United States v. Gentry

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 17, 2024
• Docket: 23-3030
• Status: Unpublished

Opinion

Appellate Case: 23-3030 Document: 010110984830 Date Filed: 01/17/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 17, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-3030 (D.C. No. 6:21-CR-10046-JWB-1) TRUMAN GENTRY, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, MURPHY, and CARSON, Circuit Judges. _________________________________

A district court must consider the factors set forth in 18 U.S.C. § 3553(a) and

18 U.S.C. § 3572 when imposing a fine under 18 U.S.C. § 2259A(c). The district

court, however, need not set forth factual findings specific to each statutory factor

prior to imposing that fine.

The district court imposed a $10,000 fine on Defendant Truman Gentry

pursuant to § 2259A(c). It expressly noted its obligation to consider the factors set

forth in 18 U.S.C. § 3572 and indeed analyzed at least one statutory factor on the

record. Our precedent requires no specific fact-finding on the record for imposition

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-3030 Document: 010110984830 Date Filed: 01/17/2024 Page: 2

of fines under § 3572, and we will not require such fact-finding when a district court

imposes a fine under 18 U.S.C. § 2259A. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

I.

Defendant shared a video of his two-year-old son’s genitals through Kik

Messenger—an instant messaging app. An undercover detective observed Defendant

posting the video. Defendant and the detective messaged each other, and Defendant

offered to make additional videos with his toddler in exchange for original child-

pornographic content. Defendant also described making other videos of his child and

trading them with someone who was abusing a one-year-old female.

Law enforcement officers then executed a search warrant at Defendant’s

residence. While there, officers learned Defendant had made videos of himself

masturbating on his fifteen-year-old sister-in-law. Defendant also admitted he had

posed as a nineteen-year-old on Snapchat—another instant messaging app—to induce

girls as young as twelve years old to engage in sexually explicit conduct, which he

recorded and stored online. Law enforcement found the videos Defendant described

in his account, including other child pornography.

A grand jury indicted Defendant on two counts of production of child

pornography in violation of 18 U.S.C. § 2251(a), one count of advertising for

production of child pornography in violation of 18 U.S.C. § 2251(d), and one count

of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

Defendant pleaded guilty to all counts without a plea agreement.

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Prior to sentencing, United States Probation and Pretrial Services completed a

presentence investigation report (“PSR”). The PSR listed Defendant’s employment

history and noted that he had zero assets and a negative net worth, concluding

Defendant lacked the means to pay a fine.

At sentencing, Defendant did not offer argument on the § 2259A assessment.

The district court said that it had considered the United States Sentencing Guidelines,

reviewed the PSR, and considered the arguments of the parties. The district court

pointed out Defendant’s age and gainful employment at the time of his arrest. The

district court expressly considered the § 3553(a) factors. The district court discussed

the nature of Defendant’s conduct—specifically that it included many victims with

whom Defendant had direct exploitative contact. When addressing that Defendant

faced multiple financial penalties, the district court acknowledged that “[D]efendant

is indigent.” The district court addressed the Justice for Victims of Trafficking Act

of 2015 (“JVTA”) before turning to the assessment at issue in this appeal—the Amy,

Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (“AVAA”). The

district court noted that the AVAA required it to consider both the § 3553(a) factors

and the § 3572 factors. It concluded that, “given the nature and circumstances of the

defendant’s offense, to promote respect for the law, to deter future criminal conduct

and protect the community from further crimes of the defendant,” it would impose an

assessment of $2,500 for each of the four counts.

The district court imposed a below-guideline sentence of sixty years’

imprisonment, fifteen years’ supervised release, no fine, $400 in special assessments

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under 18 U.S.C. § 3013, no JVTA assessment, $10,000 in AVAA assessments, and

$9,000 in restitution. Defendant raised no objection to the district court’s AVAA

assessment.

II.

Defendant raises one issue on appeal—whether the district court erred in

imposing the $10,000 AVAA assessment under § 2259A. Defendant contends that

the district court did so without considering the factors set forth in § 3572.

Defendant did not object to this assessment at sentencing. When a defendant does

not object to the district court, we review for plain error. United States v. Veneno,

80 F.4th 1180, 1192 (10th Cir. 2023) (citing United States v. Wilkins, 30 F.4th 1198,

1203 (10th Cir. 2022)). Thus, Defendant must show “(1) there was error, (2) that is

plain, (3) that affects substantial rights, and (4) that seriously affects the fairness,

integrity or public reputation of judicial proceedings.” United States v. Channon,

973 F.3d 1105, 1115 (10th Cir. 2020) (quoting United States v. Headman, 594 F.3d

1179, 1183 (10th Cir. 2010)).

Section 2259A(a) provides:

In addition to any other criminal penalty, restitution, or special assessment authorized by law, the court shall assess—(1) not more than $17,000 on any person convicted of an offense under section 2252(a)(4) or 2252A(a)(5); (2) not more than $35,000 on any person convicted of any other offense for trafficking in child pornography; and (3) not more than $50,000 on any person convicted of a child pornography production offense.

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The statute requires that in determining the amount of the assessment, “the court shall

consider the factors set forth in sections 3553(a) and 3572.” 18 U.S.C. § 2259A(c).

Section 3553(a) sets forth the factors a court should consider in imposing a

sentence. These factors are (1) the nature and circumstances of the offense and the

history and characteristics of the defendant; (2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense; (B) to afford adequate deterrence to criminal

conduct; (C) to protect the public from further crimes of the defendant; and (D) to

provide the defendant with needed educational or vocational training, medical care,

or other correctional treatment in the most effective manner; (3) the kinds of

sentences available; (4) the applicable guidelines; (5) any pertinent Sentencing

Commission policy statement; (6) the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar

conduct; and (7) the need to provide restitution to any victims of the offense.

Section 3572 sets forth the factors a district court should consider in

determining whether to impose a fine, and the amount, time for payment, and method

of payment of a fine. Together with the factors set forth in § 3553(a), the court must

consider: (1) the defendant’s income, earning capacity, and financial resources;

(2) the burden that the fine will impose on the defendant, any person who is

financially dependent on the defendant, or any other person (including a government)

that would be responsible for the welfare of any person financially dependent on the

defendant, relative to the burden that alternative punishments would impose; (3) any

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pecuniary loss inflicted upon others as a result of the offense; (4) whether restitution

is ordered or made and the mount of such restitution; (5) the need to deprive the

defendant of illegally obtained gains from the offense; (6) the expected costs to the

government of any imprisonment, supervised release, or probation component of the

sentence; (7) whether the defendant can pass on to consumers or other persons the

expense of the fine; and (8) whether the defendant is an organization.

Defendant posits that the first § 3572 factor—the defendant’s income, earning

capacity, and financial resources—requires the district court to consider Defendant’s

ability to pay a fine. And Defendant asserts that the district court ignored his

indigency in the context of the AVAA assessment. Defendant also argues the district

court failed to consider the fourth factor—the assessment given the restitution the

district court imposed.

The district court did not err. In imposing a fine, a district court must consider

the pertinent factors and the basis for the fine. United States v. Vigil, 644 F.3d 1114,

1124 (10th Cir. 2011) (citing United States v. Trujillo, 136 F.3d 1388, 1398

(10th Cir. 1998)). But we also have held that a district court need not set forth

factual findings specific to each statutory factor prior to imposing a fine under

18 U.S.C. § 3572. Id. (citing Trujillo, 136 F.3d at 1398).

At the sentencing hearing, the district court determined the PSR was accurate

and ordered those findings incorporated into the sentence. It found Defendant

indigent and waived the JVTA assessment. The district court noted that three of the

identified victims requested restitution. It addressed its requirement to consider the

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factors in §§ 3553(a) and 3572 when ordering the assessment. The district court

listed the § 3553(a) factors in announcing the $10,000 AVAA assessment.

“[A]bsent some indication in the record suggesting otherwise,” we presume that

district courts “know the law and apply it in making their decisions.” United States

v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th Cir. 2007) (quoting United States v.

Russell, 109 F.3d 1503, 1512–13 (10th Cir. 1997)). And here, the record shows that

the district court considered the § 3572 factors.

The district court did not say when ordering the $10,000 assessment that it

considered “defendant’s income, earning capacity, and financial resources.” But in

its next sentence, the district court explained that it did not intend to impose a

separate fine because of Defendant’s inability to pay and that imposition of a fine

would hinder his ability to pay restitution and the AVAA assessment. The record

reflects that in fashioning the amount of fine, assessments, and restitution, the district

court considered the § 3572 factors. No error exists in the district court’s holistic

approach to viewing Defendant’s fines, assessments, and restitution. The district

court explained its rationale for its imposition of the AVAA assessment and

restitution and why it chose not to impose a fine—specifically because of

Defendant’s inability to pay and the need for Defendant to pay restitution. The

district court did not err in declining to list these reasons separately when discussing

the imposition of each assessment or fine.

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AFFIRMED.

Entered for the Court

Joel M. Carson III Circuit Judge