United States v. McBride

511 F.3d 1293, 2007 U.S. App. LEXIS 29881, 2007 WL 4555205
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 28, 2007
Docket06-16544
StatusPublished
Cited by113 cases

This text of 511 F.3d 1293 (United States v. McBride) 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. McBride, 511 F.3d 1293, 2007 U.S. App. LEXIS 29881, 2007 WL 4555205 (11th Cir. 2007).

Opinions

PER CURIAM:

In this child pornography case, the government appeals Robert McBride (“Defendant”)’s 84-months’ sentence on the grounds that the district court committed clear error in weighing the § 3558(a) factors and imposed an unreasonable sentence. Because the district court did not commit a clear error in judgment in imposing the sentence, we affirm the sentence.

Background

Defendant pleaded guilty to one count of distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B), following an investigation by United States Immigration and Customs Enforcement (“ICE”). During the investigation, 981 images of child pornography and 45 videos were found in Defendant’s residence. Defendant admitted that the pornography belonged to him.

In preparing the Presentence Investigation Report (“PSI”), the probation officer calculated a base offense level of 22 pursuant to U.S.S.G. § 2G2.2(a)(2). Defendant qualified for enhancements: (1) a two-level enhancement because the material involved a prepubescent minor; (2) a two-level enhancement because the offense involved distribution; (3) a four-level enhancement because the material portrayed sadistic or masochistic conduct; (4) a two-level enhancement because the offense involved a computer; (5) a five-level enhancement because the offense involved more than 600 images. The probation officer also included a three-level reduction for acceptance of responsibility. Defendant’s final adjusted offense level was 34. Taking into account Defendant’s clean criminal record, the sentencing guideline range was 151-188 months’ imprisonment.

The offense carried a statutory maximum sentence of 20 years’ imprisonment and a minimum sentence of 5 years’ imprisonment. 18 U.S.C. § 2252(b)(1). Under 18 U.S.C. § 3583(k), the maximum term of supervised release was life. The minimum term of supervised release was 2 years. U.S.S.G. § 5D1.2(b)(2). The probation officer noted that the “Term of Supervised Release (Policy Statement)” in § 5D1.2(b)(2) recommended the maximum life term for supervised release because the offense was a sex offense.

Defendant was referred for a psychosex-ual evaluation. The report detailed that at age 2, Defendant’s father was murdered. Around the age of 2, Defendant incurred severe injuries — including a severed intestine, burns, bruises, and a broken arm — at the hands of his uncle and mother. Defendant was then sent to live with his grandfather, who sexually abused him until Defendant was removed from the home at age 12. Defendant entered the foster system until he was an adult.

At age 16, Defendant pleaded guilty to two counts of lewd acts on a child. One incident involved a 4-year-old girl; the other a 3-year-old girl. Following the incidents, Defendant underwent a 30-day assessment and was placed in a residential treatment program for adolescents. During his treatment sessions, Defendant failed polygraph exams and admitted to these things: (1) performing oral sex on a 9-year-old boy at age fourteen and having the boy perform oral sex on him; (2) molesting about 5 girls at his church and his workplace at a fast-food restaurant; (3) [1296]*1296exposing himself to a 5-year-old boy at age eighteen; (4) watching a 3-year-old girl play naked and later masturbating to the memory; (5) watching a ten-year-old girl play naked and later masturbating to the memory; and (6) placing himself in areas where young children congregated, in violation of a court order. Defendant remained in some form of state custody until the age of 20. In 2003, Defendant was arrested and found to be taking pictures of 3-to-5-year-old girls.

During the pre-sentencing interview with the psychologists, Defendant admitted to being sexually attracted to children 55% of the time. He strongly agreed with the statements, “Some men sexually assaulted children because they really thought the children would enjoy how it felt,” and, “Many men sexually assaulted children because of stress and molesting helped to relieve that stress.” He expressed a desire to be treated in a residential treatment program.

Defendant was diagnosed as a pedophile. The psychologists’ report concluded that Defendant should be sentenced to an extended period of probation so that he could be supervised and receive follow-up treatment. Defendant had no objections to the contents of the letters from the mental health professional who detailed his past history and diagnosed his condition.

The district court adopted the factual findings as contained in the PSI and agreed that 151 to 188 months’ imprisonment was the appropriate guidelines range. The court also listened to statements by defense counsel recounting Defendant’s personal history — namely, that his father was murdered, his mother and uncle physically abused him, his grandfather sexually abused him, and he was transferred around to many foster homes. Defendant claimed he suffers from several health problems, such as anxiety, depression, post-traumatic stress disorder, and conduct disorder. Defendant admitted that he had not always been completely truthful, but contended that his denials were psychological and would be dealt with in treatment.

Defendant said he wanted to receive treatment and pointed out one two-year program, operated by the Bureau of Prisons, that was supposedly very effective. The program only has 120 beds, and several thousand people had asked to enter the program. Defendant requested a sentence below the guideline range and recommended a sentence of 5 to 7 years so that he would have time to wait for and complete the treatment program.

The government pointed out that Defendant had committed a very serious offense and that children and the public needed protection. The government also pointed out that past treatment programs had failed and that protection of children was a “very, very strong factor.” The government also noted that, since Defendant’s latest release from residential treatment, Defendant had rubbed up against several young children at an amusement park and lied to the psychologist about it.

The court sentenced Defendant to 84 months’ imprisonment followed by a ten-year period of supervised release. The court stated that it had considered the advisory guidelines and the 18 U.S.C. § 3553(a) factors and that the sentence would allow sufficient time for Defendant to complete the sexual treatment program. The government objected; Defendant did not. On appeal, the government argues that the district court imposed an unreasonable sentence.

Discussion

Under Booker, this Court must review sentences for reasonableness in the [1297]*1297light of the factors listed in 18 U.S.C. § 3553(a). 543 U.S. 220, 125 S.Ct. 738, 765-66, 160 L.Ed.2d 621 (2005).1 The sentence must be sufficient but not greater than necessary to achieve the purposes of 18 U.S.C. § 3553(a)(2).

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Cite This Page — Counsel Stack

Bluebook (online)
511 F.3d 1293, 2007 U.S. App. LEXIS 29881, 2007 WL 4555205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mcbride-ca11-2007.