US v. King

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; David H. Souter, Associate Supreme Court Justice and Bruce M. Selya, Appellate Judge. Published. [12-2047]

Case: 12-2047

Document: 00116643775

Page: 1

Date Filed: 01/31/2014

Entry ID: 5798358

United States Court of Appeals
For the First Circuit
No. 12-2047
UNITED STATES OF AMERICA,
Appellee,
v.
THOMAS KING,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before
Torruella, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.

Alexandra Deal, with whom Stern, Shapiro, Weissberg & Garin,
LLP was on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

January 31, 2014

________
* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.

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SELYA, Circuit Judge.

Date Filed: 01/31/2014

Entry ID: 5798358

The federal sentencing guidelines

are designed to serve as tools to assist judges in performing one
of their most consequential tasks.
robotic

sentencing

outcomes.

They are not meant to dictate
In

this

single-issue

appeal,

defendant-appellant Thomas King challenges his 72-month term of
immurement as substantively unreasonable. As framed, his challenge
both distorts the function of the federal sentencing guidelines and
undervalues

the

district

court's

broader

appraisal

of

the

seriousness of the offense of conviction. After setting the record
straight, we affirm.
Inasmuch as this appeal follows a guilty plea, we draw
the factual background from the plea agreement, the change-of-plea
colloquy, the presentence investigation report (PSI Report), and
the transcript of the disposition hearing.

See United States v.

Fernández-Cabrera, 625 F.3d 48, 50 (1st Cir. 2010).

For present

purposes, a brief synopsis suffices.
In July of 2011, a federal grand jury sitting in the
District of Maine returned an indictment charging the defendant
See 18

with possessing a computer that held child pornography.
U.S.C. § 2252A(a)(5)(B).
examination

of

surreptitiously

the

The charge arose out of a forensic

defendant's

recorded

videos

computer,
of

the

which

revealed

defendant's

minor

stepdaughter masturbating in her bathroom. The defendant initially

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maintained his innocence but, within a matter of months, entered a
guilty plea.
When the PSI Report was prepared, it recommended a base
offense level of 18.

It further recommended the application of a

series of enhancements: five levels for a pattern of abuse, see
USSG §2G2.2(b)(5); two levels for the use of a computer in the
commission of the offense, see id. §2G2.2(b)(6); and three levels
for

possessing

§2G2.2(b)(7)(B).1

150

to

300

offending

images,

see

id.

Assuming a three-level decrease for acceptance

of responsibility, see id. §3E1.1, the PSI Report projected the
total offense level as 25.

Based on this projection and the

absence of any prior criminal history, the report suggested a
guideline sentencing range (GSR) of 57 to 71 months.
The district court convened the disposition hearing on
August 21, 2012.

The defendant challenged the application of the

computer enhancement, arguing that it overstated the gravity of his
offense

because

it

was

meant

to

target

child

pornography

trafficking on the Internet (an activity in which he had not
engaged).

He also challenged the number-of-images enhancement,

arguing that it unfairly lumped his small cache of videos with
larger collections of child pornography.

1

For sentencing purposes, each video clip is deemed to
contain 75 images. See USSG §2G2.2, comment. (n.4(B)(ii)).
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The district court rejected both arguments. It explained
that the computer enhancement was not pegged to Internet use but,
rather, to computer use and therefore applied.
explained

that

the

number-of-images

The court further

enhancement,

though

"imperfect," applied and represented "a very rough proxy for
seriousness."

Similarly,

the

court

found

the

five-level

enhancement for a pattern of abuse to be warranted.

And, finally,

the

discerned

court

disagreed

with

the

PSI

Report

and

no

justification for an acceptance-of-responsibility discount. These
determinations produced a total offense level of 28 which, when
combined with the absence of any prior criminal record, yielded a
GSR of 78 to 97 months.
The court then heard the defendant's allocution.
considering

the

statutory

sentencing

factors,

see

18

After
U.S.C.

§ 3553(a), and "concentrat[ing] on the history and characteristics
of the defendant and the nature and circumstances of the offense,"
it varied downward and imposed a 72-month sentence.

This timely

appeal ensued.
In this venue the defendant, represented by new counsel,
consolidates his arguments against the computer and number-ofimages enhancements.

In his repackaged claim of error, he strives

to convince us that, due mainly to the combined effect of these
enhancements, his sentence is substantively unreasonable.
not persuaded.

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We are

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We review challenges to the reasonableness of a sentence
for abuse of discretion and proceed according to a two-step pavane.
See Gall v. United States, 552 U.S. 38, 51 (2007).
resolve any claims of procedural error.

First, we

See id.; United States v.

Rodríguez, 527 F.3d 221, 224 (1st Cir. 2008).

Second — and only if

the sentence passes procedural muster — we inquire whether the
sentence is substantively reasonable.

See Gall, 552 U.S. at 51.

In this appeal, the defendant has not preserved any claim
of procedural error.

Refined to bare essence, his lone assignment

of error reduces to a plaint that the district court's downward
variance did not go far enough, resulting in a sentence that is
substantively unreasonable.
The
reasonableness

"linchpin"
is

a

of

our

determination

review
about

for

whether

substantive
the

sentence

reflects "a plausible . . . rationale and a defensible result."
United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).

In

making this determination, considerable deference is owed to the
sentencing court; and a reviewing court cannot simply substitute
its judgment for that of the sentencing court.

See id. at 92.

Consequently, we limit our review to the question of whether the
sentence, in light of the totality of the circumstances, resides
within the expansive universe of reasonable sentences.

See id.

The core of the defendant's argument is his insistence
that

the

computer

and

number-of-images

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enhancements

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indiscriminately sweep up conduct of widely divergent culpability,
and that sentences embodying these enhancements necessarily fail to
"guard

against

unwarranted

similarities

among

sentences

for

defendants who have been found guilty of dissimilar conduct."
United States v. Dorvee, 616 F.3d 174, 187 (2d Cir. 2010).

In his

view, such sentences contravene the spirit of Congress's admonition
"to

avoid

unwarranted

sentence

disparities,"

18

U.S.C.

§ 3553(a)(6), and are therefore substantively unreasonable.
This argument fundamentally misapprehends the role of the
guidelines in the sentencing process.

The guidelines are not

intended to fashion sentences with the precision of a Savile Row
tailor.

To the contrary, they represent a "wholesale" approach to

sentencing, offering only "a rough approximation of sentences that
might achieve § 3553(a)'s objectives."

Rita v. United States, 551

U.S. 338, 348, 350 (2007). As such, the guidelines are simply "the
starting
sentence.

point

and

.

.

.

initial

benchmark"

for

crafting

a

Gall, 552 U.S. at 49.
This starting point is merely a step along the path.

After arriving at an appropriate GSR, the court must proceed to
"make an individualized assessment based on the facts presented"
and the statutory sentencing factors in order to shape the actual
sentence.

Id. at 50.
Given the function of the sentencing guidelines and the

methodology

that

they

contemplate,

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a

frontal

assault

on

the

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guidelines cannot, without more, afford a persuasive basis for a
claim of sentencing disparity, much less for a claim of substantive
unreasonableness.

After all, such an assault takes aim at a

fragment of an inchoate sentence, but a court's inquiry into
substantive reasonableness must examine more: "the totality of the
circumstances" surrounding the final product.

Id. at 51.

By definition, such an inquiry does not allow a reviewing
court to examine guideline enhancements in isolation.

Rather, a

reviewing court must account for the whole of the various integers
that comprise the sentencing calculus, including the sentencing
court's overall appraisal of the GSR, its evaluation of the
offender and the offense conduct, and its case-specific synthesis
of the statutory sentencing factors.
Seen
unsupportable.

in

this

The

light,

defendant

the

defendant's

beseeches

us

to

argument
look

at

is
two

enhancements to the exclusion of everything else. Honoring such an
entreaty would undermine our consistent directive that sentencing
courts must refrain from adopting "a narrow focus on a particular
[sentencing] factor in isolation."

Rodríguez, 527 F.3d at 228.

Appellate courts — like district courts — are not at liberty to
engage in such a faulty practice.
Sentencing requires a broader focus because "section
3553(a) is more than a laundry list of discrete sentencing factors;
it is, rather, a tapestry of factors, through which runs the thread

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of an overarching principle": that a sentencing court ought "to
'impose a sentence sufficient, but not greater than necessary' to
accomplish the goals of sentencing."

Id. (quoting 18 U.S.C.

§ 3553(a)).

The defendant's entreaty, which invites us to ignore

the

and

forest

glimpse

only

a

couple

of

trees,

perfectly

exemplifies the folly of such a single-minded approach.2
The

court

below

did

not

view

the

guidelines

as

conclusive; instead, it appropriately treated them as a starting
point.

The defendant's pedantic railings against the severity of

specific guideline enhancements overlook this reality.

Those

railings likewise overlook the district court's cogent statement of
its reasoning as to why a "harsh and severe" sentence was warranted
in this instance.
The sentencing court's reasoning does not exhibit any
lockstep deference to the guidelines.

Far from it: the court's

rationale recognizes that a defendant's past actions often may be
the

architects

of

an

appropriate

sentencing

outcome.

This

rationale draws primarily upon the "appalling" nature of the
defendant's conduct. In support, the court patiently explained the
details that made the offense conduct especially reprehensible,
including the tender age of the victim, the gross invasion of

2

For much the same reasons, the defendant's forlorn attempt
to illustrate the putative unreasonableness of his sentence by
comparing his GSR with a hypothetical GSR for sexual abuse of a
minor is an exercise in futility.
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privacy associated with a surreptitious recording made in the
victim's

bathroom,

the

defendant's

deviant

self-gratification

(masturbating while watching the videos), and the "betrayal of
trust" stemming from the defendant's relationship with the victim.
This lucid explanation fully justified the sentence that the
district court imposed.
In an effort to derail this train of thought, the
defendant relies heavily on the decision in United States v.
Dorvee, 616 F.3d 174 (2d Cir. 2010).
In

Dorvee,

the

substantively

Second

Circuit

unreasonable

This reliance is misplaced.
found

because,

a

among

233-month
other

sentence

things,

the

sentencing court "offered no clear reason" for the lengthy sentence
and relied unthinkingly on the guidelines in determining that the
sentence was reasonable.

Id. at 184.

The court below was not

guilty of any such bevues; as we have explained, it examined the
totality of the circumstances, appropriately treated the various
guideline provisions as rough proxies, fashioned a sentence that
responded to the nature and circumstances of the offense, and gave
a plausible reason for the sentence.
Let us be perfectly clear.
concerns

about

guidelines.

perceived

harshness

No more was exigible.
We are not unsympathetic to
in

the

child

pornography

See, e.g., United States v. Stone, 575 F.3d 83, 97

(1st Cir. 2009).

Here, however, the defendant's challenge focuses

myopically on certain guidelines to the exclusion of all else and,

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thus, fails to account for the actual reasons that support the
imposition of his sentence.

Those reasons are fully sufficient to

justify the sentence imposed.
To cinch matters, the fact that a sentence falls within
a

properly

constructed

GSR

typically

affords

some

basis

concluding that the sentence is substantively reasonable.

for
See

United States v. Pelletier, 469 F.3d 194, 204 (1st Cir. 2006).
Here, the sentence actually imposed was below the bottom of a
properly constructed GSR.

It is a rare below-the-range sentence

that will prove vulnerable to a defendant's claim of substantive
unreasonableness.

See United States v. Floyd, ___ F.3d ___, ___

(1st Cir. 2014) [Nos. 12-2229, 12-2231, slip op. at 36]. This case
plainly falls within the general rule, not within the long-odds
exception to it.
There

is

one

loose

end.

In

his

reply

brief,

the

defendant suggests for the first time that his trial counsel
rendered

ineffective

district

court's

responsibility.
reasons.

assistance

refusal

to

by

failing

credit

him

to
for

challenge

the

acceptance

of

We decline to address this suggestion for two

First, arguments that make their debut in an appellant's

reply brief are ordinarily deemed waived.
Eirby, 515 F.3d 31, 37 n.4 (1st Cir. 2008).

See United States v.
Second — with only

limited exceptions (none of which is applicable here) — we will not
address ineffective assistance of counsel claims that are raised

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for the first time on direct review.3

Entry ID: 5798358

See United States v.

Maldonado-García, 446 F.3d 227, 233 (1st Cir. 2006); United States
v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).
We need go no further. For the reasons elucidated above,
we deem the defendant's sentence to be well within the universe of
condign

punishment

for

a

particularly

repellent

crime.

The

sentence is, therefore,

Affirmed.

3

The defendant may, of course, pursue such a claim through a
petition for collateral relief under 28 U.S.C. § 2255. See United
States v. Mala, 7 F.3d 1058, 1064 (1st Cir. 1993).
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