Filed: Jun. 06, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4918 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILBERT ROBERT SCHMIDT, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, III, District Judge. (7:09-cr-00167-D-1) Submitted: May 16, 2011 Decided: June 6, 2011 Before DAVIS, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4918 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILBERT ROBERT SCHMIDT, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, III, District Judge. (7:09-cr-00167-D-1) Submitted: May 16, 2011 Decided: June 6, 2011 Before DAVIS, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal P..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4918
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILBERT ROBERT SCHMIDT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
District Judge. (7:09-cr-00167-D-1)
Submitted: May 16, 2011 Decided: June 6, 2011
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
George E.B. Holding, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following his indictment in December 2009, Wilbert
Robert Schmidt pled guilty, pursuant to his written plea
agreement, to two counts of production of child pornography, in
violation of 18 U.S.C.A. § 2251(a), (d) (West Supp. 2010).
Schmidt was sentenced to a total of 420 months’ imprisonment,
which resulted from the district court granting the Government’s
motion for an upward departure from his advisory Guidelines
range of 168-210 months’ imprisonment. 1 On appeal, Schmidt
challenges both the reasonableness of the district court’s
decision to depart above his advisory Guidelines range and the
reasonableness of the extent of the departure. For the reasons
that follow, we affirm.
As we have explained, “[N]o matter what provides the
basis for a deviation from the Guidelines range[,] we review the
resulting sentence only for reasonableness.” United States v.
Evans, 526 F.3d 155, 164 (4th Cir. 2008). In doing so, the
court applies an abuse of discretion standard. Gall v. United
States,
552 U.S. 38, 51 (2007); United States v. Diosdado-Star,
630 F.3d 359, 363 (4th Cir. 2011). In assessing a sentencing
1
The district court noted that in the alternative it would
have imposed the same 420-month sentence as a variance sentence
if it had incorrectly calculated the Guidelines range or
incorrectly departed.
2
court’s decision to depart from a defendant’s Guidelines range,
this court “consider[s] whether the sentencing court acted
reasonably both with respect to its decision to impose such a
sentence and with respect to the extent of the divergence from
the sentencing range.” United States v. Hernandez-Villanueva,
473 F.3d 118, 123 (4th Cir. 2007). We will find a sentence to
be unreasonable if the sentencing “court provides an inadequate
statement of reasons or relies on improper factors in imposing a
sentence outside the properly calculated advisory sentencing
range.”
Id.
Schmidt first argues that, because he is sixty-four
years old and in ill-health, a sentence at the high end of the
pre-departure Guidelines range would have been sufficient to
incapacitate him for most if not all of the remainder of his
natural life. Thus, Schmidt asserts the district court abused
its discretion in departing upward from that range and that a
420-month sentence is greater than necessary.
We conclude the district court acted reasonably in
departing under the three identified guideline provisions. The
court utilized U.S. Sentencing Guidelines Manual (“USSG”)
§ 4A1.3, p.s. (1998), to increase Schmidt’s criminal history
category from I to IV. Pursuant to this provision, a district
court may depart upward from an applicable Guidelines range if
“reliable information indicates that the criminal history
3
category does not adequately reflect the seriousness of the
defendant’s past criminal conduct or the likelihood that the
defendant will commit other crimes.” USSG § 4A1.3, p.s. To
determine whether a departure sentence is appropriate in such
circumstances, the court may consider, inter alia, prior similar
conduct that did not result in a conviction. See USSG
§ 4A1.3(e), p.s. Plainly, Schmidt’s undetected twenty-plus-year
history of producing child pornography and molesting children
qualifies as a basis for departure under this provision. The
district court further concluded this conduct warranted,
conservatively, eight criminal history points, resulting in a
Category IV criminal history. We discern no abuse of discretion
in that conclusion.
The district court next increased Schmidt’s total
offense level from thirty-five to thirty-nine, pursuant to USSG
§ 5K2.0, p.s. and USSG § 5K2.8, p.s. As the district court
discussed at length, the 1998 edition of the Sentencing
Guidelines did not adequately account for the volume of
pornographic pictures amassed by Schmidt, Schmidt’s use of
alcohol to weaken his victims, or the unusually heinous and
degrading conduct in which Schmidt forced his victims to engage.
We conclude the district court reasonably applied these
departure provisions to increase Schmidt’s total offense level.
See United States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009)
4
(explaining that a departure pursuant to USSG § 5K2.0, p.s.,
must be based on a factor related to the offenses charged in the
indictment), cert. denied, 130 S. Ct. 1923 (2010).
Schmidt next argues the court abused its discretion in
finding such an extensive departure was warranted to deter him
from future criminal activity and to protect the public because
the unrefuted record evidence demonstrates that Schmidt
voluntarily stopped producing child pornography in 1999. Thus,
Schmidt contends the court’s reliance on these two reasons
constitutes an abuse of discretion. Schmidt also asserts that
the significant departure is unreasonable, given that he
extensively cooperated with the police.
While the extent of the departure in this case is
significant, we conclude that the court’s sentencing decision is
reasonable in light of Schmidt’s long history of recidivism,
which reflects his manifest disrespect for the law, and the need
to impose a sentence reflecting the seriousness of the
underlying offense and to provide just punishment. See Evans,
526 F.3d at 158, 166 (approving a nearly four-fold increase from
the Guidelines sentence). Further, the district court’s careful
consideration of the 18 U.S.C. § 3553(a) (2006) sentencing
5
factors, 2 as well as the court’s meaningful articulation of its
reasons for departing from the Guidelines range, support our
decision to defer to the district court’s determination as to
the extent of the departure. Diosdado-Star, 630 F.3d at 366-67
(affirming substantive reasonableness of variance sentence six
years greater than Guidelines range because it was based on
district court’s thoughtful examination of the § 3553(a) factors
as a whole).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
2
Schmidt also contends that the district court failed to
properly weigh the need to provide him with appropriate mental
health treatment. See 18 U.S.C. § 3553(a)(2)(D). This
contention is belied by the record, however, as the district
court specifically ordered that, while incarcerated, Schmidt
should receive any such treatment that was available.
6
