United States v. Michael Hutchinson

Filing

PER CURIAM OPINION FILED - THE COURT: KERMIT E. BYE, STEVEN M. COLLOTON and RAYMOND W. GRUENDER (UNPUBLISHED); Granting [3845499-2] motion to withdraw as counsel filed by Mr. Brian David Risley. [3915754] [11-2939]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-2939
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United States of America,
Appellee,
v.
Michael Hutchinson,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Western District of Missouri.
*
* [UNPUBLISHED]
*
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Submitted: May 23, 2012
Filed: May 29, 2012
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Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Michael Hutchinson pleaded guilty to receipt and distribution of child
pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). The district court1
sentenced him to 210 months in prison and 20 years of supervised release.
Hutchinson appeals, and his counsel has filed a brief under Anders v. California, 386
U.S. 738 (1967), challenging the imposition of a sentence enhancement for engaging
in a pattern of sexual abuse or exploitation of a minor, see U.S.S.G. § 2G2.2(b)(5),

1

The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.

Appellate Case: 11-2939

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Date Filed: 05/29/2012 Entry ID: 3915754

and the denial of a variance from the Guidelines imprisonment range of 210-240
months.
Hutchinson did not raise a temporal objection to the district court’s finding of
of a “pattern of activity.” We see no plain error in light of testimony at the sentencing
hearing that Hutchinson engaged in activity involving sexual abuse of a minor on a
regular basis fifteen to nineteen years earlier, and authority from other circuits
holding that § 2G2.2(b)(5) does not place time limit on past instances of sexual abuse
or exploitation that may be considered in finding pattern of activity. See United
States v. Turner, 626 F.3d 566, 572-73 (11th Cir. 2010) (per curiam). We also
conclude that the sentence is not unreasonable, and there was no abuse of discretion
in the district court’s reasoned decision to deny Hutchinson’s request for a variance.
See United States v. Acosta, 619 F.3d 956, 962-63 (8th Cir. 2010) (reviewing
defendant’s challenge to denial of request for downward variance by reviewing
sentence for reasonableness; applying deferential abuse-of-discretion standard and
noting that, in its sentencing colloquy, district court properly explained its reasons for
denying motion for downward variance).
Finally, we have reviewed the record independently under Penson v. Ohio, 488
U.S. 75, 80 (1988), and have found no nonfrivolous issues. Accordingly, the
judgment is affirmed, and we grant counsel leave to withdraw.
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Appellate Case: 11-2939

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Date Filed: 05/29/2012 Entry ID: 3915754