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United States v. Alberts

United States Court of Appeals, Eleventh Circuit

June 13, 2017

DAVID RYAN ALBERTS, Defendant-Appellant.

         Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:15-cr-00190-PGB-GJK-1.

          Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

          MARTIN, Circuit Judge:

         This is David Alberts's appeal of his 120-month prison sentence imposed after he pled guilty to receiving and possessing child pornography. Mr. Alberts says the District Court made a mistake when it raised by five his offense level under United States Sentencing Guidelines ("USSG") § 2G2.2(b)(5). Mr. Alberts's sentence was made longer, as called for under § 2G2.2(b)(5), once the District Court found that he "engaged in a pattern of activity involving the sexual abuse or exploitation of a minor." He argues he should not have received this longer sentence under § 2G2.2(b)(5) because he himself was only a minor when any sexual abuse of other minors took place. Mr. Alberts also argues he should not be sentenced more harshly now, because any bad acts he committed as a teenager were decades ago. He also argues that his sentence is unreasonable. After careful review, and with the benefit of oral argument, we affirm his sentence.

         I. BACKGROUND

         Based on an investigative lead, Federal Bureau of Investigation agents in Orlando, Florida learned that in late February and early March of 2015, Mr. Alberts had been accessing a website that regularly hosted child pornography. On August 10, 2015, law enforcement officers went to Mr. Alberts's home and interviewed him. During the interview, Mr. Alberts admitted to accessing, receiving, and possessing child pornography for the last six months. He also acknowledged that he had looked at child pornography as long as 15 years ago. Upon searching his thumb drive, the agents found over 160 images of child pornography. A federal grand jury then indicted Mr. Alberts for (1) one count of receiving child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1); and (2) one count of possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). Mr. Alberts pled guilty to both counts. He did so with no plea agreement with the government.

         The Presentence Investigation Report ("PSR") sets out that Mr. Alberts admitted to engaging in sexual acts with his younger relatives on different occasions, when they were under the age of 12 and "he was approximately 16 years old." The PSR contains some details about those incidents. The PSR also says that Mr. Alberts admitted to searching for images depicting incest, and indeed, law enforcement agents found numerous incest-related stories on his thumb drive. The PSR explained that as a child, Mr. Alberts suffered physical, emotional, and sexual abuse at the hands of various family members. Based on his teenage sex acts with his younger relatives, the PSR assessed a five-level increase to his offense level under USSG § 2G2.2(b)(5), for "engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor." So although the PSR also reflected that Mr. Alberts had served in the United States Military for 20 years and received commendations for his service, it calculated his offense level to be 33 and his criminal history category to be I. This resulted in a sentencing guideline range of 135 to 168 months.

         At sentencing, Mr. Alberts did not challenge the factual accuracy of the PSR, but he objected to the § 2G2.2(b)(5) enhancement. He argued the enhancement did not apply to him for three reasons. First, he himself was a minor when he engaged in sexual acts with his younger relatives. Second, those events happened about 30 years ago and "there is no evidence that [he] has sexually abused or exploited a child as an adult." Third, the facts surrounding those events are "vague and not corroborated or [] investigated, " such that it is "somewhat unclear as to what may or may not have happened with those two children." Mr. Alberts requested a downward variance based in part on his military service; the extensive physical, emotional, and sexual abuse he suffered as a child at the hands of his family members; and the depression and impaired psychological development he suffered as a result of this abuse.

         The District Court adopted the facts set out in the PSR, and overruled Mr. Alberts's objection to the five-level "pattern of activity" increase under § 2G2.2(b)(5). It accepted the determination that Mr. Alberts's guidelines range was 135 to 168 months. Then, in deciding Mr. Alberts's sentence, the court expressly identified and weighed several aggravating and mitigating factors. As aggravators, the court discussed the nature and circumstances of Mr. Alberts's crime, observing that it involved images of very young children and "fairly sophisticated" use of a special network that enabled him to access child pornography on the internet anonymously. The court highlighted the seriousness of Mr. Alberts's offense in terms of the harm done to child victims when child pornography is circulated. The court emphasized the need for punishment and specific deterrence. It also factored in his past sexual conduct with his younger relatives and his "long term" and "very serious" preoccupation with "sex with very young children." The sentencing judge told Mr. Alberts "[y]our pattern of behavior over the years demonstrates to me you do pose a danger to the community and you need a period of time where you can receive the treatment that you should have." The court also discussed mitigating factors. Specifically, the court recognized the extensive abuse Mr. Alberts suffered as a child, as well as the mental health issues he experienced as a result of that abuse. The court noted Mr. Alberts's long and decorated service in the military, as well as the impact the sentence would have on his family, including his daughter.

         In light of all these circumstances, the District Court decided to sentence Mr. Alberts below his guideline range. The court said that allowing § 2G2.2(b)(5) to raise Mr. Alberts's offense level by five "slightly overstates the seriousness of [his] offense conduct" because the sexual acts he engaged in with his younger relatives happened so long ago. Thus, "after considering all the factors set forth in" 18 U.S.C. § 3553, the court sentenced Mr. Alberts to 120-months imprisonment.

         II. THE USSG § 2G2.2(b)(5) ENHANCEMENT

         Mr. Alberts challenges the longer sentence he got on account of USSG § 2G2.2(b)(5) on three grounds. We address each argument in turn. In doing so, we review the District Court's findings of fact supporting the longer sentence for clear error. United States v. McGarity, 669 F.3d 1218, 1232 (11th Cir. 2012). The government "bears the burden of establishing by a preponderance of the evidence the facts necessary to support a sentencing enhancement." United States v. Askew, 193 F.3d 1181, 1183 (11th Cir. 1999). Further, whether a particular guideline enhancement applies to a given set of facts is a question of law we review de novo. McGarity, 669 F.3d at 1232.


         First, Mr. Alberts says the government did not put forward sufficient evidence to justify giving him a longer sentence because of a "pattern of activity" as defined by § 2G2.2(b)(5). The PSR and the District Court applied this enhancement based on Mr. Alberts's own admission to law enforcement officers. As we've said, Mr. Alberts did not object at sentencing to the facts included in the PSR on this subject. Neither does he deny those facts on appeal, nor does he claim that his admission was mischaracterized. Instead, he argues his admission was not sufficient to support the enhancement because what he can ...

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