NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0132n.06

                                            No. 12-5013
                                                                                          FILED
                             UNITED STATES COURT OF APPEALS                           Feb 04, 2013
                                  FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )       ON APPEAL FROM THE UNITED
                                                       )       STATES DISTRICT COURT FOR
DANIEL QUAIL,                                          )       THE   MIDDLE DISTRICT OF
                                                       )       TENNESSEE
       Defendant-Appellant.                            )
                                                       )
                                                               OPINION



       Before: WHITE and DONALD, Circuit Judges; and VARLAN, District Judge*


       Bernice B. Donald, Circuit Judge. Daniel Quail was charged with and pleaded guilty to

two counts of distribution of child pornography and one count of receipt of child pornography in

violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b); and one count of possession of child

pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). Quail was sentenced

to 202 months of imprisonment, followed by 36 months of confinement at a halfway house, and 25

years of supervised release. Quail now appeals, arguing that the district court failed to make a

finding on a controverted issue at sentencing in violation of Rule 32 of the Federal Rules of Criminal

Procedure, that his sentence was procedurally unreasonable, and the district court’s imposition of



       *
       The Honorable Thomas A. Varlan, Chief United States District Judge for the Eastern District
of Tennessee, sitting by designation.
No. 12-5013
United States v. Daniel Quail

his terms of supervised release are unconstitutional. For the following reasons, we remand for

resentencing.


                                                  I.


       For a total of nearly fifteen years, Quail worked at several YMCA locations in Florida. He

worked at the Venice, Florida location for ten years, serving as a coordinator and director of various

youth programs. In 2006, a mother enrolled her children in programs at the Venice YMCA,

including her son, referred to hereinafter as “the minor.” The minor’s father was incarcerated, and

the mother felt it was important for her son to have an adult male role model. Soon thereafter, Quail

and the mother developed a close relationship. Quail began spending time with the family outside

of the YMCA; he was also permitted to travel alone with the minor to sporting events. Over time,

the minor began to call Quail “Dad.” In 2007, the relationship between Quail and the mother began

to deteriorate, and the mother eventually removed her children, including the minor, from the youth

programs at the YMCA.


       In late 2007, Quail, a victim of childhood sexual abuse, “became obsessed with child

pornography.” Struggling with this obsession and depression, in 2008 Quail decided to relocate to

Tennessee where his mother lived. He then began working at another YMCA location in Middle

Tennessee.


       In 2009, Canadian law enforcement officers arrested a third-party in connection with child

pornography and the online exploitation of children. Upon seizing this third-party’s computer, the

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United States v. Daniel Quail

officers discovered a peer-to-peer network that enabled them to download images from Quail’s

computer. The Canadian officials subsequently initiated an online chat with Quail. Officials were

able to gain access to five folders on Quail’s computer that contained child pornography. The

officers were unable to gain access to a password protected folder named, “myson[the minor],” and

Quail refused to provide the password. The Canadian officials then notified United States

Immigration and Customs Enforcement (ICE) agents.


       On December 29, 2009, ICE agents executed a search warrant on Quail’s residence. During

the search, agents found several non-pornographic pictures of the minor throughout the home. A

search of Quail’s computer uncovered 524 videos and 5,832 photographs of child pornography. In

the “myson[the minor]” folder, the agents found several non-pornographic photos of the minor. The

folder also contained many pornographic images of young males that could not be identified due to

a lack of identifying markers. Upon discovery of the minor’s images in the folder, ICE agents

contacted the Sarasota County Sheriff’s Office. Investigators in Sarasota County, Florida asked the

minor if he had been sexually abused by Quail. The minor indicated that he did not think anything

happened to him but could not remember everything. The Sarasota County Sheriff’s Office was

unable to identify the minor in any of the pornographic images in the “myson[the minor]” folder and

subsequently closed the case, stating “[t]here is not a victim alleging a crime.”


       ICE agents also conducted their own investigation. Agents sent Quail’s hard drive to the

Special Agent Charge Office in New Orleans for forensic examination. In February 2010, the

government cross-referenced the images on Quail’s hard drive against known images in the National

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No. 12-5013
United States v. Daniel Quail

Center for Missing and Exploited Children database. This examination did not include the images

from the “myson[the minor]” folder.


       In October 2010, ICE Agent Jonathan Hendrix asked the minor’s mother if she could identify

her son in two of the pornographic photos from the “myson[the minor]” folder. She indicated that

her son was in both of the pictures. Two weeks before trial was set, the government rechecked all

of the photos against the database, this time including the ones in the “myson[the minor]” folder.

The recheck revealed that at least one of the two photos shown to the mother was discovered in

previous investigations. Agent Hendrix subsequently told the mother that the images he previously

showed her were not of her son.


       Prior to the conclusion of the Sarasota County, Florida investigation, the mother contacted

an attorney and relayed concerns that her son had been sexually abused. The attorney referred her

to a child therapist, Dr. Eddy Regnier. The attorney told Dr. Regnier that the minor likely had been

abused and that the man accused of abusing him had been arrested for sexually abusing a number

of boys. In actuality, Quail had not been arrested for child sexual abuse. Dr. Regnier ultimately

provided treatment to the minor in the form of numerous counseling sessions. Throughout the

sessions, the minor repeatedly told Dr. Regnier that he could not remember being abused by Quail.


       At Quail’s sentencing hearing, while acknowledging that the minor never made a disclosure,

Dr. Regnier, the government’s witness, testified that he believed that the minor was “traumatized

sexually.” Dr. Regnier further testified that the minor relayed positive memories of Quail but when


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No. 12-5013
United States v. Daniel Quail

asked how he felt about Quail, the minor displayed feelings of anger. Quail’s expert witness, Dr.

David Lisak, did not opine definitively whether he thought the minor was sexually abused, but did

testify that typically there is more than one victim in child sexual abuse cases and that he would give

more weight to an investigation as opposed to the minor’s failure to remember. Dr. Lisak also

suggested that it is possible that the minor’s failure to remember was the result of loyalty to his

mother, in that he could be afraid to contradict what his mother believed happened to him.


       During the argument phase of sentencing, both defense counsel and the government engaged

in lengthy discussions with the court on the issue of whether the minor was sexually abused by

Quail. The government sought the maximum sentence under the Guidelines range on the basis of

victim impact; however, both defense counsel and the court pointed out that the government had

failed to object to the presentence investigation report (PSR), which calculated the Guidelines range

based on a victim impact of zero. The court also noted that the government could argue the §

3553(a) factors but that there might be an issue if the government chose to argue against the

Guidelines range where the PSR determined there was no victim impact. Ultimately, after hearing

both sides, the district court concluded that it would “exercise a degree of caution” in sentencing

based on abuse and that it believed that Quail -“at a minimum”- psychologically abused the minor.

The district court then imposed its sentence of 202 months of imprisonment, 36 months of

confinement to a halfway house after Quail’s release from prison, and 25 years of supervised release.




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United States v. Daniel Quail

                                                  II.


       Quail now argues that the district court violated Federal Rule of Criminal Procedure 32 when

it failed to clearly rule on a controverted issued raised at sentencing: whether the minor was actually

sexually abused by Quail. He also contends that the district court failed to rule on whether the

government waived its right to claim that the minor was a victim. In response, the government

submits that the district court found that it did not waive its right to raise the claim and that the

district court was not required to make a finding on the issue of abuse because it did not consider it

when imposing Quail’s sentence.


       Rule 32 requires that when an issue is actively raised during a sentencing hearing, as it was

here, the district court must affirmatively rule on the controverted matter if the issue affects the

defendant’s sentence or determine that the matter will not affect sentencing. Fed. R. Crim. P.

32(i)(3)(B); United States v. White, 

, 415 (6th Cir. 2007). The district court “may not

merely summarily adopt the factual findings in the presentence report or simply declare that the facts

are supported by a preponderance of the evidence.” 

internal quotation marks

omitted). We have repeatedly held that this Rule requires “literal compliance.” Id.; United States

v. Roberge, 

, 1011 (6th Cir. 2009); United States v. Treadway, 

, 886 (6th

Cir. 2003); see also United States v. Monus, 

, 396 (6th Cir. 1997).


       As a threshold matter, Quail’s two arguments regarding the violation of Rule 32 are

somewhat intertwined. If the district court heard arguments on whether or not the minor was abused


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United States v. Daniel Quail

by Quail, the assumption is that the district court did not believe that issue was waived. On the other

hand, the district court made several references to the significance of the government’s failure to

object to the PSR. This ambiguity implies that the district court failed to make a clear finding

regarding the waiver, and thus suggests that Rule 32 was indeed violated. However, the district court

likely did not impose a sentence based on a waiver alone, but instead either imposed a sentence

based on a finding of sexual abuse or a determination that it would not consider sexual abuse when

sentencing Quail. Accordingly, our focus is on the latter, particularly the court’s statements

regarding proof and the following sentencing conclusion:


        I am cognizant that the Government wants the maximum Guideline sentence, and I
        have considered that, but I want to exercise a degree of caution in doing that on the
        basis of physical abuse to [the Minor] where it wasn’t charged and there were - and
        a failure to take an objection that there was no victim. That is not to say that those
        facts do not lose some evidentiary value. And so the Court is going to try to impose
        a sentence that I think reflects that there was an injury to [the Minor], psychological
        at a minimum, that this was a destructive relationship between this defendant.


(alterations in the original).


        Based upon this statement, we find that the district court failed to comply with the

requirements of Rule 32(i)(3)(B) as it relates to a finding of sexual abuse. While the district court

admitted that it did not think that there was clear and convincing proof of harm to the child, the

district court did express that there might be sufficient circumstantial evidence of abuse. The actual

finding of the district court, however, is that of psychological abuse, an issue not actively raised at

sentencing.    The government insists that because the district court sentence was based on


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United States v. Daniel Quail

psychological abuse, it must necessarily have determined that it did not need to rule on the issue of

sexual abuse. The government further submits that the court may have sentenced on the basis of

“possible physical harm,” but that it complied with Rule 32 by not basing the sentence on sexual

abuse.


         The government’s rationale is troublesome. Viewing the sentencing transcript in context,

the finding of physical harm is synonymous with a finding of sexual abuse. In fact, the government’s

brief reads: “Accordingly, the district court ‘wanted to exercise a degree of caution’ in sentencing

on sexual abuse when it could not be proved by preponderance of the evidence.” (emphasis added).

Even the government uses the term “sexual abuse” interchangeably with the district court’s language

of : “I want to exercise a degree of caution in [sentencing] on the basis of physical abuse.” (emphasis

added). Moreover, if the injury was “psychological at a minimum,” what other way, other than

physically, could Quail have harmed the minor? (emphasis added).


         Given the statement by the district court, the government’s confusion is understandable.

When the district court indicated that it “wanted to exercise a degree of caution[,]” did it mean that

it was not sentencing Quail on the basis of a finding of sexual abuse? Or did it mean that it would

not consider the sexual abuse a primary factor? Regarding the court’s evidentiary value assessment,

the court appears to have indicated that the facts relating to the abuse lose some evidentiary value

because Quail was not charged with abuse and the government did not object to the PSR’s

determination that there was no victim. The court’s use of the word “some” implies that not all

evidentiary value was lost; however, the court’s use of the double negative undermines the clarity

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United States v. Daniel Quail

of this statement. Finally, the district court’s finding, that the injury to the minor was psychological

at a minimum, indicates that other injuries, such as sexual abuse, may have been taken into account.


        Ultimately, the district court never affirmatively ruled that Quail did or did not sexually abuse

the minor, which the government concedes. The district court’s language during sentencing is also

far from clear as to whether it even considered sexual abuse. Absent this clarity, the district court

fell short of the requirements of Rule 32 and relevant case law mandating “literal compliance . . . to

ensure that defendants are sentenced on the basis of accurate information and . . . a clear record [is

available] for appellate courts[.]” 

(citation and internal quotation marks

omitted). A violation of Rule 32 is subject to harmless error review, see 

;

however, remand is required “unless we are certain that the error did not cause the defendant to

receive a more severe sentence.” 

internal quotation marks omitted).


                                                  III.


        Because the district court failed to make a finding in accordance with Rule 32, and we are

unclear as to whether it sentenced Quail, at least in part, based on sexual abuse of the minor, we must

REMAND for resentencing. Because we reach this conclusion, we need not address Quail’s

remaining challenges to his sentence.




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