United States v. Richard Bistline

720 F.3d 631, 2013 WL 3214580, 2013 U.S. App. LEXIS 13192
Court of Appeals for the Sixth Circuit·Decided June 27, 2013·No. 13-3150·Published·Cited by 21 cases

Opinion

OPINION

KETHLEDGE, Circuit Judge.

In a sense we have already decided this case. “Richard Bistline pled guilty to knowingly possessing 305 images and 56 videos of child pornography on his computer. Many, if not a majority, of those images and videos depicted 8- to 10-year-old girls being raped by adult men. Under the Sentencing Guidelines, Bistline’s recommended sentence was 63 to 78 months’ imprisonment. The district court rejected that recommendation and instead sentenced Bistline to a single night’s confinement in the courthouse lockup, plus ten years’ supervised release.” United States v. Bistline, 665 F.3d 758, 760 (6th Cir.2012) (.Bistline I). The government appealed that sentence on grounds that it was substantively unreasonable.

We agreed and vacated Bistline’s sentence. We held that Bistline’s guidelines range should have been — but had not been — “the starting point for his sentence.” Id. at 764. Turning to the sentencing factors set forth in 18 U.S.C. § 3553(a), we said that many of the district court’s comments “served to diminish” the seriousness of Bistline’s offense, id.; that Bistline’s crime caused “great harm” to its victims, id. at 766; and that “a term of supervised release is simply not enough to reflect the seriousness of the offense here[,]” id. We said that “ ‘[gjeneral deterrence is crucial in the child pornography context[,]’ ” and that “we do not see how Bistline’s sentence would meaningfully deter him or anyone else.” Id. at 767 (first alteration in original) (quoting United States v. Camiscione, 591 F.3d 823, 834 (6th Cir.2010)). We said that “[w]e do not mean to imply that only a sentence in or around” Bistline’s guidelines range of 63 to 78 months’ imprisonment “will avoid disparities with other similar defendants[,]” but that “we do not see how the sentence imposed here avoids them.” Id. We said that “the district court was entitled to consider” Bistline’s age, health, and family circumstances, but that “they cannot justify the sentence imposed here.” Id. And we cautioned that “criminals with privileged backgrounds are [not] more entitled to leniency than those who have nothing left to lose.” Id. at 766 (internal quotation marks omitted). We concluded that “the sentence imposed in this case does not remotely meet the criteria that Congress laid out in § 3553(a)”; and we remanded Bistline’s case “for prompt imposition of one that does.” Id. at 768.

And yet, despite all these unequivocal statements by our court, the district court again sentenced Bistline to one day’s confinement and ten years’ supervised release. The court made only one change to Bist-line’s sentence, extending his period of home confinement from 30 days to three years. The government brought this appeal.

*633 “We review a district court’s sentencing decision for substantive reasonableness under the abuse-of-discretion standard.” United States v. Shaw, 707 F.3d 666, 674 (6th Cir.2013). “A sentence is substantively unreasonable if the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” Id. (internal quotation marks omitted).

On remand the district court repeated many of the same errors that it made during Bistline’s first sentencing. The court again failed to make the Sentencing Guidelines its “starting point” and “initial benchmark” for choosing Bistline’s sentence. See Bistline I, 665 F.3d at 761-64; see also Peugh v. United States, — U.S. -, 133 S.Ct. 2072, 2080, 186 L.Ed.2d 84 (2013) (“the Guidelines should be the starting point and the initial benchmark”). Indeed on remand the district court never mentioned Bistline’s guidelines range. The court did say that it “continues to have significant concerns about the helpfulness” of “the guidelines relating to child pornography[,]” and that it has “a continued disagreement with the range of sentences that result under these guidelines in the average case[.]” But those comments were merely conclusions, rather than reasons to disagree with the guidelines on policy grounds.

The court did offer reasons for its disagreement with two guideline enhancements in particular. Specifically, the court criticized the enhancement for Bistline’s use of a computer in connection with his offense, see U.S.S.G. § 2G2.2(b)(6), stating that “[cjomputers are present in every case.” The court similarly criticized the enhancement for the number of images that Bistline possessed, see U.S.S.G. § 2G2.2(b)(7), stating that “almost every case involves hundreds of images and videos.” Those criticisms are legitimate so far as they go, although it is surely little comfort for Kylie and Vickie — the victims whose statements were read at Bistline’s sentencing hearings — that Bistline viewed images of dozens of other girls being raped in addition to viewing theirs. But the court entirely overlooked that Bistline’s base-offense level, standing alone, would place his guidelines range in the neighborhood of three years. And the court continued to treat the issue of the guidelines’ validity strictly as a question of social science. That is true despite our statements in the first appeal that it is “Congress’s prerogative to dictate sentencing enhancements based on a retributive judgment that certain crimes are reprehensible and warrant serious punishment as a result”; and that “Congress’s long and repeated involvement in raising the offense levels for § 2G2.2 makes clear that the grounds of its action were not only empirical, but retributive — that they included not only deterrence, but punishment.” Bistline I, 665 F.3d at 764. The district court did not acknowledge, much less refute, those bases for Bistline’s guidelines range. Taken as a whole, therefore, the district court’s comments did not begin to approach the showing necessary for a court to “declin[e] to apply § 2G2.2 out of hand[,]” id. — which is exactly what the district court did here.

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United States v. Richard Bistline, 720 F.3d 631, 2013 WL 3214580, 2013 U.S. App. LEXIS 13192 (6th Cir. 2013).

720 F.3d 631 (United States v. Richard Bistline) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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