UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16-4368

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JASON WILLIAM WHEELER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:15-cr-00382-F-1)

Argued: December 7, 2017 Decided: January 19, 2018

Before MOTZ, DUNCAN, and THACKER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: G. Alan DuBois, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Barbara Dickerson Kocher, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. John Stuart Bruce, United States Attorney, Jennifer P. May-Parker, First Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Jason W. Wheeler (“Appellant”) appeals his sentence of 180 months of

imprisonment for receipt of child pornography in violation of

(a)(2).

We conclude that the district court failed to adequately explain its reasons for rejecting

Appellant’s nonfrivolous sentence disparity argument. Accordingly, we vacate

Appellant’s sentence and remand for resentencing. However, we find no error in the

district court’s failure to comment on the purported harshness of the United States

Sentencing Guidelines (“Guidelines”) applicable to child pornography.

I.

A.

In July 2014, law enforcement executed a federal search warrant at the residence

of Terry Scott Hilliard (“Hilliard”) in Orlando, Florida. During the search, law

enforcement discovered that Hilliard had traded multiple images of child pornography

with Appellant. Law enforcement then obtained a federal search warrant for Appellant’s

residence in North Carolina and executed the warrant on October 2, 2014. Multiple

computers and media storage devices were seized from Appellant’s home. Appellant

admitted that he had exchanged emails containing child pornography with Hilliard and

others and that child pornography would be located on his computer. A subsequent

forensic investigation uncovered 82 images and 61 videos of child pornography in

Appellant’s files.

3 B.

On December 15, 2015, Appellant was charged by criminal information with one

count of receipt of child pornography in violation of

(a)(2). He pled

guilty to this charge on January 25, 2016. The presentence investigation report prepared

by the federal probation office assigned Appellant a criminal history category of I and a

total offense level of 37, adjusted from the base offense level of 22. Appellant’s

calculated Guidelines range was 210 months to 262 months. Because the upper range

exceeded the statutory maximum sentence, Appellant’s Guidelines range was reduced to

210 months to 240 months.

In his sentencing memorandum, Appellant did not challenge the calculation of his

Guidelines range. Instead, he requested a downward variance at or near the statutory

minimum of five years. Among other arguments, Appellant argued that a sentence within

the Guidelines range perpetuated sentence disparities because Hilliard received a

sentence of 60 months of imprisonment with five years of supervised release. 1 Appellant

also asserted that “as a general matter, courts may vary from Guidelines ranges based

solely on policy considerations, including disagreements with the Guidelines.”

Sentencing Memorandum at 3, United States v. Wheeler, No. 5:15-cr-00382 (E.D.N.C.

Dec. 15, 2015; filed June 1, 2016), ECF No. 12.

The district court held a sentencing hearing on June 10, 2016, and adopted the

criminal history category, total offense level, and Guidelines range set out in the

1 Hilliard was sentenced on March 25, 2015, in the Middle District of Florida.

4 presentence investigation report. At the hearing, Appellant again argued that his

requested variance was warranted because Hilliard received a sentence of 60 months of

imprisonment “for very similar conduct.” J.A. 51. 2 He “urge[d]” the district court “to

consider something that is . . . closer to what Mr. Hilliard got in Florida.”

.

The district court imposed a sentence of 180 months of imprisonment -- a

downward variance of 30 months from the bottom of the Guidelines range -- followed by

five years of supervised release. In doing so, the district court explained, “A longer

prison sentence is needed to deter others from entering the child pornography market. . . .

The Court hopes the sentence imposed will impress upon [Appellant] respect for the law

and deter [sic] from engaging in the offense and relevant conduct in the future.” J.A. 57.

The district court also noted that Appellant “will have an opportunity to finish . . . his

treatment.”

Appellant timely appeals his sentence.

II.

Our review of Appellant’s sentence is limited to an assessment of its

reasonableness. See United States v. Zuk,

(4th Cir. 2017) (quoting

Gall v. United States,

(2007)). “[W]e first consider whether the

sentencing court procedurally erred by ‘failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18

U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

5 to adequately explain the chosen sentence.’” United States v. Ventura,

(4th Cir. 2017) (quoting United States v. Susi,

(4th Cir. 2012)). “If

there is no significant procedural error, we must ‘then consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard,’ taking

‘into account the totality of the circumstances, including the extent of any variance from

the Guidelines range.’” Zuk,

(quoting Gall,

). However,

“[i]f we determine a procedural error exists,” we will vacate the sentence and remand for

resentencing without addressing the substantive reasonableness of the sentence. See

United States v. Martinovich,

(4th Cir. 2016) (citing United States v.

Lewis,

(4th Cir. 2010)).

A.

We turn first to Appellant’s argument that the district court procedurally erred by

failing to consider Appellant’s request for a sentence close to the 60 month sentence

Hilliard received for similar conduct. “[A] sentencing court must demonstrate that it

considered the parties’ arguments and had a reasoned basis for exercising its own legal

decisionmaking authority.” United States v. Bollinger,

(4th Cir. 2015)

(quoting United States v. Lynn,

(4th Cir. 2010)) (alterations and

internal quotation marks omitted). Where, as here, the defendant “presents nonfrivolous

reasons for imposing a different sentence than that set forth in the advisory Guidelines,”

the sentencing court must “address the [defendant’s] arguments and explain why [it] has

rejected those arguments.”

(quoting United States v. Carter,

(4th

Cir. 2009)) (internal quotation marks omitted).

6 Appellant requested a downward variance to 60 months of imprisonment in his

sentencing memorandum and again at his sentencing hearing. He argued that a sentence

within the Guidelines range would perpetuate an unwarranted sentence disparity because

Hilliard received only 60 months of imprisonment for trading child pornography. See

(a)(6) (requiring sentencing court to consider “the need to avoid

unwarranted sentence disparities among defendants with similar records who have been

found guilty of similar conduct”). Nonetheless, when sentencing Appellant, the district

court did not acknowledge that Appellant had requested a sentence consistent with the

one Hilliard received -- in fact, the district court did not mention Hilliard at all -- let alone

explain why such a disparity was warranted. We thus conclude that the district court

procedurally erred by not addressing Appellant’s sentence disparity argument.

Accordingly, we vacate Appellant’s sentence and remand this case to the district

court for resentencing. 3 We instruct the district court upon remand to address

Appellant’s argument that he should receive a sentence close to the 60 month sentence

Hilliard received because a sentence within the Guidelines range would create an

unwarranted sentence disparity. However, we in no way mean to imply that the district

court is obligated to modify Appellant’s sentence. The district court must simply “make

an individualized assessment based on the facts presented” and adequately explain its

reasons for imposing whatever sentence it may choose. Carter,

3 We need not consider the substantive reasonableness of Appellant’s sentence because the district court procedurally erred by failing to address Appellant’s argument. See Ventura,

; Martinovich,

.

7 (emphasis deleted) (quoting Gall,

). Its “stated rationale must be ‘tailored

to the particular case at hand and adequate to permit meaningful appellate review.’”

United States v. Lymas,

(4th Cir. 2015) (quoting Carter,

).

In considering Appellant’s argument, it may be helpful for the district court to

determine whether or not Hilliard is actually similarly situated to Appellant. But we

certainly do not intend to suggest that the district court must give Appellant the same

sentence Hilliard received from another district court in a different circuit, particularly

since the facts of Hilliard’s case are not part of the record before us.

B.

We are also compelled to address Appellant’s contention that the district court was

obligated to consider the soundness of the child pornography Guidelines. Although

Appellant dedicates the bulk of his appellate briefs to this argument, he did not raise it

below. Appellant’s rote statement that the district court “may vary from Guidelines

ranges based solely on policy considerations” is buried in his sentencing memorandum,

and he failed to elaborate on the argument at his sentencing hearing. Sentencing

Memorandum at 3, United States v. Wheeler, No. 5:15-cr-00382 (E.D.N.C. Dec. 15,

2015; filed June 1, 2016), ECF No. 12. The single statement in the sentencing

memorandum is plainly insufficient to “inform[] the court . . . of the action [Appellant]

wishes the court to take.” Fed. R. Crim. P. 51(b); see Lynn, 592 F.3d at 577–78 (applying

this standard to “[t]he question . . . as to how a party may preserve . . . a claim of

procedural sentencing error in the district court”). Appellant never asked the district

8 court -- as he now asks us -- to account for the alleged unfairness of the child

pornography Guidelines as a basis for imposing a lower sentence.

Moreover, we have never required district courts to sua sponte comment on the

appropriateness of the Guidelines in light of widespread criticism. To the contrary, we

have instructed district courts “to give respectful attention to Congress’ view that [child

pornography crimes] are serious offenses deserving serious sanctions.” United States v.

Morace,

(4th Cir. 2010) (quoting United States v. Hecht,

(4th Cir. 2006)). Any disagreement with the Guidelines range imposes no

obligation on the district court to examine the propriety of the Guidelines, especially

since the district court is free to vary from the Guidelines range where appropriate.

Notably, the district court varied downward in this instance.

In the same vein,

(a) does not require the district court to

acknowledge deficiencies with the Guidelines because the Guidelines range typically

“embodies the § 3553(a) factors and ‘reflect[s] a rough approximation of sentences that

might achieve § 3553(a)’s objectives.’” Lymas,

(quoting Rita v. United

States,

(2007)). It is not the responsibility of the federal courts to

question the reasoned policy determinations made by Congress and the United States

Sentencing Commission.

III.

For the foregoing reasons, Appellant’s sentence is vacated, and this case is

remanded to the district court for resentencing.

VACATED AND REMANDED

9