                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4289


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ERIC SPIWAK,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (4:08-cr-00045-BO-1)


Argued:   April 8, 2010                           Decided:   May 7, 2010


Before TRAXLER,   Chief   Judge,   and   DUNCAN    and   DAVIS,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Joseph Bart Gilbert, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.    Jennifer P.
May-Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.   ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant.   George E. B. Holding, United States
Attorney, Anne M. Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Appellant          Eric    Lee      Spiwak       (“Spiwak”)     pleaded      guilty

pursuant to a plea agreement to one count of possession of child

pornography,         in    violation       of   18     U.S.C.   §   2242(a)(4)(B).     The

district court granted the government’s motion for an upward

departure and sentenced Spiwak to 188 months imprisonment, 37

months above the top of his pre-departure advisory guidelines

range       of    121     to   151    months         imprisonment.    Spiwak      appeals,

contending that the imposition of his sentence was procedurally

unreasonable. We affirm.



                                                I.

       In        2006,    state      and   federal       law    enforcement       agencies

undertook a sting operation in which officers, posing as minors,

participated in Internet online chats with individuals seeking

to engage in sexual acts. On September 6, 2006, while in one of

these chat rooms, a Greensboro, North Carolina, sheriff’s deputy

posing as a 14 year-old girl received an instant message from an

individual using the screen name, “thefixer_2000,” whom police

later identified as Spiwak. Spiwak initially inquired if the

“girl” was truly 14 years old, and when the “girl” said yes,

Spiwak responded “Oh, ok, way too young,” and exited the chat

room. Shortly afterwards, however, Spiwak returned to the chat

room    and       began    discussing       sexual       matters     with   the    “girl.”

                                                3
Specifically,        Spiwak    told    the       “girl”   that   he   would   like    to

“teach” her about sex, inquired about her sexual history, and

said that he would love to visit her. He sent a picture of

himself to the “girl” and noted that, “Teacher is ready, if

you’d like to be my pupil.” He also made plans to meet with the

“girl.” On September 8, 2006, Spiwak drove from his residence in

Newport,    North       Carolina,       to       Greensboro.     On    his    way     to

Greensboro, Spiwak spoke with the “girl” by phone and continued

to discuss graphic sexual details about their imminent meeting.

     When he arrived at the location of the planned meeting,

Spiwak was approached by police. Investigators searched Spiwak’s

vehicle and found rubber gloves, lubricant, and condoms in the

glove   box.    They    then    took    Spiwak       into   custody.    Spiwak      told

investigators that he had indeed had explicit conversations on

the Internet with a person he thought was a 14-year-old female,

but that his intention in traveling to Greensboro was to warn

the girl about the dangers of meeting men on the Internet.

     Officers conducted a search of Spiwak’s home and seized two

computers      and    several    zip     drive       computer     diskettes,     which

revealed 460 images identified as either child pornography or

child erotica. A majority of the images were of prepubescent

minors younger than age 12. Some images depicted young girls,

ranging in age from five to eight years old, in the nude, bound,

and in various sexual positions. The images also depicted young

                                             4
boys, between the ages of eight and 15, in the nude and in

various sexual positions with adult males.



                                         II.

     On July 23, 2008, a grand jury indicted Spiwak on one count

of attempting to entice a child to engage in illegal sexual

conduct, in violation of 18 U.S.C. § 2422(b), and one count of

possession of child pornography, in violation of 18 U.S.C. §

2242(a)(4)(B). Pursuant to a plea agreement, Spiwak pled guilty

to the possession charge.

     It   is     undisputed       that        Spiwak’s        advisory     sentencing

guidelines     offense    level     was       32    and   his    criminal    history

category was I. Although Spiwak had three previous convictions

for taking indecent liberties with children, he was not assigned

any criminal history points because the convictions were more

than 20 years old. See U.S.S.G. § 4A1.2(e)(3). Thus, Spiwak’s

(pre-departure) advisory sentencing guidelines range was 121 to

151 months.

     In advance of the sentencing hearing, the government moved

for an upward departure based on U.S.S.G. § 4A1.3, arguing that

criminal history category I significantly underrepresented “the

seriousness”     of    Spiwak’s     “past          criminal     conduct”    and    his

likelihood     of     recidivism.    J.A.          27,    29.   Spiwak     filed    an



                                          5
opposition to the government’s motion, seeking a sentence of no

more than the statutory mandatory minimum of 120 months.

       On     the    day      of    the    sentencing        hearing,      the       government

informed Spiwak’s counsel of its intention to present to the

court a statement from Julie Dougherty, who claimed to have been

sexually abused by Spiwak in the late 1980s when she was ten

years    old.       It   is    undisputed          that    Ms.    Dougherty       was    not    a

“victim” of any of the crimes for which Spiwak had previously

been    convicted        or    of    either    of    the     offenses      charged      in    the

instant       indictment.           The   government        offered       Ms.     Dougherty’s

information in support of both (1) an offense level adjustment

for engaging in a “pattern of activity” involving sexual abuse

of a minor, see U.S.S.G. § 2G2.2(b)(5) (which had been applied

by     the    probation          officer      in    his     preparation         of     Spiwak’s

Presentence         Investigation          Report)        and     (2)    the     government’s

motion       for    an   upward      departure       based       on    inadequate      criminal

history under U.S.G.G. § 4A1.3.

       When the sentencing hearing commenced, it appears that the

district judge noticed that Ms. Dougherty was standing alongside

the    prosecutor.         The      district       judge   was        thereby    prompted      to

inquire of the prosecutor, “Do you have victim participation?”

J.A. 53. Without yet having explained Ms. Dougherty’s presence

and in response to the court, the prosecutor stated, “Yes, Your

Honor.” Id.         Spiwak         then   objected    that       Ms.    Dougherty       was   not

                                               6
depicted in any of the images that constituted the offense of

his conviction -- possession of child pornography –- and that

she was “not associated with this case.” J.A. 53. 1

     There then followed an extended colloquy among the court,

counsel, and the probation officer, in which the court sought to

determine whether Ms. Dougherty was being “asked to participate

under the victim entitlement [sic] under federal law.” J.A. 56.

Ultimately, as the record conclusively shows, the district court

found and concluded that Ms. Dougherty was not a “victim” within

the contemplation of the Crime Victims Rights Act (“CVRA”), 18

U.S.C. § 3771:

          The Court:     I am just trying to get a read on
               who is a victim.

          The Prosecutor:     [Ms. Dougherty is offered as
               a] victim as well as in support of the
               government’s upward departure argument as to
               this   defendant   represents  as   far   as
               recidivism.

          The Court:     So you        can   put   on   evidence   on
               upward departure?

          The Prosecutor:     I believe I can, Your Honor.


     1
       In an understandable effort to pretermit the presentation
of Ms. Dougherty’s information to the district court, defense
counsel promptly withdrew Spiwak’s objection to a five level
adjustment in his offense level based on his “pattern of
activity involving the sexual abuse or exploitation of a minor”
under U.S.S.G. § 2G2.2(b)(5). Nevertheless, Ms. Dougherty’s
information was relevant to the issue of criminal history
inadequacy.



                                   7
            The Court:      Well, okay. On that basis I may
                  allow it, but nevertheless, tell me who the
                  victims are.
            . . .

            Probation Officer: Yes,    sir.   Your   Honor,  18
                 U.S.C. [§] 3661 just basically allows the
                 court   no   limitation,   to   consider   any
                 information    regarding    the    defendant’s
                 background, character, conduct.

            The Court:     But what about the victim law?
                 There is a specific law having to do with
                 victim participation in sentencing.

            Probation Officer: She is not a victim of the
                 instant offense, but I do believe it’s
                 relevant to the –

            The Court:         To the relevant conduct.

            Probation Officer: Yes, sir. And the specific
                 offense characteristics in the case as well
                 as   the  government’s   motion for  upward
                 departure. It’s very relevant.

            The Court:         Okay. I don’t disagree with that.

            The Prosecutor:          Thank you, Your Honor.

            The Court:         Do you want to say anything?

            Defense counsel:    Your Honor, I would just note
                 our objection.

            The Court:     Okay.   I agree that at a minimum
                 it’s suitable for relevant conduct having to
                 do with a variance or departure.

J.A. 56-57.

       Following this colloquy, the court allowed Ms. Dougherty to

make   a   statement,    and   she   described   in   some   detail   how   the

defendant had sexually abused her when she was a child. Ms.


                                       8
Dougherty also explained that the abuse has since then “caused

[her] family to fall apart.” J.A. 59.

       The    district    court      thereafter        questioned    the     probation

officer as to how many criminal history points Spiwak’s prior

convictions     for     indecent     liberties        with    children     would    have

received had they been scored. The probation officer responded

that if the prior convictions had been scored, they would have

resulted in a total of four criminal history points, placing

Spiwak in criminal history category III.

       The district court then indicated, in agreement with an

implicit recommendation of the probation officer, that it would

grant the government’s motion for an upward departure pursuant

to U.S.S.G. § 4A1.3, thereby place Spiwak in offense level 32,

criminal history category III, yielding an advisory guidelines

sentencing     range     of   151    to    188   months      imprisonment.     Defense

counsel voiced an objection to an upward departure and supported

the objection with specific arguments which the district court

fully    entertained.         Notably,       however,        the    district       court

specifically     asked    defense         counsel     whether    counsel    could    say

that    the     court     had       employed        “improper      methodology”       in

determining      to     depart.      J.A.       64.    Defense     counsel     stated,




                                            9
unequivocally, he did not so contend. 2 Id. Spiwak now appeals his

sentence as procedurally erroneous.



                                       III.

       In reviewing any sentence, we apply a “deferential abuse of

discretion standard.” United States v. Carter, 564 F.3d 325, 328

(4th       Cir.   2009)   (internal    quotations   omitted).      We   review

questions of law, de novo. United States v. Cardwell, 433 F.3d

378, 384-85 (4th Cir. 2005). Statutory interpretation presents a

legal issue, subject to de novo review. United States v. Myers,

280 F.3d 407, 416 (4th Cir. 2002).

       Under the Crime Victims Rights Act (“CVRA”), 18 U.S.C. §

3771, a crime victim has “[t]he right to be reasonably heard at

any public proceeding in the district court involving release,

plea,      sentencing,    or   any    parole   proceeding.”   18    U.S.C.   §

3771(a)(4). A crime victim is defined as “a person directly and

proximately harmed as a result of the commission of a Federal

offense or an offense in the District of Columbia.” 18 U.S.C. §

3771(e).      Here, Spiwak argues that, under the CVRA, the district

court should not have allowed Ms. Dougherty to speak during the


       2
       The district court pressed defense counsel to indicate
whether “the methodology that the court is using [to effect an
upward departure] is a sufficient methodology.” J.A. 65. Defense
counsel sated, “Yes, Sir.” Id.



                                        10
sentencing hearing because Ms. Dougherty was not a victim of the

crime      charged        in   the    instant           offense.     In    contrast,          the

government argues that nothing in the CVRA places restrictions

on   the    district       court’s     discretion         to   consider         any    reliable

information      at        sentencing         relevant         to     “the       background,

character,     and    conduct        of”    an    offender      before     the        court   for

sentencing. See 18 U.S.C. § 3661 (“No limitation shall be placed

on   the    information        concerning         the    background,       character,         and

conduct of a person convicted of an offense which a court of the

United     States     may      receive      and    consider         for   the    purpose       of

imposing an appropriate sentence.”). 3

      Contrary       to    Spiwak’s        contentions,        it    is   clear       from    the

record that the district court did not find that Ms. Dougherty

      3
        Surprisingly, during oral argument Spiwak’s counsel
conceded that Spiwak would not have cause to appeal if Ms.
Dougherty’s information had been submitted to the district court
in a letter or an affidavit. He thereby seemed to have changed
strategy. So viewed, the challenge here is to the form in which
the district court allowed Ms. Dougherty to be heard rather than
the substance of her statement. As we understand the contention,
counsel seemed to ask us to interpret the CVRA and 18 U.S.C. §
3661 in a manner that would restrict a district court to hear
from a non-victim (such as Ms. Dougherty) only in writing and
not viva voce. According to counsel, the greater impact of a
statement offered in open court militates in favor of a rule
that oral statements should be limited to the defendant and
victim of the instant offense. We find nothing in the proposed
rule to commend itself to us, but in any event, we decline
counsel’s invitation to address this issue, which was not raised
in the brief. See United States v. Williams, 378 F.2d 665, 666
(4th Cir. 1967) (per curiam) (holding issues argued orally but
not addressed in brief were waived).



                                              11
was a “victim” under the CVRA. The district court agreed with

the probation officer that Ms. Dougherty was not a victim of the

instant    offense      and,    therefore,          did    not   qualify        as   a    crime

victim under the CVRA. See supra p. 5. Thus, to the extent that

Spiwak     assigns          error     to     the         district      court’s       alleged

misapplication of the CVRA, the record simply does not disclose

error at all.

      Nor did the court err in allowing the government to proffer

Ms. Dougherty’s statement on the ground that her information

would be probative as to the government’s motion for an upward

departure.       Sentencing         courts    are    required         to    consider          “the

nature    and    circumstances         of    the    offense      and   the      history        and

characteristics of the defendant” prior to sentencing. 18 U.S.C.

§ 3553(a)(1). Indeed, there is “[n]o limitation . . . on the

information concerning the background, character, and conduct of

a person convicted of an offense which a court . . . may receive

and     consider      for     the     purpose       of     imposing        an   appropriate

sentence.” 18 U.S.C. § 3661.

      From      our   careful       review    of    the    record      in   light        of    the

arguments presented by the parties, we hold that the district

court     did     not       abuse     its    discretion          in    considering             Ms.

Dougherty’s information. It is clear from the record that the

district court considered the statement in connection with the

government’s motion for an upward departure based on the alleged

                                             12
inadequacy of Spiwak’s criminal history category and his risk of

recidivism.        The   district     court       stated,    “I    agree    that    at   a

minimum it’s suitable for relevant conduct having to do with a

variance      or     departure.”        J.A.      57.   Bearing       in     mind     the

considerable latitude that district courts enjoy at sentencing,

as authorized by 18 U.S.C. § 3661, see United States v. Seay,

553 F.3d 732, 741-42 (4th Cir. 2009), we cannot say that the

district court abused its discretion.

       Important to our holding, Spiwak does not allege or argue

on   appeal     that     he   was   unduly     prejudiced     when    the    government

failed to give prior notice that Ms. Dougherty would be present

at the sentencing hearing. Specifically, after learning that the

government intended to have Ms. Dougherty address the district

court only shortly before sentencing, Spiwak’s counsel did not

ask for a postponement of the sentencing hearing in order to

prepare    to      question    her    or     to   investigate      her     information.

Notably, as well, Spiwak’s counsel did not                         request that Ms.

Dougherty       be   placed     under      oath   and   he   did     not    request      an

opportunity to cross examine her. Nor has Spiwak suggested at

any time or in any manner that the information provided to the

district court by Ms. Dougherty was unreliable.




                                             13
                               IV.

     We discern no abuse of discretion by the district court in

considering the information presented at sentencing and Spiwak

has not otherwise suggested that the sentence is procedurally

unreasonable. Accordingly, we affirm.

                                                       AFFIRMED




                               14
