United States of America v. Jason Wayne Irving

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON WAYNE IRVING,
Defendant - Appellant.
No. 21-3140
(D.C. No. 6:20-CR-10037-JWB-1)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
_________________________________
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Jason Irving pled guilty to one count of distributing child pornography, in
violation of 18 U.S.C. § 2252A(a)(2), and was sentenced to 300 months of
imprisonment. Irving filed a timely notice of appeal, but his appellate defense
counsel subsequently filed a brief asserting there are no non-frivolous issues to
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
April 8, 2022
Christopher M. Wolpert
Clerk of Court
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appeal and seeking to withdraw as counsel pursuant to Anders v. California, 386 U.S.
738 (1967). For the reasons explained below, we grant counsel’s motion to withdraw
and dismiss the appeal.
In 2002, Irving was convicted in a Kansas state court of aggravated indecent
solicitation of a child under the age of fourteen and contributing to a child’s
misconduct. In 2017, he was convicted of violating Kansas’s Offender Registration
Act. In 2018, he was charged on several federal counts including the production of
child pornography, but these charges were dismissed after the district court granted
his motion to suppress evidence obtained in violation of his Fourth Amendment
rights.
Within one month after the 2018 charges were dismissed, Irving created
Facebook and Gmail accounts that he used to send and receive child pornography,
including several images that depicted sadistic or masochistic conduct. He also used
these accounts to interact under false pretenses with a user who identified himself as
a twelve-year-old boy, to discuss sexual abuse of children with other users, and to tell
another user that he had found a twelve-year-old boy for them to sexually abuse.
Additionally, he received numerous images of child pornography from a user
identified as “Alex,” and they discussed whether Irving could sexually abuse a minor
known to Alex. Irving requested a picture of the intended victim, and Alex sent him
a picture of a five-year old boy.
In June 2020, Irving was indicted on several federal child-pornography
charges stemming from his use of his Facebook and Gmail accounts. He ultimately
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pled guilty to one count of distributing child pornography. His plea agreement noted
that this offense was punishable by a term of imprisonment between fifteen and forty
years. This statutory range was determined by 18 U.S.C.S. § 2252A(b)(1), which
applies when a defendant in a child-pornography case “has a prior conviction . . .
under the laws of any State relating to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct, involving a minor or ward.”
Following Irving’s guilty plea, the federal probation office prepared a
presentence investigative report (PSR), which described Irving’s prior criminal
history, the types of images involved in his child-pornography offense, and his online
conversations with other sexual abusers and with a potential victim. The PSR
calculated an advisory Guidelines range of 188–235 months of imprisonment. Irving
raised no objections to the PSR.
At Irving’s sentencing hearing, the district court heard arguments from both
parties as to the appropriate sentence. The court then discussed each of the § 3553(a)
sentencing factors and concluded that these factors warranted an above-Guidelines
sentence of 300 months. In particular, the court emphasized the seriousness of the
offense and the need for deterrence, pointing out that Irving not only distributed very
concerning images of child sexual abuse, but also made plans with other sexual
abusers to commit contact offenses. Defense counsel stated that he objected “both to
the procedural sentence and the substantive sentence,” but he did not elaborate on
this objection. The district court overruled the objection and imposed a 300-month
sentence.
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This appeal is before the court on counsel’s Anders brief. Pursuant to Anders,
counsel may “request permission to withdraw where counsel conscientiously
examines a case and determines that any appeal would be wholly frivolous.” United
States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). Counsel is required to
submit an appellate brief “indicating any potential appealable issues based on the
record.” Id. Once notified of counsel’s brief, the defendant may then submit
additional arguments to this court. Id. We “must then conduct a full examination of
the record to determine whether defendant’s claims are wholly frivolous.” Id. Irving
has not submitted any additional arguments to this court, nor has the government
filed a brief. Thus, our resolution of the case is based on counsel’s Anders brief and
our independent review of the record. Based on this independent review, we
conclude that any potential issue that could be raised on appeal is wholly frivolous.
First, the record reveals no meritorious appellate issues relating to Irving’s
guilty plea. Irving entered into the plea following a full advisement of his rights, and
nothing in the transcript from his change-of-plea hearing would support a challenge
to the knowing or voluntary nature of his plea. Moreover, the record does not reveal
any ways in which the government might have breached the terms of the plea
agreement.
Second, defense counsel notes a potential issue regarding the applicability of
the statutory sentencing enhancement under 18 U.S.C. § 2552A(a)(2). Counsel
concludes, however, that Irving’s prior conviction for aggravated indecent
solicitation of a child less than fourteen years old falls unambiguously within the
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scope of § 2552A(a)(2) because the elements of this offense categorically required
“abusive sexual conduct involving a minor,” § 2252A(a)(2). We agree with
counsel’s analysis on this point, and we therefore conclude that Irving could not raise
a non-frivolous challenge to the statutory sentencing enhancement.
Third, defense counsel notes that Irving could potentially raise a challenge to
the procedural reasonableness of his sentence, but this argument would be reviewed
only for plain error because Irving’s general objection to “the procedural sentence”
was insufficient to put the district court on notice of any specific objections he might
now assert on appeal. See United States v. Sharp, 749 F.3d 1267, 1291 (10th Cir.
2014). Particularly in light of this plain-error standard, we agree with counsel that
Irving cannot raise a non-frivolous challenge to the procedural reasonableness of his
sentence. A sentence may be procedurally unreasonable if the district court “failed to
calculate (or improperly calculated) the Guidelines range, treated the Guidelines as
mandatory, failed to consider the § 3553(a) factors, selected a sentence based on
clearly erroneous facts, or failed to adequately explain the chosen sentence.” United
States v. Henson, 9 F.4th 1258, 1288–89 (10th Cir. 2021) (quotations and alterations
omitted). After reviewing the PSR and the district court’s sentencing explanation, we
see no error, much less plain error, in the district court’s calculation of the Guidelines
range. Next, the district court did not treat the Guidelines as mandatory, but rather
concluded that an upward variance was appropriate in light of the § 3553(a) factors,
which the court carefully considered before announcing its sentence. “[D]istrict
courts are free to accept uncontested facts contained in the PSR for purposes of
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sentencing,” United States v. Robertson, 568 F.3d 1203, 1214 (10th Cir. 2009)
(quotation omitted), and the district court’s sentencing decision was based on the
PSR’s uncontested statement of facts. 1 Finally, the district court fully explained its
chosen sentence. Accordingly, Irving cannot raise a non-frivolous objection to the
procedural reasonableness of his sentence on appeal.
Fourth, defense counsel identifies a potential argument regarding the
substantive reasonableness of Irving’s sentence. “We apply an abuse-of-discretion
standard when reviewing a sentence for substantive reasonableness, a standard
requiring substantial deference to district courts.” United States v. Friedman, 554
F.3d 1301, 1307 (10th Cir. 2009) (quotation omitted). “We do not reweigh the
sentencing factors but instead ask whether the sentence fell within the range of
rationally available choices that facts and the law at issue can fairly support.” United
1 We note that the district court made one factual assertion unsupported by the
PSR. Specifically, the district court stated that there were “cages involved” in one or
more of Irving’s child-pornography images, but we find no support for this assertion
in the PSR or elsewhere in the record. Under plain-error review, however, a
defendant must show “a reasonable probability that, but for the error claimed, the
result of the proceeding would have been different.” United States v. Kaufman, 546
F.3d 1242, 1248 (10th Cir. 2008). Based on our independent review of the record,
we conclude that Irving cannot make a non-frivolous argument that his sentence was
affected by the district court’s unsupported reference to “cages” in the child-
pornography images. The district court’s explanation of its sentencing decision did
not depend on this reference. Moreover, while the PSR does not support this specific
factual assertion, it contains ample uncontested facts supporting the district court’s
overall finding that the images portrayed sadistic or masochistic conduct. For
instance, one of the images involved a child under the age of twelve being sexually
assaulted while bound and blindfolded, and other images portrayed very young
children being sexually abused by adult males. We therefore conclude that this
potential factual error does not give rise to a meritorious argument Irving could raise
on appeal.
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States v. Blair, 933 F.3d 1271, 1274 (10th Cir. 2019) (quotation omitted). Here, the
district court concluded that a 300-month sentence was necessary to reflect the
seriousness of the offense, deter Irving and other potential offenders, and protect the
public. The district court based this decision on the specific facts of this case,
including the serious nature of the images involved, Irving’s lack of deterrence
following the dismissal of his 2018 child-pornography case, and his discussions with
other sexual abusers about prior and anticipated acts of child sexual abuse, such as
his conversations with Alex about abusing a five-year-old boy known to Alex. The
district court considered potential mitigating factors, such as the sexual abuse Irving
experienced when he was a child, but the court ultimately concluded that these
factors were outweighed by the factors warranting a longer sentence. Based on the
seriousness of Irving’s conduct and the other factors highlighted by the district court,
we agree with defense counsel that Irving cannot raise a non-frivolous argument that
this decision fell outside the range of permissible choices available to the district
court.
Our independent review of the entire record reveals no other potentially
meritorious issues Irving could raise on appeal. We accordingly GRANT defense
counsel’s motion to withdraw and DISMISS the appeal.
Entered for the Court
Michael R. Murphy
Circuit Judge
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