PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4755

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOHN MICHAEL FOWLER,

Defendant – Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:17-cr-00644-RDB-1)

Argued: December 10, 2019 Decided: January 27, 2020

Before WILKINSON, THACKER, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Thacker and Judge Rushing joined.

ARGUED: Cullen Oakes Macbeth, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Daniel Alan Loveland, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Robert K. Hur, United States Attorney, Paul E. Budlow, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. WILKINSON, Circuit Judge:

Appellant John Michael Fowler argues that the district judge erred by mentioning

the possible impact of good-time credits, and inaccurately calculating the potential impact

of such credits, when sentencing him for the production and possession of child

pornography. Fowler also argues that his final sentence was longer than needed to serve

the proper purposes of sentencing. We disagree on all counts. The charges against Fowler

stemmed from horrific conduct—his sexual abuse of two young girls. The district judge’s

mention of good-time credits was tied to

(a) factors, such as the need to

protect the public, that he was required to consider during sentencing. By carefully

weighing many relevant factors, the judge reached a substantively reasonable sentence of

40-years’ imprisonment.

I.

A.

The facts of this case are not contested. John Michael Fowler sexually abused two

young girls. He filmed and photographed some of this abuse, leading to the case at hand.

One victim was his girlfriend’s daughter (“Jane Doe 1” or “Jane”). Fowler began living

with his girlfriend (“K.M.”) and Jane in 2013. Between 2013 and 2014, Fowler sexually

abused Jane, who was seven to eight years old at the time.

Fowler did not end his abuse of Jane until he moved out of the house in late 2014,

despite almost being caught for abusive activities over a year earlier. In September 2013,

a concerned citizen called the police on Fowler after seeing him behave suspiciously

toward Jane on public transportation. Police responded and found that Fowler was carrying

2 a concealed weapon; they arrested him on a weapons charge. During an interview shortly

afterwards, Jane told the police that Fowler was sexually abusing her at home. Four days

later, she recanted when interviewed at the Baltimore City Child Abuse Center (the

“BCAC”). According to K.M., Jane had seen K.M. placed in handcuffs the night of

Fowler’s arrest, and believed that K.M. would go to jail and that she would go to foster

care if she told the truth about Fowler’s abuse. Despite this “near miss,” Fowler’s sexual

abuse of Jane continued.

Over a year later, in December 2014, Jane was diagnosed with chlamydia, a sexually

transmitted disease, which both Fowler and K.M. had recently been treated for. Jane was

interviewed at the BCAC a second time but, once again, did not disclose Fowler’s

continued abuse. Fowler stopped abusing Jane after he moved out at the end of 2014.

Several years later, in January 2017, ten-year-old Jane found a laptop at her home

containing a video created by Fowler in 2014. The video showed Jane and her similarly

aged cousin (“Jane Doe 2”) singing and dancing while wearing only underwear. It briefly

showed Fowler, also in underwear. Fowler’s voice can occasionally be heard in the video:

at one point, he directed the girls to take off their underwear. They did so and continued

dancing. After finding the video, Jane was interviewed at the BCAC a third time.

During this third interview, Jane described the abuse she had suffered at Fowler’s

hands. Details included the following: Fowler offered Jane money to touch his penis; he

put her hands on his penis; he put his penis on her chest; he attempted to put his penis in

her vagina and in her bottom; and his abuse occurred only when her mother was out of the

house.

3 The BCAC also interviewed Jane Doe 2, who disclosed that she had been abused

by Fowler when she was around eight years old. Specifically, one night while sleeping over

at Jane’s house, she woke up to find Fowler taking a picture of her vagina with a cell phone;

at the time, she was sleeping in a t-shirt without underwear, as was Jane. Jane Doe 2 also

saw Fowler take pictures of Jane’s vagina that night. Jane Doe 2 did not spend another

night at Jane’s house until after Fowler moved out.

In February 2017, officers from the FBI and the Baltimore City Police Department

seized Fowler’s laptop while executing a search warrant at his home. Fowler was

interviewed the same day. He denied sexually abusing Jane, but investigators found at least

four images showing such abuse on his laptop. Each image corresponds to a count in

Fowler’s indictment.

• Count 1: Image showing a nude Jane touching Fowler’s erect penis.

• Count 2: Image showing Fowler and Jane, both nude, where Jane is holding an object that is touching Fowler’s penis.

• Count 3: Image appearing to show Fowler raping Jane. A naked Fowler lies on top of a naked Jane with his torso positioned between her legs. This image was taken from the side, and Fowler appears to penetrate Jane.

• Count 4: Image appearing to show Fowler raping Jane. A naked Jane sits on top of a naked Fowler. Fowler’s genitals are in contact with Jane’s, and he appears to penetrate her.

Fowler was charged with five counts in his indictment. For the four counts described

above, he was charged with the production of child pornography in violation of

(a). Count Five charged Fowler with the possession of child pornography in

violation of

(a)(4)(B), (b)(2).

4 B.

Without reaching a plea agreement, Fowler pleaded guilty to all five counts. A

production conviction carries a mandatory minimum sentence of 15-years’ imprisonment

and a maximum of 30-years’ imprisonment,

(e), and a possession

conviction carries no mandatory minimum sentence and a maximum of 20-years’

imprisonment,

(a)(4)(B), (b)(2). Thus, Fowler faced a maximum

potential sentence of 140-years’ imprisonment.

Both Fowler and the government submitted sentencing memoranda. Fowler

requested an all-concurrent sentence of 15-years’ imprisonment, the mandatory minimum,

followed by supervised release. His sentencing memorandum focused on his difficult

childhood and his diagnoses of neurocognitive defects. The government requested a

sentence of 50-years’ imprisonment. Its sentencing memorandum focused on Fowler’s

abhorrent conduct and the impact on his child victims. It requested a sentence lower than

the 140-year statutory maximum, after “tak[ing] into consideration the mitigating factors

present, namely the defendant’s disturbing childhood and his mental-health challenges.”

S.J.A. 212.

At Fowler’s sentencing hearing on October 15, 2018, the district judge determined

that the Sentencing Guidelines recommended life imprisonment for Fowler, based on his

criminal history category of I and total offense level of 43. Both parties addressed the court.

The government highlighted Fowler’s egregious conduct, the abuse of trust integral to his

crimes, and the “opportunistic” aspects of his behavior. J.A. 69. It also discussed the

ongoing impact of Fowler’s abuse on his victims, particularly Jane’s struggles with

5 depression and anxiety. Consistent with its sentencing memorandum, the government

requested a sentence of 50-years’ imprisonment.

Once again, the defense requested a sentence of 15-years’ imprisonment, asking the

court to balance the harm caused by Fowler against “[his] acceptance of responsibility, his

profound history of trauma, the circumstances that led to this offense, and his amenability

to treatment and supervision.” J.A. 49. During the hearing, the district judge asked the

defense questions about Fowler’s time in foster care as a child, his mental health issues,

his employment history, and his eligibility for government benefits; the defense provided

in-depth answers. In response to the government’s proposed sentence, the defense argued

that a sentence of 50-years’ imprisonment would be “life-equivalent” and inappropriate as

a matter of policy. J.A. 65.

The district judge recognized that Fowler was “a troubled individual” who has “had

serious mental health issues” and “suffered extraordinarily in [] life.” J.A. 71. However,

the judge also noted that Fowler had “laid great pain upon the victims of this offense,” J.A.

71, which “cannot be ignored, nor minimized, nor can the matter of public outrage not be

minimized, nor can the matter of protection of the public be minimized,” J.A. 73. The judge

agreed with the defense that a life-equivalent sentence would be “very inappropriate,” but

also noted that a 15-year sentence would be “grossly inappropriate.” J.A. 74-75.

After the district judge provided a detailed synopsis of the factors he was balancing

in this case, J.A. 71-75, he described a portion of his thought process as follows:

[I]t occurred to me that what is proportionate, what protects the public, what provides sufficiently severe punishment, but yet, at the same time, gives [Fowler] some light somewhere at the end of the tunnel, I think is around his

6 60th birthday, which, when crunching numbers, means that, with a sentence of 40 years’ imprisonment, which is 480 months, that allowing that 20% knockoff perhaps for good-time credit, that it would mean that ultimately he would serve perhaps 32 years of a 40-year sentence -- who knows. That’s up to the Bureau of Prisons. I can’t control that -- from the age of 28. And the ultimate release date is more in the vicinity of his 60th birthday, not his 70th birthday.

J.A. 75. In the end, the judge sentenced Fowler to 40-years’ imprisonment followed by

30-years’ supervised release. J.A. 75-77. He ordered that Fowler be given credit for

approximately ten months already served in federal custody and recommended to the

Bureau of Prisons (the “BOP”) that Fowler be given credit for an additional ten months

served in state custody. J.A. 76.

Fowler appeals on three grounds. First, he argues that the district judge erred by

mentioning the potential impact of good-time credits during sentencing, rendering the

resulting sentence improper. Second, he argues that the judge committed procedural error

by miscalculating the maximum impact of good-time credits. Finally, he argues that his

sentence of 40-years’ imprisonment is longer than necessary and thus substantively

unreasonable.

II.

A.

“[S]entencing judges exercise a wide discretion in the types of evidence they may

consider when imposing sentence . . . .” Pepper v. United States,

, 480 (2011)

(internal quotation marks omitted). While this longstanding principle remains in force,

Congress created a framework to guide judges during sentencing in

(a).

United States v. Raby,

(4th Cir. 2009). Under § 3553(a)(2), a court “shall

7 impose a sentence sufficient, but not greater than necessary, to comply” with four purposes

of sentencing—just punishment, adequate deterrence, protection of the public, and

rehabilitation through training or treatment.

(a)(2); see also Raby,

.

To reach its sentence, the court must weigh the seven factors listed in § 3553(a):

“(1) offense and offender characteristics; (2) the need for a sentence to reflect the basic

aims of sentencing . . . ; (3) the sentences legally available; (4) the Sentencing Guidelines;

(5) Sentencing Commission policy statements; (6) the need to avoid unwarranted

disparities; and (7) the need for restitution.” Rita v. United States,

(2007); see also

(a)(1)-(7). Section 3553(a)’s broad language is consistent

with the principle “that district courts enjoy significant discretion in sentencing, provided,

of course, that they devise reasonable sentences.” United States v. Clark,

(4th Cir. 2006) (Motz, J., concurring).

B.

We review all sentences for reasonableness. Gall v. United States,

(2007). Our review proceeds in two steps. First, we “ensure that the district court

committed no 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—including an explanation for any deviation from

the Guidelines range.” Id. at 51. The requirement of an adequate explanation is meant “to

allow for meaningful appellate review” of a sentencing determination. Id. at 50.

8 If we find the sentence procedurally reasonable, we next review its substantive

reasonableness, “tak[ing] into account the totality of the circumstances, including the

extent of any variance from the Guidelines range.” Gall,

. A sentence is

substantively unreasonable if it is longer than necessary to serve the purposes of

sentencing. United States v. Shortt,

(4th Cir. 2007); see also

(a)(2). In addition, a sentence may be rendered substantively unreasonable if

the district court relied on an improper consideration during sentencing. United States v.

Hargrove,

(4th Cir. 2010).

C.

In the case at hand, we find ourselves in an odd situation. The defendant challenges

the reasonableness of his sentence when the district judge imposed 40-years’

imprisonment, a downward variation from the Guidelines recommendation of life. We

begin with a few observations on the sentencing proceeding.

In many ways, the district judge ran a model proceeding. Would that all were

conducted so well. First, the judge accurately calculated Fowler’s Guidelines

recommendation, removing an erroneous upward adjustment that appeared in the

presentence report. See United States v. Blue,

(4th Cir. 2017). Second,

he gave “the parties the opportunity to argue for whatever sentence they deem

appropriate . . . .” See

(internal quotation marks omitted). Third, the judge

based Fowler’s sentence on “an individualized assessment of the facts and arguments

presented” and their relationship to § 3553(a) factors such as deterrence and protection of

9 the public. See id. (internal quotation marks omitted). Finally, the judge provided a

thorough explanation for his chosen sentence of 40-years’ imprisonment. See id. at 518.

Fowler attempts to pick apart the district judge’s explanation, suggesting that his

sentence is unreasonable because the judge mentioned the possibility of good-time credits

a couple of times over the entirety of a well-done sentencing proceeding. Next, he quibbles

with the judge’s approximations on good-time credits. Finally, he argues that his 40-year

sentence is longer than necessary to serve the purposes of sentencing.

III.

On appeal, Fowler argues for the first time that the district judge erred during

sentencing by considering the possibility he might earn good-time credits. Specifically,

Fowler contends that good-time credits are an improper sentencing consideration because

they do not fall under any § 3553(a) factor and because their consideration undermines

Congress’s sentencing regime.

When a defendant argues for the first time on appeal that a district judge erred by

considering an “improper factor” during sentencing, we review for plain error. Hargrove,

. It is well settled that to establish plain error, a defendant must show “(1)

that the trial court erred, (2) that the error is clear and obvious, and (3) that the error affected

his substantial rights.”

When these three conditions are met, it is within our discretion

to correct the error. United States v. Olano,

(1993). However, we should

exercise this discretion only if “the error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.”

(internal quotation marks omitted); see also

Hargrove,

.

10 Fowler fails on the first prong of plain error review, as the district judge committed

no error. During sentencing, the judge acknowledged what everyone knew: once in prison,

Fowler might receive good-time credits entitling him to earlier release. See

(b). Every one of the judge’s many considerations, including good-time credits, fell

under § 3553(a) factors that he was required to consider in determining a just sentence. See

Pepper, 562 U.S. at 480.

As the sentencing transcript shows, the district judge did not consider good-time

credits as a stand-alone factor during sentencing, nor did he utilize them as any sort of

vehicle for an enhanced sentence term. See United States v. Roberts,

(6th Cir. 2019) (holding that “[t]he mention of the availability of good-time credits does

not render the sentence substantively unreasonable” when “[t]he court did not . . . consider

good-time credit as a stand-alone factor in fashioning the length of the sentence”). Instead,

he only considered the potential impact of good-time credits in relation to Fowler’s age at

release. Naturally, it would be impossible to determine a defendant’s minimum age at

release without consideration of good-time credits.

The district judge considered Fowler’s age at release for two reasons, both of which

are valid. First, age at release is correlated with recidivism rates, a necessary consideration

for a judge charged with setting a sentence that protects the public and deters additional

criminal acts. See

(a)(2)(B)-(C). Second, the judge wished to encourage

Fowler’s rehabilitation by avoiding a life-equivalent sentence, see

(a)(2)(D); he considered the potential impact of good-time credits when tailoring a

sentence that would comply with this goal.

11 A.

Take recidivism first. As Fowler’s own cited precedent and literature shows, “the

risk of recidivism is inversely related to an inmate’s age” at release. United States v.

Howard,

(4th Cir. 2014). Multiple studies have suggested that, in

general, prisoners are less likely to be rearrested when they are released at an older age.

(citing several studies). Among sex offenders, the oldest prisoners on release were least

likely to be rearrested for a sex crime. Appellant’s Opening Br. at 51 (citing a Bureau of

Justice Statistics study). Although several of these studies limited their oldest age category

to age 45 or older, “[n]o doubt statistics for offenders released after age 60 are even more

compelling.” Howard,

(citing literature on geriatric release).

Recidivism is key to two purposes of sentencing: protection of the public and

deterrence.

(a)(2)(B)-(C). By Fowler’s own admission, his “demographic

profile” and its tie to recidivism is also relevant to his history and characteristics under

(a)(1). Appellant’s Opening Br. at 60. If a prisoner is released at an age where

recidivism is more likely, bad conduct may not be deterred and the public may not be

protected. These concerns were at the forefront of the district judge’s mind. As he

explained while sentencing Fowler, “[i]t would be grossly inappropriate for these kinds of

offenses to have a man at the age of 40 be released into the public in light of what’s been

reflected here, despite all the precautions that will be taken . . . .” J.A. 75. But at the same

time, he did not think “that it would serve any purpose in terms of protecting the

public . . . for [Fowler] to serve until he’s 70 years of age. . . . I think there are certain

12 realities and maturities and physical maturities and whatever that reflect that that’s not

necessary.” J.A. 74.

In the end, the district judge concluded that a 40-year sentence which equated with

Fowler’s release at the age of 67, while allowing him the possibility of release “in the

vicinity of his 60th birthday” with good-time credits, was appropriate. J.A. 75. The judge’s

consideration of Fowler’s minimum age at release in reaching this sentence was sensible.

See United States v. Al-Din,

(6th Cir. 2015) (upholding sentence

after the district court considered whether it “would be sufficient to serve the [§ 3553(a)(2)]

purposes of punishment and deterrence even if [the defendant] earned early release”

through good-time credits). Disallowing any mention of potential good-time credits would

simply make them a matter of silent consideration with all of its attendant loss in

transparency. It would also hamstring judges who are attempting to follow Congress’s

mandate to set sentences which protect the public and deter additional crimes. See

(a)(2)(B)-(C).

B.

The district judge considered Fowler’s minimum age at release for a second reason:

to avoid imposing a life-equivalent sentence that would discourage rehabilitation. Overall,

the judge cut Fowler a significant break. He did not sentence Fowler consistent with the

Guidelines recommendation of life. He did not sentence Fowler to 50-years’ imprisonment,

as the government requested. The judge concluded that “to say you’re in prison for life is

not going to accomplish anything, because a person has no hope, no light at the end of the

tunnel.” J.A. 74. For this reason, the judge wanted to design a non-life-equivalent sentence

13 that would allow the possibility of Fowler’s release around the age of 60. As the sentencing

transcript makes clear, the judge meant to give Fowler only the possibility, not the

certainty, of release around the age of 60. More than once, the judge mentioned that early

release was not a given.

Rehabilitation, however, was on the district judge’s mind. See

(a)(2)(D). The Supreme Court has made clear that a trial court “commits no error by

discussing the opportunities for rehabilitation within prison or the benefits of specific

treatment or training programs.” Tapia v. United States,

(2011). The

record reflects that the court did not lengthen Fowler’s sentence in order for him to

complete any particular rehabilitative regimen. It was hardly impermissible for the court to

be concerned that Fowler would have no reason to improve himself if he remained in prison

for life. By avoiding a life-equivalent sentence, the judge chose not to extinguish every

flicker of hope. To find a sentence that would punish, deter, and protect, while

simultaneously encouraging rehabilitation, the judge settled on a 40-year term.

To confirm that a 40-year sentence was not life equivalent, the district judge

considered the potential impact of good-time credits on Fowler’s age at release. As this

court has held, a judge may do just that. United States v. Gullett,

(4th Cir.

1996). In Gullett, the district court needed to avoid a life-equivalent sentence under the

statute at issue.

. Here, the district judge wanted to avoid a life-equivalent

sentence to encourage rehabilitation. See

(a)(2)(D). We do not think this

is an impermissible sentencing objective. Such a sentence may, along with good-time

14 credits, encourage an inmate’s better behavior in prison while offering the prospect of

ultimately leading a better life by doing something constructive nearer the end of it.

The district judge concluded that under a 40-year sentence, Fowler would “perhaps”

be released “in the vicinity of his 60th birthday” if he earned good-time credits. J.A. 75.

This sentence struck the judge’s desired balance: it in no way made light of Fowler’s

heinous conduct, but it was not life equivalent. Sentencing is supposed to embody just this

sort of balance. And appellate courts are advised not to disturb it. As the Supreme Court

has noted, “[t]he sentencing judge is in a superior position to find facts and judge their

import under § 3553(a) in the individual case.” Gall,

(internal quotation

marks omitted). *

C.

Finally, the district judge did not undermine Congress’s intent with respect to good-

time credits. Good-time credits are administered by the BOP to “reward[] and reinforce[]”

good behavior by prisoners. Barber v. Thomas,

(2010). The district

* Nor did the district judge commit procedural error during his consideration of good-time credits, as Fowler contends. Fowler alleges the judge erred by mentioning a “20% knockoff perhaps” for good-time credits, J.A. 75, when good-time credits can reduce a sentence by 14.8% a year at most, see

(b)(1). Under plain error review, we cannot say that any prong of Olano is satisfied. It is not clear the district judge erred, much less that Fowler’s substantial rights or the judicial process’s integrity were impacted. See Olano, 507 U.S. at. 732-36. The judge spoke of his goal of setting a sentence that would allow Fowler the possibility of release “in the vicinity of his 60th birthday.” J.A. 75. He relied on an approximation of good-time credits to confirm that a 40-year sentence was consistent with this goal and found it was. Even if the judge’s calculation is performed using 14.8% instead of 20%, it shows Fowler could be released at the age of 61, which is certainly “more in the vicinity of his 60th birthday, not his 70th birthday,” J.A. 75. 15 judge never intruded on this authority. He did not assume that Fowler would earn good-

time credits or attempt to dictate to the BOP how many credits to award. Rather, he said

that “perhaps” Fowler would earn good-time credits, and that the decision was “up to the

Bureau of Prisons. I can’t control that . . . .” J.A. 75. We find that formulation

unexceptionable.

IV.

Fowler next argues that his sentence of 40-years’ imprisonment was substantively

unreasonable because it was longer than necessary to serve the purposes of sentencing.

Specifically, he alleges that the district judge reached an unreasonably long sentence after

overweighing one factor, protection of the public, while underweighing others, including

his mental health issues, difficult childhood, and the need to avoid unwarranted sentencing

disparities.

This argument is easily answered. In light of the foregoing discussion, it should be

clear that the district court conducted a procedurally thorough hearing, the result of which

was to arrive at a substantively reasonable sentence. While the consideration of one

§ 3553(a) factor to the exclusion of the others is not appropriate, see United States v. Green,

(4th Cir. 2006), it is not required that the district court somehow give

all the different factors precisely equal weight. Sometimes one factor will outweigh the

others. Sometimes one factor will stand out. United States v. Pauley,

(4th Cir. 2007).

16 Here, after both considering and addressing Fowler’s arguments, the district court

made clear it could not overlook the gravity of Fowler’s conduct and its life-shattering

consequences. As the trial judge noted:

[Y]ou’ve also laid great pain upon the victims of this offense, and, quite frankly, you’ve laid pain upon the victim, particularly Jane Doe 1, that I suspect is incurable, meaning that you have already sentenced her to a life imprisonment. There is just simply no way that Jane Doe 1 is going to have a normal life, ever, as a result of this abuse, and is at an age now where she clearly, at 12 years of age, is right on the edge of developing physically and trying to develop emotionally, and you have laid that scar on her for the rest of her life.

J.A. 71. To put it mildly, there was nothing remotely unreasonable about Fowler’s

sentence.

V.

Sentencing, in one sense, involves an implicit dialogue between trial and appellate

judges. The institutional advantage district judges enjoy while sentencing has been

repeatedly recited. And when trial courts utilize that institutional advantage to listen,

engage, and explain, appellate courts should be reluctant to hack and saw at their rulings.

The trial court here did something even more. It reminded us that strict sentencing need

not on that account be inhumane, and we readily affirm its judgment.

AFFIRMED

17