United States v. Scher, 4th Cir. (2010)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 09-4827
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
STEWARD SCHER, a/k/a DadnNC, a/k/a Carmine4u,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., Chief District Judge. (3:08-cr-00109-RJC-1)
Submitted:
July 14, 2010
Decided:
July 26, 2010
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Matthew R. Segal,

FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant.
Edward R. Ryan, United States
Attorney,
Cortney
S.
Escaravage,
Assistant
United
States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steward Scher appeals his 180-month sentence following
a guilty plea to possession, transportation and distribution of
child
pornography
in
violation
of
18
(a)(2), (a)(4)(B) (West Supp. 2010).
U.S.C.A.
2252(a)(1),
On appeal, Scher contends
that the district court procedurally erred by enhancing his base

offense
level
by
five
levels
pursuant
to
U.S.
Sentencing
Guideline Manual (USSG) 2G2.2(b)(3)(C) (2008).
Scher also
argues that the length of his sentence is unreasonable.
We
affirm.
We
first
sentencing error.
address
Schers
claim
of
procedural
Scher contends, as he did below, that the
USSG 2G2.2(b)(3)(C) enhancement was not applicable in his case

because
the
Government
failed
to
distributed pornography to a minor.

that internet
application
that
both
of
he
chatroom
the
and
communications
enhancement, 1
AmyP12
were
establish
that
Scher
The district court found

with
rejecting
adults
AmyP12
Schers
using
justified
contention
role-playing
chatroom.
AmyP12 conversed with Scher in a chatroom, and Scher

transferred pornographic material to her over the internet.
Distribution to a minor is defined as the knowing

distribution to an individual who is a minor at the time of the
offense.
USSG 2G2.2, cmt. n.1.
A minor is:
(A) an individual who had not attained the age of 18

years; (B) an individual, whether fictitious or not,
who a law enforcement officer represented to a
participant (i) had not attained the age of 18 years,
and (ii) could be provided for the purposes of
engaging in sexually explicit conduct; or (C) an
undercover law enforcement officer who represented to
a participant that the officer had not attained the
age of 18 years.
Id.
The Government must prove the facts needed to support
a sentencing enhancement by a preponderance of the evidence.
United States v. Milam, 443 F.3d 382, 386 (4th Cir. 2006).
determining
consider
whether
hearsay,
sufficient
sentencing
provided
indicia
of
enhancement
that
reliability
the
to
applies,
information
support
its
In
we
may
bears
accuracy.
United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010);
see USSG 6A1.3(a), p.s.
When reviewing the district courts
application of the sentencing guidelines, we review questions of

law
de
novo
and
findings
of
fact,
such
as
whether
distributed child pornography to a minor, for clear error.
Scher
See
United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008).
In United States v. Hansel, 524 F.3d 841 (8th Cir.
2008),
the
Eighth
2G2.2(b)(3)(C)
to
Circuit
facts
addressed
similar
3
the
to
application
those
of
presented
USSG
here.
Using
an
internet
child
pornography
beccajones13
chatroom,
to
and
thirteen-year-old
an
who
Hansel
individual
stated
female.
to
Hansel,
provided
images
who
the
used
Hansel
524
that
F.3d
at
depicting
screen
she
name
was
847.
While
Hansel argued there was no evidence before the district court

from which it could conclude that beccajones13 was actually a
minor, the Eighth Circuit found that the screen name and the
representation
provided
sufficient
evidence
district courts finding to that effect.

We
have
reviewed
the
record
to
support
the
Id.
and
conclude
that
the
district courts finding that AmyP12 was a minor was similarly

supported by a preponderance of the evidence and is not clearly
erroneous.
AmyP12 informed Scher that she was a twelve-year-old
female and sent him two pictures of herself.

consistent
with
female.
Scher
the
physical
continued
appearance
to
send
The pictures were

of
AmyP12
prepubescent
images
of
child
pornography after she informed him that she was twelve years old
and
after
he
received
two
pictures
of
young
girl.
Accordingly, the district court did not clearly err, and this
claim of procedural sentencing error fails.
Scher also argues that his sentence is substantively
unreasonable, in that it was longer than necessary to achieve
the sentencing goals of 18 U.S.C. 3553(a) (2006), particularly
in view of the harsh sentencing guideline ranges generated by
4
the guidelines
applicable to child pornography
crimes. 2
See
generally United States v. Morace, 594 F.3d 340, 345-48 (4th

Cir. 2010) (discussing nationwide trend of downward departures
and variances in child pornography cases).
Substantive reasonableness examines the totality of the
circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfies
the
standards
set
forth
in
3553(a).
United
States
v.
Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010); see Gall v.
United States, 552 U.S. 38, 51 (2007).
In imposing a variant
sentence, the sentencing court must consider the extent of the

deviation
and
ensure
that
the
justification
is
compelling to support the degree of the variance.

U.S. at 50.
sufficiently
Gall, 552
[A] major departure should be supported by a more
significant justification than a minor one.
Id.
Given that
the district court is in a superior position to find facts and

judge their import under 3553(a) in the individual case, we
must give due deference to the district courts decision that
the 3553(a) factors, on the whole, justify the extent of the
In his reply brief, Scher seeks to recharacterize

his
claim as one of procedural sentencing error,
and claims that
the district court did not address all of his arguments for a
downward variance.
We find no merit to this claim, as the
record confirms the district courts thorough consideration of
Schers arguments.
variance.
Id. at 51.
reasonably
have
The fact that the appellate court might
concluded
that
different
sentence
was
appropriate is insufficient to justify reversal of the district

court.
Id.
We
reasonable.
conclude
that
Schers
sentence
is
substantively
While Scher argues that the district court did not
give sufficient weight to his history and characteristics or to

the sentencing disparities that would result from the imposition
of a within-guideline sentence, it is clear from the record that
the
district
court
meticulously
considered
those
factors
and
properly weighed them against the seriousness of the offense,

including victim impact and the need to protect the public and
deter
criminal
thirty
months
sufficient
but
activity.
below
not
the
The
court
bottom
greater
than
purposes of 18 U.S.C. 3553(a).
of
decided
the
that
guideline
necessary
to
sentence
range
was
accomplish
the
And while this sentence is
below the applicable guideline range, we find that the extent of

the
deviation
was
adequately
explained
and
well
within
the
district courts discretion.

Accordingly,
We
dispense
with
oral
we
affirm
argument
the
district
because
the
court
facts
judgment.
and
legal
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.
AFFIRMED
6

United States v. Scher, 4th Cir. (2010)

Uploaded by

Copyright:

Available Formats

United States v. Scher, 4th Cir. (2010)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Scher, 4th Cir. (2010)

Uploaded by

Copyright:

Available Formats

UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

July 14, 2010

July 26, 2010

Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Matthew R. Segal,

Unpublished opinions are not binding precedent in this circuit.

(a)(2), (a)(4)(B) (West Supp. 2010).

On appeal, Scher contends

that the district court procedurally erred by enhancing his base

Guideline Manual (USSG) 2G2.2(b)(3)(C) (2008).

argues that the length of his sentence is unreasonable.

Scher contends, as he did below, that the

USSG 2G2.2(b)(3)(C) enhancement was not applicable in his case

distributed pornography to a minor.

The district court found

AmyP12 conversed with Scher in a chatroom, and Scher

Distribution to a minor is defined as the knowing

USSG 2G2.2, cmt. n.1.

(A) an individual who had not attained the age of 18

When reviewing the district courts

application of the sentencing guidelines, we review questions of

distributed child pornography to a minor, for clear error.

Hansel argued there was no evidence before the district court

district courts finding to that effect.

district courts finding that AmyP12 was a minor was similarly

AmyP12 informed Scher that she was a twelve-year-old

female and sent him two pictures of herself.

The pictures were

applicable to child pornography

generally United States v. Morace, 594 F.3d 340, 345-48 (4th

sentence, the sentencing court must consider the extent of the

compelling to support the degree of the variance.

[A] major departure should be supported by a more

significant justification than a minor one.

the district court is in a superior position to find facts and

In his reply brief, Scher seeks to recharacterize

The fact that the appellate court might

appropriate is insufficient to justify reversal of the district

While Scher argues that the district court did not

give sufficient weight to his history and characteristics or to

properly weighed them against the seriousness of the offense,

purposes of 18 U.S.C. 3553(a).

And while this sentence is

below the applicable guideline range, we find that the extent of

district courts discretion.

contentions are adequately presented in the materials before the

You might also like