US v. Scott Eertmoed

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cr-00035-JRS-1 Copies to all parties and the district court/agency. [999866620].. [15-4495]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4495

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SCOTT EERTMOED, a/k/a John Bradford,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Senior
District Judge. (3:15-cr-00035-JRS-1)

Submitted:

March 25, 2016

Decided:

June 24, 2016

Before GREGORY, DIAZ, and THACKER, Circuit Judges.

Affirmed and remanded by unpublished per curiam opinion.

Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Elizabeth W. Hanes, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant.
Dana J. Boente, United
States Attorney, Jessica D. Aber, Assistant United States
Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Scott Eertmoed appeals his sentence of 151 months in prison
after pleading guilty to distribution of child pornography in
violation of 18 U.S.C. § 2252A(a)(2)(A) (2012).

On appeal, he

contends that his sentence is procedurally unreasonable because
the

district

sentence.

court

failed

to

adequately

explain

the

chosen

He also asks us to remand for correction of clerical

error in the record.

We affirm Eertmoed’s sentence but remand

for correction of clerical error under Fed. R. Crim. P. 36.
We review the reasonableness of a sentence for abuse of
discretion.

United States v. Lymas, 781 F.3d 106, 111 (4th Cir.

2015) (citing Gall v. United States, 552 U.S. 38, 41 (2007)).
First,

we

consider

whether

the

district

court

committed

a

significant procedural error, such as failing to consider the 18
U.S.C. § 3553(a) (2012) factors or failing to adequately explain
the chosen sentence.
If

the

Gall, 552 U.S. at 51.

sentence

is

procedurally

reasonable,

we

consider

whether it is substantively reasonable, taking into account the
totality of the circumstances.
a

sentence

within

or

below

Id.
a

properly

range is substantively reasonable.
F.3d

278,

Strieper,

289
666

(4th
F.3d

Cir.
288,

On appeal, we presume that

2012);
295-96

calculated

Guidelines

United States v. Susi, 674
see
(4th

also
Cir.

United
2012)

States

v.

(rejecting

argument that presumption should not apply to child pornography
2

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sentences).

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The presumption can only be rebutted by showing

that the sentence is unreasonable when measured against the 18
U.S.C. § 3553(a) factors.

United States v. Louthian, 756 F.3d

295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
In

sentencing,

the

district

court

must

first

correctly

calculate the defendant’s sentencing range under the Sentencing
Guidelines.

United States v. Allmendinger, 706 F.3d 330, 340

(4th Cir. 2013).

The court is next required to give the parties

an opportunity to argue for what they believe is an appropriate
sentence, and the court must consider those arguments in light
of the factors set forth in 18 U.S.C. § 3553(a).

Id.

When rendering a sentence, the district court must make and
place on the record an individualized assessment based on the
particular facts of the case.

United States v. Carter, 564 F.3d

325, 328, 330 (4th Cir. 2009).
state in

open

court

the

While the sentencing court must

particular

reasons

that

support

its

chosen sentence, the court’s explanation need not be exhaustive.
United States v. Avila, 770 F.3d 1100, 1107-08 (4th Cir. 2014);
see also United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006) (court need not explicitly reference § 3553(a) or discuss
every factor on the record).
sufficient

“to

satisfy

the

The court’s explanation must be
appellate

court

that

[it]

has

considered the parties’ arguments and has a reasoned basis for

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exercising [its] own legal decisionmaking authority.”

Rita v.

United States, 551 U.S. 338, 356 (2007).
“Although every sentence requires an adequate explanation,
a

more

complete

and

detailed

explanation

of

a

sentence

is

required when departing from the advisory Sentencing Guidelines,
and a major departure should be supported by a more significant
justification than a minor one.”
603

F.3d

267,

271

(4th

quotation marks omitted).

Cir.

United States v. Hernandez,

2010)

(citations

and

internal

“When imposing a sentence within the

Guidelines, however, the explanation need not be elaborate or
lengthy.”

Id. (citations and internal quotation marks omitted).

Where the defendant properly preserved the issue of whether
the explanation was adequate, we review the issue for abuse of
discretion.
2010).

United States v. Lynn, 592 F.3d 572, 576 (4th Cir.

If we find abuse, we must reverse unless we conclude

that the error was harmless.

Id.

The Government must show

“that the error did not have a substantial and injurious effect
or influence on the result and we can say with fair assurance
that

the

district

defendant’s
imposed.”

arguments

court’s
would

explicit
not

have

consideration
affected

the

of

the

sentence

United States v. Boulware, 604 F.3d 832, 838 (4th

Cir. 2010) (alterations and internal quotation marks omitted).
We have reviewed the record and conclude that Eertmoed’s
sentence

is

procedurally

and

substantively
4

reasonable.

The

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probation officer found that Eertmoed’s Guidelines sentence was
the statutory maximum 240 months in prison.

Eertmoed objected

to the application of a five-level enhancement for a pattern of
activity involving the sexual abuse of a minor pursuant to U.S.
Sentencing Guidelines Manual § 2G2.2(b)(5) (2014).
court

removed

Guidelines

the

range

enhancement

was

151

to

and
188

found

months

The district

that
in

Eertmoed’s

prison.

The

Government argued that a sentence at the high end of the range —
188 months — was appropriate in this case.

Eertmoed argued for

a sentence of 96 months.
Among

other

things,

Eertmoed

argued

that

the

child

pornography Guidelines were not based on empirical data and thus
were not entitled to deference.

However, we have “instructed

courts to give respectful attention to Congress’[s] view that
[child

pornography

serious sanctions.”

crimes]

are

serious

offenses

deserving

United States v. Strieper, 666 F.3d 288,

295-96 (4th Cir. 2012) (citations and internal quotation marks
omitted).
Guidelines

Eertmoed
range

also

would

argued

create

that

a

sentencing

sentence

within

disparities.

the
The

Government argued that the seriousness of the offense warranted
a sentence at the high end of the range.
the

Government

noted

that

Eertmoed’s

Among other things,
child

pornography

collection was extensive, with over 4000 still images and 300

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videos, and he had been charged with contact offenses on a prepubescent girl.
The district court sentenced Eertmoed at the bottom of the
Guidelines

range

to

supervised release.
Prisons

that

151

months

in

prison

and

5

years

of

The court also recommended to the Bureau of

Eertmoed

participate

programs while in custody.

in

sex

offender

treatment

The court explained that it had

considered all of the factors in 18 U.S.C. § 3553(a), “and what
drove this sentence to be within the Guidelines Range was the
nature

of

the

offense.”

The

court

reiterated

that

it

had

considered all of the factors, but that this was “the primary
factor which pushes the sentence into the Guidelines Range.”
Having

reviewed

the

record,

we

are

satisfied

that

the

court

considered Eertmoed’s arguments and had a reasoned basis for
selecting its sentence.
Eertmoed also asks us to remand the case for correction of
clerical error in the record.

The district court’s statement of

reasons fails to reflect its determinations at sentencing and is
therefore erroneous.

While Eertmoed could file a motion under

Rule 36 to correct the error, we conclude that judicial economy
weighs

in

favor

clerical error.

of

a

limited

remand

for

correction

of

the

In his reply brief, Eertmoed also asks that we

direct the district court to make the corresponding changes in
the presentence report.

Under Fed. R. Crim. P. 32(i)(3)(C), the
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district court is required to “append a copy of the court’s
determinations” at sentencing “to any copy of the presentence
report made available to the Bureau of Prisons.”

Therefore, we

direct the district court to comply with Rule 32(i)(3)(C) to the
extent that it has not already done so.
Accordingly, we affirm the district court’s judgment but
remand for correction of clerical error.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED AND REMANDED

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