United States v. Duhon

541 F.3d 391
CourtCourt of Appeals for the Fifth Circuit
DecidedAugust 19, 2008
Docket05-30387
StatusPublished
Cited by34 cases

This text of 541 F.3d 391 (United States v. Duhon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Duhon, 541 F.3d 391 (5th Cir. 2008).

Opinion

541 F.3d 391 (2008)

UNITES STATES of America, Plaintiff-Appellant,
v.
David Vincent DUHON, Defendant-Appellee.

No. 05-30387.

United States Court of Appeals, Fifth Circuit.

August 18, 2008.

*394 Camille Ann Domingue, Asst. U.S. Atty. (argued), Lafayette, LA, for U.S.

Rebecca L. Hudsmith, Fed. Pub. Def. (argued), Lafayette, LA, for Duhon.

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

David Duhon pleaded guilty to one court of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5). The district court applied a substantial downward variance from the Sentencing Guidelines ("Guidelines") and sentenced him to sixty months of probation. The Government appealed Duhon's non-Guideline sentence. In light of the recent United States Supreme Court opinion in Gall v. United States, 128 S.Ct. 586 (2007), we AFFIRM.

I.

After Duhon was arrested for downloading fifteen images of child pornography from the internet, he pleaded guilty to possessing child pornography. Starting from a base offense level of fifteen, the presentence report ("PSR") recommended three two-level enhancements because: (1) the images depicted minors under twelve years old; (2) the offense involved ten or more images; and (3) Duhon used a computer. In the factual stipulation that Duhon submitted with his plea, he admitted only the last allegation. After subtracting three levels for acceptance of responsibility, the PSR found that the total offense level was eighteen and calculated the Guideline range at twenty-seven to thirty-three months of imprisonment.

On February 28, 2005, the district court held a sentencing hearing for Duhon.[1] Because the district court believed that, under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), it could enhance Duhon's sentence using only facts that he had admitted, it refused to apply the enhancements based on the age of the minors and the number of images involved in the offense. Therefore, the district court determined that the total offense level was fourteen instead of eighteen and that the Guideline range was fifteen to twenty-one months of imprisonment instead of twenty-seven to thirty-three months of imprisonment. The Government objected to the district court's interpretation of Booker.

After calculating the Guideline range, the district court stated its intent to apply a downward variance based on the 18 U.S.C. § 3553 factors. While acknowledging the seriousness of Duhon's offense *395 and the importance of fostering "respect for the law," the district court nonetheless concluded that incarceration was unnecessary and inappropriate in this case. The district court based its decision on the following findings: (1) Duhon did not have a criminal history; (2) there was no indication that Duhon posed a threat to the public; (3) Duhon would benefit most from continuing his psychological treatment with Dr. Brennan, whom the Government acknowledged was well regarded; (4) incarceration would cause Duhon to lose his Social Security disability benefits; and (5) Duhon's codefendant received probation for similar conduct. Accordingly, the district court sentenced Duhon to sixty months of probation. After the Government objected to "the Court's variance and deviation from the guideline range," the district court made clear that it would have so sentenced Duhon even if it erred by refusing to apply all the enhancements recommended by the PSR.

We originally vacated and remanded Duhon's sentence in United States v. Duhon, 440 F.3d 711 (5th Cir.2006). But after the United States Supreme Court issued its opinion in Gall, it granted Duhon's petition for writ of certiorari and vacated and remanded the case to us for further consideration. Duhon v. United States, ___ U.S. ___, 128 S.Ct. 853, 169 L.Ed.2d 705 (2008). We now revisit this case and affirm.

II.

Our review of district court sentencing decisions is bifurcated. United States v. Rowan, 530 F.3d 379, 381 (5th Cir.2008). "[We] must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, . . . failing to consider the § 3553 factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence. . . ." Gall, 128 S.Ct. at 597. We review the district court's interpretation of the Guidelines de novo and its findings of fact for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). "Provided that the sentence is procedurally sound, [we] then consider[ ] the `substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.'" Id. (quoting Gall, 128 S.Ct. at 597).

III.

The Government challenges the procedural soundness of Duhon's sentence. According to the Government, the district court committed reversible error when it miscalculated the Guideline range. Moreover, the Government asserts that the district court improperly considered the sentence that Duhon's codefendant received in its analysis. Finally, the Government contends that the district court failed to consider relevant Guideline provisions. After considering the Government's arguments, we are not convinced that the district court's sentencing decision should be disturbed.

A.

The district court misinterpreted Booker when it refused to apply the enhancements based on the age of the minors and the number of images involved in the offense. Because Booker does not "impede a sentencing judge from finding all facts relevant to sentencing," district courts may make factual findings relevant to sentencing under the preponderance-of-the-evidence standard. United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). Therefore, the district court was incorrect when it concluded that it could enhance Duhon's sentence using only Duhon's admissions *396 or jury findings. The facts in the PSR supported applying the enhancements, and the district court erred when it applied only one of the enhancements recommended by the PSR. See United States v. Trujillo, 502 F.3d 353, 357 (5th Cir.2007) ("The district court may adopt the facts contained in a [presentence report] without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable.") (internal quotation marks and citation omitted).

But "[n]ot all errors in determining a defendant's guideline sentence require reversal." United States v. Bonilla, 524 F.3d 647, 656 (5th Cir.2008).

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541 F.3d 391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-duhon-ca5-2008.