USA v. Joshua Thompson

Filing

OPINION filed: The Defendant's release sentence is VACATED, and the case is REMANDED for the district court to consider the lifetime term of supervised release and the conditions of that supervised released. Decision not for publication. Damon J. Keith, Eric L. Clay (AUTHORING) and John M. Rogers, Circuit Judges.

Case: 11-6217

Document: 006111538030

Filed: 12/20/2012

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1306n.06
No. 11-6217

FILED
Dec 20, 2012
DEBORAH S. HUNT, Clerk

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY

v.
JOSHUA THOMPSON,
Defendant-Appellant.
/

BEFORE:

KEITH, CLAY, and ROGERS, Circuit Judges.

CLAY, Circuit Judge. Defendant Joshua Thompson pleaded guilty pursuant to a plea
agreement to distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2). The district
court sentenced Defendant to fifteen years in prison and a lifetime term of supervised release with
certain special conditions. Defendant appeals the applicability of certain enhancements under the
United States Sentencing Guidelines as well as the reasonableness of the length and conditions of
his prison and supervised release sentences. For the reasons set forth below, we VACATE
Defendant’s supervised release sentence and REMAND for the district court to consider the lifetime
term of supervised release and the conditions of that supervised release. The remainder of
Defendant’s sentence shall remain in place.

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BACKGROUND
In October 2010, a Hamilton County, Indiana police detective downloaded thirty-five images
on the file-sharing program GigaTribe from a user. Investigators obtained a warrant for the IP
address associated with that user and tracked it to a residence at 215 Grandview Drive in Frankfort,
Kentucky, where Defendant Joshua Thompson and his wife lived. After obtaining a search warrant,
police searched Defendant’s home and found two laptop computers and various digital media storage
devices containing over 1,800 videos and nearly 22,000 images of child pornography.
In May 2011, the government notified Defendant of its intent to prosecute him federally for
distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2). Defendant waived his right
to indictment and the charges proceeded on an information. Thereafter, Defendant pleaded guilty
pursuant to a plea agreement to one count of child-pornography distribution. In his plea agreement,
Defendant agreed to jointly recommend, along with the government, a sentence that included, in
relevant part, a five-level enhancement pursuant to United States Sentencing Guidelines (“U.S.S.G.”)
§ 2G2.2(b)(3)(B) because the offense involved distribution for the receipt, or the expectation of
receipt, of a thing of value; and a two-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(6) because
the offense involved the use of a computer or an interactive computer service for the possession and
distribution of the material. The district court found Defendant’s total offense level to be 37. This
offense level, coupled with Defendant’s criminal history category of I, resulted in a Guidelines range
of 210 to 262 months in prison. See U.S.S.G. ch. 5, pt. A. This range was adjusted because the
statutory maximum for violation of 18 U.S.C. § 2252(a)(2) is twenty years. 18 U.S.C. § 2252(b)(1).
Therefore, the Guidelines range for Defendant was 210–240 months.
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The district court sentenced Defendant to fifteen years in prison and a lifetime term of
supervised release with certain special conditions, including ones related to (1) possession/use of a
picture- or video-creating device; (2) rental/use of a post office box or storage facility; and (3)
consumption of alcohol. Defendant timely appealed, invoking this Court’s jurisdiction under 28
U.S.C. § 1291.
DISCUSSION
Standard of Review
This Court reviews “sentences for reasonableness under an abuse of discretion standard.”
United States v. Brown, 579 F.3d 672, 677 (6th Cir. 2009). As reasonableness involves both
procedural and substantive components, such review proceeds in two steps. Id. First, we evaluate
the procedural reasonableness to “ensure that the district court did not commit significant procedural
error such as ‘failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.’” Id. (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)). Next, we assess the substantive reasonableness of the
sentence. As “[t]he essence of a substantive-reasonableness claim is whether the length of the
sentence is greater than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a),”
a sentence will be found substantively unreasonable if “the district court selects the sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors
or gives an unreasonable amount of weight to any pertinent factor.” United States v. Corp, 668 F.3d
379, 386 (6th Cir. 2012) (internal quotation marks omitted).

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In performing this two-step review, “[t]he district court’s interpretation of the advisory
Guidelines is reviewed de novo, and its findings of fact are reviewed for clear error.” Brown, 579
F.3d at 677. “Whether the facts found warrant the application of a particular guideline provision is
a legal question reviewed de novo.” Corp, 668 F.3d at 386 (internal quotation marks omitted).
However, “[i]f a defendant fails to raise an objection before the district court, . . . review is only for
plain error.” Id.; see also Fed. R. Crim. P. 52(b). This standard requires that the defendant show (1)
error, (2) that is clear or obvious, (3) and that affects his substantial rights; (4) if the elements are
satisfied, this Court may exercise its discretion to remedy the error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Puckett v. United States, 556 U.S. 129, 135
(2009).
I.

Applicability of Recommended Enhancements
Defendant first contends that the district court erred in applying the five-level distribution-

for-value enhancement under U.S.S.G. § 2G2.2(b)(3)(B) and the two-level computer-use
enhancement under U.S.S.G. § 2G2.2(b)(6) to his sentence. However, not only did Defendant fail
to raise an objection to the applicability of these enhancements below, he, in fact, specifically
recommended (along with the government) that the district court apply these two enhancements. We
review for plain error. Corp, 668 F.3d at 386.
Even assuming arguendo that the district erred in applying either or both of these
enhancements, Defendant is not entitled to relief because any error was invited by him. The general
contours of the invited error doctrine are well known: “Having induced the court to rely on a
particular erroneous proposition of law or fact, a party in the normal case may not at a later stage of

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the case use the error to set aside the immediate consequences of the error.” Ford v. Cnty. of Grand
Traverse, 535 F.3d 483, 490–91 (6th Cir. 2008) (en banc) (internal quotation marks omitted). More
specifically, we have previously applied the invited error doctrine in the context of sentencing. In
United States v. Hanna, 661 F.3d 271 (6th Cir. 2011), the defendant argued on appeal that the district
court improperly calculated his base offense level under U.S.S.G. § 2S1.1(a)(2) when, as we
determined, it should have sentenced him under U.S.S.G. § 2S1.1(a)(1). Id. at 291–93. There, in
denying the defendant relief, we noted that “the district court’s decision below to sentence Hanna
under § 2S1.1(a)(2) was directly in response to Hanna’s urging that it take that very course. . . . [T]he
doctrine of ‘invited error’ therefore precludes reliance on this error as grounds for reversal.” Id. at
293. Such is the case here. As Defendant recommended that the district court impose the
enhancements that he now asks us to set aside, invited error compels our conclusion that the district
court did not plainly err in applying the distribution-for-value and computer-use enhancements to
Defendant.
II.

Prison Term
Defendant next contends that his 180-month prison sentence was procedurally and

substantively unreasonable. As Defendant both preserved his right to appeal his sentence and
objected to the length of his prison term below, we will review the district court’s sentence with
respect to Defendant’s term of imprisonment for abuse of discretion. Brown, 579 F.3d at 677.
Defendant argues that his prison sentence was procedurally unreasonable because in
explaining its reasoning for the sentence imposed, the district court referenced the high end (240
months) of the Guideline range but did not mention the low end (210 months). To be sure, when the

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district court pronounced Defendant’s sentence, it only made mention of the statutory maximum, but
earlier in the proceeding, the district court noted and adopted the pre-sentence report’s Guidelines
range of 210–240 months. In imposing sentence, the district court specifically discussed the 18
U.S.C. § 3553(a) factors, noting the seriousness of the offense and the need for deterrence and
consistency in sentencing. Moreover, the district court indicated that it would normally have
imposed the statutory maximum (240 months) but agreed to the government’s recommendation of
180 months—a below-Guidelines sentence. On this record, we find no procedural error in the
district court’s prison sentence of Defendant.
Next, Defendant contends that his prison sentence was substantively unreasonable because
the district court based his sentence on an “impermissible factor”—Defendant’s age. Specifically,
the district court stated, Defendant “is a young man now, he will be a young man when he’s 40 years
old. Forty is not old and a 15-year sentence would not be too severe for this particular offense and
would afford him the opportunity for treatment.”

Although the Guidelines allow for the

consideration of “[a]ge (including youth),” they limit such consideration to the “unusual” case. See
U.S.S.G. § 5H1.1. Nonetheless, in reviewing a sentence for substantive reasonableness, we must
consider the “totality of the circumstances.” Gall, 552 U.S. at 51. Where, as here, “the district court
followed the mandate of section 3553(a) in all relevant respects,” “[t]he fact that the district court
did not give the defendant the exact sentence he sought is not a cognizable basis to appeal.” See
United States v. Jackson, 466 F.3d 537, 540 (6th Cir. 2006); see also Brown, 579 F.3d at 687 (It is
a defendant’s burden to show more than that “a different sentence was justified,” but rather that “a

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different sentence was required.”). Therefore, Defendant’s prison sentence was not substantively
unreasonable.
III.

Supervised Release
Finally, Defendant contends (and the government agrees) that it was plain error for the

district court to impose a life term of supervised release as well as special conditions without
explaining its reasons for doing so. In United States v. Inman, 666 F.3d 1001 (6th Cir. 2012) (per
curiam), we held that the district court plainly erred in imposing a life term of supervised release and
special conditions thereof on a defendant convicted of possessing child pornography when it “did
not explain why it chose a life term of supervised release” and did not “explain why the [special]
conditions of supervised release [were] warranted.” Id. at 1004–05. Because “[w]ithout proper
analysis and an explanation for the length of the supervised release term chosen, we cannot review
the reasonableness of the sentence as imposed” and “precedent clearly requires a district court to
state in open court at the time of sentencing its rationale for mandating special conditions of
supervised release,” we remanded and “direct[ed] the district court to consider the lifetime term of
supervised release and the . . . conditions of supervised release.” Id. at 1004, 1006–07 (internal
quotation marks omitted).
Although plain error involves a case-by-case inquiry and is subject to the discretion of this
Court, see Puckett, 556 U.S. at 142–43, the district court’s total failure to articulate any basis for the
lengthy term of supervised release or the onerous special conditions (as well as the government’s
concession of the error and its plainness) militate in favor of remanding for the district court to
reconsider its supervised release sentence. Accordingly, we vacate Defendant’s sentence with
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respect to supervised release. Because, however, we have found all other aspects of Defendant’s
sentence to be proper, our remand, like the one in Inman, is for the limited purpose of reassessing
Defendant’s supervised release term and conditions. See Inman, 666 F.3d at 1007. Therefore, while
the other aspects of Defendant’s sentence shall remain in place, the district court is free to fashion
Defendant’s supervised release term and conditions anew.
CONCLUSION
For the foregoing reasons, we VACATE Defendant’s supervised release sentence and
REMAND for the district court to consider the lifetime term of supervised release and the conditions
of that supervised release. The remainder of Defendant’s sentence shall remain in place.

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