United States v. Poynter

495 F.3d 349, 2007 U.S. App. LEXIS 17808, 2007 WL 2127353
Court of Appeals for the Sixth Circuit·Decided July 26, 2007·No. 05-6508·Published·Cited by 80 cases

Opinions

SUTTON, J., delivered the opinion of the court, in which JORDAN, D. J., joined. SILER, J. (p. 359-60), delivered a separate dissenting opinion.

OPINION

SUTTON, Circuit Judge.

Avery Poynter, 36 years old, pleaded guilty to traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with two minors. After calculating a guidelines range of 188-235 months and considering the § 3553(a) factors, the [350]*350district court imposed a 720-month sentence (the statutory maximum) because Poynter was a repeat child sex offender. Unable to conclude that this variance resulted from a reasonable application of § 3553, we reverse.

I.

On May 4, 1989, Avery Poynter pleaded guilty in Kentucky state court to committing four counts of sodomy in the second degree with an eleven-year-old male. The court sentenced Poynter to a 20-year term of imprisonment, but the State released him on parole four years later after he completed Kentucky’s sex offender treatment program in prison.

In October 2003, Poynter traveled from Kentucky to Tennessee to have sex with a fourteen-year-old male. In December, he met the same minor in Indiana and, after the two traveled to Kentucky, they again had a sexual encounter. In April 2004, Poynter traveled to Indiana with another fourteen-year-old male for another sexual foray. The next month, the two traveled to Florida for the same purpose.

After the police caught Poynter, he pleaded guilty to four counts of traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor. 18 U.S.C. § 2423(b). Accounting for adjustments based on his supervisory control over the victims, U.S.S.G. § 2A3.2(b)(2)(B), and on his multiple counts of conviction, id. § 3D1.4, the district court set Poynter’s initial offense level at 28 and his criminal history category at III, creating a guidelines range of 97-121 months. Because Poynter was convicted of a sex crime and had previously “sustain[ed] at least one sex offense conviction,” the district court applied the mandatory minimums of the “Repeat and Dangerous Sex Offender Against Minors” sentencing guideline. U.S.S.G. § 4B1.5(a). The district court therefore increased Poynter’s final offense level to 32 (including a two-level adjustment for acceptance of responsibility), see id. § 4B1.5(a)(l)(B)(ii), and increased his criminal history to category V, see id. § 4B1.5(a)(2). All of these adjustments considered, Poynter was left with a guidelines range of 188-235 months.

At the sentencing hearing on August 18, 2005, the district court heard testimony from Poynter’s victims and from the mother of the second victim. The district court acknowledged receiving a letter from Poynter’s parents, and Poynter spoke on his own behalf. Poynter “apologize[d] to [his] victims, as well as [his] family”; he recognized that “this has been a problem for [him] for many years” and that he had already gone “back into counseling with the counselors”; he welcomed “anything that [the] Federal [Government] has to offer”; and he said that he did not “intend” to “ever hav[e] another victim.” JA 41-42.

In sentencing Poynter, the district court acknowledged the guidelines range of 188-235 months and the statutory maximum of 720 months. See 18 U.S.C. §§ 2423(b), 2426(a). The court recognized that it must “impose a sentence ... that is sufficient but not greater than necessary to comply with the purposes” of 18 U.S.C. § 3553(a)(2). JA 46. It then analyzed the § 3553(a) factors in exercising its independent judgment about what an appropriate sentence would be. Reflecting on the “seriousness of the offense,” see § 3553(a)(2)(A), the court said that “[t]he protection of children in our society deserves the highest priority,” JA 46, and observed that Poynter “used alcohol and other drugs to seduce these victims” and that he had “victimized multiple children,” JA 49; see § 3553(a)(1). Reflecting on the need to impose a “just punishment” and [351]*351“to promote respect for the - law,” see § 3553(a)(2)(A), the court focused on Poyn-ter’s criminal history: “You did do it once before.... You did not learn your lesson. And so I think that the just punishment component of this has been ratcheted upwards.” JA 46; see § 3553(a)(1). Consistent with the need to “protect the public from further crimes,” see § 3553(a)(2)(C), the district court stated that “[t]he only way I can be sure that [children] are protected is for [Poynter] to be in custody.” JA47.

As for rehabilitation, see § 3553(a)(2)(D), the court said that Poynter should participate in the federal sex offender treatment program but doubted that Poynter would ever recover because sex crimes are “highly recidivistic.” JA 49. The court also noted that the “statutory maximum” protected against “unwarranted sentencing disparities,” JA 47; see § 3553(a)(6), and that “[t]here is no restitution that [Poyn-ter] can pay to these victims that can make them whole,” JA 47; see § 3553(a)(7).

In choosing the statutory maximum (720 months or 60 years), the court emphasized the need for “adequate deterrence,” see § 3553(a)(2)(B), explaining that sex crimes are “highly recidivistic,” that Poynter “forgot the lessons [he] learned in counseling,” that “[o]ne slip is one too many” and that the harm here is so great that it “outweighs in the Court’s judgment [Poynter’s] ten-year compliance.” JA 48. The court added that it was “aware of the guideline range top — capping out at 235 months,” see § 3553(a)(4) — but that it had “chosen the statutory maximum because [it] believe[d] that Mr. Poynter is unsafe to children” as a repeat offender. JA 52. - “It is my intention,” the court concluded, “that he either not ever be released from prison or be released from prison at such an age that it would be highly unlikely that he will ever commit this offense again. If he can’t control himself, I think the Court needs to impose a sentence that will control him.” JA 52-53. The court also imposed a lifetime term of supervised release.

II.

Since United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we have distinguished between procedural and substantive reasonableness. See United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). No one questions the district court’s adherence to the procedural requirements of post-Booker review: It properly calculated the guidelines range, recognized that those guidelines were advisory and thoroughly considered the factors listed in § 3553(a). See United States v. Davis, 458 F.3d 491, 495 (6th Cir.2006). The court also stated “the specific reason for the imposition of a sentence” outside the guidelines range, 18 U.S.C. § 3553

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United States v. Poynter, 495 F.3d 349, 2007 U.S. App. LEXIS 17808, 2007 WL 2127353 (6th Cir. 2007).

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