The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
RULINGS AND FINDINGS REGARDING DISPUTED SENTENCING MATTERS
AND NOW, this 14th day of December, 2007, for the reasons to follow, after careful consideration of the decision of the United States Court of Appeals for the Third Circuit, the memoranda of the parties with respect to matters in dispute, evidence submitted and argument of counsel at the resentencing hearing of December 13, 2007, and the entire record from the original sentencing proceeding, including the unambiguous terms of the Plea Agreement and the unchallenged facts and calculations of the Presentence Report, the Court will reaffirm the lifetime term of supervised release because: (i) a term of lifetime supervised release is an integral component of a sentence of at the "upper end of the guideline range," as the parties agreed in their Plea Agreement; (ii) the maximum lifetime term of supervised release counterbalances the otherwise too lenient term of imprisonment, 46 months, to which the parties agreed and the Court accepted; (iii) lifetime supervision is the appropriate term of supervision under all of the facts and circumstances of record, as set forth more fully herein; (iv) lifetime supervision is the recommended term of supervision for sex offenders such as Derrick Kenrick, according to section 5D1.2(b)(2) of the Sentencing Guidelines and the applicable policy statement accompanying that section; and (v) defendant did not object to the calculation by the Probation Office in the Presentence Report stating that a lifetime term of supervision was the recommended term of supervised release.
Defendant pled guilty on July 7, 2005, to one count of "Travel with Intent to Engage in Illicit Sexual Conduct," in violation of Title 18 of United States Code, Section 2423(b), pursuant to a written plea agreement. The Plea Agreement, in paragraph C.1, stated the maximum "penalty that may be imposed upon Derrick Kenrick" as follows:
(a) A term of imprisonment of not more than thirty (30) years; * * *
(c) A term of supervised release of up to life, 18 U.S.C. §3583(k) ; .
2. Agreement That "A Sentence at the Upper End of the Guideline Range Is Reasonable in this Case"
Paragraph C.3 of the Plea Agreement set forth the parties' stipulation that the 2004 Sentencing Guidelines were applicable, that the base offense level pursuant thereto was 18, that a four level enhancement pursuant to U.S.S.G. § 2A3.2(b)(1) was appropriate because the minor victim was in defendant's custody, care or control, that a two level enhancement pursuant to U.S.S.G. § 2A3.2(b)(3) was appropriate because a computer or interactive computer service had been used to persuade, induce, entice or coerce the minor to engage in prohibited sexual conduct, and that a three level reduction for acceptance of responsibility was appropriate pursuant to U.S.S.G. § 3E1.1, thus yielding a total offense level 21. Importantly, paragraph C.4 of the Plea Agreement explicitly stated: "The parties agree that a sentence at the upper end of the guideline range is reasonable in this case." (emphasis added).
The Plea Agreement does not say that the "parties agree that a term of imprisonment at the upper end of the guideline range" would be reasonable. The parties' agreement that "a sentence at the upper end of the guideline range is reasonable" is not limited to the "imprisonment" component of the sentence, nor did defendant exclude the "supervised release" portion of his sentence from this "sentence at upper end of the guideline range" agreement.
The 46 month term of imprisonment arguably would have been unreasonable in the absence of the plea agreement, in which the parties agreed to the less punitive term of imprisonment calculated under the 2004 version of the Guidelines manual, rather than the earlier version which the Probation Office determined should have been applied. See Rulings on Defendant's Objection to Presentence Investigation Report (doc. no. 24).
The Court would not have accepted the very lenient term of imprisonment contemplated by the parties' stipulation to a total offense level of 21 at paragraph C.3 of the Plea Agreement if the parties had not, by the plain and unambiguous terms of the Plea Agreement, also endorsed a sentence at the upper end of the guideline range for supervision.
Lifetime supervision is not only within the "upper end" of the advisory guidelines range, which the parties agreed was reasonable, it is the recommended term of supervised release, as discussed more fully herein. U.S.S.G. § 5D1.2(b)(2).
3. Waiver of Right to Take Direct Appeal Unless the Government Appeals, the Sentence Exceeds Statutory Limits, or the Sentence "Unreasonably Exceeds the Guideline Range Determined by the Court under the Sentencing Guidelines"
Further, in paragraph A.9 of the Plea Agreement, defendant explicitly "waive[d] the right to take a direct appeal from his conviction or sentence under 28 U.S.C. §1291 or 18 U.S.C. §3742, subject to the following narrow exceptions:
(a) If the United States appeals from the sentence, [defendant] may take a direct appeal from the sentence.
(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, [defendant] may take a direct appeal from the sentence.
B. Change of Plea Hearing
At the hearing on defendant's change of plea, the Court advised the defendant, and defendant made it clear that he knew and understood, the following:
- that the maximum sentence the Court could impose under the law for the commission of the offenses and the conduct he admitted included a term of imprisonment of not more than thirty and a term of supervised release up to life;
- that the parties had agreed to the upper end of the advisory guideline range as an appropriate sentence;
- that the Court could reject the plea, in which case defendant would be allowed to withdraw his guilty plea;
- that except as otherwise specified in the plea agreement, defendant was giving up his right to appeal as well as any right to file a motion to vacate sentence under 28 U.S.C. §2255 for habeas corpus relief;
- the AUSA explained that the only two exceptions upon which defendant could appeal were if the sentence exceeded applicable limits, or if it exceeded "the guideline range determined by the Court under the sentencing guidelines." Change of Plea Transcript (doc. no. 38), at 26.
Defendant acknowledged his understanding of all of his rights and the consequences of his plea, as partially set forth above, including acknowledging that he was giving up his right to appeal except as stated in his Plea Agreement. Id. at 27.
C. Pre-Sentencing Procedure
On July 7, 2005, this Court entered its standard scheduling order (doc. no. 20), stating as follows:
IT IS HEREBY ORDERED that pursuant to Local Criminal Rule 32.1, the probation office will prepare a pre-sentence investigation report. Thereafter, the probation office will forward a copy of that report to defense counsel to review with his client prior to sentencing. The probation office will also forward a copy of the report to the Assistant United States Attorney.
If either party disputes facts contained in the report that are material to sentencing, it will be that party's obligation to seek administrative resolution of that matter through a pre-sentence conference with opposing counsel and the probation officer. Thereafter, defense counsel and the Assistant United States Attorney will each file with the clerk of court, and serve upon opposing counsel and the probation office, their positions with respect to sentencing factors. This pleading will be accompanied by a written statement certifying that filing counsel has conferred with opposing counsel and the probation office in an attempt to resolve any disputed matter.
After receipt of the parties' positions, the reporting probation officer will make any necessary investigation and revisions to the report. In any event, the reporting probation officer will prepare an addendum to the report that sets forth any objection to the report that has been made by counsel but not resolved, together with the probation officer's comments. The probation officer will certify that the report, any revisions thereto, and the addendum have been disclosed to the defendant and all counsel and that the addendum fairly sets forth all remaining objections.
2. The Presentence Report
The Presentence Report ("PSR") was prepared on September 19, 2005. The Offense Conduct set forth at ¶¶ 8-17 went unchallenged by defendant, and the Court, accordingly, relied on (but did not believe it was necessary to articulate, in light of the parties' agreement) the undisputed facts and circumstances recited in arriving at an appropriate sentence at the upper end of the guideline sentencing range.
Offense Conduct. The relevant Offense Conduct includes: the minor victim in this case was only 13 years of age when defendant contacted her in an internet chat room; defendant commenced and maintained an electronic and telephone relationship with the victim, and told her he was 19 years old, later 22years old (she did not learn his real age, currently 52 years, until their first contact); in June 2004, defendant asked the minor victim if she would marry him; in August 2004, defendant traveled from Georgia to the Western District of Pennsylvania to have sexual relations with the victim, who by then was 15 years of age; defendant ingratiated himself to the victim's family by giving them cash, furniture and other valuable gifts while he was living with the victim's family and engaging in sexual contact with the victim (but not intercourse) on numerous occasions; defendant continued to try to contact the victim after he was told to leave her alone, threatened the victim's mother in an e-mail, and falsely claimed to be a member of the armed forces as well as a police officer before demanding that he be allowed to see the victim; defendant informed federal agents that he had been in contact with a 14 year old girl he met online, but he claimed he broke that off when he found out she was under age, and that he currently resided with a 26 year old woman whom he met on-line in February 2004.
Offender Characteristics. The PSR also set forth relevant Offender Characteristics at ¶¶ 45-73, which also were unchallenged and, therefore, the Court relied on the undisputed facts and circumstances recited in arriving at an appropriate sentence at the upper end of the guideline sentencing range. Said Offender Characteristics include several arrests but no convictions, including two charges of pointing a gun at another person in 1993 and 1998, and a former marriage to a woman who was 16 years of age when he met her on-line in 2003. (To be sure, defendant's Offender Characteristics includes positive information, such as support from his community and family, and that he was apparently an active caretaker of the children of a woman to whom he had previously been married.)
PART D. SENTENCING OPTIONS
Paragraphs 77 and 78 of the PSR list the "Sentencing Options" for supervised release. Paragraph 77 states that, pursuant to statute, 18 U.S.C. ¶¶ 2422 and 3583(k), the Court could impose a sentence of "any term of years to a maximum life term of supervised release . . . ." Paragraph 78 specifies the Guideline Provisions governing the sentencing guidelines range for a term of supervised release:
The guideline range for a term of supervised release is at least 3 years but not more than 5 years, pursuant to U.S.S.G. § 5D1.2(a)(1). However, pursuant to U.S.S.G. § 5D1.2(b), the length of the term of supervised release shall not be less than the minimum term of years specified for the offense under Subdivisions (a)(1) through (3) and may be up to life if the offense is a sex offense, pursuant to U.S.S.G. § 5D1.2(b)(2). The policy statement found in that section states, "If the instant offense is a sex offense, however, the statutory maximum term of supervised release is recommended."
PSR ¶ 78 (emphasis added).*fn1
3. Defendant's Objection to PSR
Defendant filed only one objection to the PSR (Objections, doc. no. 21), to the extent it relied on the 2003 version of the Sentencing Guidelines to calculate the appropriate sentence, because the parties had agreed in their Plea Agreement that the 2004 version applied. The 2003 version would have been more punitive as to the term of imprisonment. This Court agreed with defendant that the Probation Office was required to give the parties the benefit of their bargain, and sustained defendant's single objection to the PSR, on the following reasoning:
The Probation Office used the 2003 Sentencing Guidelines Manual to calculate a total offense level 25, leading to an advisory guidelines range of 51 to 71 months based on defendant's criminal history category I. Under the 2004 sentencing guidelines, the advisory guidelines range is 37 to 46 months based on defendant's criminal history category I.
Defendant objects to the use of the 2003 version of the guidelines because the 2004 version is "more favorable" to him, and therefore should be used, and because of the stipulations set forth in the plea agreement. The Court agrees with defendant that the parties are capable and competent to enter into a plea agreement specifying which version of the sentencing guidelines to be used and stipulating to various sentencing factors and even specific sentences or ranges (bounded by the statutory minimums and maximums). See, e.g., United States v. Bernard, 373 F.3d 339, 345 (3d Cir. 2004) ("[p]lea agreements are contractual and therefore are to be analyzed under contract law standards") (quoting United States v. Gilchrist, 130 F.3d 1131, 1134 (3d Cir. 1997)) and United States v. Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir. 1989).
Under Bernard, this Court has the "authority to accept a plea agreement stipulating to a sentencing factor or a provision of the sentencing guidelines that otherwise would not apply, or specifying a sentence that falls outside the applicable guidelines range. Once the District Court has accepted such an agreement, it is binding." 373 F.3d at 344 (emphasis added). Accordingly, the Court will sustain defendant's objection, and sentence defendant according to the terms of the plea agreement.
Rulings on Defendant's Objection to Presentence Investigation Report (doc. no. 24) at 1-2 (emphasis in original).
4. Court's Ruling Regarding Scope of Sentencing Hearing
The Court's Rulings on Defendant's Objection to Presentence Investigation Report also noted as follows:
4. In arriving at an appropriate sentence, this Court always considers the numerous statutory factors set forth in section 3553. Thus, the Court attempts to arrive at a sentence that would be sufficient, but not greater than necessary: (a) to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense; (b) to afford adequate deterrence; (c) to protect the public against commission of further crimes by this defendant; and (d) to provide the defendant with needed and effective educational or vocational training, medical care, or other correctional treatment.
Additionally, the Court considers all of the other factors set forth in 18 U.S.C. § 3553(a), including: the nature and circumstances of the offense and the defendant's history and characteristics; the kinds of sentences available for this offense; the sentencing guidelines range under the advisory guidelines adopted by the United States Sentencing Commission for the category of offense and defendant's criminal history; any applicable policy statements adopted by the Commission; the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims of the offense.
Important to this Court's determination of an appropriate sentence, but not dispositive, is the range derived from correct application of the guidelines, which requires this Court to rule on objections and consider the Probation Office's guidelines calculation. This factor then is considered along with all the other factors enumerated ...