NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________

No. 18-1682

UNITED STATES OF AMERICA,

v.

IRVIN RANDALL NEWSWANGER, Appellant

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. Action No. 17-cr-23-01) District Judge: Honorable Edward G. Smith ______________

Submitted Under Third Circuit L.A.R. 34.1(a) April 17, 2019 ______________

Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges.

(Opinion filed: August 13, 2019) ______________

OPINION* ______________

GREENAWAY, JR., Circuit Judge.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Appellant Irvin Randall Newswanger appeals the judgment of conviction and

sentence in his criminal case, challenging the 22-year sentence for the possession and

distribution of child pornography. Newswanger contends that the five-level enhancement

was imposed on the basis of clearly erroneous factual findings by the District Court.

Also, he argues that the sentence was substantively unreasonable given the Appellant’s

post-offense rehabilitation. Because we find that the five-level enhancement was

supported by the record and the sentence was substantively reasonable, we will affirm the

judgment of conviction and sentence.

I. Factual and Procedural Background

In 2012, an undercover law enforcement agent engaged Newswanger in an online

chat regarding child pornography. The agent received twenty images of child

pornography from Newswanger through a file-sharing program, including graphic

depictions of sexual acts involving prepubescent males and a toddler female.

Additionally, Newswanger engaged in online chats with the same agent, discussing

downloading, distributing, and sharing files. He also engaged with another individual in

the same chat room where he admitted to various sexual acts with his nephews, ages five,

six, and nine.

Law enforcement agents executed a search warrant for Newswanger’s residence

and seized computers and other electronic media. On the day of the search, Newswanger

admitted to viewing child pornography and downloading child pornography images and

storing them. Later, the FBI conducted a forensic examination and recovered the chat 2 logs from Newswanger’s conversations and determined that he possessed 367 images of

child pornography. This included images on a memory card of Newswanger’s nephews

in a hot tub with Newswanger, as well as nude images of the nephews inside of

Newswanger’s house.

The FBI also interviewed a minor, JW, in March 2016.1 JW shared that she met

Newswanger when she was approximately 13 years old at a Boys and Girls Club where

Newswanger was assigned as her Big Brother. She told agents that Newswanger and his

partner, Scott Gibson, had sexually molested her when she was 13–14 years old.

According to JW, Newswanger and Gibson performed sex acts on her by the time she

was 14 and the men gave her drugs and alcohol as well.

On January 12, 2017, a grand jury indicted Newswanger, charging him with one

count of possession of child pornography, in violation of

(a)(4)(B), and

one count of distribution of child pornography, in violation of

(a)(2).

Newswanger entered an open plea of guilty on July 6, 2017.

The Probation Office in the presentence investigation report determined that the

base offense level was a 22 under U.S.S.G. § 2G2.2. Pursuant to that guideline, the

following enhancements were applied: a two-level enhancement because some of the

pornographic materials involved a prepubescent minor who had not attained the age of

1 For purposes of continuity, this individual will be referred to throughout this opinion as “JW.” JW was assigned male at birth and named CW when she first met Newswanger in the Big Brother program. JW testified that she was transgender and was transitioning to female at the time of the sentencing hearing. 3 twelve; a five-level enhancement for distribution of child pornography; a four-level

enhancement because the material included images of sadistic or masochistic conduct; a

five-level increase for engaging in a pattern of activity involving the sexual abuse or

exploitation of a minor; a two-level enhancement for the use of a computer for the receipt

and distribution of child pornography; and a four-level enhancement for possessing at

least 300 images of child pornography but less than 600.

The total adjusted offense level was 44, which was decreased by two levels for

acceptance of responsibility and one level for assisting authorities in the investigation for

a final total offense level of 41. Due to a previous conviction, Newswanger has a

criminal history category of one. Based on the total offense level of 41 and a criminal

history category of one, the guideline imprisonment range was 324 months to 405

months, with a minimum sentence of 360 months.

The Court concluded that

(a) factors supported a downward

variance and sentenced Newswanger to 264 months’ imprisonment and a term of

supervised release of 20 years, and ordered him to pay restitution of $9,000, a $25,000

fine and a special assessment of $200. Newswanger timely appealed.

II. Jurisdiction

This Court has jurisdiction over this matter under

. Additionally,

this Court has jurisdiction to review the sentence imposed under the Sentencing Reform

Act of 1984 under

(a).

III. Discussion 4 Newswanger argues that the District Court committed clear error in applying a

five-level enhancement under the Sentencing Guidelines for a pattern of activity

involving sexual abuse.2 Specifically, Newswanger argues that the District Court relied

on JW’s contradicted testimony in determining the enhancement, and committed clear

error by finding JW’s testimony credible. This Court exercises plenary review of an

interpretation of the Sentencing Guidelines and reviews findings of facts for clear error.

United States v. Grier,

(3d Cir. 2007) (en banc). A finding of fact is

clearly erroneous when, although there is evidence to support it, the reviewing Court “on

the entire evidence is left with the definite and firm conviction that a mistake has been

committed.”

(internal citations omitted).

Newswanger contests one enhancement pursuant to Section 2G2.2(b)(5)—the

five-level increase for engaging in a pattern of activity involving the sexual abuse or

exploitation of a minor. In his estimation, it was based on the testimony of JW, whose

2 In its brief, the Government contends that Newswanger did not properly object to the District Court’s ruling on the ground that the Court failed to specify the exact act or acts of sexual abuse or exploitation. Gov’t Br. at 39. For this failure, the Government argues that Newswanger’s challenge to the application of the five-level enhancement is subject to plain error review. United States v. Flores-Mejia,

(3d Cir. 2014) (en banc). Flores-Mejia establishes that in order to preserve a procedural objection to the District Court’s failure to meaningfully consider a defendant’s sentencing arguments for appeal, and avert plain error review, the defendant must object after the sentence is pronounced. Here, Newswanger is not arguing that the District Court failed to meaningfully review his substantive arguments, but that his sentence was not substantively reasonable, as he clarified in his reply brief. As this is not a procedural argument, and substantive arguments do not require a post-sentencing objection, plain error review is not applicable, and Newswanger properly preserved the issue for appeal.

5 allegations Newswanger asserts are false. The District Court considered all the evidence

that was presented by both parties in addition to counsels’ arguments and determined by

application of the preponderance standard that there was sufficient evidence to support

the five-level enhancement. As a preliminary matter, although JW’s testimony

contradicted itself at times, the District Court concluded that the photos found on

Newswanger’s computer corroborated important parts of JW’s testimony. The District

Court also found it unlikely that Newswanger and JW could have known one another

since JW was a preteen with no inappropriate sexual interaction, yet be in a consensual

sexual relationship when JW turned 18. This analysis supported the District Court’s

determination that there was a pattern of activity involving the sexual abuse or

exploitation of JW.

Additionally, Newswanger’s insistence that JW’s testimony was the only evidence

supporting the enhancement is misplaced. Inappropriate photos of Newswanger’s

nephews in combination with the illegal sexual activities Newswanger admitted to in

online chat rooms served as supporting evidence for the five-level enhancement. These

activities evinced a pattern of activity of abuse or exploitation of his nephews.

Finally, the Court imposed a below-guideline sentence, which was reasonable

given the crimes to which Newswanger pled guilty. The Court of Appeals reviews a final

sentence for unreasonableness. United States v. Booker,

(2005).

Federal appellate courts may apply a presumption of reasonableness to district court

sentences that are within the properly calculated Sentencing Guidelines range. Rita v. 6 United States,

(2007). Newswanger is not claiming that there was a

miscalculation in determining his guidelines range or that the District Court failed to

consider § 3553(a) factors, which would be procedural arguments. United States v.

Flores-Mejia,

, 256–57 (3d Cir. 2014) (en banc). Rather, he objects to the

application of the five-level sentencing enhancement based on supporting evidence,

which is a substantive argument. United States v. Tomko,

(3d Cir.

2009) (en banc). Substantive review focuses on “the totality of the circumstances” and

this Court applies an abuse-of-discretion standard to a substantive reasonableness inquiry.

We “must decide [] whether the district judge imposed the sentence he or she did for

reasons that are logical and consistent with the factors set forth in section 3553(a).”

Tomko,

(internal quotes and citations omitted).

Newswanger argues that the District Court misapplied a five-level enhancement

and increased his sentence by approximately eleven to fourteen years. However, the

Court correctly calculated his sentence and acknowledged his § 3553(a) factors, which

supported a downward variance to a 264-month sentence. The District Court heard

testimony from the parents of Newswanger’s nephews about his relationship with them,

as well as testimony by trained medical professionals. The testimony of these witnesses

fell within the ambit of Newswanger’s rehabilitation and the District Court took them

into account. Although the Court would have imposed a 360-month minimum sentence

without granting a downward variance, Newswanger’s ultimate sentence was eight years

shorter than required. As the District Court appropriately weighed the evidence for both 7 the five-level enhancement and the § 3553(a) factors, this sentence was substantively

reasonable.

IV. Conclusion

The Government demonstrated by a preponderance of the evidence via two

different avenues that Newswanger engaged in a pattern of activity involving the sexual

abuse or exploitation of a minor, thus supporting the five-level enhancement. Although

Newswanger has both accepted responsibility for his crimes and undergone treatment,

this does not undermine the severity of his crimes. The District Court did not commit

clear error in assigning credibility to JW’s testimony, which was corroborated by photos

found on Newswanger’s computer and his own admissions, including his online

conversation about his inappropriate activities with his nephews evincing a pattern of

sexual abuse or exploitation of minors. Finally, the District Court’s sentence was

substantively reasonable, as it correctly weighed the evidence of the five-level

enhancement and § 3553(a) factors in determining Newswanger’s sentence. For the

above reasons, we will affirm the sentence of the District Court.

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