United States v. Stephen Pritchard

392 F. App'x 433
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 24, 2010
Docket08-4402
StatusUnpublished
Cited by7 cases

This text of 392 F. App'x 433 (United States v. Stephen Pritchard) 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. Stephen Pritchard, 392 F. App'x 433 (6th Cir. 2010).

Opinions

OPINION

CLAY, Circuit Judge.

Defendant, Stephen Allan Pritchard, appeals from an order imposing a sentence of fifty months’ incarceration. Defendant pled guilty and was convicted of one count of knowingly traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with another person, as defined in 18 U.S.C. § 2423(f), in violation of 18 U.S.C. § 2423(b). In this appeal, Defendant raises a claim of ineffective assistance of counsel, an evidentiary claim related to the sentencing hearing, and several claims regarding the procedural and substantive reasonableness of the sentence imposed. For the reasons set forth below, we VACATE the sentence on procedural reasonableness grounds, REMAND for re-sentencing, AFFIRM the district court’s evidentiary ruling, and DEFER the ineffective assistance of counsel claim for collateral review so that a more complete record can be generated.

BACKGROUND

Defendant corresponded in an internet chat room with undercover FBI agents posing as a mother, “Lorie,” and her fourteen-year-old daughter, “Kayla.” He arranged to travel from his home in Indiana to Ohio to meet the pair and to engage in a sexual encounter with both of them. Defendant decided to cancel the first meeting he arranged the day before it was to occur because of his concerns about whether he would be willing to actually participate in the encounter. Defendant then decided to meet “Lorie” and “Kayla” in a restaurant parking lot and have dinner with them, supposedly to become more comfortable with the situation before committing. Defendant called on March 7, 2008, arranged a meeting, and drove to the location where he thought he would be meeting the two females. He was taken into custody by [435]*435FBI agents upon his arrival at the restaurant parking lot in Massillon, Ohio.

Defendant was charged in an April 9, 2008 indictment for the sole count of knowingly traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with another person, as defined in 18 U.S.C. § 2423(f), in violation of 18 U.S.C. § 2423(b). Defendant entered a plea of not guilty on April 21, 2008, and then entered a plea of guilty in a May 6, 2008 change of plea hearing.

On September 3, 2008, Defendant filed a sentencing memorandum that included a request for leave to file a psychological report under seal. The report, prepared by James Orlando, Ph.D., was not included as an attachment, allegedly because the clerk of the court would not allow it to be filed under seal without a prior ruling by the court. At the sentencing hearing on September 10, 2008, the district court had not ruled on Defendant’s request for leave and stated that it had not seen Dr. Orlando’s report. Defendant was given the option of either admitting the report or having Dr. Orlando testify. Defense counsel chose to have the psychologist testify and use the report to refresh his recollections as necessary in lieu of having the report admitted.

Dr. Orlando testified at the sentencing hearing to several findings he made based on a four-hour session with Defendant. First, Dr. Orlando administered two common psychological tests used in diagnosing personality disorders — the Minnesota Mul-tiphasic Personality Inventory and the Mil-Ion Clinical Multiaxial Inventory. From those tests and his session with Defendant, Dr. Orlando concluded that Defendant had a very low risk of recidivism and was not suffering from pedophilia.1 Instead, Dr. Orlando described the particular sexual paraphilia2 that Defendant has as supposedly being sexually interested in the mother-daughter relationship, not about being sexually interested in a young or prepubescent daughter. Dr. Orlando further testified, upon questioning from the court, that Defendant allegedly showed he was concerned about the young age of the daughter by cancelling the first meeting, which Dr. Orlando thought further bolstered the conclusion that Defendant would be unlikely to re-offend. Dr. Orlando concluded that Defendant had a 6-7% chance of re-offending in the next five to fifteen years, which he thought was quite low. According to Dr. Orlando, Defendant would also be amenable to psychological treatment. Defense counsel, counsel for the government, and the sentencing judge questioned Dr. Orlando at length during the sentencing hearing. However, the district court made no findings of fact regarding Dr. Orlando’s testimony on the record.

[436]*436The government also introduced evidence that Defendant had admitted previous sexual conduct with children to a probation officer and in an instant messaging conversation. Defendant disputed the characterization of the instant messaging conversation, in which he had claimed to have had sex with an eleven-year-old because he alleged that he was also eleven at the time. The transcript of the conversation did not include his allegation that he told the other person that he was also eleven at the time, and the government argued that it was only told of this additional information after the change of plea hearing. Defendant was unable to retrieve a transcript of the instant messaging conversation from his computer that he alleged would have shown that when he boasted of having an encounter with the eleven-year-old, he also noted that he was eleven at the time.

The district court imposed a sentence of fifty months and concluded the sentencing hearing with the following explanation of the sentence:

THE COURT: In this case, I have set the offense level at 23, and the criminal history category at 1. I also considered the nature — Section 3553(a) factors.
First among those, I consider the nature and the circumstances of the offense. This did involve the Defendant’s attempt to solicit sex with a prepubescent minor through an Internet chat room. Conversations associated with that took place over a large number of dates, took place over a relatively significant period of time, also involved descriptions and solicitations that, you know, were completely offensive.
And so I find the nature and the circumstances of the offense suggest a sentence in the Guidelines, perhaps higher in the Guideline range.
I also consider your own history and characteristics. Especially work to your benefit, you’ve had a stable life, and you’ve had a higher level of education, but perhaps most important, you don’t have prior criminal record. Somewhat ameliorating this is the — some suggestion in the — the e-mails yourself that you did engage in this conduct before. That’s been denied, and it’s not a principal factor, but I think both of those also give some cause for concern to the Court in terms of where to place you within the sentencing ranges.
I also consider the need for the sentence to reflect just punishment, afford adequate deterrence, protect the public, and reflect the seriousness of the offense. This conduct involved potential victimization of somebody that’s 14 years old. There’s — there was testimony and kind of intimation that that should be significantly different than a prepubescent minor.

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Bluebook (online)
392 F. App'x 433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stephen-pritchard-ca6-2010.