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United States v. Fox

United States Court of Appeals, Eleventh Circuit

June 13, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
RALPH HERMAN FOX, JR., Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Florida No. 5:17-cr-00020-RH-1

          Before TJOFLAT, MARTIN, and TRAXLER, [*] Circuit Judges.

          MARTIN, CIRCUIT JUDGE

         Ralph Fox, Jr. appeals his 360-month sentence imposed after he pled guilty to one count of sexually exploiting a minor through the production of child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). He argues the District Court improperly calculated his guideline range by applying a five-level upward enhancement to his base offense level. He also argues his 360-month sentence is substantively unreasonable because the District Court failed to properly consider his age when imposing his sentence. After careful consideration, and with the benefit of oral argument, we affirm.

         I. FACTS

         On September 12, 2016, Mr. Fox's wife reported to the police that Fox had sexually abused her two minor granddaughters, G.P., who was eleven, and J.P., who was nine. At the time, Mr. Fox was G.P. and J.P.'s step-grandfather. A Child Protection Team interviewed both G.P. and J.P. G.P. informed the interviewers that Mr. Fox had sexually abused her for about one year; had molested her "almost nightly"; had taken naked photos of her with his cell phone; had used a grey vibrator, which he kept hidden in a shed, to penetrate her vagina; and that she had observed Mr. Fox abusing J.P. J.P. reported she had not been sexually abused for as long as G.P.; Mr. Fox had also molested her "almost nightly" while her grandmother was sleeping; and she had observed Mr. Fox sexually abuse G.P. Medical examinations of G.P. and J.P. were consistent with their reported abuse.

         A state search warrant was executed for Mr. Fox's home, automobile, and cell phone. The State found a grey vibrator hidden in a shed at Mr. Fox's home, which corroborated G.P.'s statements to the interviewers. A forensic examination of Mr. Fox's cell phone revealed 30 deleted images, including images of G.P.'s vaginal area and of Fox sexually abusing her. Although the photos did not show Mr. Fox or G.P.'s faces, G.P. identified Fox and herself in the photos. Mrs. Fox also identified her husband in the photos. The photos were not timestamped, but they showed G.P. in different outfits and in different positions. G.P. also told the investigators the photos were taken on different days.

         Pursuant to a plea agreement, Mr. Fox pled guilty to one count of sexually exploiting a minor through the production of child pornography. The PSR calculated a total offense level of 43 and a guideline range of exactly 360 months-or 30 years. Normally, an offense level of 43 would produce a guideline range of life, but the statutory maximum for Mr. Fox's offense is 30 years. See United States Sentencing Guidelines § 5G1.1(a) ("Where the statutorily authorized maximum sentence is less than the minimum applicable guideline range, the statutorily authorized maximum sentence shall be the guideline range."). The PSR's calculation included several offense characteristic enhancements, including a five-level enhancement under guidelines § 4B1.5(b)(1) because Mr. Fox "engaged in a pattern of activity involving prohibited sexual conduct."

         Mr. Fox objected to the PSR's five-level enhancement under § 4B1.5(b)(1), arguing it applied only to circumstances where there have been "two separate and distinct crimes and allegations" of prohibited sexual activity against the defendant. The District Court overruled this objection and concluded that the PSR "correctly applie[d] the increase in the offense level for a pattern of activity involving prohibited sexual conduct under § 4B1.5(b)(1)." The District Court observed that Mr. Fox had engaged in "repeated misconduct [with] two different victims" over a "substantial period of time"; his actions solely against "just one victim" would have met the enhancement under § 4B1.5(b)(1); and Mr. Fox's conduct was "the very paradigm of a situation where the increase [under § 4B1.5(b)(1) was] appropriate."

         At sentencing, Mr. Fox also argued a 240-month sentence was appropriate because he was 60 years old. Mr. Fox pointed out as well that the government recommended a 240-month sentence pursuant to his plea agreement. The District Court rejected Mr. Fox and the government's recommendations and imposed a 360-month sentence. This appeal followed.

         II. STANDARDS OF REVIEW

         This Court reviews de novo the District Court's interpretation of the guidelines and its application of the guidelines to the facts. United States v. Moran, 778 F.3d 942, 959 (11th Cir. 2015). We review the substantive reasonableness of a sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591 (2007).

         III. DISCUSSION

         In reviewing the reasonableness of a sentence, we follow a two-step process. United States v. Trailer, 827 F.3d 933, 935 (11th Cir. 2016) (per curiam). We first ensure the sentence was procedurally reasonable by reviewing whether, among other things, the District Court miscalculated the guideline range. Id. at 936. We then determine whether the sentence is substantively ...


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