United States v. Ricardo Bennett, Sr.

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 23, 2020
• Docket: 19-4456
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4456

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICARDO JEROME BENNETT, SR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:18-cr-00088-D-1)

Submitted: October 20, 2020 Decided: October 23, 2020

Before GREGORY, Chief Judge, DIAZ, Circuit Judge, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Mitchell G. Styers, BANZET, THOMPSON, STYERS & MAY, PLLC, Warrenton, North Carolina, for Appellant. Brian A. Benczkowski, Assistant Attorney General, John P. Cronan, Deputy Assistant Attorney General, Thomas E. Booth, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert J. Higdon, Jr., United States Attorney, Jennifer May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina; for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

A jury convicted Ricardo Bennett of two counts of receipt of child pornography,

and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(2),

(a)(4)(B). The district court sentenced Bennett to 216 months’ imprisonment. On appeal,

Bennett challenges the sufficiency of the evidence to support his receipt of child

pornography convictions and argues that his sentence is substantively unreasonable.

Finding no error, we affirm.

Bennett first argues that the trial evidence was insufficient to establish that he

knowingly received child pornography. A defendant challenging the sufficiency of the

evidence faces a heavy burden. United States v. Wolf, 860 F.3d 175, 194 (4th Cir. 2017).

On appeal, a jury’s verdict must be upheld “if, viewing the evidence in the light most

favorable to the government, substantial evidence supports it.” Id. (internal quotation

marks omitted). “Substantial evidence is evidence that a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a

reasonable doubt.” Id. (internal quotation marks and brackets omitted). In undertaking our

review, we cannot “assess witness credibility, and we assume that the jury resolved any

conflicting evidence in the prosecution’s favor.” United States v. Savage, 885 F.3d 212,

219 (4th Cir. 2018) (internal quotation marks omitted). To reverse, “the prosecution’s

failure [must be] clear.” United States v. Palomino-Coronado, 805 F.3d 127, 130 (4th Cir.

2015) (internal quotation marks omitted).

In order to convict Bennett of receiving of child pornography, the Government was

required to prove that Bennett (1) knowingly, (2) received, distributed, or reproduced for

2 distribution, (3) a visual depiction, (4) of a minor engaged in sexually explicit conduct, and

that (5) he knew both that it portrayed a person under the age of 18 and that the minor was

engaged in sexually explicit conduct. ∗ 18 U.S.C. § 2252(a)(2); see States v. Cedelle, 89

F.3d 181, 185 (4th Cir. 1996). To satisfy the knowing element, the Government must

adduce evidence “that the defendant had knowledge of the sexually explicit nature of the

materials as well as . . . the involvement of minors in the materials’ production.” United

States v. Miltier, 882 F.3d 81, 86 (4th Cir. 2018) (internal quotation marks omitted).

At trial, Bennett admitted to using Ares, a peer-to-peer file sharing program used to

download child pornography. The Government presented testimony about Bennett’s

pretrial admissions to law enforcement that (1) he used Ares to download child

pornography; (2) he maintained a “My Shared folder” on the desktop computer—the

default destination for all files downloaded from Ares; (3) he had about 25 child

pornography files in the shared folder on his desktop; (4) he used search terms indicative

of child pornography, and that (5) he understood child pornography to involve individuals

engaged in sexual activity with minors. Moreover, trial evidence showed that Bennett’s

user accounts on every computer were password-protected and revealed 1,200 child

pornography images on the computers seized at Bennett’s residence. Finally, there was

also evidence that, in 2004, a child pornography movie was downloaded to Bennett’s

shared folder minutes after a file related to Bennett’s job was created. Although Bennett

∗ The possession of child pornography offense under 18 U.S.C. § 2252(a)(4)(B) is a lesser included offense of receipt of child pornography offense under 18 U.S.C. § 2252(a)(2). See United States v. Schnittker, 807 F.3d 77, 81 (4th Cir. 2015).

3 presented testimony indicating that other people—his wife and children—had access to the

computers and knew his computer account passwords, his wife denied downloading any

child pornography files. It is the province of the jury to weigh credibility, not ours. See

Savage, 885 F.3d at 219. Accordingly, taking the evidence in the light most favorable to

the Government, the Government presented sufficient evidence to permit a jury to conclude

that Bennett knowingly received child pornography.

Next, Bennett argues that his sentence is substantively unreasonable. We review

criminal sentences for both procedural and substantive reasonableness “under a deferential

abuse-of-discretion standard.” United States v. Lynn, 912 F.3d 212, 216 (4th Cir.), cert.

denied, 140 S. Ct. 86 (2019) (internal quotation marks omitted). A court must impose a

sentence that is “sufficient, but not greater than necessary, to comply with” the basic

sentencing objectives set forth in 18 U.S.C. § 3553(a) by Congress. 18 U.S.C. § 3553; see

Rita v. United States, 551 U.S. 338, 347-48 (2007) (summarizing § 3553(a)(2)’s purposes

as just punishment, deterrence, incapacitation, and rehabilitation). In evaluating

substantive reasonableness, we look to “the totality of the circumstances to determine

whether the district court abused its discretion in applying the standards set out in

[§] 3553(a)(2).” United States v. Bollinger, 798 F.3d 201, 221 (4th Cir. 2015). “Any

sentence that is within or below a properly calculated Guidelines range is presumptively

reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

The records shows that the court properly calculated the applicable Sentencing

Guidelines range and weighed the § 3553 factors, especially noting the seriousness of the

offense. The court considered Bennett’s military service, his work and family history, and

4 his good pretrial release conduct. The court also considered the victims’ impact statements,

but in light of its personalized assessment of Bennett’s circumstances, the court granted

Bennett’s motion for a downward variance, ultimately imposing a sentence 46 months

below the Guidelines range. Nothing in the record rebuts the presumption afforded to

Bennett’s below-Guidelines sentence. We conclude that Bennett’s sentence is

substantively reasonable.

We therefore affirm the judgment. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

AFFIRMED