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United States v. Pittsinger

United States Court of Appeals, Fifth Circuit

October 26, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
BRYAN KENDALL PITTSINGER, Defendant-Appellant

         Appeal from the United States District Court for the Northern District of Texas

          Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

          STEPHEN A. HIGGINSON, CIRCUIT JUDGE.

         Defendant-Appellant Bryan Kendall Pittsinger pleaded guilty to sexually exploiting a minor in violation of 18 U.S.C. § 2251(a). The district court sentenced him to 360 months' imprisonment, the statutory maximum. Pittsinger now appeals that sentence, contending that the district court erred in denying his motion for a downward variance before permitting him to address the court and in applying the three-level reduction for acceptance of responsibility to his total offense level of 51 rather than to his adjusted total offense level of 43. We find no error and AFFIRM.

         I.

         Bryan Kendall Pittsinger pleaded guilty to sexually exploiting a minor in violation of 18 U.S.C. § 2251(a). Section 2251 provides a statutory minimum sentence of fifteen years' imprisonment and a statutory maximum of thirty years. 18 U.S.C. § 2251(e). A Presentence Report ("PSR") determined that his final offense level was 51 before applying a three-level reduction for acceptance of responsibility. Because that calculation resulted in an offense level greater than 43, the PSR treated his offense level of 48 as an offense level of 43.[1] The PSR also determined that Pittsinger had a criminal history category of I. A total offense level of 43 and a criminal history category of I produces a recommended guideline sentence of life imprisonment. However, because that would exceed § 2251's statutory maximum, the PSR reduced the Guidelines sentence to the statutory maximum of 360 months' (or 30 years) imprisonment.

         Pittsinger moved for a downward variance from the Guidelines sentence based on consideration of the factors set forth in 18 U.S.C. 3553(a). At the sentencing hearing, the district court indicated its "tentative" decision that the motion for a variance "should be denied, " then heard argument on the motion from Pittsinger's counsel. Pittsinger's counsel and the court then had the following exchange:

MR. LEHMANN: And, Your Honor, Mr. Pittsinger would like to address the Court.
THE COURT: We're not there yet. We're still working on the motion for downward departure - or variance.
MR. LEHMANN: Thank you.

         The court then "finally denied" the motion for a downward variance.

         After denying the motion, the court recited the Guidelines calculation from the PSR, stating that Pittsinger's offense level and criminal history category resulted in a Guidelines sentence of 360 months. The court then noted that it had received several letters on Pittsinger's behalf and asked Pittsinger's counsel if he "wish[ed] to make any remarks on [Pittsinger's] behalf or present anyone else further?" Counsel made a few remarks, and the court and Pittsinger then had the following exchange:

THE COURT: Mr. Pittsinger, I've read your letter. Is there anything you would like to say further on your own behalf?
DEFENDANT PITTSINGER: Yes, Your ...

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