USA v. Walter Kenneth Rathel

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10007
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER KENNETH RATHEL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:22-cr-00017-LAG-TQL-1
____________________
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2 Opinion of the Court 23-10007
Before JILL PRYOR , BRANCH, and T JOFLAT, Circuit Judges.
PER CURIAM:
Walter Kenneth Rathel appeals his sentence of 108 months’
imprisonment for possession of child pornography, contending
that it was substantively unreasonable. Rathel argues that the sen-
tence is substantively unreasonable because it is greater than nec-
essary to achieve the sentencing factors identified in 18 U.S.C.
3553(a).1 We find no merit in Rathel’s arguments and accordingly
affirm.
I. Background
In March 2021, a Homeland Security Investigations (HSI)
undercover agent monitored a Kik account previously linked to an
individual suspected of pursuing sexual activity with minors. A Kik
user shared a link to a group named “you.ng girls,” containing files
with child pornography. HSI agents acquired details for an account
associated with that link, including an email address, an IP address,
and the name Ray Rathel. The IP address was traced back to an
1 These factors include (1) the nature and circumstances of the offense; (2) the
history and characteristics of the defendant; (3) the need for the sentence im-
posed to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment; (4) the need to protect the public; (5) the
Guidelines range; (6) the kinds of sentences available; (7) the need to avoid
sentencing disparities among similar defendants who have been found guilty;
and (8) the need to provide restitution to victims of the offense. 18 U.S.C.
§ 3553(a).
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23-10007 Opinion of the Court 3
address in Donalsonville, Georgia, where Walter Kenneth Rathel
resided.
In July 2021, law enforcement searched Rathel’s residence
and found two cell phones. A forensic search of them revealed
forty-nine images and 139 videos of child pornography, including
videos of females that appeared to be between the ages of six and
ten. Rathel admitted to agents that he viewed child pornography,
was attracted to girls between the ages of ten to twelve, had paid
for access to child pornography via the mobile app Telegram, and
had instructed underage girls in the past to get naked on the Face-
cast app. He also admitted that he had touched a minor’s breasts
in the past.
Rathel was charged with one count of possessing child por-
nography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), and
subsequently pleaded guilty to that charge.
The presentence investigation report prepared by the proba-
tion officer calculated a total offense level of thirty and a criminal
history category of I. Based on the offense level of thirty and the
criminal history category of I, the guideline imprisonment range
was 97 to 121 months. The statutory maximum term of imprison-
ment was 240 months. Neither party objected.
Rathel asked for a sixty-month imprisonment sentence.
Based on a forensic psychological evaluation, he argued that his
“personality and cognition” were markedly affected by a stroke,
causing “significantly impaired” judgment and chronic depression.
He expressed remorse for his conduct and recognized the harm to
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4 Opinion of the Court 23-10007
his family and the victims. He argued that a sixty-month sentence
would provide adequate punishment because he was a productive
member of society before his stroke, did not have any criminal his-
tory, and that the sentence would allow him to obtain treatment
while under supervision. He also argued that this sentence would
be within the range of sentences received by similarly situated de-
fendants.
During the sentencing hearing, the District Court stated that
it had reviewed the presentence investigation report, the sentenc-
ing memorandum and attached evaluation, and the victim impact
statements. In imposing the sentence, the court said it considered
the Sentencing Guidelines and the § 3553(a) sentencing factors.
The court recognized that Rathel had emotional issues and depres-
sion and took those into account. The court then spoke at length
about the victim impact statements, noting how the victims de-
scribed the ongoing harm to them whenever someone views or
shares the material, how they cannot use social media, and how
they have been stalked and live in fear.
The District Court stated that this was a “very serious
crime.” Rathel not only distributed child pornography but also
“created” it on video calls and touched girls in person. The court
ultimately decided that despite Rathel’s emotional, mental, and
physical health issues, these other factors “[took] this case outside
of the realm of a variance.” The District Court sentenced Rathel
to 108 months’ imprisonment followed by ten years of supervised
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23-10007 Opinion of the Court 5
release. Rathel objected to the substantive reasonableness of the
sentence.
II. Discussion
On appeal, Rathel argues that his 108-month sentence is sub-
stantively unreasonable because it is greater than necessary to
achieve the sentencing factors identified in 18 U.S.C. § 3553(a). We
review a sentence’s substantive reasonableness for an abuse of dis-
cretion. United States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir. 2010)
(en banc). “The party challenging the sentence bears the burden
to show that the sentence is unreasonable considering the record
and the § 3553(a) factors.” United States v. Melgen, 967 F.3d 1250,
1264–65 (11th Cir. 2020).
“A district court abuses its discretion when it (1) fails to afford
consideration to relevant factors that were due significant weight,
(2) gives significant weight to an improper or irrelevant factor, or
(3) commits a clear error of judgment in considering the proper
factors.” Irey, 612 F.3d at 1189 (quoting United States v. Campa, 459
F.3d 1121, 1174 (11th Cir. 2006) (en banc) (Birch, J., dissenting)).
The proper factors are set out in 18 U.S.C. § 3553(a). These include
the nature and circumstances of the offense; the history and char-
acteristics of the defendant; the need for the sentence imposed to
protect the public from further crimes of the defendant, and to
provide the defendant with needed medical care in the most effec-
tive manner; and the need to avoid unwarranted sentencing dispar-
ities. 18 U.S.C. § 3553(a).
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6 Opinion of the Court 23-10007
A sentence is only substantively unreasonable if it leaves this
Court “with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) fac-
tors by arriving at a sentence that lies outside the range of reason-
able sentences dictated by the facts of the case.” United States v.
Woodson, 30 F.4th 1295, 1308 (11th Cir. 2022) (quoting Irey, 612 F.3d
at 1190), cert. denied, 143 S. Ct. 412, 214 L. Ed. 2d 205 (2022). This
Court has stated that “[t]he weight to be accorded any given
§ 3553(a) factor is a matter committed to the sound discretion of
the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007) (quoting United States v. Williams, 456 F.3d 1353, 1363 (11th
Cir. 2006), abrogated on other grounds by Kimbrough v. United
States, 552 U.S. 85, 128 S. Ct. 558 (2007)). Indeed, a district court
may attach great weight to any single factor or combination of fac-
tors. See United States v. Overstreet, 713 F.3d 627, 638 (11th Cir. 2013).
When determining the defendant’s sentence, a district court may
consider any relevant information on the defendant’s background,
character, and conduct. See United States v. Tome, 611 F.3d 1371,
1379 (11th Cir. 2010).
Furthermore, although not automatically presumed, a sen-
tence within the guideline range is ordinarily expected to be rea-
sonable. United States v. Castaneda, 997 F.3d 1318, 1332 (11th Cir.
2021). Likewise, a sentence far below the statutory maximum also
indicates that it was reasonable. Id.
Here, considering the totality of the circumstances, the Dis-
trict Court did not abuse its discretion in imposing Rathel’s
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23-10007 Opinion of the Court 7
sentence. The court properly considered the Guidelines and the
§ 3553(a) factors, including the nature and circumstances of the of-
fense, the history and characteristics of the defendant, and the need
to avoid unwarranted sentencing disparities.
While Rathel argues that the District Court did not give
proper weight to the mitigating factors, the court acknowledged
the emotional, mental, and physical health issues from which
Rathel suffered and stated that it considered those characteristics.
The court also stressed the seriousness of the offense conduct and
emphasized the victim impact statements that described the ongo-
ing harm suffered by the victims of electronically distributed child
pornography. Further, as part of the defendant’s history and char-
acteristics factor, the court considered the fact that Rathel created
pornography by interacting with young girls via internet video
calls and that he touched girls in person.
Rathel’s contention that the District Court did not give sig-
nificant weight to the mitigating factors he cited regarding his his-
tory and characteristics and lack of criminal history fails because
the court had broad discretion to decide how to weigh these fac-
tors. See Overstreet, 713 F.3d at 638. The court properly exercised
its discretion to give more weight to the seriousness of the offense
conduct and Rathel’s history of physical and virtual interactions
with young girls than to the mitigating factors Rathel cited.
Moreover, Rathel’s 108-month sentence was within the
guideline range and well below the statutory maximum sentence
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8 Opinion of the Court 23-10007
of 240 months, further indicating that the sentence was substan-
tively reasonable. Accordingly, we affirm.
AFFIRMED.
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