US v. David Boland

Filing 920100319

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4833 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DAVID EDWARD BOLAND, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:07-cr-00261-RJC-1) Submitted: February 24, 2010 Decided: March 19, 2010 Before WILKINSON, MOTZ, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Harold M. Vaught, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David Edward Boland pled guilty to receiving visual depictions of a minor engaging in sexually explicit conduct, 18 U.S.C. 2252(a), (b)(1) (2006) (Count One), and possession of one or more books, magazines, periodicals, films, video tapes or other matter containing any visual depiction of a minor engaging in sexually explicit conduct, 18 U.S.C. 2252(a)(4)(B), (b)(2) (2006). upward The district court granted the Government's motion for departures and sentenced Boland to 234 months' imprisonment and a life-term of supervised release. Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that in his view, there are no meritorious issues for appeal, but questioning whether Boland's sentence was legally imposed. Boland has filed a pro se supplemental brief. We affirm. The Government has not filed a brief. We review for reasonableness all sentences, "whether inside, just outside, or significantly outside the Guidelines range" under a "deferential abuse-of-discretion standard." v. United States, 552 U.S. 38, 41 (2007); United Gall v. States Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008). both the This review requires appellate consideration of procedural and substantive reasonableness of a sentence. district Gall, 552 U.S. at 46. court properly After determining whether the the defendant's advisory calculated 2 guidelines range, we must then decide whether the district court considered the 18 U.S.C. 3553(a) (2006) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id. at 49-50. In imposing its sentence, the district court must place on the record an "individualized assessment" based on the particular facts of the case before it. United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Finally, sentence, we review the into substantive account reasonableness the totality of of the the "taking circumstances, including the extent of any variance from the Guidelines range." United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (internal quotation marks and citation omitted). To determine whether the district court abused its discretion in imposing Boland's departure sentence, we consider "whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range." States 2007). v. We Hernandez-Villanueva, will find a 473 F.3d be 118, 123 United Cir. the (4th if sentence to unreasonable sentencing "court provides an inadequate statement of reasons or relies on improper factors in imposing a sentence outside the properly calculated advisory sentencing range." In this case, the district Id. sentence was court's procedurally reasonable. The district court properly adopted 3 the guidelines sentence calculation in the presentence report, which the parties did not dispute. However, as the district court stated on the record, the guidelines calculation did not take into account many aspects of Boland's conduct. The district court listened to the parties' arguments at length and ultimately adequately stated its reasons for granting the Government's motion for upward departures and in imposing a 234month sentence. Similarly, reasonable. history Boland's sentence was substantively The district court explained that Boland's criminal of II substantially under-represented the category seriousness of his past criminal conduct and the likelihood he will commit other crimes. Boland admitted that shortly after being paroled on a ten-year federal child pornography sentence, he returned to the same criminal conduct. Furthermore, Boland The court See U.S. stated that he did not believe his conduct was wrong. therefore departed one criminal history category. Sentencing Guidelines Manual 4A1.3(a) (2007) (a district court may depart upward from an applicable that the guidelines defendant's range if "reliable information indicates criminal history category substantially under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes . . . ."). 4 Additionally, the district court found that the length and quantity of the videos warranted an upward departure under USSG 2G2.2. collection length. of The court found that thirty percent of Boland's videos was videos longer than five minutes in See USSG 2G2.2 & cmt. n.4(B)(ii) (authorizing upward departure if length of recording is substantially more than five minutes). The court considered a one-level departure; however, given the gravity of the criminal conduct, the court departed two levels, noting the staggering amount of lengthy videos, the sadistic and masochistic nature of the series, and the repeated victimization depicted. of images possessed by Furthermore, the court found the number Boland greatly exceeded the number required for a guideline enhancement under USSG 2G2.2(b)(7)(D) (imposing maximum enhancement of five levels for six hundred images). encouraged The court found the sheer quantity of videos as an basis for departure. See USSG 2G2.2 & cmt. n.4(B)(i) ("If the number of images under represents the number of minors depicted, an upward departure may be warranted."). Although the district court considered a one-level increase, it did not believe it was adequate to capture the gravity of the criminal conduct. The court therefore departed two levels on this basis, finding Boland's possession of 854,992 images was not adequately taken into consideration by the guidelines. See USSG 5K2.0(a)(3) (departures based on circumstances present to 5 a degree not adequately taken into consideration in determining the guidelines range). In considering the 3553(a) factors, the district court found that the children, including infants, in the videos were subject to extensive and extended abuse beyond what was typical in other cases handled by the court and contemplated in the guidelines. the images. The court also cited the nature and quantity of After finding that Boland posed a serious risk of further crimes, the court stated that the primary purpose of the sentence Boland. was to protect the public from further crimes by The court explained that the terms and conditions of supervised release were insufficient to protect the public and that "its protective function is best served by enhancing the sentence." guidelines After range establishing of 188 to a newly months' calculated advisory the 235 imprisonment, district court deemed a sentence of 234 months appropriate in this case. Given its the district of the court's 3553(a) meaningful factors, articulation and its of consideration of range, careful the consideration guidelines reasonable. reasons we warranting Boland's departure departure from find sentence In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We further find Boland's 6 claims in his pro se supplemental brief without merit. We therefore affirm the district court's judgment. This court requires that counsel inform Boland, in writing, of the right to petition the Supreme Court of the United States for further review. If Boland requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's We motion must state that a copy thereof was served on Boland. dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 7

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