United States v. Leonard D'Andrea ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1115
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Leonard D’Andrea, *
*
Defendant - Appellant. *
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Submitted: October 18, 2006
Filed: January 10, 2007
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Before MELLOY, BENTON, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Defendant Leonard D’Andrea pleaded guilty to one count of attempted
enticement of a minor in violation of 18 U.S.C. § 2422(b) and one count of possession
of child pornography in violation of 18 U.S.C. § 2252(a)(4). Under the United States
Sentencing Guidelines, the advisory sentencing range was seventy-eight to ninety-
seven months. The government moved for an upward departure under U.S.S.G. §
4A1.3, arguing that Defendant’s criminal history category substantially under
represented the seriousness of his actual criminal history because an old but similar
prior conviction was not used in the calculation of criminal history. The government
also argued for an upward departure under U.S.S.G. § 5K2.21 based on similar,
uncharged conduct. The district court1 found Defendant’s prior offense to be too old
to justify a departure based on section 4A1.3, but granted the government’s motion
for an upward departure under section 5K2.21 based on the uncharged conduct. In its
request for an upward departure, the government recommended a sentence of 120
months on each count. The district court expressly found that Defendant was a sexual
predator likely to re-offend and imposed concurrent sentences of 180 and 120 months
on the enticement and child pornography counts, respectively. Defendant appeals the
judgment of the district court, and we affirm.
I. Background
In late 2004, an Arkansas State Police Officer working for the Internet Crimes
Against Children Task Force posed as a thirteen-year-old girl from Little Rock in an
Internet chat room. Defendant, from his computer in Wyoming, initiated
conversations with the undercover officer via the chat room and discussed engaging
in sexual activity. Conversations continued into 2005. Eventually, Defendant stated
that he had to be in Little Rock at a future date and made plans to meet and engage in
sexual activity with the person he believed to be the thirteen-year-old girl. Before
traveling to Little Rock, Defendant placed calls and talked to persons he believed to
be the girl and her mother. Officers recorded these calls.
In early 2005, Defendant also initiated contact with another supposed thirteen-
year-old girl from Little Rock. Again, the real person behind the screen persona was
an undercover police officer. In chat room conversations with this second supposed
girl, Defendant graphically proposed sexual activity. As with the first supposed girl,
he took part in telephone conversations that were recorded. He eventually made plans
with the second supposed girl to meet in Little Rock.
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
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On more than one occasion, he invited the supposed girls to view his web
camera, and he masturbated to ejaculation in front of the camera.
At the arranged time, Defendant arrived in Little Rock and traveled to the
location of one of the arranged meetings. Officers arrested him, and he admitted that
he intended to have sex with at least one of the girls that he thought he had met over
the Internet. His luggage contained a nightgown, condoms, and lubricant. He also
had a laptop computer with him in Little Rock. A search of the laptop showed that he
had been communicating with other persons he believed to be underage girls and that
these other persons’ screen names were in his “friends list,” which allowed him to
detect when they were online. Other items found in the vehicle Defendant was driving
at the time of arrest included digital cameras, web cameras, and camera equipment,
including a tripod. The laptop had the software necessary to interface with the camera
equipment, and the equipment was capable of being connected to the laptop.
Equipment necessary for an Internet connection also was present. The laptop and the
vehicle also contained maps and information about the locations where Defendant had
arranged to meet the two supposed girls.
Officers then obtained a search warrant for a computer in Defendant’s home in
Wyoming. The contents of the Wyoming computer were encrypted. After breaking
the encryption, officers discovered images of child pornography involving
prepubescent minors and records of additional chats with persons Defendant believed
to be underage. The computer also contained evidence of a discussion between
Defendant and an adult in which Defendant spoke in graphic detail of a previous
sexual encounter between himself and a twelve-year-old girl. The encounter had
taken place when he was in his late twenties. The Wyoming computer also revealed
that Defendant had assumed a separate screen name in a ruse to pose as a “pen pal”
and friend to other minor girls so that the girls could arrange meetings with their “pen
pal” without arousing suspicion from their parents.
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During the course of plea negotiations, in a letter dated September 2, 2005, the
government notified Defendant that it intended to seek an upward departure based on
“the other chats,” i.e., the uncharged conduct revealed during the searches of the
computers. Defendant and the government subsequently reached a plea agreement,
and a pre-sentence report (“PSR”) was prepared. The applicable statutory range of
imprisonment was not less then five years nor more than thirty years on the
enticement count, 18 U.S.C. § 2422(b), and not more than ten years on the child
pornography count, 18 U.S.C. § 2252(b)(2). In PSR calculations, the Defendant’s
criminal history category was I. Defendant had been convicted in 1978 in municipal
court in Oakland, California, for crimes against children. For that conviction, he was
sentenced to 180 days’ imprisonment and thirty-six months’ probation. The 1978
conviction was not included in the calculation of his criminal history under the
Guidelines. The PSR listed the total offense level as twenty-nine, but as per the plea
agreement, Defendant was eligible for a possible, additional one-level reduction for
acceptance of responsibility.
In the PSR, the probation office noted that the Government reserved the right
to seek an upward departure under U.S.S.G. § 4A1.3 based on the under-
representation of Defendant’s criminal history and based on the fact that the prior
conviction for crimes against children resulted in no criminal history points. The PSR
did not make reference to an upward departure based on uncharged conduct. Neither
the government nor Defendant objected to the PSR. On January 4, 2006, forty-eight
hours before Defendant’s sentencing hearing, the government filed a motion for an
upward departure under U.S.S.G. § 5K2.21 based on similar but uncharged conduct.
At the sentencing hearing, Defendant objected to the government’s motion,
which he characterized as a newly argued basis for an upward departure. Defendant
stated that because the government hadn’t objected to the PSR, the government could
not assert arguments not found in the PSR. Defendant also argued generally that he
lacked sufficient notice of the new basis for the upward departure. The district court
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invited Defendant to move for a continuance, stating, “[I]f you ask for a continuance,
I will carefully consider giving you a continuance if you are in fact surprised.”
Defendant lodged his objections to the government’s arguments, but repeatedly stated
to the district court that he was not asking for a continuance.
The government proceeded to introduce evidence of the uncharged conduct. An
investigator stated that searches of Defendant’s computers revealed Defendant had
carried on chat room discussions with many persons who appeared to be minors. The
determination that the persons were minors was based on the Yahoo! profiles of their
screen personas and based on the content of their discussions with Defendant. The
government provided a detailed account of three such discussions—separate chat
room discussions with girls who were seventeen, twelve, and fourteen years old.
The seventeen year-old was a high school student from New Orleans. In
discussions with this girl, Defendant used his web cam to masturbate for the girl,
talked graphically of sex with the girl, and discussed meeting her. He joked about the
risk of getting caught and being concerned that if they were caught, “you’ll get
grounded, I’ll go to jail.” Defendant stated in the chat that he would be arriving in
New Orleans on a certain date and staying for nine nights. A subpoena of records
from the travel website Expedia and from Defendant’s credit card company showed
that Defendant had purchased an airplane ticket for the referenced travel days. It did
not show specifically if the ticket was for a flight to New Orleans. The discussion
revealed that Defendant did not meet the seventeen-year-old girl because her father
discovered and stopped the communications.
The twelve-year-old was a girl from London who sent Defendant pictures of
herself in her underwear. She talked about having a sexual threesome with Defendant
and one of her friends and had graphic discussions with Defendant about sex.
Defendant and the twelve-year-old discussed how they might meet. Defendant
proposed creating a Yahoo! profile for an alter ego that the girl could use to convince
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her parents she had a pen-pal in Wyoming who wanted her to visit. When the girl
stated that her parents would want to talk to the pen-pal’s parents, Defendant stated
that he would pose as the parent. The government verified that the Yahoo! profile for
the referenced alter ego actually existed and that the creator of the profile included
pictures of a thirteen-year-old girl to complete the image of a teenage persona.
The fourteen-year-old was an eighth-grade girl from Newfoundland who sent
nude pictures of herself to Defendant. Defendant used a web camera to masturbate
for the girl, had graphic sexual discussions with her, sent her lingerie from Victoria’s
Secret, and discussed the pen-pal alter ego described above. The government verified
the Victoria’s Secret purchases through a search of Defendant’s credit card records
which showed a purchase close in time to Defendant’s discussions with the girl about
the lingerie.
The district court granted Defendant the additional, one-level reduction for
acceptance of responsibility, bringing the final advisory Guidelines offense level
down to twenty-eight for an advisory range of seventy-eight to ninety-seven months’
imprisonment. The district court denied the government’s motion for an upward
departure under section 4A1.3 based on under-representative criminal history, but
granted the motion under section 5K2.21 for uncharged conduct. The district court
expressly stated that it believed Defendant posed a great risk of recidivism and that
the extent and predatory nature of his online, solicitous activities justified sentences
of 180 and 120 months—sentences well above the Guidelines range. The government
does not appeal the district court’s judgment as to the section 4A1.3 issue. Defendant
appeals the upward departure and the overall reasonableness of the sentence imposed.
II. Discussion
Defendant first argues that the government waived its right to argue for a
departure on any basis other than U.S.S.G. § 4A1.3, which was the only basis for
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departure cited in the PSR. Defendant also characterizes the government’s actions in
this case as a violation of the notice requirements of Rule 32 of the Federal Rules of
Criminal Procedure. Defendant’s arguments are without merit. In the letter to
Defendant months before sentencing, the government provided notice that it intended
to seek an upward departure based on uncharged conduct. Further, the district court
invited Defendant to request a continuance if Defendant was, in fact, surprised or
unprepared to address the government’s motion. Defendant objected to the court’s
consideration of the additional grounds for departure, but at the time, did not consider
the alleged notice concerns sufficient to justify a request for a continuance. Rather,
he repeatedly and expressly refused to request a continuance. It is, therefore,
disingenuous to now characterize the alleged failure of notice as having been so grave
as to warrant reversal. See, e.g., United States v. Barrows, 996 F.2d 12, 14 (1st Cir.
1993) (“[T]he failure to invoke Rule 32(c)(3)(A) [1993] or request a continuance
effectively waives the claim, absent a miscarriage of justice.”)
Defendant next argues that the district court erred when it decided to grant an
upward departure under section 5K2.21. We review the district court’s decision to
grant an upward departure for abuse of discretion. United States v. Donelson, 450
F.3d 768, 774 (8th Cir. 2006) (“A decision to depart upward on the basis of a
permissible factor is reviewed for abuse of discretion.”).
U.S.S.G. § 5K2.21 provides:
The court may depart upward to reflect the actual seriousness of the
offense based on conduct (1) underlying a charge dismissed as part of a
plea agreement in the case, or underlying a potential charge not pursued
in the case as part of a plea agreement or for any other reason; and (2)
that did not enter into the determination of the applicable guideline
range.
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It is undisputed that the uncharged conduct considered by the district court in
this case—the additional chat room discussions and activities that revealed an ongoing
pattern of predatory activity by Defendant directed towards young girls or persons he
believed to be young girls—“did not enter into the determination of the applicable
guideline range.” Id. Accordingly, the question we must address is whether the
conduct fits under subsection (1) of section 5K2.21. We believe that it does. The
following aspects of the uncharged conduct were almost identical to the conduct
involved in the instant offense: characteristics of the victims; methods of
communication; attempted contact and enticement; attempted persuasion of parents
that their children would be visiting safe friends (through the use of phone calls or the
creation of alter egos); graphic discussions of sex; and use of web cameras to perform
sexual acts for the children to view. Further, Defendant graphically described an
actual encounter with a twelve-year-old girl. This is all conduct that “underl[ies] a
potential charge not pursued in the case . . . for any other reason.” Id. The district
court did not abuse its discretion in finding section 5K2.21 applicable on the facts of
this case.
Defendant next argues that the overall sentence imposed was unreasonable.
Our review for reasonableness is “akin to our traditional review for abuse of
discretion,” United States v. Shafer, 438 F.3d 1225, 1227 (8th Cir. 2006), and “[a]
‘range of reasonableness’ is within the district court’s discretion.” Id. (quoting United
States v. Saenz, 428 F.3d 1159, 1165 (8th Cir. 2005)). In applying this standard, we
generally will affirm unless “(1) a court fails to consider a relevant factor that should
have received significant weight; (2) a court gives significant weight to an improper
or irrelevant factor; or (3) a court considers only the appropriate factors but in
weighing those factors commits a ‘clear error of judgment.’” United States v. Haack,
403 F.3d 997, 1004 (8th Cir. 2005) (quoting Kern v. TXO Prod. Corp., 738 F.2d 968,
970 (8th Cir.1984)). The range of reasonableness is dictated by the circumstances in
each case such that an extraordinary departure must be supported by “extraordinary
circumstances.” United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005);
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compare United States v. Kendall, 446 F.3d 782, 785 (8th Cir. 2006) (holding that an
upward departure of 155% in a methamphetamine lab case was extraordinary and
unreasonable because no extraordinary circumstances were present to justify the
sentence) with United States v. Maurstad, 454 F.3d 787, 789-90 (8th Cir. 2006)
(holding that a sentence of 120 months for conspiring to distribute methamphetamine
was reasonable where the advisory range was 41 to 51 months because “extraordinary
circumstances present here . . . justify the extraordinary variance”) and United States
v. Meyer, 452 F.3d 998, 1001 (8th Cir. 2006) (affirming as reasonable an
“extraordinary” upward variance of 50% or 90 months where extraordinary
circumstances supported the variance from an advisory Guidelines sentence of 180
months to an actual sentence of 270 months).
The sentence in the present case was an upward departure of 83 months or
almost 100% above the top of the advisory Guidelines range of 78 to 97 months. We
have characterized similar or smaller departures—upward and downward—as
extraordinary or dramatic, whether addressed in relative terms as percentages or in
absolute terms as months.2 Meyer, 452 F.3d at 1001 (collecting cases in which we
labeled 57%, 54%, and 50% downward variances extraordinary and holding that a
50% upward departure of 90 months was extraordinary and reasonable); Dalton, 404
F.3d at 1033 (holding that a 75% or 180 month downward departure was
“extraordinary,” unjustified, and therefore unreasonable). The present departure, then,
clearly was an extraordinary departure and must be justified with extraordinary
circumstances. We find, on the facts of the present case, that the district court
2
In United States v. Maloney, 466 F.3d 663, 668-70 (8th Cir. 2006) , we noted
the difficulty in defining “dramatic” variances solely in terms of percentages given the
differences in scale that exist between offenders’ advisory ranges. We concluded that
percentages may be more useful in some cases than in others, and we held in Maloney
that a 50% downward variance from 360 months to 180 months was unreasonable
where there were disparity concerns and no “exceptional facts” to support the
sentence. Id. at 668-69.
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properly identified circumstances that justify the departure and did not abuse its
discretion.
The district court was explicit in the reasons for its departure. The amount of
material involved in this case was substantial and included numerous pornographic
images involving minors as well as sexual chat room discussions with, and
exhibitionist performances for, minors. Further, the Defendant employed
sophisticated methods beyond the use of computers to entice minors and arrange
meetings—he sent presents, created an alter ego, and attempted to assuage parents’
concerns by posing as a parent of his online personas. The district court expressed
concern that Defendant had “spent a great deal of effort and time in sex chatter on the
Internet with people whom he believed to be young girls.” Taken together, these
activities convinced the district court that Defendant was a sexual predator likely to
continue his illegal activity if released from prison following a lesser term of years.
The district court placed considerable weight on the need “to protect the public from
further crimes of the defendant,” 18 U.S.C. § 3553(a)(2)(C), when it found that the
180- and 120-month concurrent sentences were necessary. The district court did not
step outside the “range of reasonableness” in this case when it placed substantial
weight on the need to protect the public. Rather, the extraordinary need to protect the
public from Defendant’s actions justify the sentence.
Defendant argues that his crimes were victimless, his family (including two
daughters) will suffer if he is not allowed to support them, and his age (fifty-six) and
his state of health militate against a long sentence. The claim that his crimes were
victimless is specious at best. Although his crimes did not involve an individually
identifiable victim, the inability to identify a child shown in pornographic images does
not make the possession of child pornography a victimless crime. Regarding his other
arguments, his family is not notably more vulnerable or uniquely situated among the
families of federal convicts and is not likely to suffer more than other families whose
major breadwinner is incarcerated. Similarly, his age, state of health, and medical
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needs were not shown to be at all out of the ordinary in terms of federal prisoners.
There is nothing in the sentencing transcript to suggest that the district court failed to
take these arguments into account, and the district court was justified in rejecting these
arguments.
The judgment of the district court is affirmed.
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