United States v. Ryan Collins

828 F.3d 386, 2016 FED App. 0149P, 2016 U.S. App. LEXIS 11879
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 29, 2016
Docket15-3263/3309
StatusPublished
Cited by9 cases

This text of 828 F.3d 386 (United States v. Ryan Collins) 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. Ryan Collins, 828 F.3d 386, 2016 FED App. 0149P, 2016 U.S. App. LEXIS 11879 (6th Cir. 2016).

Opinion

OPINION

RALPH B. GUY, JR., Circuit Judge.

The government appeals defendant’s concurrent five-year sentences for receiving and distributing child pornography, 18 U.S.C. § 2252(a)(2), and possessing child pornography, 18 U.S.C. § 2252A(a)(5)(B). We affirm.

I.

Investigators used peer-to-peer software to download child pornography from de *388 fendant’s computer. They later confiscated his computer and found 19 videos and 93 images depicting child pornography. Although defendant signed custodial statements admitting to searching for and downloading child pornography, he disavowed these statements during his trial testimony. Following trial, the jury found defendant guilty on both counts.

Defendant’s calculated sentencing guidelines range was 262 to 327 months, above the statutory twenty-year maximum for his offenses. See 18 U.S.C. §§ 2252(b)(1), 2252A(b)(l). At sentencing, Judge James S. Gwin revealed that, after the verdict, he “polled the jury to ask them ... ‘State what you believe an appropriate sentence is.’ ” Jurors’ responses ranged from zero to 60 months’ incarceration, with a mean of 14.5 months and median of 8 months. With one exception, every juror recommended a sentence less than half of the five-year mandatory minimum accompanying defendant’s offenses. See 18 U.S.C. §§ 2252(b)(1), 2252A(b)(l). Each juror’s recommendation was but a fraction of defendant’s calculated guidelines range.

Over the government’s objection, the district judge considered the jury poll as “one factor” in fashioning defendant’s sentence, noting that it “reflects] ... how off the mark the Federal Sentencing Guidelines are.” After discussing numerous sentencing factors under 18 U.S.C. § 3553(a), the district judge varied downward, sentencing defendant to concurrent mandatory minimum terms of five years’ imprisonment. The government reiterated its objection to the variance based on the jury poll, but raised no other objection to the sentence. The government appealed, challenging the district judge’s use of the jury poll and his alleged failure to adequately consider deterrence as a sentencing factor.

II.

We review the reasonableness of a sentence for an abuse of discretion, giving “due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A district court abuses its discretion in the sentencing' context if it “commit[s a] significant procedural error,” id. “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,” United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008).

Because the government did not object to defendant’s sentence on grounds that the district court inadequately considered deterrence under § 3553(a), we review that issue for plain error. United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc).

III.

The propriety of jury polling in imposing a sentence is an issue of first impression. In United States v. Martin, we commented in passing on the same judge’s use of results of prior jury polls as an “academic exercise” which he believed provided “some suggestion” that the defendant deserved a below-guidelines sentence. 390 Fed.Appx. 533, 535 (6th Cir. 2010). We questioned whether jury polling provided “meaningful data with which to assess the suitability of the applicable Guidelines” given that a jury lacks “the tools necessary for the sentencing decision,” i.e., “the punishment selected by Congress and congressional policy concerns, the Guidelines adopted by the Sentencing Commission and the applicable range, and the information in the [presentence report].” Id. at *389 538. Nevertheless, we concluded that the district judge properly carried out his sentencing function because he had not “relied solely, or even primarily, upon the juror surveys and then ignored the [§ 3553(a) factor] results.” Id. The case at hand requires us to squarely address what was mere dicta in Martin: whether the district judge’s explicit consideration of a jury sentencing poll rendered the resultant sentence substantively unreasonable. We conclude that, in these circumstances, it did not.

The government first contends that the district judge’s reliance on the jury poll impermissibly conflates the distinct roles of judge and jury. The United States Supreme Court has expressed concern over the commingling of the judge’s sentence-crafting function and the jury’s fact-finding function. Stating that such intermingling “invites them [jurors] to ponder matters that are not within their province,” the Court concluded that “[i]nformation regarding the consequences of a verdict is ... irrelevant to the jury’s task.” Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994). However, because the district judge conducted the poll after the jury reached a verdict, it did not implicate the concerns raised by the Court in Shannon and by Courts of Appeals elsewhere. See, e.g., United States v. Polouizzi, 564 F.3d 142, 159-61 (2d Cir. 2009) (a defendant has no right to inform the jury of an applicable mandatory minimum sentence); United States v. Mayo, 34 F.3d 1068, 1994 WL 419581, *1 (6th Cir. 1994) (Table) (“the well-established principle is that the jury should not be informed of the defendant’s potential punishment”). Accordingly, the district judge’s use of a jury poll as one factor in formulating defendant’s sentence did not conflate the respective duties of judge and jury.

The government also argues that the jury poll was an “impermissible factorf ]” for the district judge to consider in crafting an appropriate sentence. Conatser, 514 F.3d at 520. We again disagree. Federal law provides nearly unfettered scope as to the sources from which a district judge may draw in determining a sentence. 18 U.S.C. § 3661

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828 F.3d 386, 2016 FED App. 0149P, 2016 U.S. App. LEXIS 11879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ryan-collins-ca6-2016.