United States v. Rochon

318 F. App'x 395
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 27, 2009
Docket07-5429
StatusUnpublished
Cited by5 cases

This text of 318 F. App'x 395 (United States v. Rochon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Rochon, 318 F. App'x 395 (6th Cir. 2009).

Opinion

WHITE, Circuit Judge.

Charles Rochon challenges as unreasonable the district court judgment sentencing him to 240 months’ imprisonment and lifetime supervised release upon his plea of guilty to three of eight counts of an indictment charging him with possession and distribution of child pornography. We AFFIRM.

I.

On July 25, 2006, believing that a residence in Kentucky contained child pornography, Federal Bureau of Investigation (FBI) agents executed a search warrant and found Rochon at home. Rochon agreed to talk with the agents, and told them that he had been accessing child pornography websites for approximately one year, and that he had posted at least fifty different videos online. The agents recovered his computer, which revealed that Rochon was in possession of over 400 videos and 1,000 images containing child pornography. Rochon admitted to the agents that he had sexual urges relating to children, but claimed that he had not acted on those urges. Although Rochon denied producing any of the pornography, he admitted that he had cut the mouths out of photographs taken of his cousins when they were young girls, had pasted the photos onto pornographic pictures, and then had used the images to imagine receiving oral sex from them. Rochon expressed relief at having been apprehended by the agents.

Rochon was charged with seven counts of knowingly distributing child pornography in violation of 18 U.S.C. § 2252(a)(2), and one count of knowingly possessing child pornography in violation 18 U.S.C. § 2252(a)(4)(B). The district court accepted Rochon’s guilty plea to two counts of violating § 2252(a)(2) and one count of violating § 2252(a)(4)(B).

The probation department prepared a presentence investigation report (PSR), which included application of the sentencing guidelines. Rochon’s convictions resulted in a base offense level of 22 (U.S.S.G. § 2G2.2). Increases of two levels for images involving prepubescent minors (U.S.S.G. § 2G2.2(b)(2)), five levels for distributing images in return for something of value (U.S.S.G. § 2G2.2(b)(3)(B)), four levels for sadistic or violent images (U.S.S.G. § 2G2.2(b)(4)), two levels for using a computer to store or distribute the images (U.S.S.G. § 2G2.2(b)(6)), and five levels because the offense involved 600 or more images (U.S.S.G. § 2G2.2(b)(7)(D)) were added. Rochon received a three-level downward adjustment for his acceptance of responsibility (U.S.S.G. § 3El.l(a), (b)), resulting in a total offense level of 37. The PSR awarded Rochon two criminal history points, resulting in a criminal history category of II. The intersection of offense level 37 with criminal history category II resulted in a guidelines range of 235 to 293 months.

At the sentencing hearing, the district court adopted the findings and calculations contained in the PSR. The district court noted that “it’s the job of the Court under Title 18, Section 3553, to impose a sentence that’s sufficient but not greater than necessary to serve the statutory purposes that are outlined in Subsection (a)(2).” The court discussed “the history and char *397 acteristics of the defendant,” and stated that Rochon did not have a substantial criminal history and did have past employment. The court noted, however, that it is not uncommon for defendants in child pornography cases to have no criminal history and “a relatively good work history.” The district court also considered the nature and circumstances of Rochon’s offense, and described it as “a sickness, and it’s one that becomes worse the longer that they expose themselves to these websites, it just builds upon itself.” The court considered the seriousness of the offense, and the need to promote respect for the law and to provide for a just punishment, determining “that a sentence within the guideline range ... would do that.” Lastly, the court considered “the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct,” and stated “that in a case such as this the court would typically impose a guideline sentence but typically at the upper end of the range. In this particular case, I believe that a sentence more toward the bottom of the range would be sufficient but not greater than necessary to serve the statutory purposes that I have just outlined.” The district court recommended sex offender treatment for Rochon, and sentenced him to two terms of 240 months’ imprisonment for distributing child pornography, and one term of 60 months’ imprisonment for possessing child pornography, to run concurrently. The court also ordered that Rochon be placed on supervised release for life following his release from custody.

II.

On appeal, Rochon asserts that a 240-month sentence for distribution of pornographic images is substantively unreasonable in light of the § 3553 factors and Rochon’s insignificant prior record, and that the imposition of supervised release for life is unreasonable and constitutes plain error.

1. Reasonableness of Rochon’s Sentence

As a result of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing guidelines are advisory, rather than mandatory, and appellate review of a sentencing decision is limited to determining whether the sentence is reasonable under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). This court’s review is two-tiered: the court must review for both procedural and substantive error.

A sentence may be procedurally unreasonable if the district court fails to calculate, improperly calculates, or fails to consider, the applicable guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the court deems an appropriate sentence without such required consideration. Gall, 128 S.Ct. at 596-97, United States v. Jones, 489 F.3d 243, 250-51 (6th Cir.2007). In addition, when “a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant’s argument and that the judge explained the basis for rejecting it.” United States v. Richardson, 437 F.3d 550, 554 (6th Cir.2006).

Here, the district court correctly calculated the guidelines range. Additionally, the court recognized that it is “the job of the Court under Title 18, Section 3553, to impose a sentence that’s sufficient but not greater than necessary to serve the statutory purposes that are outlined in Subsec *398

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Bluebook (online)
318 F. App'x 395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rochon-ca6-2009.