FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 19, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-10739

Non-Argument Calendar

________________________

D. C. Docket No. 07-00236-CR-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAYMOND J. HORSFALL,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(December 19, 2008)

Before CARNES,WILSON and FAY, Circuit Judges.

PER CURIAM:
Raymond J. Horsfall appeals the district court’s 327-month sentence

imposed after pleading guilty to one count of receiving child pornography, in

violation of 18 U.S.C. § 2252A(a)(2). On appeal, Horsfall argues that: 1) the

government breached the plea agreement by recommending an upward departure;

2) the court erred by imposing an upward departure under the Guidelines; and 3)

the court violated Horsfall’s Eighth Amendment rights by considering victim

impact evidence at sentencing. For the reasons set out below, we affirm.

I.

A federal grand jury returned a 12-count indictment against Horsfall,

charging him with possession of electronic videos containing child pornography, in

violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 1), and receipt of 11 electronic

videos containing child pornography, in violation of 18 U.S.C. § 2252A(a)(2)

(Counts 2-12).

Pursuant to a written plea agreement, Horsfall pled guilty to Count Two of

the indictment and the government agreed to dismiss the remaining counts. The

plea agreement contained the following provisions pertinent to this appeal:

The government agrees not to recommend to the Court that the

Defendant, Raymond Horsfall, be given an upward departure under

the Advisory Federal Sentencing Guidelines.

The government reserves the right to inform the Court and the U.S.

Probation Office of all facts pertinent to the sentencing process,

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including all relevant information concerning the defendant and his

background.

At the plea hearing, the government called Special Agent Joshua W. Hayes

with the Federal Bureau of Investigation (“FBI”), who testified that, on July 21,

2007, a Savannah police officer responded to a report that an individual was

viewing child pornography on a laptop computer in a coffee house. That

individual, Horsfall, admitted to the investigating officer that he was viewing child

pornography on the computer. The officer subsequently seized the laptop and

turned it over to federal authorities, who later discovered child pornography files

on the computer, including the video file specified in Count Two of the indictment.

The probation officer prepared a pre-sentence investigation report (“PSI”).

In setting out the offense conduct, the probation officer stated that, of the 90 videos

found in Horsfall’s possession, 7 were in excess of 5 minutes in length: “One video

was seven minutes in length, one was nine minutes, one was thirteen minutes, one

was fourteen minutes, one was eighteen minutes, one was twenty-eight minutes in

length, and one was twenty-nine minutes in length.” The probation officer

determined that Horsfall was in possession of the equivalent of 6,310 images.

In calculating Horsfall’s applicable guideline range, the probation officer

first determined that Horsfall had a total offense level of 37. He then proceeded to

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discuss Horsfall’s criminal history. In 1987, Horsfall pled guilty to aggravated

child molestation, for which he was sentenced to five years’ imprisonment. The

victim in that case was Horsfall’s daughter, who was six years old at the time of

the offense. Under U.S.S.G. § 4A1.2(e), however, the probation officer did not

award Horsfall any criminal history points for this conviction. The probation

officer also reported that, in 1998, Horsfall pled guilty to a federal child

pornography offense for transmitting images over the Internet, for which he was

sentenced to five years’ imprisonment. Twenty days after Horsfall was released

from custody for that offense, the district court revoked his supervised release after

Horsfall viewed pornography on a public computer. The probation officer also

noted that, during a sex offender treatment session, “Horsfall indicated that he

would re-offend if given the opportunity.” Horsfall was released from custody

again in April 2005, just over two years before the commission of the instant

offense. Horsfall received three criminal history points for the 1998 offense,

giving him a criminal history category of II.

An offense level of 37 and a criminal history category of II gave Horsfall an

applicable guideline range of 235 to 293 months’ imprisonment. However, the

probation officer noted that an upward departure might be warranted on the

following two grounds:

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According to Application Note 4(B)(ii) of U.S.S.G. § 2G2.2, “If the

length of the recording is substantially more than 5 minutes, an

upward departure may be warranted.” Seven of the videos possessed

by the defendant were between seven and twenty-nine minutes in

length. Therefore, an upward departure may be warranted.

Pursuant to U.S.S.G. § 4A1.3, an upward departure may be warranted

if the defendant’s criminal history category significantly underrepresents the seriousness of the defendant’s criminal history or the

likelihood that the defendant will commit further crimes.

After Horsfall objected to the above two paragraphs of the PSI suggesting

that an upward departure might be appropriate, but before the probation officer

responded to these objections, the government submitted a response. Significantly,

the government’s response was not filed in the district court. The government

argued, inter alia, that it “intend[ed] to seek an upward departure” under § 2G2.2,

comment. (n.4(B)(ii)) based on the length of the videos. Citing to the facts in the

PSI, the government explained that there were several videos over 5 minutes, the

longest of which was 28 minutes, and that 3 others were 13, 14, and 18 minutes

long. In addition, the government asserted that “Horsfall’s own conduct and

admissions demonstrate he is likely to commit further crimes and that an upward

departure [wa]s necessary in this case to prevent future harm.” Citing again to the

PSI, the government explained that Horsfall had already been convicted of a child

pornography offense, had viewed child pornography 20 days after his release from

custody in that case, had previously admitted that he would re-offend if given the

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opportunity, and had been arrested again 2 years later for child pornography.

The probation officer then responded to Horsfall’s objections and submitted

a sentencing recommendation to the court. In the sentencing recommendation, and

“[b]ased on the under-representation of the defendant’s criminal history category,

the likelihood that he will commit future crimes, the substantial length of the

videos involved in his case, and the exceedingly large number of images possessed

by the defendant,” the probation officer recommended that the court upwardly

depart to a sentence of 327 months’ imprisonment.

Before sentencing, the government withdrew its response to Horsfall’s

objections to the PSI. The government acknowledged that the plea agreement

prohibited it from seeking an upward departure and that its response had disputed

Horsfall’s assertions that such a departure was unwarranted. The government

pointed out, however, that its response “was not filed with the Court.” The

government therefore withdrew the response and took “no issue with respect to

whether an upward departure is warranted in this case, as consistent with the Plea

Agreement.” That same day, the government also filed, under seal, victim impact

statements that it submitted for consideration at sentencing. The government

explained that the National Center for Missing and Exploited Children

(“NCMEC”) had identified some of the children in the pornographic images

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possessed by Horsfall and that some of these victims had provided victim impact

statements.

At sentencing, defense counsel first informed the court that he had

withdrawn all of his objections to the PSI. However, he objected to the

government’s submission of victim impact statements on the ground that the

government was attempting to seek an upward departure, which was prohibited by

the plea agreement. The government responded that it intended to present the

victim impact statements in order “to provide the Court with all of the necessary

characteristics of the defendant and the nature of the crime,” not to argue for an

upward departure. The government also explained that the victims had a statutory

right to be heard, and the court should consider the testimony under 18 U.S.C.

§ 3553(a). The court stated that it would allow the government to present the

evidence.

After Horsfall confirmed that he had reviewed the PSI and had no objections

to it, the following exchange then occurred:

THE COURT: All right. He objects to the upward

departure.

[DEFENSE COUNSEL]: Your Honor, those objections have

since been withdrawn, even our

objections to the upward departure.

THE COURT: I don’t understand. Why would you

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withdraw your objections to an

upward departure?

[DEFENSE COUNSEL]: Based upon Mr. Horsfall’s request,

Your Honor.

THE COURT: Did you request to withdraw that, Mr.

Horsfall?

DEFENDANT: Yes, Your Honor.

THE COURT: All right. So there are no objections

now.

The court then invited the government to present its victim impact evidence,

and the government called Horfall’s daughter, who testified that she was 27 years

old and that Horsfall had sexually abused her for about 6 years during her early

childhood. The abuse stopped when she told a teacher at school, which ultimately

led to Horsfall’s arrest and conviction. As a result of the abuse, she had attempted

suicide a few times, her children were not permitted to go to sleep overs, parties, or

even to the neighbor’s house, she had seen at least five different therapists, and

almost every night she woke up sweating and with her heart racing. With respect

to child pornography in general, she explained that viewing child pornography

created a marketplace for it and encouraged its production.

The government called Special Agent Hayes, who read brief portions from a

few of the victim impact statements that had been submitted to the court. He read a

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portion of a statement by a 17-year old victim who was sexually abused by her

father when she was between 10 and 11 years old. She had recently discovered

that her father had shared the images of the abuse with others and that she was part

of the “most prolific series of child pornography in the world.” She explained how

that made her feel like she had been raped by each and every one of the viewers.

Hayes also read a portion of a letter written by the mother of a child pornography

victim, who explained that “[a]ll those who trade these images and thereby created

the market for lured [sic] and violent depictions of children are participants in the

exploitation of my daughter.” The mother explained how she “watched [her]

daughter transform from a bouyant [sic], cheerful child, full of energy and

enthusiasm to an anxious and fretful shadow of her former self,” as she worried

about whether people she met had seen the images and had no way of knowing

how many of the images were still out there.

After Horsfall personally addressed the court and apologized to his daughter,

the government then stated:

Your Honor, we would just like to urge the Court – we are bound by

the plea agreement to not recommend an upward departure – but to

sentence at the top of the guideline range, keeping in mind that this is

the third time Mr. Horsfall has been before this Court [for] child

pornography, keeping in mind that the large number of images and

videos total 6,310 images, that is ten times the maximum

contemplated by the guidelines.

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Some of those videos were very long. There was a 28-minute one, a

29-minute one. He is a repeat offender. He has a history of sexual

abuse. And we think the top guidelines range is appropriate, Your

Honor.

We are bound not to seek an upward departure, but we would point

out those facts.

The court stated that it had reviewed the PSI, listened to the parties’

arguments and the victim impact testimony, and considered the factors in 18

U.S.C. § 3553(a). It sentenced Horsall to 327 months’ imprisonment. The court

explained that it was imposing an upward departure because: Horsfall’s criminal

history score, which did not include his 1987 sexual molestation conviction,

significantly under-represented the serious of his actual criminal record and the

likelihood that he would commit further crimes; it was rare for a person to break an

addiction to child pornography and Horsfall had been involved in such activity for

20 years; and Horsfall possessed a massive amount of child pornography images

and videos that exceeded five minutes in length. The court informed Horsfall that

his failure to re-articulate the arguments already presented at the hearing would not

constitute a waiver.

After Horsfall filed a pro se notice of appeal, we granted defense counsel’s

motion to withdraw on appeal and appointed Horsfall new appellate counsel.

Horsfall’s appellate counsel then filed a motion in the district court to supplement

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the record on appeal in order to include the government’s written response to

Horsfall’s objections to the PSI. Counsel noted that, while the government’s

subsequent withdrawal of that response was filed in the district court, the response

itself was not filed in the district court. The district court granted the motion.

After Horsfall filed his appellate brief, the government moved the district

court to supplement the record on appeal in order to include the original draft of

the PSI and Horsfall’s objections to the PSI. The government explained:

In his appeal, Horsfall claims the Government breached the plea

agreement by making certain statements to probation, which were

then incorporated into the Final PSI and submitted to the district court

for consideration at sentencing. . . . The Draft PSI, which is typically

not a part of the record on appeal, shows probation recommended an

upward departure without any input from the Government and before

the Government ever made any statements to probation. Accordingly,

any statements by the Government concerning an upward departure

were not incorporated into the Final PSI or otherwise submitted to the

district court.

The district court granted the government’s motion.

II.

A. Plea Agreement

“Whether the government has breached a plea agreement is a question of law

that this court reviews de novo.” United States v. Mahique, 150 F.3d 1330, 1332

(11th Cir. 1998). “The government is bound by any material promises it makes to

a defendant as part of a plea agreement that induces the defendant to plead guilty.”

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United States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996) (citing Santobello v.

New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971)).

“Whether the government violated the agreement is judged according to the

defendant’s reasonable understanding at the time he entered his plea.” United

States v. Boatner, 966 F.2d 1575, 1578 (11th Cir. 1992).

1. The Government’s Written Response to Horsfall’s PSI Objections

Horsfall first argues that the government breached the plea agreement by

arguing for an upward departure in its written response to Horsfall’s objections to

the PSI. In its written response, the government stated that it “intend[ed] to seek

an upward departure” based on the length of the videos and that “an upward

departure [wa]s necessary” in order to prevent Horsfall from committing further

crimes.

These assertions would appear to conflict with the government’s obligation

in the plea agreement not to recommend an upward departure. However, the plea

agreement in this case prohibited the government from recommending an upward

departure “to the court.” As Horsfall acknowledged when he sought to supplement

the record on appeal, the government’s response was never filed with the district

court. Furthermore, the government withdrew the response before sentencing, and

there is nothing in the sentencing transcript to indicate that the court ever received

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or considered the government’s response. Thus, while the government may have

improperly recommended an upward departure in its response, this

recommendation was not presented to the court.

Nonetheless, Horsfall contends that the government’s recommendation was

indirectly presented to the court because it was incorporated in the probation

officer’s sentencing recommendation. However, a review of the record suggests

that the probation officer did not incorporate the government’s response. First, the

probation officer did not reference the government’s response in the sentencing

recommendation. Second, a comparison between the government’s response and

the sentencing recommendation does not support Horsfall’s assertion, as the

upward-departure analysis in the probation officer’s sentencing recommendation is

substantially different and more detailed than the government’s response. Finally,

the government’s response merely adopted the probation officer’s initial upwarddeparture analysis from the original PSI. Thus, to the extent that the probation

officer incorporated any of the government’s response, it was essentially

incorporating its own initial upward-departure recommendation. Accordingly,

there is no indication that the government’s response was presented to the court

and, therefore, there was no violation of the plea agreement in this regard.

2. The Presentation of Victim Impact Evidence at Sentencing

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Horsfall next contends that the government breached its obligation not to

recommend an upward departure by calling his daughter to testify and introducing

the victim impact statements at sentencing. This victim impact evidence generally

revealed the dramatic and long-lasting effects of sexual abuse and explained how

viewing child pornography incentivized its production. However, the

government’s presentation of this evidence did not expressly violate its obligation

not to recommend an upward departure, as the government stated at sentencing that

it was not recommending an upward departure, but was rather presenting the

evidence in order to support a sentence at the high-end of the applicable guideline

range.

Moreover, the presentation of the victim impact evidence fell within the

terms of the plea agreement, which authorized the government to “inform the

Court . . . of all facts pertinent to the sentencing process, including all relevant

information concerning the defendant and his background.” Indeed, Horsfall’s

daughter testified about how Horsfall sexually abused her at a young age, which

goes to Horsfall’s history and characteristics, a factor that is “pertinent to the

sentencing process” under 18 U.S.C. § 3553(a)(1). Further, both her testimony and

the victim impact statements addressed the factors under § 3553(a)(2)(A) – the

need for the court’s sentence to reflect the seriousness of the offense, promote

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respect for the law, and provide just punishment for the offense – as they described

the seriousness and long-lasting effects of sexual abuse and child pornography. In

addition, the victims’ viewpoints were generally pertinent to the sentencing

process, as the government was obligated by statute to ensure that these views were

presented at sentencing. See 18 U.S.C. § 3771(a)(4), (c)(1) (requiring the

government to use its “best efforts” to ensure, inter alia, that crime victims are

“reasonably heard at any public proceeding in the district court involving . . .

sentencing”).

Our decisions establish that government did not violate the plea agreement

under these circumstances. Because the agreement permitted the government to

introduce such information and the government did not explicitly oppose a

sentence within the guideline range, the government did not violate the plea

agreement. See United States v. Levy, 374 F.3d 1023, 1030-32 (11th Cir. 2004)

(holding that the government did not breach the plea agreement where it provided

factual information about the defendant’s offenses, because nothing in the

agreement prevented the government from providing such information and the

government fulfilled its obligation to recommend a particular sentence), vacated on

other grounds and remanded, 545 U.S. 1101, 125 S.Ct. 2542 (2005), affirmed, 416

F.3d 1273 (11th Cir. 2005).

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In United States v. Carrazana, 921 F.2d 1557, 1569 (11th Cir. 1991), the

plea agreement prohibited the government from recommending a sentence, but

permitted it to inform the court of all facts relevant to the sentencing process. At

sentencing, the government, in effect, criticized the probation officer’s

recommended 20-year sentence on the ground that the defendant was the leader of

the criminal enterprise. Id. Nonetheless, we held that this conduct did not breach

the plea agreement because it was relevant to the sentencing process, and the

government never agreed that it would refrain from characterizing the defendant as

such. Id.; see also Boatner, 966 F.2d at 1578 (“The solemnization of a plea

agreement does not preclude the government from disclosing pertinent information

to the sentencing court.”).

The precedent supports the proposition that the government does not breach

a plea agreement where the agreement authorizes the government to provide

certain factual information, and the government does not expressly violate another

one of its obligations. Thus, in this case, the government’s presentation of the

1

victim impact evidence did not breach the plea agreement because the government

reserved the right to present such evidence and did not recommend an upward

Horsfall does not cite the above decisions, but rather relies on our decisions in Taylor, 1

United States v. Rewis, 969 F.2d 985 (11th Cir. 1992), and United States v. Johnson, 132 F.3d 628

(11th Cir. 1998), all of which we consider to be distinguishable.

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departure.

B. Upward Departure

Horsfall contends that the court erred by imposing an upward departure. He

also argues that he did not waive his argument for purposes of appeal under United

States v. Masters, 118 F.3d 1524 (11th Cir. 1997) by withdrawing his

upward-departure objections at sentencing.

In Masters, defense counsel repeatedly objected to the district court’s

upward departure at sentencing, but the court indicated that it would nonetheless

impose the departure. 118 F.3d at 1525. As defense counsel was informing the

court that he intended to appeal the decision, the defendant “intervened and

instructed counsel to withdraw the objection.” Id. at 1526. The colloquy on this

point provided:

Defense Counsel: Your honor, I withdraw any objections

based upon the specific request of my client.

Mr. Masters: Your honor, please sentence me and let me

get out of here.

The court: All right, let the record show he is

withdrawing any objection, and I will go

ahead and sentence the defendant.

Id. On appeal, the defendant challenged the court’s upward departure, but we

concluded that he had waived his argument:

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The court did err; everyone in the courtroom (except the court),

including the defendant, knew it. Masters, however, waived the

objection, and he did so knowingly. The plain error doctrine is

inapplicable in a situation such as this – where the defendant fully

comprehends the error the court is going to commit and nonetheless

agrees to be bound by it.

Id. (footnote omitted).

In this case, the district court inquired as to Horsfall’s written upwarddeparture objections to the PSI, at which point defense counsel informed the court

that Horsfall had withdrawn the objections. The court asked why counsel would

withdraw these objections, to which counsel responded that Horsfall had requested

that he do so. The court then took the additional measure of asking Horsfall

himself whether he had in fact requested his attorney to withdraw the objections,

and Horsfall responded that he had. We conclude that Horsfall’s affirmative

withdrawal of these objections precludes us from reviewing his upward-departure

argument.

Horsfall contends that he has preserved his argument because he originally

objected to the upward departure, and the district court, at the end of the sentencing

hearing, stated that he did not need to re-articulate his objections in order to

preserve them. The district court was generally correct that Horsfall did not need

to re-articulate his objections in order to preserve them for purposes of appeal.

United States v. Weir, 51 F.3d 1031, 1033 (11th Cir. 1995). However, this did not

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prevent Horsfall from waiving a previously articulated objection under Masters.

Accordingly, we conclude that Horsfall has waived his argument challenging the

court’s upward departure.

2

C. Eighth Amendment

Finally, Horsfall contends that the district court’s consideration of the victim

impact evidence violated the Eighth Amendment. However, because Horsfall

failed to raise this argument in the district court, we review it for plain error.

United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). “Plain error occurs

where (1) there is an error; (2) that is plain or obvious; (3) affecting the defendant's

substantial rights in that it was prejudicial and not harmless; and (4) that seriously

affects the fairness, integrity, or public reputation of the judicial proceedings.” Id.

(quotations omitted).

To support his argument, Horsfall relies on Booth v. Maryland, 482 U.S.

496, 107 S.Ct. 2259, 96 L.Ed.2d 440 (1987), South Carolina v. Gathers, 490 U.S.

805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), and Payne v. Tennessee, 501 U.S.

808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), all of which involved the admission

of victim impact evidence during the sentencing phase of a capital case. Based on

Despite discussing Masters and the waiver issue in his initial brief, Horsfall argues for the 2

first time in reply that Masters does not apply because he did not fully comprehend the error that the

court was going to commit. We decline to address this argument because Horsfall raises it for the

first time in reply. Levy, 379 F.3d at 1244.

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these cases, and without citing any authority, Horsfall states that “it is undoubtedly

true that when the case involves the sexual abuse of children that the likelihood

that the sentence will be imposed under the influence of passion or prejudice is just

as great as in a death penalty case.”

However, Horsfall cites no authority establishing that this line of cases,

dealing with the presentation of victim impact evidence to a capital sentencing

jury, applies to federal judge-based sentencing in the non-capital child

pornography context. Accordingly, Horsfall has not shown plain error on this

point. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003)

(“It is the law of this circuit that, at least where the explicit language of a statute or

rule does not specifically resolve an issue, there can be no plain error where there

is no precedent from the Supreme Court or this Court directly resolving it.”).

III.

In sum, we conclude that the government did not violate the plea agreement

in its written response to Horsfall’s objections to the PSI or by presenting victim

impact evidence at sentencing. We further conclude that Horsfall has waived his

argument challenging the court’s upward departure because he affirmatively

withdrew it at sentencing. Finally, Horsfall has not shown that the district court

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committed plain error under the Eighth Amendment by considering the victim

impact evidence at sentencing. Accordingly, we affirm.

AFFIRMED.

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