United States v. Stephen Howe ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30023
Plaintiff-Appellee, D.C. No.
3:16-cr-00115-SLG-1
v.
STEPHEN CHRISTOPHER HOWE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Submitted December 7, 2020**
Seattle, Washington
Before: McKEOWN and WATFORD, Circuit Judges, and ROTHSTEIN,***
District Judge.
Stephen Howe challenges his convictions, following a bench trial, for
attempted production of child pornography (Count 1), attempted receipt of child
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Barbara Jacobs Rothstein, United States District Judge
for the Western District of Washington, sitting by designation.
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pornography (Count 2), attempted enticement of a minor (Count 3), and attempted
transfer of obscene matter to a minor (Count 5). He also challenges his sentence
for possession of child pornography (Count 4), for which he entered a guilty plea.
We affirm his convictions and sentence.
1. Sufficient evidence supports the district court’s finding that Howe
believed J.T. was a minor, a required element of Counts 1, 2, 3, and 5. 18 U.S.C.
§§ 2251(a), 2252(a)(2), 2422(b), 1470; see United States v. Cherer, 513 F.3d 1150,
1154 (9th Cir. 2008). Evidence is sufficient if, when viewed “in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v.
Laney, 881 F.3d 1100, 1106 (9th Cir. 2018). The undercover agent posing as J.T.
repeatedly stated that he was underage and gave corroborating details—for
example, that he was a freshman in high school and lived with his mother and
twelve-year-old brother. At numerous points in the conversation, Howe indicated
that he believed J.T.’s claims about being a minor, describing to J.T. why older
men are attracted to adolescent boys and expressing concern about the illegality of
his actions. This evidence is sufficient to establish that Howe believed J.T. was a
minor. See Cherer, 513 F.3d at 1155.
2. As to Howe’s sentence on Count 4, the government concedes that an
Apprendi error occurred when Howe was sentenced to 15 years on Count 4 when
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the statutory maximum based on the facts alleged in the indictment was 10 years.
See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); 18 U.S.C.
§§ 2252(a)(4)(B), (b)(2). The government’s argument that the invited error
doctrine precludes review is unavailing. Howe did not “intentionally relinquish[]”
his right to be sentenced under the proper statutory maximum. United States v.
Perez, 116 F.3d 840, 845 (9th Cir. 1997).
Howe failed to object to imposition of the 15-year sentence below, so we
review for plain error. United States v. Covian-Sandoval, 462 F.3d 1090, 1093
(9th Cir. 2006). Howe fails to satisfy the plain error standard because the district
court’s error in sentencing on Count 4 was harmless. See United States v. Zepeda-
Martinez, 470 F.3d 909, 913 (9th Cir. 2006) (holding that Apprendi violations are
subject to harmless error review). Howe was sentenced to fifteen years of
imprisonment to be served concurrently on Counts 1 through 4, so his sentence
would remain the same even if he were to be resentenced on Count 4.
AFFIRMED.