     Case: 12-30410   Document: 00512397382     Page: 1   Date Filed: 10/04/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                   FILED
                                                                  October 4, 2013

                                 No. 12-30410                     Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff - Appellee
v.

RICHARD CHANDLER,

                                           Defendant - Appellant



                Appeal from the United States District Court
                   for the Western District of Louisiana


Before HIGGINBOTHAM, OWEN, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Richard Chandler pleaded guilty to engaging in a child exploitation
enterprise. At sentencing, the district court varied upward by 127 months over
the recommended Guidelines range to impose 420 months of imprisonment. We
find that the district court erred by increasing Chandler’s sentence based on the
fact that he was a police officer. We remand for re-sentencing.
                 I. Factual and Procedural Background
      Chandler joined “Dreamboard,” a members-only online bulletin board
which conditioned membership on posting and sharing child pornography.
Members of the board would advertise child pornography available for
distribution by posting a description, “preview” images and information about
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how to download the material. In order to obtain and retain membership on the
board, an individual was required to post advertisements for child pornography
on a regular basis. There were five distinct levels of membership, with each
level having access to different sections of the bulletin board.                     The
administrators of the bulletin board were the highest level members and had
access to all of the advertised child pornography on the bulletin board. The
second highest level was the “Super VIP.” membership level, which included
members who were producing child pornography and posting it on the bulletin
board.1 The other three membership levels were “Super VIP,” “VIP,” and
“Members.” The members at each of these levels could see the posts on their
membership level and on any level lower on the bulletin board.
      Chandler joined Dreamboard in February 2010. He was a police officer at
the time. As a result of his postings, he was raised to VIP status, the second-
lowest membership level. He posted at least 117 posts, the majority of which
were children posing or engaging in sexual acts with adults. The pre-sentence
report (“PSR”) reflected that Chandler published the advertisements and offered
to distribute the material on April 27, June 7, and June 10, 2010.
      Chandler was indicted in March 2011. A second superseding indictment
charged him with: (1) engaging in a child exploitation enterprise, 18 U.S.C. §
2252A(g); (2) conspiring to advertise the distribution of child pornography, id.
§ 2251(d)(1), (e), and; (3) conspiring to distribute child pornography, id. §
2252A(a)(2)(A), (b)(1).        Chandler pleaded guilty to engaging in a child
exploitation enterprise, and the remaining counts were dismissed.
      The parties agree that the district court correctly calculated Chandler’s
Guidelines range as 240-293 months. In the PSR, the probation officer stated
that he had not identified any factors warranting a departure or variance from


      1
          The name of the level “Super VIP.” included the period in the name.

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the Guidelines range. Chandler did not file objections to the PSR, but he filed
a Motion for Deviation from Sentencing Guidelines, arguing that a significant
downward departure from the Guidelines was justified in his case because the
sentencing scheme for possession of child pornography is unfair and the
circumstances of his offense warranted leniency. The district court rejected
Chandler’s motion, noting that Chandler was not a “mere possessor” because he
had repeatedly posted child pornography. The district court ultimately imposed
a sentence of 420 months of imprisonment, an upward variance of 127 months
from the top of the Guidelines range.         The district court found that the
non-Guidelines sentence was justified by the nature and circumstances of the
offense, particularly Chandler’s abuse of his public office as a law enforcement
officer, his use of other people’s internet connections to attempt to hide his
participation in the scheme, and the fact that he posted child pornography 117
times, mostly with children 8 to 14 years of age. Chandler did not object to the
sentence. Chandler filed a timely notice of appeal.
                                 II. Discussion
      On appeal, Chandler raises multiple challenges to the substantive
reasonableness of his sentence. He contends that the district court erroneously
denied his motion for a downward deviation, improperly considered his status
as a police officer, improperly considered his use of other people’s wireless
networks, imposed a sentence disproportionate to his co-defendants’ sentences,
and imposed a sentence greater than necessary to achieve the aims of
sentencing. We focus on his contention that the district court improperly relied
on his status as a police officer.
      “Where, as here, the defendant fails to object to his sentence during
sentencing, we review the District Court’s sentencing decision for plain error.”
United States v. Ronquillo, 508 F.3d 744, 748 (5th Cir. 2007). “We find plain
error only when (1) there was an error; (2) the error was clear and obvious; and

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(3) the error affected the defendant’s substantial rights.” Id. (quoting United
States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005)). If all three plain error
conditions are met, we have “discretion to notice a forfeited error but only if (4)
the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quoting Villegas, 404 F.3d at 358-59).
      In reviewing a challenge to the substantive reasonableness of a non-
Guidelines sentence, “[a] non-Guideline sentence unreasonably fails to reflect
the statutory sentencing factors where it (1) does not account for a factor that
should have received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) represents a clear error of judgment in
balancing the sentencing factors.” United States v. Smith, 440 F.3d 704, 708
(5th Cir. 2006). When reviewing a non-Guidelines sentence, we “may consider
the extent of the deviation [in our review], but must give due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent
of the variance.” United States v. Broussard, 669 F.3d 537, 551 (5th Cir. 2012)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
      In varying upwards by more than ten years over the recommended
Guidelines sentencing range, the district court relied extensively on the fact that
Chandler was a police officer at the time of the offense. At sentencing, the court
made the following remarks:
      •      [A]t the time of the commission of these offenses, . . . the
             defendant was, in fact, a law enforcement officer. And that’s
             one of the aspects that gives me great pause for concern on
             the appropriate sentence.

      •      This defendant is a police officer. Not only did he choose to
             violate that trust that he swore to uphold, he also, in going to
             Dreamboard—he stole Internet access from innocent people,
             and he stole it from them so he could go on the Dreamboard
             and not be caught.



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      •     [P]eople who see this need to know—people who are in a
            position like his need to know that if they choose to violate the
            law in this way, if they choose to violate not just the trust of
            every person that they’ve sworn to uphold but also to put
            them at risk in going to a place where they’re exploiting
            children—and what he was doing was exploiting children . .
            .[—] every other person who is put in a position of trust needs
            to know that if you do this, the consequences are grave.

      •     I am visibly angry over your abuse of the public’s trust, and
            your behavior as a law enforcement officer in committing
            these crimes simply cannot be tolerated.

      •     You have abused your position of trust, you have abused your
            position of responsibility, and then you have violated the oath
            of your office as a law enforcement officer.

      •     As a law enforcement officer, you have placed yourself in a
            different category; and it’s a heightened one, because you took
            an oath of office.

      •     Our own police officer in our own community doing this.

      Some of these comments can be interpreted as comments on Chandler’s
socioeconomic status, which is clearly an impermissible sentencing factor. It is
well-established that “[a] defendant’s socio-economic status is never relevant to
sentencing.” United States v. Burch, 873 F.2d 765, 769 (5th Cir.1989); see
United States v. Harrington, 82 F.3d 83, 87-88 (5th Cir. 1996) (holding that
defendant’s status as a prosecutor was an element of socioeconomic status);
United States v. Stout, 32 F.3d 901, 903-04 (5th Cir. 1994) (holding that the
defendant’s position as a judge was an unacceptable reason for departure).
“Under the guidelines, sentencing is to be based upon the crime committed, not
the offender.   While certain characteristics of the offender, such as prior
criminal conduct, are relevant to sentencing under the guidelines, it is because
such characteristics are directly relevant to the crime committed.” Burch, 873


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F.2d at 768-69 (citations omitted); see Harrington, 82 F.3d at 88. In Stout, the
sentencing court said of a defendant former judge:
      You sat in judgment of your fellow citizens for twenty years. And it
      seems to me, as such, you should be held to a higher standard of
      accountability, and you should have had the legal expertise as well
      as the moral sense as a recipient of the taxpayers’ funds, respect,
      and trust, to know better.
Stout, 32 F.3d at 903. We rejected the government’s argument that these
comments related to the “defendant’s culpability based upon his knowledge of
the law and his ability to pay the taxes due,” and concluded that “[t]he
comments clearly relate to Stout’s socioeconomic status.” Stout, 32 F.3d at 904
n.2. Some of the comments made by the district court here, such as those
stating that by being a police officer Chandler has placed himself in a different
category and should be held to a higher standard, are similar to those in Stout
and could be interpreted to cross the line into impermissible reliance on
Chandler’s socioeconomic status as a police officer.
      To the extent that the district court’s comments regarding Chandler’s
position are findings that Chandler abused his position of trust or that the
offense was more serious because of Chandler’s position, the district court
likewise erred. Though we are mindful that our review in this case is only for
plain error, our circuit precedent is clear that a defendant’s status as a police
officer, standing alone, is not a justifiable reason to increase a sentence. See
United States v. Wade, 931 F.2d 300, 307 (5th Cir. 1991); see also United States
v. Roach, 201 F. App’x 969, 976 (5th Cir. 2006) (distinguishing cases where the
sentencing court upwardly departed “merely because of [the defendant’s]
socio-economic status or position in public office” from the circumstances where
the defendant, a prosecutor, used his position in the commission of the offense).
If a defendant police officer abuses his position by using it to facilitate the
offense, his position is an appropriate sentencing factor. Wade, 931 F.2d at 307;

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see also United States v. Esquival, 407 F. App’x 781, 784 (5th Cir. 2011)
(affirming within-Guidelines sentence above the statutory minimum where
border patrol agent, inter alia, abused position of trust by providing information
to drug traffickers). Further, when law enforcement experience is one factor
among many relied on by a district court in judging the seriousness of an
offense, it may be a relevant consideration. See United States v. Pridgen, 898
F.2d 1003, 1004-05 (5th Cir. 1990) (affirming upward departure where former
law enforcement officer abducted a bank employee during a robbery for an
extended period); but see Wade, 931 F.2d at 307 (noting that “Pridgen does not
give approval for an upward departure each time a law enforcement officer is
sentenced”). Here, however, though the district court stated multiple times that
it was varying upwards because Chandler abused his position, the district court
did not rely on any facts showing that Chandler acted in his capacity as a police
officer in posting child pornography on the internet. There is no evidence in the
record that he used or exploited his position as a police officer, or used any
knowledge or skills he gained from that position, to commit the offense or
attempt to hide it.
      The district court’s error was compounded by its mischaracterization of
the conduct involved in Chandler “stealing” other people’s “identities” or
“internet addresses.” The only description of this conduct in the record is in a
sentencing memorandum filed by the government, which states that Chandler
used other people’s unsecured wireless connections. Though the government
refers to this as “stealing,” it essentially amounts to logging onto an open
wireless network. While we agree with the government that such activity could
have caused innocent people to be subject to investigation, it clearly is not
equivalent to identity theft or any sort of skilled hacking activity, though the




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district court discussed it as if it required highly technical knowledge that
Chandler acquired as a police officer. The court stated:
      I am extremely concerned over a policeman who has the capability
      and the knowledge and the know-how and does steal Internet
      identities of other people in order to hide who the hell you are. You
      are a sneaky thief with enough knowledge to know how to acquire
      those Internet addresses and Internet identities of innocent people
      who didn’t know that their Internet addresses and identities were
      being purloined by you for the purposes that you were putting them
      to.
There is no evidence in the record supporting the court’s characterizations of
Chandler’s conduct as stealing “Internet identities,” or connecting Chandler’s
use of other people’s unsecured wireless connections with his work or skills
acquired as a police officer.
      In sum, Chandler’s position as a police officer does not justify the
increased sentence here, where there is no evidence that he used his position
to facilitate the offense. Although the district court considered other factors at
sentencing, the record shows that Chandler’s position as a police officer was a
primary reason for the upwards departure. We thus find that the district court
erred by placing significant reliance on an improper factor. See Smith, 440 F.3d
at 708.
      The additional requirements of the plain error standard are satisfied here.
“To affect the defendant’s substantial rights, the defendant must demonstrate
that the error affected the outcome of the district court proceedings.” Broussard,
669 F.3d at 553. “In the context of sentencing, we ask whether the error
increased the term of a sentence, such that there is a reasonable probability of
a lower sentence on remand.” United States v. Escalante-Reyes, 689 F.3d 415,
424 (5th Cir. 2012) (quoting United States v. Garcia-Quintanilla, 574 F.3d 295,
304 (5th Cir. 2009)). Given the extensive reliance by the district court on
Chandler’s position as a police officer and the 127-month upwards departure,

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“we cannot confidently say that the district court would have imposed the same
sentence” without reliance on that factor. Escalante-Reyes; 689 F.3d at 424;
Garcia-Quintanilla, 574 F.3d at 304. Further, based on the “degree of the error
and the particular facts of the case,” including the length of the upwards
departure, which is not obviously justified by other facts in the record, we find
it appropriate to exercise our discretion to correct this error on plain error
review. See United States v. John, 597 F.3d 263, 287-89 (5th Cir. 2010).
       Because we find that re-sentencing is required based on the district court’s
reliance on Chandler’s status as police officer, we find it unnecessary to address
Chandler’s additional arguments.             He may address these arguments as
necessary to the district court on re-sentencing.
                                    III. Conclusion
       For the foregoing reasons, we VACATE Chandler’s sentence and REMAND
for re-sentencing.2




       2
         Chandler’ motion to seal this case is DENIED. He has not demonstrated that his
interests outweigh the public’s right to access judicial records. See S.E.C. v. Van
Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993). His motion to use his initials instead of his
name in our opinion and on docket sheets is likewise DENIED. See id.

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