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United States v. Wireman

United States Court of Appeals, Tenth Circuit

February 28, 2017

MARK ANTHONY WIREMAN, Defendant-Appellant.

         Appeal from the United States District Court for the District of Kansas (D.C. No. 6:15-CR-10012-JTM-1)

          Paige A. Nichols, Research & Writing Specialist (Melody Brannon, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Topeka, Kansas, for Defendant-Appellant.

          Jason W. Hart, Assistant United States Attorney (Thomas E. Beall, Acting United States Attorney, with him on the brief), Office of the United States Attorney, District of Kansas, Wichita, Kansas, for Plaintiff-Appellee.

          Before TYMKOVICH, Chief Judge, McKAY, and BALDOCK, Circuit Judges.

          BALDOCK, Circuit Judge.

         Reviewing whether a district court adequately explained a defendant's sentence is more of an art than a science. This inquiry, which goes to the ultimate question whether the defendant's sentence is procedurally reasonable, Gall v. United States, 552 U.S. 38, 51 (2007), compels us to ensure that the district court "considered the parties' arguments" for different sentences-an obligation that "normally" requires the district court to "explain why [it] . . . rejected" any "non-frivolous" arguments-and that the district court "ha[d] a reasoned basis for exercising [its] own legal decisionmaking authority, " Rita v. United States, 551 U.S. 338, 356-57 (2007). But the manner in which the district court must engage in this analysis is not static across all cases: "The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances. Sometimes a judicial opinion responds to every argument; sometimes it does not." Rita, 551 U.S. at 356.

         But no matter how inherently fluid this area of law may be, we have held time and time again that a district court does not run astray of its duty to "consider[] the parties' arguments" simply because it does not directly address those arguments head-on-assuming, that is, that the district court imposes a within-Guidelines sentence. Indeed, if the defendant's sentence is within the applicable Guidelines range, the district court may satisfy its obligation to explain its reasons for rejecting the defendant's arguments for a below-Guidelines sentence by "entertain[ing] [the defendant's] . . . arguments, " United States v. Ruiz-Terrazas, 477 F.3d 1196, 1202- 03 & n.4 (10th Cir. 2007) (emphasis added), and then "somehow indicat[ing] that [it] did not rest on the guidelines alone, but considered whether the guideline sentence actually conforms, in the circumstances, to the [18 U.S.C. § 3553(a)] statutory factors, " United States v. Martinez-Barragan, 545 F.3d 894, 903 (10th Cir. 2008) (second alteration in original) (internal quotation marks omitted). Such a "functional rejection" of a defendant's arguments-as opposed to an explicit rejection-is entirely proper. Martinez-Barragan, 545 F.3d at 903 (internal quotation marks omitted).

         Nonetheless, Defendant Mark Anthony Wireman argues today that his sentence is procedurally unreasonable because the district court did not specifically address and reject his arguments for a downward variance from his within-Guidelines sentence. We must decide whether the particular argument he made to the district court-namely, that the Guideline under which he was sentenced was inherently flawed on policy grounds-warrants an exception to our long-held rule that the district court was not required to explicitly address and reject his arguments in such an instance. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we hold that it does not and affirm.

         Defendant is a frequent sexual offender who, in this particular instance, pleaded guilty to five counts of distributing child pornography in violation of 18 U.S.C. § 2252(a)(2) and one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). In short, and without going into graphic detail, Defendant emailed one of his friends several images of child pornography and discussed the images over the phone with this man for their mutual sexual gratification. Defendant also emailed this same friend non-pornographic images of children he personally knew and claimed in these emails-claims that he now contends were simply fantasies-that he had sexually abused these children.

         Defendant's prior sexual offenses had also involved children: at the time he pleaded guilty in this case, Defendant had already been convicted of five different sexually based crimes involving minors. In four of the five instances, Defendant actually had physical sexual contact with a minor. In the fifth instance he provided a minor with sexually explicit material. In light of this extensive criminal history, Defendant's Presentence Investigation Report (PSR) indicated that he had a criminal history category of IV.

         Section 2G2.2 of the United States Sentencing Guidelines (U.S.S.G.), the applicable sentencing provision for Defendant's crimes, set the base offense level for Defendant's sentence at 22. See U.S.S.G. § 2G2.2(a)(2). Further, five Specific Offense Characteristics under § 2G2.2 applied to Defendant and increased his offense level: (1) a 2-level increase because the material at issue involved prepubescent minors, see U.S.S.G. § 2G2.2(b)(2); (2) a 2-level increase because he generically distributed material involving the sexual exploitation of a minor, see U.S.S.G. § 2G2.2(b)(3)(F); (3) a 4-level increase because the material involved sadistic, masochistic, or violent depictions, see U.S.S.G. § 2G2.2(b)(4); (4) a 5-level increase because he engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, see § 2G2.2(b)(5); and (5) a 2-level increase because he used a computer or interactive computer service to distribute the material, see § 2G2.2(b)(6). Thus, after factoring in a 3-level decrease for Defendant's acceptance of responsibility, Defendant's total offense level was 34. Coupled with his category IV criminal history, a total offense level of 34 corresponded to a guideline range of 210-262 months' imprisonment.

         As is relevant here, Defendant argued in a sentencing memorandum to the district court that he was entitled to a downward variance from the guideline range because § 2G2.2 is inherently flawed. He made three sub-arguments in support of this claim: first, that § 2G2.2(a)(2)'s base offense level of 22 is "harsher than necessary" under the 18 U.S.C. § 3553(a) sentencing factors; second, that courts should be hesitant to rely on § 2G2.2 because the Sentencing Commission did not depend on empirical data when drafting § 2G2.2; and third, that the Specific Offense Characteristics outlined in § 2G2.2 are utilized so often "that they apply in nearly every child-pornography case" and therefore fail to distinguish between various offenders. Defendant then argued in the memorandum that his individual circumstances-including a traumatizing childhood where he was repeatedly sexually abused by family members and the fact that in this instance he shared a relatively small amount of child pornography with only one of his friends-warranted a downward variance from this excessive guideline range.

         At sentencing, the district court alluded to the memorandum but did not speak at length about it:

[Defendant's counsel] has filed, on behalf of [Defendant], a motion for downward variance and a sentencing memorandum, as well. . . . .
. . . Frankly, I'm struggling with a lot of the issues that have been raised in . . . [Defendant's counsel's] memorandum on [Defendant's] behalf.
They're arguments that [Defendant's counsel] has made before and that I anticipate he will keep making until they're addressed in a meaningful way by an appellate court, and probably even after that, if he feels the appellate court still doesn't have it right. All of that is to be admired and respected but it may not control at this point.

         Beyond this instance, the district court never again mentioned the sentencing memorandum or Defendant's arguments by name. But when finally sentencing Defendant, the district court stated the following:

[T]he really difficult part is trying to determine a sentence that's sufficient but not greater than necessary, which essentially means the minimum acceptable sentence in this ...

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