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Sentence increase for past sexual acts on a minor upheld.


David Ryan Alberts was sentenced to 120 months after pleading to receiving and possessing child pornography. Albers was arrested after F.B.I. agents in Orlando Florida went to Albert’s home and where he admitted accessing and receiving and possessing child pornography as long as 15 years ago. They discovered over 160 images on his thumb drive. Albert also admitted having engaged in sexual acts with his younger relatives on different occasions when they were under the age of 12 and when he was approximately 16 years old. The PSR also said that he admitted to searching for images depicting incest and law enforcement agents found numerous incest related stories on his thumb drive. Based on his teenage sex acts with his younger relatives, the PSR assessed a five-level increase to his offense level under section 2G2.2(b)(5) of the guidelines for engaging in a pattern of activity involving sexual abuse or exploitation of a minor.   This gave him a range of 135-168 months. At his sentencing, he challenged the application of this enhancement though he did not challenge the factual accuracy of this history. The district court granted the defendant’s motion for downward departure and imposed a sentence of 120 months.

Albert challenged the five-level enhancement his sentence on several grounds. First, he argued that the government did not produce sufficient evidence to justify the enhancement. But the court concluded that Alberts did not object at sentencing to the statements in the PSR regarding his past sexual activity. Furthermore, his admissions were corroborated by his long-standing preoccupation with incest and pedophilia. Therefor the appellate court found the district courts findings of fact regarding the enhancement were not erroneous.

Alberts also challenged the enhancement because he should not be punished for a pattern of activity that took place when he was a minor. The question the court appellate court faced was whether acts of a defendant done when he was a minor can support the imposition of a longer sentence under USSG § 2G2.2(b)(5). Other circuit courts of appeal have held that a pattern of activity sentencing enhancement can be supported by minor-on-minor contact. Albert’s admission to engaging in sexual acts with his younger relative who were 12 years old when he was 16 years old was sexual abuse or exploitation and therefor amounts to a pattern of activity under the sentencing guideline.

Finally, Alberts argued that the federal criminal sentence was procedurally and substantively unreasonable because the Orlando, Florida district court improperly considered his need for rehabilitation as a sentencing factor, in violation of Tapia v. United States, in which the Eleventh Circuit held that a district court errs whenever it considers rehabilitation when imposing or lengthening a sentence of imprisonment. While the sentencing court erred in considering Albert’s need for rehabilitation as a factor in determining his sentence, the defendant could not show it affected his substantial rights. Here the rehabilitation was merely an ancillary concern. The court’s primary concerns were the seriousness of Albert’s offense, the need for punishment and deterrence and the need to protect society from his dangerous actions.


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