United States v. Robinson

CLAY

Vacated and remanded. Recognized as Invalid 18 U.S.C.A. § 3742(e) ARGUED: Kevin M. Mulcahy, United States Attorney's Office, Detroit, Michigan, for Appellant. Kimberly W. Stout, Birmingham, Michigan, for Appellee. ON BRIEF: Kevin M. Mulcahy, United States Attorney's Office, Detroit, Michigan, for Appellant. Kimberly W. Stout, Birmingham, Michigan, for Appellee.

CLAY, Circuit Judge.

The government appeals, for the second time, from the noncustodial sentence imposed on Rufus Robinson (“Defendant”) for the possession of more than seven thousand images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Defendant's previous sentence of one day of incarceration and five years of supervised release was held substantively unreasonable by this Court in United States v. Robinson, 669 F.3d 767 (6th Cir.2012) (“ Robinson I ”). On remand, the district court again sentenced Defendant to one day of incarceration, with credit for time served. The district court also lengthened the period of supervised release and imposed additional conditions of release. The government's second appeal raises the question of whether this second sentence is substantively reasonable.

For the reasons set forth below, we VACATE Defendant's sentence and REMAND the case for reassignment and resentencing.

Indeed, the handful of noncustodial cases cited by the district court appear to be outliers. Just last year, another panel of this Court cited the statistic, set out by the Sentencing Commission in a report to Congress, that “fully 96.6 percent of first-time child-pornography-possession convictions led to at least some prison time.” United States v. Elmore, 743 F.3d 1068, 1076 (6th Cir.2014) (emphasis in original) (citing U.S. Sentencing Commission, Report to the Congress: Federal Child Pornography Offenses, Chapter 6.C (2012)). A brief sampling of Sixth Circuit sentencing decisions in possession-of-child-pornography cases illustrates that sentences of significant terms of imprisonment are not unusual. Elmore, 743 F.3d at 1070 (affirming sentence of fifty-one months of imprisonment and ten years of supervised release); United States v. Gamble, 709 F.3d 541 (6th Cir.2013) (affirming sentence of eighty-two months of imprisonment); United States v. Bolton, 669 F.3d 780 (6th Cir.2012) (affirming sentence of seventy-two months of imprisonment) (conduct involved distribution of the images through a peer-to-peer file-sharing program); United States v. Rigsby, 445 Fed.Appx. 838 (6th Cir.2011) (affirming sentence of sixty months of imprisonment); United States v. Myers, 442 Fed.Appx. 220 (6th Cir.2011) (affirming sentence of sixty months of imprisonment); United States v. Staten, 435 Fed.Appx. 422 (6th Cir.2011) (affirming sentence of seventy-two months of imprisonment); United States v. Woods, 421 Fed.Appx. 554 (6th Cir.2011) (affirming sentence of 110 months of imprisonment); United States v. Edmiston, 324 Fed.Appx. 496 (6th Cir.2009) (per curiam) (affirming sentence of one year and one day); United States v. Grossman, 513 F.3d 592 (6th Cir.2008) (affirming sentence of sixty-six months of imprisonment) (crime involved images of prepubescent minors and sadistic images); United States v. Burke, 252 Fed.Appx. 49 (6th Cir.2007) (affirming sentence of twenty-four months of imprisonment and three years of supervised release) (crime involved images of prepubescent minors and images portraying sadistic or masochistic conduct).

The deficiency of the district court's analysis of potential unwarranted sentencing disparities on a national level contributed to the imposition of a substantively unreasonable sentence. See Robinson I, 669 F.3d at 774 (“A sentence may be considered substantively unreasonable when the district court ... fails to consider relevant sentencing factors”).

The district court heavily relied on new mitigating evidence in connection with its extraordinary variance from the guidelines recommendation. At resentencing, Defendant submitted evidence of significant mental illness that had been previously undiagnosed. Following his conviction, Defendant allegedly made three suicide attempts. He contends that after the first attempt, he repeatedly experienced auditory hallucinations that consisted of voices telling him to kill himself. His suicide attempts resulted in significant periods of inpatient treatment. Based on his medical records from those hospitalizations and an evaluation of Defendant, a psychologist retained by defense counsel diagnosed Defendant with schizoaffective disorder. The psychologist also noted other possible diagnoses, including major depression with psychotic features. Additionally, the psychologist's report characterized Defendant's behavior in collecting over seven thousand child pornography images as a manifestation of “compulsive hoarding.” Apart from his new arguments regarding mental illness, Defendant also argued at resentencing that his record on supervised release showed that he had been rehabilitated. The district court appeared to accept this argument based on the fact that Defendant had not reoffended during his time on supervised release. As we have already discussed, the district court unreasonably characterized Defendant's supervised release record as “extraordinary.”

The district court was fully entitled to take post-sentencing mitigating evidence into account in considering the § 3553(a) factors. Indeed, the Supreme Court has instructed that “highly relevant—if not essential—to the selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.” Pepper v. United States, 562 U.S. 476, 131 S.Ct. 1229, 1235, 179 L.Ed.2d 196 (2011) (alteration and internal quotation omitted). In Pepper, the Court held that a district court could, and should, consider evidence of post-sentencing rehabilitation when resentencing a defendant. Id. Evidence of a criminal defendant's significant mental illness, whether occurring before or after the initial sentencing, is equally relevant to crafting a just sentence under § 3553(a). As the Supreme Court has repeatedly emphasized, “[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Koon v. United States, 518 U.S. 81, 113, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), quoted in Rita, 551 U.S. at 364, 127 S.Ct. 2456 (Stevens, J., concurring), Gall, 552 U.S. at 52, 128 S.Ct. 586 (majority opinion), and Pepper, 131 S.Ct. at 1239–40. For that very reason, 18 U.S.C. § 3661 provides that “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.”

We do not doubt that Defendant's contentions regarding mental illness, if credible, could qualify as a compelling justification that may support a significant downward variance from the Guidelines range. See Gall, 552 U.S. at 50, 128 S.Ct. 586; Pepper, 131 S.Ct. at 1235, 1239–40. Indeed, the government appears to agree with this assessment. At the sentencing hearing, the government explained that its recommendation of three years of confinement was “down well below 50 percent of the guideline range applicable to Mr. Robinson,” and that it made that recommendation “despite the much higher guideline range, in recognition of some of the personal characteristics of Mr. Robinson, including some of the mental health issues that were identified by [defense counsel] in her memo, as well as by Probation.” (R. 57 at 263.) The district court not only rejected the government's below-guidelines recommendation, it also rejected Defendant's own proposal that would have entailed a lengthy period of home confinement. The district court explained that it saw no need to impose home confinement “because that would be pandering to the Sixth Circuit for no reason.” ( Id. at 288.) It also stated, without explanation, that home confinement “would be contraindicated in terms of [Defendant's] mental health and his continued progress.” ( Id.)

Although the mitigating evidence appears significant, its presence in the record cannot cure the defects in the district court's analysis of the § 3553(a) factors discussed above. See Bistline, 720 F.3d at 634 (district court erred in “minimizing or disregarding altogether the serious factors that favor a more severe [sentence]”). The district court plainly failed to recognize the seriousness of Defendant's individual conduct. It indicated that it would not seriously consider the need for general deterrence, despite clear guidance from this Court's previous opinion that general deterrence was an important sentencing goal in child pornography cases, particularly where defendants contribute to creating a market by paying to access the illicit images. And the district court erred in neglecting the national scope of the disparities inquiry. Each of these failures strongly points to substantive unreasonableness, and they fly in the face of this Court's unmistakable guidance in Robinson I. See 669 F.3d at 774. On these facts, we cannot find that the district court's reliance on significant mitigating evidence rendered the sentence reasonable.

Although not requested by the government, we conclude that the case must be reassigned for resentencing by another district court judge. Under 28 U.S.C. § 2106, this Court has the power to order reassignment of a case on remand. Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 580 (6th Cir.2013). The principal factors considered in determining whether reassignment is appropriate include “(1) whether the original judge would reasonably be expected to have substantial difficulty in putting out of his or her mind previously expressed views or findings; (2) whether reassignment is advisable to preserve the appearance of justice; and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.” Rorrer v. City of Stow, 743 F.3d 1025, 1049 (6th Cir.2014) (quoting United States ex rel. Williams v. Renal Care Grp., Inc., 696 F.3d 518, 532–33 (6th Cir.2012)).

On the nearly identical facts of Bistline, this Court ordered reassignment because the record demonstrated that the “original judge would reasonably be expected ... to have substantial difficulty in putting out of his mind previously-expressed views or findings[.]” Bistline, 720 F.3d at 634–35 (alterations in original) (quoting United States v. Garcia–Robles, 640 F.3d 159, 168 (6th Cir.2011)). There, as here, the district court refused on remand to heed the guidance of this Court and reimposed a sentence that failed to reflect the seriousness of a child pornography crime. See id. As in Bistline, we believe that the first factor weighs strongly in favor of reassignment. The district court here has made plain that it would consider it “pandering” to this Court to impose a sentence of confinement, and it has now twice refused to confront the gravity of Defendant's conduct. We are not confident that it will be able to put its previously expressed views aside in approaching the task of resentencing Defendant. The other two factors do not weigh against reassignment. In particular, we note that the record in this case is not particularly voluminous, nor would it entail substantial waste or duplication for another judge to familiarize himself with the case in preparation for resentencing.

For the foregoing reasons, we VACATE Robinson's sentence, and

the case for reassignment to another district court judge and for resentencing.