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United States v. Michael

United States Court of Appeals, Eighth Circuit

November 30, 2018

United States of America Plaintiff - Appellee
Colin J. Michael Defendant-Appellant

          Submitted: September 25, 2018

          Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before WOLLMAN, KELLY, and ERICKSON, Circuit Judges.

          PER CURIAM.

         Colin Michael appeals the 96-month term of imprisonment imposed upon him after revocation of his five-year term of probation. Because we conclude that the district court committed procedural error in failing to consider the Sentencing Commission's policy statements regarding probation revocations and, on this record, the error is not harmless, we remand for resentencing.

         I. Background

         On May 12, 2016, pursuant to a plea agreement, Colin Michael pled guilty to possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4). The offense has a statutory maximum term of imprisonment of 120 months. At sentencing, the district court found pursuant to the United States Sentencing Guidelines ("Sentencing Guidelines" or "U.S.S.G.") that Michael's offense level was 30 and that he was in criminal history category I. The court determined that the applicable advisory sentencing guideline range was 97 to 120 months' imprisonment.

         The prosecutor recommended a term of imprisonment of 40 months. Michael requested a sentence of probation. Two people, who had professional relationships with Michael, testified at the sentencing hearing. The first witness was Dr. Steven Peterson, a general and forensic psychiatrist, who forensically evaluated Michael at the request of defense counsel. Dr. Peterson interviewed Michael, who was 35 years old, for four and a half hours in October 2014. He also interviewed Michael's parents. In conducting his evaluation, Dr. Peterson administered psychological tests "to address [Michael's] functioning from an alternative perspective and just face-to-face presentation."

         Based on his interviews and tests, Dr. Peterson opined that:

Colin has significant developmental difficulty called Asperger's Syndrome, which has now been reclassified as one of the autism spectrum disorders. And while he has the ability to discern right from wrong, he also has significant difficulties with social reciprocity, and basically his psychosexual and psychological development plateaued around early teens, and so that affects his judgment.[1]

         Dr. Peterson testified that his reference to early teens meant 12-or 13-years old and added that Michael behaved in some ways like a child that was 9-or 10-years old. Examples of the more immature behavior noted by Dr. Peterson included collecting die cast cars, collecting shot glasses, and rearranging VHS tapes and DVDs compulsively up to 20 times a month. Dr. Peterson described Michael's social development as consistent with a person of late pre-adolescent or adolescent age. He also noted Michael's susceptibility to manipulation and high level of dependence on structure from his family.

         Prior to sentencing, Michael had been actively involved in a treatment program at Hope Harbor for close to one year. Hope Harbor, which had been in existence for 23 years, was described at sentencing as one of the largest sex offender treatment programs in eastern Kansas. The treatment program Michael participated in had two components: individual psychotherapy sessions and group psychotherapy. Dr. Bascom W. Ratliff, who holds a Ph.D. in clinical social work, was the director of associates at Hope Harbor, and facilitated the sex offender treatment program at Hope Harbor, testified that Michael started treatment at the clinic in December 2015. Dr. Ratliff saw Michael weekly. He had anticipated that Michael would continue the treatment program for a minimum of twelve additional months. Dr. Ratliff explained that during treatment a participant can have a lapse in judgment. Part of the reason given by Dr. Ratliff for the extended program was because he expected lapses to happen, especially with people involved in pornography. When a lapse in judgment happens, the issue is addressed with the offender and it becomes part of prevention planning. According to Dr. Ratliff, when the active care portion of the treatment is completed, participants in the program who have been convicted of a crime continue on in the after care program until their period of probation or parole expires.

         Dr. Peterson explained at sentencing that a young person with the social delays typically associated with Asperger syndrome is at increased risk for obsessive preoccupation with things on the Internet. This obsession can lead a person to pornography and child pornography. Dr. Ratliff described Michael's participation at Hope Harbor as "active," meaning he completed all assigned activities and exercises and kept a journal that he shared with the group. Continued participation in the treatment program at Hope Harbor caused Dr. Peterson to believe that Michael was at a lower risk of recidivism.

         Upon consideration of the parties' recommendations and "considerable consideration to the testimony of the[] two witnesses," the district court imposed a five-year term of probation with detailed conditions and $2, 500.00 in restitution to be paid during the probationary term. The court varied from the advisory sentencing guidelines range on the grounds that it was "the best solution for [Michael's] Asperger's problem and mental status." The court explained: (1) the guidelines inadequately addressed Michael's conduct relating to the charge and "inadequately differentiates between gradients of Section 2252-8," and (2) the federal penal system is not in a position at this time to house inmates, like Michael, with Asperger syndrome and a limited ...

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