                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-2-2009

USA v. Edward Richardson
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4507




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NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                          No. 07-4507




                             UNITED STATES OF AMERICA

                                                v.

                                 EDWARD RICHARDSON,
                                            Appellant




                      On Appeal from the United States District Court
                               for the District of New Jersey
                                  (D.C. Crim. No. 07-564)
                        District Judge: Honorable Joseph E. Irenas




                        Submitted Under Third Circuit LAR 34.1(a)
                                     March 6, 2009

  Before: SLOVITER and HARDIMAN, Circuit Judges, and POLLAK,* District Judge


                                     (Filed: July 2, 2009)
                                             _____

                                           OPINION
                                            ______



       *
         Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern District
of Pennsylvania, sitting by designation.

                                                1
POLLAK, District Judge.

      Appellant Edward Richardson pled guilty to a one-count information for

knowingly possessing images of child pornography. Richardson challenges the

reasonableness of the sentence imposed by the District Court.

                                            I.

      Because we write primarily for the parties, who are familiar with the case, we will

summarize the facts and procedural history only briefly. On November 20, 2006, law

enforcement officers executed a search warrant at Richardson’s residence in Cape May,

New Jersey. Richardson informed the officers that he viewed child pornography on his

computer and used his computer to search for the pornographic images. The officers

seized Richardson’s computer and found images of child pornography on his hard drive.

App’x 13.

      On April 30, 2007, Richardson entered a guilty plea in the United States District

Court for New Jersey. Richardson pled guilty to one count of knowingly possessing three

or more graphic images of child pornography, as defined by 18 U.S.C. § 2256(8), that had

been transported in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B) and

§ 2. App’x 13. In his plea agreement, Richardson stipulated to knowingly possessing

600 or more images of child pornography, and that the images resulted from use of his

computer and showed minors engaged in sexually explicit conduct. Richardson also

stipulated that he knew that some of the images involved a minor under the age of twelve



                                            2
years old. App’x 17.

       The District Court held a sentencing hearing on November 16, 2007, at which it

sentenced Richardson to be imprisoned for fifty-one months, followed by four years of

supervised release. The District Court also ordered Richardson to register with the state

sex offender agency in any state where he resides and is employed, submit to

unannounced examination and supervision of his computer equipment, allow the

installation of monitoring software on his computer, submit to polygraph examination,

participate in mental health evaluation and treatment, pay a fine of $10,000 and otherwise

comply with the requirements of the United States Probation Office. App’x 174-79.

       To arrive at the sentence, the District Court used the three-step analysis prescribed

in United States v. Gunter, 527 F.3d 282, 285 (3d Cir. 2008) (“Gunter II”) and United

States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (“Gunter I”).

       First, the District Court calculated Richardson’s adjusted offense level. It found

that his criminal history level was I, agreeing with the recommendation in the Pre-

Sentence Report. App’x 135. Then, the District Court applied three enhancements to

Richardson’s original offense level of eighteen–one because the offense involved

materials containing a minor under the age of twelve, another for the use of a computer,

and the third because Richardson had 600 or more images, pursuant to U.S.S.G. §

2G2.2(a)(1), (b)(2), (b)(6), and (b)(7)(D), respectively. This brought the adjusted offense

level to twenty-seven. Then, the District Court subtracted three levels for acceptance of



                                             3
responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b) to arrive at the final adjusted

offense level of twenty-four. App’x 134. With a criminal history of I and adjusted

offense level of twenty-four, Richardson’s guideline range was therefore 51 to 63 months.

App’x 155.

       Second, the District Court noted that no formal departure motion was made by

Richardson, App’x 92, but heard oral argument from Richardson objecting to application

of the enhancements. Richardson contended that the guideline enhancements were more

appropriate for a defendant convicted of distribution or manufacture of child pornography

than for a defendant convicted only of possession, App’x 114, 117. The District Court

rejected Richardson’s argument, noting that Richardson was making a public policy

argument questioning the rationale of the enhancements and that the District Court did

not wish to sentence Richardson based on a personal agreement or disagreement with that

policy. App’x 134-39.

       Third, the District Court heard argument about the applicability of the factors in 18

U.S.C. § 3553(a). The District Court considered Richardson’s history of being a

productive, church-going citizen, but found that this history did not fall outside the norm

of child pornography cases. App’x 158-61. The District Court found no need to provide

for additional educational or vocational training programs for the defendant, who is

already a skilled worker, App’x 168-69, nor any need to provide for the defendant’s

particular medical requirements. App’x 170-71. Finally, the District Court determined



                                              4
that a guidelines sentence was appropriate and sentenced Richardson to fifty-one months,

a sentence at the bottom of the guidelines range. App’x 171.

                                             II.

       On appeal, Richardson challenges the reasonableness of the sentence imposed by

the District Court. Specifically, he contends that the District Court overweighted the

guidelines as against the § 3553(a) factors and thereby misapplied the Third Circuit’s

sentencing analysis as outlined in Gunter II, 527 F.3d at 285 and Gunter I, 462 F.3d at

247. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       The sentence imposed by the District Court is reviewed for unreasonableness.

United States v. Booker, 543 U.S. 220, 261 (2005); United States v. Cooper, 437 F.3d

324, 327-28 (3d Cir. 2006). That review is undertaken according to an abuse of

discretion standard for both procedural and substantive reasonableness. Gall v. United

States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007); United States v. Wise, 515 F.3d 207,

217-18 (3d Cir. 2008). At both stages of review, the party challenging the sentence has

the burden of demonstrating unreasonableness. Cooper, 437 F.3d at 332.

       To the extent that Richardson challenges the procedural reasonableness of his

sentence, we find that the District Court did not abuse its discretion. The District Court

discussed the guidelines and the § 3553(a) factors and followed the three-step sentencing

analysis outlined in Gunter I, 462 F.3d at 247.

       Next, we address the substantive reasonableness of the District Court’s inquiry.



                                             5
We have recognized that “[a] within-guidelines range sentence is more likely to be

reasonable than one that lies outside the advisory guidelines range,” Cooper, 437 F.3d at

331, but we have stressed that “a within-guidelines sentence is not necessarily reasonable

per se.” Id. “Although a within-guidelines sentence demonstrates the court considered

one of the § 3553(a) factors–namely, the guidelines range itself, 18 U.S.C. § 3553(a)(4)–it

does not show the court considered the other standards reflected in that section, assuming

they were raised.” Id. at 330. “As long as a sentence falls within the broad range of

possible sentences that can be considered reasonable in light of the § 3553(a) factors, we

must affirm.” United States v. Wise, 515 F.3d at 218; see also United States v. Tomko,

562 F.3d 558, 568 (3d Cir. 2009) (en banc).

       Richardson contends that the District Court “ignored the ample evidence before it”

because it did not distinguish Richardson’s case from the “mine run of cases” in light of

Richardson’s diagnosis of clinical depression, his need for medication for physical and

psychological conditions, and his psychological evaluation stating that the offense was a

product of the circumstances surrounding him at the time. Brief for Appellant at 38.

However, the District Court did take the various § 3553(a) factors into account.

       In consideration of the first factor–the defendant’s history–the District Court noted

that it was using its experience with “more than a hundred of these sentences” to find that

neither the unique circumstances of the defendant nor the offense supported a variance

from the guidelines. App’x 157, 160. The judge noted that the lack of prior criminal



                                              6
history deserved consideration, but was not outside the norm of cases. App’x 162.

       Richardson asserts that the District Court only made a “broad, general statement”

in consideration of the seriousness of the offense within the second § 3553(a) factor.

Brief for Appellant at 38. The sentencing judge’s analysis was more than adequate. See

United States v. Olhovsky, 562 F.3d 530, 553 (3d Cir. 2009) (explaining that the

sentencing judge should set forth enough to satisfy the appellate court that he or she has

considered the parties’ arguments, has a reasoned basis for exercising his own authority,

and has explained the rejection of any non-frivolous arguments). The judge considered

the seriousness of the crime of possession of child pornography, discussing whether, if his

personal view of the seriousness of the offense differed from that reflected in the

guidelines, it would be appropriate for him to sentence Richardson in accordance with

that view. After discussing his concern with sentencing disparities based on judges’

“own notion[s] of public policy,” the sentencing judge decided to employ his discretion to

not “substitute” his own judgment.1 App’x 173-74.


       1
           The District Court cited United States v. Ricks, 494 F.3d 394 (3d Cir. 2007) in the
sentencing colloquy to support its view that “policy disagreements are not a basis for bypassing
the guidelines.” App’x 164. We recognized in United States v. Russell that Ricks is no longer
good law. See 564 F.3d 200, 205 (3d Cir. 2009) (clarifying the effect of Spears v. United States,
---- U.S. ----, 129 S. Ct. 840 (2009) by finding that this court’s holding in Ricks that “district
courts may not categorically reject the [crack-powder cocaine] ratio” is no longer good law
(quoting Ricks, 494 F.3d at 401)); see Spears v. United States, 129 S. Ct. at 844 (“[D]istrict
courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a
policy disagreement with those Guidelines.”).
        But as we read the District Court’s discussion, we see its use of Ricks was basically
auxiliary to its analysis. Even if Ricks be deemed to have constituted more substantial support
for the District Court’s analysis, invocation of the case would still have been harmless error:

                                                7
       When the District Court addressed Richardson’s medical needs, it decided that the

Bureau of Prisons could provide the care that he needed. App’x 170-71. The record

shows that the District Court properly considered the information about Richardson’s

physical and psychological conditions when discussing this factor. Even after the District

Court finished its sentencing analysis, it mentioned specifically that it would request that

the Bureau of Prisons “evaluat[e] . . . what I consider to be [Richardson’s] serious

medical conditions [and] incarcerate him in a place that has the ability to care for those

needs.” App’x 181-82. The District Court also noted that it wanted the Bureau of

Prisons to evaluate Richardson’s back injury and depression. App’x 182.

       In sum, the District Court’s sentence, at the bottom of the guidelines, was made

reasonably after proper consideration of the guidelines and § 3553(a) factors.

                                               III.

       For the foregoing reasons, the judgment of the District Court will be affirmed.




there is no reason to suppose that, had the District Court not included Ricks in its analysis, a
different assessment of the second § 3553(a) factor would have been arrived at and a different
sentence imposed. See United States v. Smalley, 517 F.3d 208, 213 (3d Cir. 2008) (stating the
standard for harmless error review is whether the district court would have arrived at the same
sentence absent an invalid calculation under the guidelines). The District Court specifically
concluded that “[e]ven were I to agree with the [policy] arguments . . . I don’t see an argument
here. The facts uncontestedly support each of the three enhancements.” App’x 135.


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