Michael posed in light of his “escalating”
condition as a sex offender attracted to children. But in concluding that Michael
posed a physical danger to children, the district court relied on inferences
unsupported by the record and facts that bear only on the risk that he might seek out
child pornography in the future. Cf. United States v. Jenkins, 854 F.3d 181, 191 (2d
Cir. 2017) (“‘The failure to distinguish between contact and possession-only
offenders is questionable on its face,’ and this failure ‘may go against the grain of a
growing body of empirical literature indicating that there are significant, § 3553(a)-
relevant differences between these two groups.’” (cleaned up) (quoting United States
v. Apodaca, 641 F.3d 1077, 1083 (9th Cir. 2011))).
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On remand, the parties relied on the entire record in support of their respective
positions—including the evidence submitted for the previous two sentencing
hearings. This included the testimony of Dr. Steven Peterson, a forensic psychiatrist
who evaluated Michael and testified at his original sentencing in November 2016.
According to Dr. Peterson, Michael “has [a] significant developmental difficulty
called Asperger’s Syndrome” and “his psychosexual and psychological development
plateaued around [his] early teens.” Michael, 909 F.3d at 991–92. Dr. Peterson
explained that “a young person with the social delays typically associated with
Asperger syndrome is at increased risk for obsessive preoccupation with things on the
Internet,” including child pornography. Id. at 992. Dr. Bascom W. Ratliff, a clinical
social worker and facilitator of Michael’s extended sex offender treatment program,
testified that relapses in addictive behaviors such as seeking out pornography are to
be expected and can be addressed through prevention planning. See id.
In reaching its sentencing decision, the district court referred to what it
described as Michael’s interest in “child sexual predator” material, concluding that
Michael has “deviant attractions to not only sex but also the hurtful, just torturous
actions against children.” The district court appeared to be relying—at least in
part—on Michael’s history of watching true crime shows. His probation officer
reported that Michael had gotten aroused by “a television show involving sex crimes
against children.” Because neither party offered any further description of this show,
however, there is no evidence that it depicted the torture of children. Moreover, Dr.
Peterson explained that Michael’s “preoccupation” with certain hobbies, such as
watching “multiple law-enforcement themed television shows,” was a symptom of his
Asperger’s syndrome. And the government does not dispute Dr. Peterson’s testimony
that Asperger’s syndrome does not “in and of itself” increase the risk of committing
a sexual contact offense against a child. There is nothing in the record to explain how
Michael’s interest in a non-pornographic television show creates or increases the risk
that he would actually assault a child.
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Nor does the “Youthful Prey” book that Michael bought shortly before his
original sentencing hearing in November 2016 bear the weight that the district court
placed on it. Dr. Peterson, Michael’s witness at sentencing, agreed that the content
of the book was “troubling” but was of the view that Michael was interested in the
“true crime” nature of the book, not anything sexual. And Dr. Ratliff testified that
after talking with Michael, he felt that Michael understood he had shown poor
judgment in buying it. Indeed, Michael demonstrated that understanding when he
asked his father to pre-approve his book purchases in the future. There is no evidence
that Michael has purchased or sought any similar books since that time.
The district court also relied on Michael’s recent history of suicidal ideation
and his heightened level of anxiety to conclude he posed a grave risk of danger to the
public. The district court reasoned that “someone that . . . has a helpless, hopeless,
high level of despair poses an independent risk to not only himself . . . but to the
community with the despair aspect of their thinking.” The record supports a finding
that Michael was at times a risk of harm to himself. But I see nothing in the record
to indicate that Michael’s thoughts of suicide or struggles with anxiety ever created
a risk of harm to anyone else. As to his suicidal ideation in particular, the record
indicates that it was “mild” and that it materialized after his misconduct was
discovered, stemming from his distress regarding possible imprisonment and his fear
that he would not be able to overcome his pornography addiction. No evidence
suggests that the conduct underlying Michael’s offense and probation violations was
ever preceded by or correlated with suicidal or despairing thoughts.
As the court points out, the district court cited several other reasons why it
believed Michael posed “a grave risk to the community.” For example, the district
court noted that Michael accessed adult pornography and drove to stores that sell
pornographic materials (but did not go in). The district court cited this fact as
evidence that Michael “remain[ed] in a sexually deviant cycle as a result of his
continued use of pornography,” and expressed concern that his behavior was
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“escalating.” However, while this behavior may speak to whether Michael might
reoffend by accessing child pornography, it does not indicate that he is likely to
commit a sexual contact offense against a child. Other factors cited by the district
court also fail to support this latter inference. As to his drinking, there is no evidence
in the record that Michael continued to consume alcohol after he was instructed to
stop. Nor is there any evidence that his dishonesty about his sexual partners
demonstrates an increased likelihood that he will commit a contact sexual offense
against a child. The fantasies about children, while unsettling, were not new:
Michael’s probation officer had presented this information to the district court a full
two years prior, and there was no evidence presented that such fantasies persisted.
Ultimately, no evidence was offered in the proceedings below that Michael
ever assaulted or attempted to assault a child, or that he purposely approached
children or frequented locations where children gather in an effort to seek them out.
Jenkins, 854 F.3d at 191 (“Whether a child pornography offender has had or has
attempted to have contact with children is an important distinction.”). On remand,
Michael cited a study demonstrating that only a small percentage of child
pornography offenders like himself are arrested or convicted of a sexual contact
offense. See U.S. Sent’g Comm’n, Federal Child Pornography Offenses 300 (Dec.
2012) (finding that 3.6%—or 22 out of 610—of child pornography non-production
offenders studied were subsequently arrested for or convicted of sexual contact
offenses).5 And according to the evidence presented, that risk was likely even lower
for Michael: the results of his psychiatric evaluation did not indicate that he has any
traits associated with antisocial personality disorder, which the Sentencing
Commission has suggested is a strong predictor of sexual contact offenses committed
5
A 2021 Report found that of 1,093 non-production offenders released from
incarceration or placed on probation in 2015, 47 (or 4.3 percent) were rearrested for
a sex offense within three years. U.S. Sent’g Comm’n, Federal Sentencing of Child
Pornography Non-Production Offenses 7 (June 2021). Only 14 offenders (1.3
percent) were arrested for a contact sex offense. Id. at 65.
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by child pornography offenders. Id. at 287. The testing also showed that Michael did
not meet the diagnostic criteria for pedophilia.
Simple disagreement with a sentence imposed is not grounds for reversal. See
Gall, 552 U.S. at 51. I respect the district court’s “superior position” when it comes
to making the difficult, yet extremely important, decision of what sentence to impose
in an individual defendant’s case. Id. But we have rejected the idea that our review
for substantive reasonableness “is a hollow exercise.” Kane, 639 F.3d at 1135. In
my view, the primary basis for the sentence imposed in this case on remand was a
concern that is unsupported by the record, rendering that sentence substantively
unreasonable. See United States v. Dorvee, 616 F.3d 174, 183 (2d Cir. 2010)
(concluding that sentence was substantively unreasonable where “district court’s
apparent assumption that [defendant] was likely to actually sexually assault a child”
was “unsupported by the record evidence” yet “plainly motivated the court’s
perceived need to protect the public” (cleaned up)); see also id. at 184 (“As the
Supreme Court made clear in Gall, the amount by which a sentence deviates from the
applicable Guidelines range is not the measure of how ‘reasonable’ a sentence is.
Reasonableness is determined instead by the district court’s individualized
application of the statutory sentencing factors.”).
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