                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-12-2008

USA v. Kuchler
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4129




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                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                               __________

                                  No. 07-4129
                                  __________

                        UNITED STATES OF AMERICA

                                         v.

                        GEORGE ROBERT KUCHLER,
                                         Appellant.

                                  __________

                 On Appeal from the United States District Court
                      for the District of Middle Pennsylvania
                             (D.C. Crim. No. 07-00034)
                 District Judge: Honorable Christopher C. Connor
                                    __________

                            Argued on July 24, 2008

              Before: MCKEE, FUENTES and WEIS, Circuit Judges.

                            (Filed: August 12, 2008)
                                   __________


Gordon A. Zubrod, Esq.           [ARGUED]
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Attorney for Appellee
United States of America

                                   (continued)
Ronald A. Krauss, Esq.            [ARGUED]
Office of Federal Public Defender
Suite 306
100 Chesnut Street
Harrisburg, PA 17101
                                     __________

                                OPINION OF THE COURT
                                      __________

FUENTES, Circuit Judge.

       George Kuchler pled guilty to receipt of child pornography, and was sentenced to,

inter alia, a lifetime term of supervised release. Kuchler claims that the term is

unreasonable because it is more severe than supervised release terms imposed on other

defendants convicted of the same offense. For the reasons that follow, we find that the

District Court did not abuse its discretion when it imposed a lifetime term of supervised

release, and we will affirm.

                                              I.

       Federal agents conducted an investigation in 2001 into credit card verification

services that served websites related to child pornography. A search warrant executed in

connection with that investigation turned up customer lists for the websites in question.

One of the lists indicated that Kuchler had used his credit card a number of times to pay

for websites that sold child pornography.

       The federal agents subsequently launched a sting operation. They mailed Kuchler

a solicitation for a mail order video service that sold child pornography. Kuchler sent in a



                                              2
request for certain videos and was mailed an order form, which he returned with an order

for five videos – three of which constituted child pornography – and payment. On

November 1, 2006, the agents delivered the videos to Kuchler’s post office box, and then

arrested Kuchler once he had retrieved the videos.

         Kuchler waived his Miranda rights and confessed to knowingly possessing and

receiving child pornography. He gave a statement to the police in which he admitted that

he searched the Internet for child pornography; that he often viewed photographs of child

pornography; that he enjoyed reading stories about incest; the he masturbated one to three

times per day to child pornography and/or to stories about incest; and that he had

previously used his credit card to purchase child pornography on the Internet. He

subsequently entered a plea agreement, whereby he agreed to plead guilty to one count of

receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2)(A) in exchange for a

term of imprisonment and supervised release.

         At sentencing, the District Court adopted the findings contained in the presentence

report (“PSR”).1 These findings included the fact that Kuchler had at least one picture of

child pornography, and possibly as many as five pictures, on his computer that the time

that his apartment was searched in connection with his arrest. The District Court also

adopted the PSR’s conclusion that Kuchler’s base offense level was a 28 with a criminal




   1
       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231.

                                               3
history category of I. This combination resulted in an advisory Guidelines sentence of

78-97 months, and a recommended supervised release term of life.

       Kuchler sought both a downward departure and a variance for the sentence and

further argued that a supervised release term of life was unreasonable; the District Court

denied the requests and rejected Kuchler’s argument with regard to the supervised release

term. The District Court ultimately sentenced Kuchler to 78 months in prison and a

lifetime term of supervised release.

       Kuchler entered a timely appeal; he does not challenge his sentence or the

conditions of his release, but argues only that the District Court’s decision to impose a

supervised release term of life was unreasonable. We have jurisdiction pursuant to 28

U.S.C. § 1291.

                                             II.

       We have held that the duration of a term of supervised release imposed by a

District Court is reviewed under the same standard as is a condition of supervised release.

See United States v. Voelker, 489 F.3d 139, 143-44 (3d Cir. 2007) (finding that the

“discussion of the propriety of the conditions imposed on [a] term [of supervised release]

applies to duration of the term with equal force.”). As we review conditions of

supervised release for abuse of discretion, it follows that we review the term of

supervised release for abuse of discretion as well. Id. at 143 n.1 (citing United States v.

Crandon, 173 F.3d 122, 127 (3d Cir. 1999)). To determine whether a district court has



                                              4
properly exercised its discretion, we look to see if a condition of supervised release – and

by extension, the term of supervised release – has met two criteria. First, the term must

be “reasonably related” to the factors set forth in 18 U.S.C. § 3553(a)(1) & (2)(B)-(D);

that is, the District Court may consider the “nature and circumstances of the offense and

the history and characteristics of the defendant[] and [] the need for the condition to deter

future criminal conduct, protect the public, and provide the defendant with necessary

training, medical care, or other correctional treatment.” United States v. Smith, 445 F.3d

713, 717-18 (3d Cir. 2006) (quoting United States v. Loy, 237 F.3d 251, 256 (3d Cir.

1999)). Second, the term “must involve no greater deprivation of liberty than is

reasonably necessary to achieve the deterrence, public protection and/or correctional

treatment for which it is imposed.” Id. at 718 (quoting Loy, 237 F.3d at 256).

       Moreover, we must be “satisfied” that the District Court “exercised its discretion

by considering the relevant factors.” Id. at 716 (quoting United States v. Cooper, 437 F.3d

324, 329 (3d Cir. 2006)). Such consideration must be “meaningful,” but the District

Court “need not discuss every argument made by a litigant if an argument is clearly

without merit,” nor must a District Court making findings specific to “each of the §

3553(a) factors if the record makes clear the court took the factors into account in

sentencing.” Id. (quoting Cooper, 437 F.3d at 329).

                                             III.




                                              5
       Kuchler’s conviction carries a mandatory 5-year minimum term of supervised

release pursuant to 18 U.S.C. § 3583(k), and a maximum supervised release term of life.

The Guidelines Policy Statement at U.S.S.G. § 5D1.2(b) states that if the instant offense

of conviction is a sex offense, the statutory maximum term of supervised release is

recommended. Therefore, the advisory Guidelines recommendation for supervised

release in this case was life.

       As noted above, Kuchler’s only argument on appeal is that the District Court’s

decision to impose a supervised release term of life was unreasonable. Kuchler contends

that the term is unreasonable because it is a more severe sentence than other defendants

who have also been convicted of possession of child pornography, so that there exists an

“unwarranted sentence disparit[y] among defendants with similar records who have been

found guilty of similar conduct” in violation of 18 U.S.C. § 3553(a)(6). Appellant’s Br.

at 9. Kuchler points specifically to an unpublished opinion, United States v. Kosteniuk,

No. 06-3178, 2007 WL 2980801 (3d Cir. 2007), where we found reasonable the

imposition of a seven-year term of supervised release for a defendant who had plead

guilty to two counts of receipt and possession of child pornography. Kuchler contends

that because his “aggravating factors” are “less severe” than those in Kosteniuk, and

because a seven-year term of supervised release was reasonable in that case, it must

follow that a lifetime term of supervised release here is unreasonable. Appellant’s Br. at

11.



                                             6
       Kuchler’s argument has two fatal flaws. First, the appeal in Kosteniuk was a

defense appeal, so that the only issue before the Court was whether the seven-year term of

supervised release imposed in that case was reasonable. We did not consider whether a

District Court, on those same facts, would have been within its discretion to impose a

more lengthy term of supervised release.

       Second, Kuchler cannot rely on 18 U.S.C. § 3553(a)(6) to contend that his

sentence was unreasonable because a different district court, confronted with a different

defendant in a different case with a different set of facts, decided to impose a different

sentence. As we recently explained, in rejecting a similar argument premised on 18

U.S.C. § 3553(a)(6),

       [t]hat [a defendant] can find another case where a defendant charged with a
       somewhat similar crime and facing the same advisory sentencing range
       received a sentence outside of the applicable sentencing range does not
       make [this defendant’s] within-Guidelines sentence unreasonable. If that
       were the law, any sentence outside of the Guidelines range would set
       precedent for all future similarly convicted defendants. This is not, and
       cannot be, the law. Although a similar sentence might also be reasonable
       here, that does not make [this defendant’s] sentence unreasonable.

United States v. Jimenez, 513 F.3d 62, 91 (3d Cir. 2008). Here, both Kuchler and

Kosteniuk received terms of supervised release that were within the Guidelines range, but

the same logic applies. That one district court chose to impose a more stringent within-

Guidelines sentence than another in two completely different cases is not problematic; it

is the nature of our system, which provides district courts with the discretion to consider

the § 3553(a) factors in the context of a specific case and to reach a decision based on the


                                              7
facts and circumstances of that case. Such a decision is not an abuse of discretion if the

judge followed the proper sentencing procedures and if the resulting sentence is

reasonable.

        Consequently, the only analysis we must engage in to determine whether a

lifetime term of supervised release is appropriate in this case is to determine whether the

District Court properly exercised its discretion by giving “meaningful” consideration to

the “relevant factors.” Smith, 445 F.3d at 716 (quoting Cooper, 437 F.3d at 329 (3d Cir.

2006)). As noted above, this analysis involves a determination of whether the District

Court met two criteria for reasonableness that specifically apply to supervised release:

whether the term of supervised release is “reasonably related” to the factors set forth in 18

U.S.C. § 3553(a)(1) & (2)(B)-(D), and whether it involves “no greater deprivation of

liberty than is reasonably necessary to achieve the deterrence, public protection and/or

correctional treatment for which it is imposed.” Id. at 716-18. The legislative history

surrounding the enactment of Section 3583(k) indicates that “Congress explicitly

recognized the high rate of recidivism in convicted sex offenders” and that this concern

motivated the policy decision that the recommended Guidelines supervised release term

for sex offenders be life. United States v. Perrin, 478 F.3d 672, 676 (5th Cir. 2007)

(quoting United States v. Allison, 447 F.3d 402, 406 (5th Cir. 2006) (citing in turn 18

U.S.C. § 3583(k); H.R.Rep. No. 108-66, reprinted in 2003 U.S.C.C.A.N. 683 (2003)

(conf. report))).



                                             8
       On the “reasonably related” question, we find that the District Court conducted an

appropriate § 3553(a) analysis. It explained the factors played out in this particular case:

Kuchler had admitted to viewing child pornography repeatedly over the previous ten

years; Kuchler had expressed a desire to receive help but had been unable to change his

behavior; Kuchler had four prior convictions for drug and alcohol possession that

suggested that Kuchler had an addictive personality; in addition to the videos Kuchler had

purchased as part of the sting operation, Kuchler had viewed child pornography

extensively online; and Kuchler had admitted to purchasing other child pornography in

the past. (J.A. 72-73.) The District Court also noted the appropriate term of supervised

release by adopting the findings and Guidelines calculations of the presentence report in

their entirety.

       On the “not more than necessary ... to achieve [] deterrence [and] public

protection” question, Smith, 445 F.3d at 718, the District Court first emphasized that the

need to protect the public from people who view child pornography “cannot be

understated,” and then explains that it was “very concerned about recidivism” in this case

both because Kuchler appeared unable to change his behavior (which, by his own

admission, stretched over 10 years) despite recognizing it was wrong, and because

Kuchler had four prior convictions for alcohol or drug-related offenses that suggest

Kuchler has an “addictive personality.” (J.A. 72-73.) The District Court also stressed that




                                              9
Kuchler used the Internet many times to access child pornography and there was a need to

“afford adequate deterrence to [such] criminal conduct.” (J.A. 73.)

       Therefore, we conclude that the District Court’s decision to impose a lifetime term

of supervised release in this case was not an abuse of discretion.2

                                             IV.

       For the foregoing reasons, we affirm the judgment of the District Court.




   2
     We caution that even when a given term of supervised release term is strongly
recommended by the Guidelines, district courts should refrain from imposing that
recommended term blindly and without careful consideration of the specific facts and
circumstances of the case before it. As we have held,

       [a] district judge is vested with considerable discretion in the sentencing of
       convicted defendants. In order that he [or she] may make an informed use
       of this discretion, Fed. R. Crim. P. 32(c) requires a presentence report in
       each case. Further, Fed. R. Crim. P. 32(a) requires the court, before
       imposing sentence, to permit a defendant to make a statement on his own
       behalf and to present information which might give cause for mitigation of
       punishment. A fixed view as to sentencing is thus inconsistent with the
       discretion vested in the trial judge that he may fulfill his mandate to tailor
       the sentence imposed to the circumstances surrounding each individual
       defendant, and frustrates the operation of those rules set up to effect such a
       result.

United States v. Thompson, 483 F.2d 527, 529 (3d Cir. 1973) (emphasis added).

                                             10
