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


3-30-2009

USA v. Wade Pine
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1840




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NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                     No. 08-1840
                                     __________

                          UNITED STATES OF AMERICA

                                          v.

                              WADE RANDALL PINE,
                                              Appellant.
                                  __________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Criminal No. 07-176)
                       (District Judge: Christopher C. Conner)
                                     __________

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  March 6, 2009

                  Before: BARRY and GREENBERG, Circuit Judges,
                       and ACKERMAN, Senior District Judge.*

                                (Filed: March 30, 2009)




      *
        Honorable Harold A. Ackerman, Senior United States District Judge for the
District of New Jersey, sitting by designation.

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                                        __________

                               OPINION OF THE COURT
                                     __________

ACKERMAN, Senior District Judge.

       Defendant Wade Randall Pine appeals his 78-month sentence for possession of

child pornography on the basis that the District Court failed to give sufficient

consideration to his history of mental illness and his need for correctional treatment. In

balancing the statutory sentencing factors under 18 U.S.C. § 3553(a), the District Court

provided a thoughtful and detailed explanation for Pine’s sentence, which properly took

into account Defendant’s psychological condition and need for appropriate treatment. We

will affirm.

       On August 27, 2007, Pine pled guilty to possession of child pornography in

violation of 18 U.S.C. § 2252A(a)(5)(B). At sentencing, Defendant did not object to the

guideline calculations contained in the presentence investigation report (PSR) and did not

move for a downward departure. The PSR recommended a total offense level of 28 with

a criminal history category of I, yielding an advisory guideline range of 78 to 97 months.

The District Court adopted the PSR’s guideline calculation and, after considering the

sentencing factors set forth in 18 U.S.C. § 3553(a), declined Defendant’s request for a

downward variance and sentenced Pine to 78 months in prison, to be followed by a 10-

year term of supervised release. Additionally, the District Court imposed a $500 fine and

a $100 special assessment.

                                              2
       In appealing the sentence, Defendant only contests the District Court’s balancing

of the § 3553(a) factors, arguing that the District Court failed to properly account for

defense testimony regarding Defendant’s history of mental illness, his need for

individualized counseling, and the assessment of a defense psychiatrist that Defendant

was unlikely to physically approach someone in a predatory manner. The District Court

had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. §

1291 and 18 U.S.C. § 3742(a). United States v. Lloyd, 469 F.3d 319, 321 (3d Cir. 2006)

(citations omitted).

       This Court reviews the reasonableness of the District Court’s sentence for abuse of

discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007); Lloyd, 469 F.3d at 321. In

order for this Court to find the District Court’s sentence reasonable, this Court must find

that the District Court “gave meaningful consideration” to the sentencing factors set forth

in 18 U.S.C. § 3553(a). United States v. Smith, 445 F.3d 713, 716 (3d Cir. 2006) (quoting

United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)). The District Court “need not

discuss every argument made by a litigant,” nor must it make express findings for each of

the § 3553(a) factors, so long as “the record makes clear the court took [them] into

account in sentencing.” Smith, 445 F.3d at 716 (quoting Cooper, 437 F.3d at 329); see

also United States v. Goff, 501 F.3d 250, 255 (3d Cir. 2007).

       Section 3553(a) requires the District Court to consider, inter alia:

              (1) the nature and circumstances of the offense and the history and
              characteristics of the defendant; [and]

                                        3
              (2) the need for the sentence imposed
                      (A) to reflect the seriousness of the offense, to promote
                      respect for the law, and to provide just punishment for the
                      offense;
                      (B) to afford adequate deterrence to criminal conduct;
                      (C) to protect the public from further crimes of the
                      defendant; and
                      (D) to provide the defendant with needed educational or
                      vocational training, medical care, or other correctional
                      treatment in the most effective manner[.]

18 U.S.C. § 3553(a). In this case, the record establishes that the District Court gave

meaningful consideration to the sentencing factors and propounded a reasonable sentence.

       The District Court properly assessed the seriousness of the offense, noting that

Defendant possessed more than three thousand images of child pornography, many of

which included sexually explicit images of prepubescent children. (App. at 114.) On the

basis of Defendant’s unsworn statements at the sentencing hearing that he viewed child

pornography as a “collector’s item” and that he was a victim of internet pop-up

advertisements (App. 83–84), the court concluded that Defendant “does not appreciate

and has no real sense of remorse that this child pornography involves the sexual

exploitation of children.” (App. 116.) The court also noted that Defendant had been

gainfully employed for the past twenty years, that he had no prior criminal history, and

that he “has lived in a very controlled environment his entire life” with “overprotective”

parents. (App. 116–17.) Nevertheless, “the sheer volume of child pornography

possessed” convinced the District Court that Pine posed “a clear risk to the community

and a likelihood of recidivism.” (App. 117–18.) Accordingly, the District Court

                                             4
concluded that “a sentence at the low end of the guideline range is appropriate and

necessary to achieve the objectives set forth in [§ 3553(a)] without being greater than

necessary to achieve those objectives.” (App. 118.) The period of supervised release, the

court further noted, “will allow for the monitoring of Mr. Pine’s conduct and help protect

the community.” (Id.)

       With regard to Defendant’s need for correctional treatment, the District Court

acknowledged that Pine had been diagnosed as suffering from “severe depression” and

“suicidal ideation.” (App. 117.) Although Pine continued to undergo counseling, the

court noted that “his prognosis for improvement is guarded.” (Id.) The District Court

ultimately determined that Defendant “[was] in need of intense psychiatric treatment,

which can be provided at specialized programs and facilities offered by the Bureau of

Prisons.” (App. 118.)

       Defendant argues that the District Court failed to properly consider the sentencing

testimony of Dr. John Hume, a psychiatrist who opined that Defendant was not a risk of

becoming a child predator and that Defendant would be vulnerable to mistreatment in

prison. These “unique” circumstances, Defendant argues, warrant a downward variance.1



       1
         Although Defendant requests a “downward departure,” he does not base his argument on
a specific guideline provision or the District Court’s calculation of his total offense level under
the U.S. Sentencing Guidelines. This Court has recognized that such arguments, attacking the
District Court’s exercise of discretion in balancing the § 3553(a) factors to determine an
appropriate sentence, are requests for a variance, not departure. See, e.g., United States v.
Severino, 454 F.3d 206, 209 (3d Cir. 2006).


                                                 5
Defendant also suggests that the District Court did not sufficiently focus on his history of

mental illness and his need for correctional treatment, given that § 3553(a)(2)(D) counsels

sentencing courts to weigh the need “to provide the defendant with . . . medical care, or

other correctional treatment.” Neither contention demonstrates that the District Court

abused its discretion.

       Defendant cannot show that the District Court failed to give meaningful

consideration to the § 3553(a) factors. Although it did not specifically address Dr.

Hume’s testimony, the District Court did give ample consideration to Defendant’s unique

psychological condition and his need for continuing therapy. The court acknowledged the

negative impact of Defendant’s overprotective parents, his clinical depression, and the

grim prognosis for recovery. The court further determined that Defendant needed

continuing psychiatric treatment and deemed the federal Bureau of Prisons capable of

providing that treatment. Just because the defense psychiatrist prescribes that Defendant

receive continuing treatment in a non-prison environment, that fact does not oblige the

District Court to accept this conclusion.2 Indeed, most defendants convicted of crimes

would prefer therapy to prison, if given their druthers.

       Furthermore, Dr. Hume’s testimony regarding Defendant’s non-predatory nature

borders on the irrelevant. Defendant’s implicit argument that possession of child



       2
        This is especially true where the defense psychiatrist bases his recommendation without
knowledge of the sex offender treatment programs provided by the Federal Bureau of Prisons.
(Cf. App. 68.)

                                               6
pornography is a lesser crime than more direct forms of sexual abuse has no bearing on

the District Court’s assessment of the seriousness of Pine’s crime—possessing more than

3,000 images of child pornography— and the need for the sentence to deter Pine and

others from committing the same. Cf. Goff, 501 F.3d at 259 (noting that the defendant’s

lack of a propensity to molest children “is, in one sense, irrelevant” to the District Court’s

assessment of the seriousness of the crime of possessing child pornography). The court

recognized that Defendant possessed a substantial volume of child pornography and

determined, based on its evaluation of the record and Pine’s statements at the hearing, that

Pine was likely to continue collecting child pornography in the future. In light of this

record, we cannot say that the District Court’s sentence was unreasonable.

       Defendant would have this Court apply the imprecise calculus of § 3553(a) as a

rigid mathematical formula that requires the District Court to “show its work” on each

sub-factor. Yet, we have never read the sentencing factors to impose such a burden. See,

e.g., Smith, 445 F.3d at 716 (quoting Cooper, 437 F.3d at 329). The record clearly

establishes that the District Court gave meaningful consideration to Defendant’s unique

characteristics, offense history, and the need for the sentence to reflect the seriousness of

the offense, deter future misconduct, and provide Defendant with continuing

psychological treatment. There was no error here. We will affirm.




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