United States v. Jesse Ausbin Brown

635 F. App'x 839
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 6, 2016
Docket15-11163
StatusUnpublished

This text of 635 F. App'x 839 (United States v. Jesse Ausbin Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Jesse Ausbin Brown, 635 F. App'x 839 (11th Cir. 2016).

Opinion

PER CURIAM:

Jesse Ausbin Brown appeals his 240-month sentence for possession of child pornography, in violation of 18 U.S.C. § 2252(a)(5)(B). On appeal, Mr. Brown contends that his sentence was procedurally and substantively unreasonable because the district court based the sentence, in part, on a finding that he had failed to accept responsibility. For the reasons that follow, we affirm.

I

In 1992, Mr. Brown was convicted in the Western District of South Dakota on two counts of sexual abuse of a child and was sentenced to 235 months. On September 17, 2008 Mr. Brown was released from prison and began serving a four-year term of supervised release in the Western Dis *840 trict of South Dakota. His supervised release was scheduled to terminate on September 16, 2012.

Four days after the expiration of Mr. Brown’s term of supervised release, September 20, 2012, the police in Winter Garden, Florida, received a complaint regarding a man who was attempting to lure young children into his car. The police pulled over Mr. Brown in his vehicle and discovered that he was a convicted sex offender who had not registered in the State of Florida. Mr. Brown was subsequently arrested and convicted for failure to register as a sex offender.

After that arrest, Mr. Brown’s car was sold and the purchaser found a smart-phone belonging to Mr. Brown hidden in the car. An investigation revealed that the phone contained approximately 1,050 pornographic images of children between infancy to roughly 10 years of age. These images all showed the sexual abuse/exploitation of children. Mr. Brown admitted to FBI agents that he used the phone to connect to the internet, that he had hidden the phone in his car, that it contained numerous images of child pornography, and that he had collected child pornography from 2009 until he was arrested in 2012. He also told the agents that he would masturbate while looking at the images and did this to keep from acting out physically against children.

Pursuant to a one-count indictment, Mr. Brown was charged with possession of child pornography and pled guilty. At the plea hearing, Mr. Brown was asked to describe what he had done and he said, “I guess I stumbled into it.... I mean I stumbled into some sites and ... I just downloaded the pictures.” D.E. 66 at 14. He agreed that he had known what he was doing was wrong. He also agreed with the government’s stated factual basis for the plea, and the district court accepted his plea.

Pursuant to the advisory sentencing guidelines, Mr. Brown’s base offense level was 18. He received several enhancements: a two-level enhancement because the material involved minors under the age of 12; a four-level enhancement because the material portrayed sadistic or masochistic conduct or other depictions of violence; a five-level enhancement for engaging in a pattern of activity involving the sexual exploitation of a minor; a two-level enhancement because he used a computer or interactive service for the possession, transmission, receipt, or for accessing with intent to view the material; and a five-level enhancement because the offense involved over 600 images. His base offense level was decreased by three levels for acceptance of responsibility, which resulted in a total offense level of 33.

Mr. Brown had six criminal history points — three points for his federal sexual abuse of a child conviction in South Dakota and three points for his failure to register as a sex offender conviction in Florida— which resulted in a criminal history category of III. Based on a total offense level of 33, and a criminal history category of III, Mr. Brown’s advisory sentencing guideline, range was 168 to 210 months imprisonment.

At sentencing, the district court adopted the PSI and defense counsel asked the district court to sentence Mr. Brown at the low end of the suggested guideline range because of his advanced age, 62, and his essential confinement to a wheelchair. The government argued for a sentence at the high end of the guideline range due to the severity of the crime, the large number of images of victims between the ages of five and eight, Mr. Brown’s history, and the protection of the public. The government also argued that the “timeline [was] *841 particularly troubling,” given that Mr. Brown had previously sexually abused two young girls, and upon release from prison for that offense, collected child pornography for, in his own words, a “crutch to prevent [himself] from acting out.” D.E. 58 at 9.

In his allocution, Mr. Brown stated that he had received “permission to have pornography from his sex offender program. Id. at 10. He also stated that he “had no physical or sexual drive whatsoever” because of the amount of time he spent working. Id. Mr. Brown also said, “[a]nd the pictures, I never even saw the pictures like I tried to explain this to the FBI agent that, you know, the phone was in the car, and I accept that, you know. But I’m not evil. I really am not, ma'am. I’m not that evil.” Id.

The district court imposed a 240-month sentence. It stated that it had reviewed the PSI, considered the advisory guidelines, and the 18 U.S.C. § 3558(a) factors, and had found “that the sentence imposed [was] sufficient but not greater than necessary to comply with the statutory purposes of sentencing.” Id. at 10, 15. Though the district court had adopted the PSI, which credited Mr. Brown with a three-level deduction for acceptance of responsibility, part of the court’s explanation for the variance was that Mr. Brown had not really admitted his culpability. The court explained that:

The Court feels that a maximum sentence permitted in this case, which is 240 months, is necessary to protect the public in this ease. The defendant has 18 prior convictions, one of which is for sexual abuse of a child, another for failure to register as a sex offender. The need to deter the defendant’s criminal conduct and protect the public should take precedence in this case.
The Court also notes that the defendant has demonstrated really no acceptance of responsibility for his actions. So the Court feels that a sentence within the statutory maximum is appropriate.

Id. at 15.

Mr. Brown objected to the sentence as unreasonable, arguing that the district court did not consider his age and health. Mr. Brown further argued that the underlying offense for sexual abuse, which was a contact offense, had a guideline range of 235 months, which was lower than the non-contact offense at issue before the court. The court explained that the guideline range increased as an offender had more convictions, and clarified that “[t]he [c]ourt feels that the guideline, as I have stated, is not sufficient to protect the public in this particular case. The [c]ourt did consider [Mr. Brown’s] age and physical condition, but the need to protect the .public is so overwhelming when we’re talking about children.” Id. at 16.

Mr.

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Bluebook (online)
635 F. App'x 839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jesse-ausbin-brown-ca11-2016.