Petition for Writ of Certiorari — Michael Scott Hoover, Petitioner v. United States

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-4322

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

MICHAEL SCOTT HOOVER,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at

Statesville. Kenneth D. Bell, District Judge. (5:20-cr-00088-KDB-DSC-l)

Argued: January 24,2024

Decided: March 12, 2024

Before WILKINSON, Circuit Judge, MOTZ, Senior Circuit Judge, and John A. GIBNEY,

Jr., Senior United States District Judge for the Eastern District of Virginia, sitting by

designation.

Affirmed by published opinion. Senior Judge Motz wrote the opinion, in which Judge

Wilkinson and Senior Judge Gibney joined.

ARGUED: DavidQ. Burgess, DAVID BURGESS LAW, Charlotte, North Carolina, for

Appellant. Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee ON BRIEF:

Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Charlotte, North Carolina, for Appellee.

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DIANA GRIBBON MOTZ, Senior Circuit Judge:

Michael Scott Hoover challenges his conviction and sentence for crimes related to

his production and possession of child pornography. He argues the trial court erred in

several evidentiary rulings, in denying his Rule 29 motion for judgment of acquittal, and

in instructing the jury on the elements of child pornography production. He also maintains

that the district court procedurally erred in sentencing him to 840 months’ imprisonment.

We have carefully considered these arguments and concluded that none are meritorious.

Accordingly, we affirm.

In August 2019, law enforcement authorities airested Hoover for multiple counts of

indecent liberties with a minor in violation of North Carolina law. Following his arrest,

his employer, Wells Fargo, searched his work-issued iPhone and discovered a video of a

minor boy masturbating. A North Carolina forensic investigator then searched that phone

pursuant to a search warrant and discovered three more videos and multiple pictures of

another minor boy masturbating. The investigation also uncovered web searches on

Hoover’s phone for “selfies boy masterbating [sic],” “NAMBLA [North American

Man/Boy Love Association],” and other web-search queries indicating sexual interest in

minor boys.

Investigators identified the two minors depicted in the illicit content found on

Hoover’s phone as Victim One and Victim Two, both relatives of Hoover. In June and

September 2018, when Hoover recorded the videos of Victim One, the boy was 17 years

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old. In August 2019, when Hoover recorded the video of Victim Two, the boy was 12

years old. Victim Two caught Hoover recording him and asked him to delete the video,

but Hoover did not do so. Victim One did not knpw he was being recorded on either

occasion.

Both Victim One and Victim Two reported a long period of inappropriate comments

and sexual abuse by Hoover in the time leading up to the creation of the videos. Each

victim said that Hoover had isolated him at Hoover’s home or while on trips, and then

pressured the minor to masturbate in front of Hoover, despite the minor not wanting to do

so. Six other victims also came forward, reporting to investigators that Hoover had

sexually abused them as minor boys prior to or around the same time as Hoover’s sexual

abuse of Victim One and Victim Two.

In October 2020, the Government indicted Hoover in the Western District of North

Carolina for two counts of production of child pornography, in violation of 18 U.S.C.

§ 2251 (a) — one charge for his conduct involving Victim One, and another for his conduct

involving Victim Two — and one count of possession of child pornography, in violation

of 18 U. S:C.L§'2252A(a)(5)(B), for the illicit content of Victim One and Victim Two found

on the phone. In April 2021, the'district court held a one-day jury trial. The Government

presented testimony from several witnesses, including Victim One, Victim Two, and the

North Carolina forensic examiner who searched Hoover’s phone. The prosecution also

offered evidence of the sexually explicit materials and web searches discovered on

Hoover’s phone. After the Government’s presentation of its evidence, Hoover moved for

judgment of acquittal pursuant to Rule 29, asserting a lack of sufficient evidence. The

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district court denied the motion. Hoover did not present any evidence in his defense. The

jury deliberated for less than 30 minutes and found Hoover guilty on all three counts.

The presentence report calculated Hoover’s recommended sentence under the U.S.

Sentencing Guidelines (“the Guidelines”) to be 840 months, or 70 years. The district court

adopted the report with minor modifications and sentenced Hoover to 70 years’

imprisonment. Hoover then timely filed this appeal.

II.

We first consider Hoover’s evidentiary challenges to the admission of (1) the web

searches discovered on his phone and (2) the testimony of Victim One and Victim Two.

Hoover maintains that Federal Rule of Evidence 404(b) bars admission of the web

searches on his phone. He claims that the web searches are propensity evidence not

“intrinsic” to the charged conduct involving Victim One and Victim Two. See United

States v. Bush, 944 F.3d 189,195-96 (4th Cir. 2019).

Hoover did not make this argument at trial. Instead, he merely objected to the

admission of the web searches on the ground that they were irrelevant and unduly

prejudicial under Federal Rule of Evidence 403.

We therefore review his appellate

challenge for plain error. See United States v. Zayyad, 741 F.3d 452, 458-59 (4th Cir.

2014). To obtain relief, Hoover must show (1) “an error” (2) that is “plain,” (3) that

“affect[ed] substantial rights,” and (4) that “had a serious effect on the fairness, integrity,

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or public reputation of judicial proceedings.” Greer v. United States, 593 U.S. 503, 507OS (2021) (cleaned up).

Rule 404(b) bars the admission of “[ejvidence of any other crime, wrong, or act...

to prove a person’s character in order to show that on a particular occasion the person acted

in accordance with the character.” Fed. R. Evid. 404(b)(1). The Rule bars extrinsic

evidence, that is, evidence ‘‘separate from or unrelated to the charged offenses.” Bush, 944

F.3d at 195 (cleaned up). But Rule 404(b)(l)’s limitation on propensity evidence does not

apply to intrinsic evidence. Thus, it does not bar evidence that “is inextricably intertwined

with the evidence regarding the charged offense [because] it forms an integral and natural

part of the witness’s accounts of the circumstances surrounding the offenses for which the

defendant was indicted,” or “serves to complete the story of the crime on trial.” Id. at 196.

The district court did not err in holding the web searches were intrinsic to Hoover’s

productidi aiid'jib'ssession offenses. The web-search queries found on Hoover’s phone

included “selfies boy oh boy,” “selfies boy,” “NAMBLA,” and “selfies boy masterbating.”

The forensic examiner discovered these web searches on the same phone that Hoover used

to make and store videos and pictures of the victims masturbating. These web searches

reveal HooverY 'interest in depictibnS of minor boys masturbating, “the same sort of

conduct” underlying the charged offenses. See United States v. Ebert, 61 F.4th 394, 403

(4th Cir. 2023) (cleaned up).

Hoover also made the web searches around the same time as his criminal conduct.

Although most of the web searches were undated, they could not have been made any

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earlier than March 2017, when the iPhone was imported from China.1 Hoover’s abhorrent

behavior toward Victim One and Victim Two had begun by or before 2017 — a pattern of

abuse the trial court also properly found intrinsic to the charged offenses. Infra II.B.

This might be a closer question had law enforcement authorities discovered the web

searches on a different device than the phone Hoover used to record and store child

pornography. But here the web searches “complete the story of the crime” by helping

explain to the jury how Hoover used his phone: as a tool to discover, view, create, and

store depictions of minor boys masturbating. See Bush, 944 F.3d at 196 (cleaned up).

Omitting evidence of the web searches would have risked providing the jury “an

incomplete or inaccurate view of other evidence” discovered on Hoover’s phone, and of

his intent to produce illicit content. See United States v. Brizeula, 962 F.3d 784, 795

(4th Cir. 2020).

Hoover argues in the alternative that the trial court erred in failing to instruct the

jury that it could not consider the web searches as evidence of the possession charge. He

did not ask for such an instruction at trial, and the district court did not plainly err in failing

to give such an instruction sua sponte. See United States v. Johnson, 945 F.3d 174, 177—

78 (4th Cir. 2019). The possession charge involved the same sexually explicit depictions

1 Hoover attempts to bolster his contrary argument with speculation that the web

searches could have been made as long ago as 2013 (when Hoover may have first received

a smartphone from Wells Fargo), and later retrieved through the cloud. But he presented

no evidence in support of this theory, and, in any event, forfeited it by failing to raise it in

his opening brief. United States v. Fernandez Sanchez, 46 F.4th 211,219 (4th Cir. 2022).

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of Victim One and Victim Two that underlay the production charges, making the web

searches intrinsic to all three offenses.

;

Hoover next maintains that the district court violated the Federal Rules of Evidence

in admitting, pursuant to Rule 414, Victim One’s testimony regarding Hoover’s longrunning sexual abuse of Victim One. That is so, he claims, because Rule 414 governs the

admission of evidence of “other child molestation” against defendants accused of “child

molestation” offenses, and Victim One was not a “child” for purposes of the Rule. See

Fed. R. Evid. 414(a), (d)(1).

But the court did not admit Victim One’s testimony as evidence of “other child

molestation” under Rule 414, but instead on the basis that Victim One’s testimony was

“intrinsic*’ to the charges involving Victim One. And Victim One’s testimony clearly was

intrinsic to those charges: Victim One detailed a long period in which Hoover isolated

Victim One, gave him alcohol, showed him pornography, and pressured him to masturbate

in front of Hoover. Hoover’s predatory behavior toward Victim One thus formed an

“integral and natural part of the witness’s account[] of the circumstances surrounding the

[chargedJ difehseL”11 See Bush, 944 F.3d at 196 (cleaned up).

Hoover also contends that the trial court erred in failing to instruct the jury that it

could not consider Victim Two’s testimony when reaching a verdict on the production

charge involving Victim One. Because Hoover did not request this instruction at trial, we

again review for plain error. See Johnson, 945 F.3d at 178.

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We see no error here. The trial court admitted Victim Two’s testimony as “intrinsic”

evidence with respect to the charges involving Victim Two, and as Rule 414 evidence with

respect to the production charge involving Victim One. Rule 414 permits courts to “admit

evidence that the defendant committed any other child molestation” when the “defendant

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is accused of child molestation,” so long as such evidence is relevant. Fed. R. Evid. 414(a).

The Rule further defines “child molestation” to include “a crime under federal law ...

involving any conduct prohibited by 18 U.S.C., chapter 110.” Fed. R. Evid. 414(d)(2)(B).

All three counts — the production offense involving Victim One, the production offense

involving Victim Two, and the possession offense involving both Victim One and Victim

Two — “involv[e]... conduct prohibited by 18 U.S.C. chapter 110.” Id. All three offenses

thus are “child molestation” for purposes of Rule 414. See United States v. Arce, 49 F.4th

382, 394 (4th Cir. 2022). Accordingly, the district court did not err in admitting Victim

Two’s testimony regarding Hoover’s “child molestation” conduct involving Victim Two

as Rule 414 evidence of the “child molestation” charge involving Victim One. See Fed.

R. Evid. 414(d)(2)(B).2

Hoover resists this conclusion, arguing that Rule 414 covers only child molestation

offenses involving victims younger than 14, and that Victim One was 17 at the time Hoover

made the videos. Rule 414 does separately define “child” as “a person below the age of

14.” Fed. R. Evid. 414(d)(1). But Hoover errs in maintaining that this restriction applies

2 Hoover does not seem to dispute that his offense conduct involving Victim Two

was “relevant” to the offense involving Victim One. See Fed. R. Evid. 414(a). Nor could

he. “The similarity between the two offenses was striking,” and they occurred during the

same timeframe. See United States v. Kelly, 510 F.3d 433,437 (4th Cir. 2007).

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to the definition of “child molestation” in Rule 414(d)(2)(B), which defines “child

molestation” simply to include “any conduct prohibited by 18 U.S.C. chapter 110.” Arce,

49 F.4th at 394 (quoting f4d. R. Evid. 414(d)(2)(B)/(emphasi's added)). As our sister

circuits have recognized, the definition of “child” in Rule 414(d)(1) does not limit the

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definition of “child molestation” in Rule 414(d)(2)(B). United States v. Foley, 740 F.3d

1079, 1087 n.3 (7th Cir. 2014); United States v. Sturm, 673 F.3d 1274, 1284 (10th Cir.

2012). Moreover, because the jury could consider Victim Two’s testimony when reaching

a verdict on the production charge involving Victim One, the district court need not have

severed the counts — as Hoover argues in passing for the first time on appeal.

III.

Hoover next challenges the sufficiency of the evidence supporting his child

pomogtapliy prbductibn convictions! He argues that the Government failed to prove the

specific-intent and interstate-nexus elements of those offenses. He faces a “heavy burden”

bn appeal because “reversal for insufficient evidence is reserved for the rare case where

the prosecution’s failure is clear.” United States v. Davis, 75 F.4th 428,437 (4th Cir. 2023)

(cleaned up). We will “sustain a guilty verdict if — viewing the evidence in the light most

favorable to the prosecution — the verdict is supported by substantial evidence.” Id.

(cleaned up). Substantial evidence is “evidence that a reasonable finder of fact could accept

as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a

reasonable doubt.” Id. (cleaned up). “We consider circumstantial as well as direct

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evidence” in this review. United States v. Hicks, 64 F.4th 546, 550 (4th Cir. 2023) (cleaned

up).

We start with the Government’s evidence of specific intent. Child pornography

production under 18 U.S.C. § 2251(a) requires proof that “the defendant used, employed,

persuaded, induced, enticed, or coerced the minor to take part in sexually explicit conduct

for the purpose of providing a visual depiction of that conduct.”

United States v.

McCauley, 983 F.3d 690, 695 n.3 (4th Cir. 2020) (cleaned up). “[A] defendant must

engage in the sexual activity with the specific intent to produce a visual depiction; it is not

sufficient simply to prove that the defendant purposefully took a picture.” Ifnited States v.

Palomino-Coronado, 805 F.3d 127, 131 (4th Cir. 2015).

Hoover argues that the Government failed to present “direct evidence or statements

indicating” that Hoover specifically intended to produce sexually explicit videos of Victim

One and Victim Two when he pressured the victims to masturbate. See Def. Br. 34. But

the Government did not need to present direct evidence when proving Hoover’s intent as

to the § 2251(a) production charges. “More often ... courts are presented only with

circumstantial evidence to show that a defendant acted with purpose.”

Palomino-

Coronado, 805 F.3d at 131. And we have expressly “recognizefd] that the jury may infer

intent from circumstantial evidence” when deliberating on § 2251(a) offenses. See United

States v. Engle, 676 F.3d 405, 418 & n.9 (4th Cir. 2012). The Government presented

abundant evidence that Hoover’s decisions to record both victims were not “spontaneous,”

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but rather “a motivating purpose” when he pressured them to engage in sexual activity.

See McCauley, 983 F.3d at 696-97 (cleaned up).

As to the § 2251(a) production offense involving Victim Two, the jury could

consider Hoover’s web searches indicating his interest in depictions of minor males

masturbating, as well as Victim Two’s testimony regarding Hoover’s severe sexual abuse

of Victim Two in the time leading up to Hoover making the video. Victim Two also

testified that, during the offense itself, Hoover secretly followed Victim Two into the

woods and repeatedly pressured Victim Two to masturbate, despite the minor telling

Hoover that he did not want to. Hoover “actively concealed from the minor the fact that

he was videotaping” him. See Palomino-Coronado, 805 F.3d at 131 (cleaned up). He also

manipulated'tiie video by recording Victim Two in slow motion. See id. (“zoomfing] the

camera in and out” can indipate specific intent (quoting United States v. Morales de Jesus,

372 F.3d 6,21-22 (1 St Cir. 2004)). And instead of deleting the video as Victim Two asked,

Hoover saved it to a secret app on his phone where he hid what he called his “bad pictures.”

!Ariidhst6 ftCover’s intent'With respect to § 2251(a) offense involving Victim One,

the jury could consider the web searches, Victim Two’s testimony, and Victim One’s own

testimony regarding Hoover’s pattern of predatory behavior toward Victim One. The jury

could also consider the fact that Hoover secretly recorded Victim One masturbating twice,

and that fhfe June 2018 video zoomed in on Victim One’s genitals. See id. (“The number

of sexually explicit recordings or depictions [can be] indicative of purpose.”)

The jury thus could reasonably find that Hoover had the specific intent necessary to

convict him of both § 2251(a) production offenses.

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Conviction of child pornography production under § 2251(a) also, requires proof of

an interstate-nexus element: that the “visual depiction was produced or transmitted using

materials that have been mailed, shipped, or transported in or affecting interstate or foreign

commerce by any means, including by computer.” 18 U.S.C. § 2251(a); McCauley, 983

F.3d at 695 n.3. Hoover asserts that his iPhone cannot be a “material” under § 2251(a),

arguing that “material” refers only to the actual substance or data that the illicit images are

made of. Hoover did not move for acquittal on this basis at trial, and so we review this

claim only for plain error. See United States v. Duroseau, 26 F.4th 674,678 & n.2 (4th Cir.

2022); Zayyad, 741 F.3d at 458-59. .

There was no error here, let alone plain error. Jn United States y, Malloy, we held

that § 2251(a) prohibits the entirely intrastate “production of child pornography with a

video camera and videotape that had traveled in foreign commerce” — there, from Japan

and Mexico. 568 F.3d 166, 170, 180 (4th Cir. 2009). It follows that § 2251(a) also

prohibits Hoover’s production of child pornography in North Carolina using an iPhone

imported from China.

This conclusion accords with the interstate-nexus analysis of other child

pornography offenses prohibited under 18 U.S.C. chapter 110. The Government can prove

the interstate-nexus element for receipt of child pornography and possession of child

pornography by showing that the defendant had downloaded pr stored the images using a

computer that had previously moved “through interstate or foreign commerce.” United

States v. Milder, 882 F.3d 81, 92 (4th Cir. 2018). And both the receipt and possession

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offenses use the same term of art to describe their interstate-nexus requirement —

“affecting interstate or foreign commerce by any means.” 18 U.S.C. §§ 2252A(a)(2)(A),

(a)(5)(B). That language “expresses an intent by Congress to exercise its full power under

the Commerce Clause.” Miltier, 882 F.3d at 91 (quoting Russell v. United States, 471 U.S.

858, 859 (1985)).

The crime of child pornography production, 18 U.S.C. § 2251 (a), also uses this term

to define its interstate-nexus requirement. Id. (covering materials “affecting interstate or

foreign commerce by any means”). We therefore must conclude that § 2251(a) also

“unambiguously allows the interstate nexus to be satisfied based on the movement of a

computer” used in the crime. See Miltier, 882 F.3d at 91. That includes smartphones,

which, after all, are ^minicomputers that also happen to have the capacity to be used as a

telephone.” See Riley v' California, 573 U.S. 373, 393 (2014). The Government thus

provided sufficient evidence of the interstate-nexus element of § 2251(a) by presenting

testimony showing that Hoover’s iPhone was imported from China.

TV.

Hoover additionally contends that the district court erred in instructing the jury on

the specific-intent requirement of the child pornography production charges, maintaining

that the court wrongly departed from our “approved language in Palomino-Coronado.”

Def. Br. 36. We review this issue de novo. McCauley, 983 F.3d at 694.

Hoover does not explain what he means by Palomino-Coronado's “approved

language.”. But we understand him to be referring to that case’s explanation that production

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' of child pornography under § 2251(a) requires proof of specific intent: “a defendant must

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~i- engage in the sexual activity with the specific intent to produce a visual depiction; it is not

3 sufficient simply to prove that the defendant purposefully took a picture.” PalominoM Coronado, 805 F.3d at 131. Palomino-Coronado thus explains the meaning of the specific^ intent requirement in § 2251(a), but it does not dictate use of particular language when

Q explaining that element to the jury.

' ~j In the case at hand, the district court satisfactorily explained this specific-intent

7$ requirement to the jury, instructing that to convict Hoover under § 2251 (a):

[Tjhe government must prove that the minor engaged in the sexual activity

and that the defendant had the specific intent to produce a visual depiction.

It is not sufficient simply to prove that the defendant purposefully took the

picture. The government must prove that producing a visual, depictipn of tfie .

sexually explicit conduct was one of the defendant’s purposes for using,

employing, persuading, enticing, or coercing the victim to engage in sexually

explicit conduct and that it was a significant or motivating purpose and was

not merely incidental to the sexually explicit conduct.

The court thus “adequately informed the jury of the controlling legal principles” governing

the § 2251(a) offenses. See McCauley, 983 F.3d at 694 (cleaned up). “Whether an

instruction reads ‘the purpose,’ ‘the dominant purpose,’ ‘a motivating purpose’ — or some

other equivalent variation —.may not be crucial, but [§ 2251 (a)] plainly requires something

more than ‘a purpose.’” Id. at 697. The trial court made that fact clear.

Finally, Hoover challenges the procedural reasonableness of his 840-month

sentence on several grounds: six challenges to the district court’s calculation of his

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recommended sentence under the Guidelines, and an additional challenge to how the court

weighed the § 3553(a) factors before imposing sentence. We review these claims for abuse

of discretion. See United States v. Morehouse, 34 F.4th 381,387 (4th Cir. 2022). We first

summarize the disputed aspects of the calculation of Hoover’s recommended sentence

under the Guidelines, and then explain why Hoover’s sentencing challenges fail.

The district court adopted the Guidelines calculations in the presentence report. In

doing so, it followed the grouping rules to put Count 2 and Count 3 (the production offense

involving Victim Two and the possession offense) into one group, and Count 1 (the

production offense involving Victim One) into a second'group. See U.S.S.G. §§ 3D1.2(b),

2G2.1 cmt. n.7. The court then applied several offense-level adjustments to the production

offenses, including a two:level increase under § 2G2.1(b)(2)(A) because the crimes

involved sexual contact, and a two-level increase under § 2G2.1 (b)(5) because Hoover was

a relative hnd eafegiver Of both victims.

The court also applied several adjustments to the initial offense level for Hoover’s

possession offense, including a five-level increase under § 2G2.2(b)(5) because Hoover

had engaged in a pattern of sexual exploitation of minors. The district court, however, did

not ultimately use the initial offense level calculated under § 2G2.2. Instead, the court

applied the §'l2'Cj2.i'guidelines because Hoover’s possession offense “involved causing...

a minor to engage in sexually explicit conduct for the purpose of producing a visual

depiction,” and applying the § 2G2.1 guidelines would result in a greater offense level. See

U.S.S.G. §2G2.2(c)(l).

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The court concluded that Hoover’s combined adjusted offense level was 40, after

applying another two-level adjustment for multiple offenses under § 3D 1.4. Finally, the

district court added a five-level enhancement under § 4B 1.5 (b)(1) because Hoover had

“engaged in a pattern of activity involving prohibited sexual .conduct.” Hoover’s total

offense level thus was 45, which the district court lowered to 43, the highest level the

Guidelines recognize. U.S.S.G. ch. 5, pt. A cmt. n.2. The Guidelines generally recommend

a life sentence when the total offense level is 43. LJ.S.S.G. ch.5, pt. A (table Zone D). The

district court accordingly calculated Hoover’s Guidelines-recommended sentence to be

840 months, or 70 years, the statutory maximum penalty for his, child pornography

production and possession offenses. See 18 U.S.C. §§ 2251 (e), 2252A(b)(2).

All of Hoover’s challenges to the district court’s Guidelines calculations fail.

Hoover first challenges the two-level enhancement under § 2G2.1(b)(5), which

applies when the defendant is a relative of the victim. Hoover’s presentence report stated

that Hoover was related to Victim One and Victim Two. Hoover objected to that finding,

but only in passing and via a conclusory assertion that he had pled not guilty to the offenses.

He did not elaborate on this objection at the sentencing hearing. Hoover thus failed “to

make a showing that the information in the presentence report [was] unreliable, and

articulate the reasons why the facts contained therein [were] untrue or inaccurate.” See

United States v. Fowler, 58 F.4th 142, 151 (4th Cir. 2023) (cleaned up). Accordingly, the

district court could and did properly “adopt the findings of the presentence report without

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more specific inquiry or explanation,” including that Hoover was a relative of Victim One

and Victim Two. See id. (cleaned up).

Hoover next challenges the district court’s application of the cross-reference

instruction at § 2G2.2(c)(l) when calculating the offense level for the possession offense,

arguing that this cross-reference provision applies only to advertising child pornography.

But the purposeful production of child pornography can also trigger the cross-reference at

§ 2G2.2(c)(l). See United States v. Cox, 744 F.3d 305,309-10 (4th Cir. 2014). The district

court thus did not err in following the §2G2.2(c)(l) cross-reference to calculate the offense

level for Hoover’s possession offense under the guidelines at § 2G2.L

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Hoover’s third challenge is to the court’s application of a five-level pattem-ofbehavior adjustment under § 2G2.2(b)(5) when calculating the initial offense level for his

possession offense. But, as explained above, the court ultimately did not use the guidelines

at § 2G2.2 to calculate the offense level for the possession offense. Instead the district

court followed the cross-reference provision at § 2G2.2(c)(l) and applied the guidelines at

§ 2G2.L Any error in the court’s initial application of § 2G2.2(b)(5) thus would be

harmless. See Morehouse, 34 F.4th at 387. The court, however, did not err in any event.

As stated in the presentence report, Hoover had sexually abused Victim One, Victim Two,

and sevefat otherifiihors multiple times. See U.S.S.G. § 2G2.2 cmt. n.l.

• i •

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Hoover also challenges the district court’s application of a two-level adjustment

under § 3D 1.4, which it applied because Hoover had committed multiple offenses against

different minors under the grouping rules at § 3D 1.2. The Guidelines instruct courts to

group together “counts involving substantially the same harm,” U.S.S.G. § 3D 1.2(c), and

to group separately “multiple counts involving the exploitation, pf different minors,” id.

§ 2G2.1 cmt. n.7. Accordingly, the district court placed Count 1 (the production offense

involving Victim One) into one group and Counts 2 and 3 (the production offense involving

Victim Two and the possession offense) into another group.

Hoover

maintains that the court nonetheless should

have

grouped

all three

counts

;

I * r ’ - «’

1 •I

together. He notes that § 3D 1.2(c) instructs sentencing courts to group together counts

where “one of the counts embodies conduct that is treated as a specific offense

characteristic in, or other adjustment to, the guidelines applicable to another of the counts.”

Hoover next points to § 2G2.2(b)(5), which assigns a five-level adjustment to a possession

count when “the defendant engaged in a pattern of activity involving the sexual abuse or

exploitation of a minor.” He concludes that, because his production offenses “embod[y]”

the conduct resulting in the initial five-level adjustment under § 2G2.2(b)(5) to his

possession offense, the district court should have grouped all three counts together. See

U.S.S.G. §3D1.2(c).

This argument fails because the district court did not find the pattem-of-behavior

enhancement at § 2G2.2(b)(5) ultimately “applicable” to Hoover’s possession offense. See

U.S.S.G. § 3D1.2(c). Instead, following the cross-reference provision at § 2G2.2, the court

P '

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applied the § 2G2J guidelines to calculate the offense level of his possession count.

Hoover’s argument also conflicts with the purpose of the grouping rule at § 3D1.2(c):

“preventing] ‘double counting’ of offense behavior.” See U.S.S.G. § 3D 1.2 cmt. n.5.

Grouping the production offenses separately did not result in double counting because

those offenses concerned the separate harms Hoover inflicted on Victim One and Victim

Two.

Hoover further challenges the district court’s application of a five-level pattem-ofbehavior adjustment under § 4B 1.5(b)(1) to his combined adjusted offense level.

Specifically, he argues that applying this §4B 1.5(b)(1) pattem-of-behavior adjustment

resulted in “impermissible" double counting.” Def. Br. 41.

In doing so, Hoover is

seerriirigly' rtef^rnlrig again to the court’s provisional application of the § 2G2.2(b)(5)

pattem-of-behavior adjustment to the possession offense. But, as we have explained, the

court ultimately did not apply the § 2G2.2 guidelines when calculating the offense level of

the possession conviction. And even if the court had done so, our precedent instructs that

applying the adjustments established in § 2G2.2(b)(5) and §4B1.5(b)(1) for the same

conduct does not result in “impermissible double-counting” because those adjustments

serve different penological goals. United States v. Dowell, 771 F.3d 162,170—71 (4th Cir.

2014).

feobvef’& 'iast Guidelines challenge also fails. Hoover maintains that the district

court’s erred in applying a two-level adjustment for “sexual contact” under

Appe^YM^

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Pg: 20 of 21

§ 2G2.1(b)(2)(A). But any such error.wouldbe harmless. See Morehouse, 34 F.4th at 387.

The court calculated Hoover’s offense level at 45, two levels higher than 43, the highest

level recognized under the Guidelines. U.S.S.G. ch. 5 pt. A cmt. n.2. Even if the court had

erred in applying the two-level sexual-contact adjustment to Hoover’s offenses, his total

offense level still would have been 43. Hoover conceded this point at oral argument before

us. Oral Argument at 5:15-5:50.

•

■

Hoover’s final sentencing claim is that the district court procedurally erred in

weighing the sentencing factors in 18 U.S.C. § 3553(a), when imposing.the Guidelinesrecommended sentence of 840 months. He argues that the court failed to consider his

argument that the Guidelines recommendations were overly harsh to Hoover as a child

pornography offender. We review for abuse of discretion. Fowler, 58 F.4th at 153.

After calculating the Guidelines range, a sentencing court must consider the

§ 3553(a) sentencing factors, “conduct an individualized assessment based on the facts

before the court, and explain adequately the sentence imposed to allow for meaningful

appellate review and to promote the perception of fair sentencing.” Id. The § 3553(a)

sentencing factors include the nature of the offense, the characteristics of the defendant,

the Guidelines recommendation, and the need for deterrence, public safety, and

rehabilitation. See 18 U.S.C. § 3553(a)(l)-(7). The court must also “consider all nonffivolous reasons” the defendant has given for “a different sentence and explain why it has

rejected those arguments.” Fowler, 58 F.4th at 153 (cleaned up). The court’s explanation

must “fully address[] the defendant’s central thesis.” Id. (cleaned up). But “where the

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district court imposes a within-Guidelines sentence” — as it did here — “the explanation

need not be elaborate or lengthy.” Id. (cleaned up).

We see no procedural error here. The district court considered the presentence

report and victim impact statements, and concluded that Hoover was a “child predator”

with eight victims over many years. The court acknowledged several potential mitigating

factors, including Hoover’s good employment record, military service, and possible PTSD.

But the district court also noted that a forensic psychologist had found that Hoover

exhibited medium risk of recidivism, and concluded that medium risk was “significant.”

The court accordingly deemed it appropriate to “impose a sentence that [it] would be

confident would be for the rest of [Hoover’s] life,” and thus imposed the Guidelinesrecommended sentence of 840 months.

Given the court’s assessment of Hoover’s

characteristics, history, and crimes, the court adequately explained its conclusion that the

Guidelines-recommended sentence of 840 months was not unfairly harsh for Hoover.3

VI.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

- i

3 Hoover asserts on appeal that the district court did not consider possible

unwarranted sentencing disparities, but he did not make that argument at sentencing. “The

district court is only required to address non-frivolous arguments a defendant actually

presents.” United States v. Odum, 65 F.4th 714, 725 n.5 (4th Cir. 2023) (cleaned up).

*/&( ^ y

*“ 0(UrJ M frtoJ- of ffK

&uu±

FILED: January 10,2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-4322

(5:20-cr-00088-KDB-DSC-l )

UNITED STATES OF AMERICA

Plaintiff - Appellee

MICHAEL SCOTT HOOVER

Defendant - Appellant

ORDER

Upon consideration of appellant’s pro se motion to file a pro se supplemental

brief, the court denies the motion.

For the Court

/s/ Nwamaka Anowi. Clerk

USCA4 Appeal: 22-4322

Filed: 03/12/2024

Doc: 80-2

Pg: 1 of 1

Total Pages:(3 of 3)

FILED: March 12, 2024

UNITED STATES COURT OF APPEALS

JOR THE FOURTH CIRCUIT

No. 22-4322

(5:20-cr-00088-KDB-DSC-1)

UNITED STATES OF AMERICA

Plaintiff - Appellee

MICHAEL SCOTT HOOVER

Defendant - Appellant

JUDGMENT

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ NWAMAKA ANOWL CLERK

c-i

FILED: May 17, 2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-4322

(5:20-cr-00088-KDB-DSC-1)

UNITED STATES OF AMERICA

Plaintiff - Appellee

MICHAEL SCOTT HOOVER

Defendant - Appellant

ORDER

The court denies the petition for rehearing and rehearing en banc. No judge

requested a poll under Fed R. App. P. 35 on the petition for rehearing en banc.

Entered at the direction of the panel: Judge Wilkinson, Senior Judge Motz,

and Senior Judge Gibney.

For the Court

/s/ Nwamaka Anowi. Clerk

(

AppAitf ^-1-

FILED: May^-2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-4322

(5:20-cr-00088-KDB-DSC-1)

UNITED STATES OF AMERICA

Plaintiff - Appellee

MICHAEL SCOTT HOOVER

Defendant - Appellant

MANDATE

The judgment of this court, entered March 12, 2024, takes effect today.

This constitutes the formal mandate of this court issued pursuant to Rule

41(a) of the Federal Rules of Appellate Procedure.

/s/Nwamaka Anowi, Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CASE NO.: 5:20-CR-88-KDB-DSC

UNITED STATES OF AMERICA

MICHAEL SCOTT HOOVER

SENTENCING MEMORANDUM AND MOTION FOR DOWNWARD

VARIANCE

Michael Scott Hoover ( Scott ) comes before the Court for sentencing

having been convicted, by a jury for production of child pornography and

possession with intent to view child pornography, in violation of 18 U.S.C. §

2251 and 18 U.S.C. § 2252A. Through counsel, he submits this memorandum

to assist the Court in fashioning an appropriate sentence pursuant to 18

U.S.C. § 3553 (a).

The Presentence Report (“PSR”) has determined the advisory

Guidelines call for a sentence of 840 months. By way of comparison, the

median federal sentence for murder is 240 months.1 As the Court is well

aware, the advisory Guideline range is but one factor to be considered in

determining a sentence that is “sufficient, but not greater than necessary” to

achieve the purposes of sentencing. See Kimbrough v. United States, 552

U.S. 85, 101 (2007) (quoting 18 U.S.C. § 3553 (a)). The defense submits that

United States Sentencing Commission Quarterly Data Report September 30,2019 at 17. Located at

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencingstatistics/quarterly-sentencing-updates/USSC_Quarter_Report_4th_FY 19.pdf.

Case 5:20-cr-00088-KDB-DSC Document 45 Filed 05/14/22 Page 1 of 10

JA286

/WaM f-1

after all of the relevant statutory factors are taken into consideration, a

sentence far below the advisory guideline range is appropriate.

SCOTT HOOVER’S HISTORY AND CHARACTF.RTflTTf!fi

Scott Hoover grew up in a poor family in the North Carolina

mountains. After graduating from high school, he chose to serve his country

and enlisted in the Navy. He was deployed to the Middle East and served in

Operations Desert Shield and Desert Storm. There, he flew numerous combat

• i:

missions and performed as door gunner, in mine searches, and in surface

surveillance. He participated in numerous search and rescue missions. For ,

his service in he was awarded the Sea Service Deployment Ribbon, the

National Defense Service Medal, and the Southwest Asia Service Medal.. As a

l result of his combat experiences, Scott has been diagnosed with Post■

Traumatic Stress Disorder.

After receiving an honorable discharge, Scott decided to continue his

•

’

‘

t \

jeducation. He enrolled in Wilkes County Community College and earned his

^Associate's Degree. He eventually received his Bachelor’s Degree from

‘ Gardner-Webb University in 2006, graduating cum laude.

Since leaving the Navy, Scott has maintained gainful full-time

employment, even during the years that he was attending college. He first

!•

’

worked as a service technician for two different companies before taking a job

as a senior program analyst at Lowe’s. After five years at Lowe’s, he left for a

fe'

Case 5:20-cr-00088-KDB-DSC Document 45 Filed 05/14/22 ' Page'2'of 10

JA287

&-■

better job at Wells Fargo. From 2013 until his arrest, in-rthis case,, Scott held

■i

the title of Vice-President/Team.Lead at Wells Fargo.

' ••

• J

■■j

-i

DISCUSSION

The Overly Harsh Penalties; for Certain Child

Pornography Offenses Warrant a Downward Variance

;

■

•i

Courts throughout the country have noted the severity of the United

States Sentencing Guidelines as they are applied to offenses involving child

...

•

....

*4j

•'i

pornography and have found them to be overly harsh. Courts have also

;

observed that the guidelines are arbitrary due to a iack of empirical analysis

, {

; i:

’

!*'♦.«.(*

in formulating the guidelines. As a consequence, courts have routinely

yj,

applied'downward Variances to comply with the'mandate of 18 U.S.C. 3553(a)

•V*

to impose sentences that are “sufficient, but not greater than necessary.”

■V

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_a’]

' ■}

•

t's

; i' • • ■ ■ .i

While much of the criticism of the child pornography guidelines have

. .j.

.. .

"hr;'

:' t •

focused on USSG §2G2.2 (discussed in more detail below), courts have

recognized that the same criticism can be at aimed at USSG §2G2.1, the

J '

'•t

guideline that applies to production of child pornography. See, e.g., United

States v. Price, 775 F.3d 828 (7th Cir. 2014). In Price, the Seventh Circuit

•

•...

;•

■

upheld a downward variance from 40 years to 18 years where the defendant

was convicted of producing and distributing child pornography. Price, 775

l '

. .

(

F.3d at 841. The 22-year sentence reduction was upheld even though the

}

defendant molested children, appeared to pose future danger, and showed no

remorse: id. at 830, 834-35. The Seventh Circuit recognized that the district

;

court properly concluded that USSG §2G2.1 “presents some of the same

Case g20-cr:p008S-,KDBrDSC Document 45 Filed 05/14/22.. -Page .3 of 10

JA288-

F- 3>

: *\r.1

>•V J

•i

'■-m

pornography for pecuniary: gain and who fall in higher criminal history

categories.” Doruey, 616 F.3d at 187. The Court explained:

■V'

■i

'Jf

■ •

•3

■ 1

This result is fundamentally incompatible with § 3553(a).

By concentrating all offenders at or near the statutory

maximum § 2G2.2 eviscerates the fundamental statutory

requirement in § 3553(a) that district courts consider “the

nature and circumstances of the offense and the history

and characteristics of the defendant” and violates the

principle, reinforced in Gall, that court's must guard

against unwarranted similarities among sentences for

defendants who have been found guilty of dissimilar

conduct.

Id. USSG § 2G2.1 is no different, as it concentrates all offenders at or

near the statutory maximum regardless of their offense conduct,

criminal history category, or background.

II.

Scott Hoover’s History and Characteristics Warrant

a Downward Variance, Especially In Light of the

Overly Harsh Sentence He Faces.

Even though Scott has no criminal history points (his only prior

convictions are for minor traffic violations), he is subject to a guideline

sentence of life in prison. Due to the statutory maximums for the

offenses of conviction, he is facing a sentence of 840 months in prison, a

de facto life sentence. For the reasons previously discussed with regard

to the overly harsh penalties for child pornography offenses, and based

on his background, such a sentence is too severe and a downward

variance is warranted.

Scott overcame growing up in poverty to accomplish a great deal

in his life. He served the United States in the Navy in combat roles

\"(e

Case 5:20-cr-00088-KDB-DSC Document 45 Filed 05/14/22 Page 6 of 10

JA291

during Operations Desert Shield and Desert Storm. His service was

not without sacrifice, as it left him with Post-Traumatic Stress

Disorder.

After serving his country, he worked towafd-a 'bachelor’s degree

' • •, * '

while working full time and supporting his family. Until his arrest, he

maintained gainful employment and worked his way up to the level of

, :•

vice president, at Wells Fargo. ,

Those are not the history and characteristics of one who

••• I

deserves to spend the rest of his life in prison. His service, sacrifice,

;

J ‘

and accomplishments warrant a measure of leniency. Moreover, his

■

.7"

lack of criminal history warrants a downward variance. See, e.g.,

United States v. White, 506 F,3d 635 (8th Cir. 2007) (in case of

■>

■

distribution of child pornography case where guidelines were 108-135

months, variance to 72 months proper in part because it was the

defendant’s first offense, rejecting government’s argument that the

court may not consider defendant’s lack of prior record because it was

already taken into account by guidelines; after Booker, the court can

•’

■ •

consider lack of a criminal record apart from the guidelines); United

States v. Paul, 561 F.3d 970 (9th Cir. 2009) (where defendant convicted

of embezzlement and guidelines were 10-16 months, court’s within

guideline sentence of 15 months unreasonably high in part because

defendant was a first-time offender with no criminal record

Case 5:20-cr-Op088-KDB-DSC Document 45 Filed 05/1-4/22 . Page 7 of 10

JA2.92

whatsoever); United States v. Autery, 555 F.3d 864, 874 (9th Cir, 2009)

(where guidelines were 41-51 months, court’s sua sponte variance to

probation not unreasonable in part because defendant’s first conviction

and Criminal History Category I “did not fully account or his complete

lack of criminal history*’ because defendant with minor criminal

history still fallslnto Category I); United States u. Huckins (10th Cir.

2008) 529 F.3d 1312 (where defendant convicted of possession of child

pornography and guidelines were 78-97 months, court’s variance to 24

months was proper in part because it was defendant’s first conviction;

the court rejected government’s argument that guidelines already

considered this by placing defendant'in (Category I).

;

III.

The Advisory Guideline ttange.Far Exceeds What Is

Necessary To Afford Adequate Deterrence To

Criminal Conduct And To Protect The Public.

At his own expense, Sco^t has submitted"for evaluation by forensic

psychologists George Demakis .and Terri Watters Klosek, who have

substantial experience in sex offense cases. A copy of a report summarizing

their findings is attached. Those findings include the following:

In terms of risk for future violence (including that of a sexual

nature), Mr. Hoover is at the lowest end of the medium-risk

range. Protective factors or factors that reduce risk include that

he was manned at the time of the offenses, lack of prior criminal

history, lack of antisocial personality disorder, as well as

relatively older age. Future risk is likely to decrease further as

he ages. Specifically, research indicates that are very few

recidivists among sexual offenders released after age 60.

In contrast, areas of concern include that he has failed to take

responsibility for his convictions and appears to minimize

Appendix FS

Case 5:20-cr-00088-KDB-DSC Document 45 Filed 05/14/22 Page 8 of 10

JA293

■t

aspects of the crimes (i.e., the relatively small number of

pictures found on his phone)/ ' '

Exhibit A attached hereto (bmphasis ’in' ^original).

{ ■

' * i

CONCLUSION

i.'

■

For the reasons stated herein, the.defense respectfully, requests that

this Honorable Court impose a sentence that is far below .the, advisory

guideline range.. r.

■

«*

•i

•.r ; , %\

■’

This the 14th day of May, 2022.

.' u .

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i- •* :• new '

'V- ■

■

. t- •,

-T •-'S . ' t J. - .\r ;

Respectfully submitted,

■ -I V -■ '

/s/ Noell P. Tin

____

tinfulton walEer&'owen pllc

301 Eksf Park ^.venue

'Charlotte', N.C.' 28203 '

T: (704) 338-1220 .

F: (704) 338-1312 '

ntin@tinfulton.com ,

Counsel for Mr. Hoover

t r '

' I *

• -'I C h

j-.*

•

■

0’! V'i.'0 " I-

J •

Appendix, fA

Case 5:20-cr-00088-KDB-DSC Document 45 Filed 05/14/22 -Paqe 9 of 10

JA294

■

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this guideline applies, and the defendant engaged in a pattern of activity involving

prohibited sexual conduct. . . [t]he offense level shall be 5 plus the offense level

determined under Chapters Two and Three.

[Prohibited sexual conduct’ means

any of the following: (i) any offense described in 18 U.S.C. § 2426(b)(1)(A) or

(B); (ii) the production of child pornography; or (iii) trafficking in child

pornography only if, prior to the commission of the irlstant offense of conviction,

the defendant sustained a felony conviction for that trafficking in child

pornography. It does not include receipt or possession of child pornography.”

As the court noted in United States v. Bruffy, No. 6:11 CR00006-1,2012 WL

1003503 (W.D. Va. Mar. 26, 2012), although the § 4B1.5(b)(1) enhancement may

apply, “there [may be] a valid question as to impermissible double counting under

the facts and circumstances of [a particular defendant’s] case.” Id. (allowing

downward variance). Here, the application of this enhancement was erred. But

see United States v. Schellenberger, No. 06-4209, 246 Fed. App’x. 830, 832 (4th

Cir. Sept. 4, 2007) (unpublished) (rejecting argument).

The District Court Improperly Considered The 18 U.S.C. §

3553(a) Factors.

First, as to the defense’s argument that the sentencing guidelines are overly

harsh in cases such as Mr. Hoover’s, the district court responded by focusing on

what the public think of the guidelines: “I’m telling you when 1 just talk to folks I

know about child pornography, child abuse, they don't think any sentence is too

AppealVL

.v-

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long. So I don’t know what the sentencing commission might do in the future with

respect to some of these things, but my guess is the public is unconcerned with the

harshness of these guidelines, and the Court is unconcerned as well.” JA314.

Lester, 985 F.3d at 388 (4th Cir. 2021).

Second, the district court, in a case where a 49-year-old defendant was

sentenced to three consecutive sentences totaling 70 >Jears, erred by failing to

consider and thus address the argument in the defense’s Sentencing Memorandum

as to “the need to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct.” 18 U.S.C. §

3553(a)(6).

CONCLUSION

The Court should vacate Mi-. Hoover’s conviction. Alternatively, the Court

should vacate Mr. Hoover’s procedurally unreasonable sentence and remand for

resentencing.

This the 22nd day of August, 2023.

/ David Q. Burgess

David Q. Burgess

N.C. Bar No. 26239

P.O. Box 18125

Charlotte, NC 28218

(704) 377-9800 (voice)

(704) 565-4086 (fax)

david@davidburgesslaw.com

Counsel for Appellant.

£'2.

18 .

I-h:.

;

I I

trying to do this favor for me and put his hands down my

pants."

In the process, that other child was on the way to

And the more and

his house at that moment to mow his grass,

more I found out, the more and more I found out.

time he had been acting like he was helping.

The whole

My wife died that eighth year knowing that we had

}

kis:

if!

let him into our lives and that affected our children*.

My oldest son, he still has mental problems.

can't guarantee it's from this or it's from losing his mother..

At times he has outbursts just like was stated by.the other-

child.

But this is something he'll have to live with.

One of the last things his mother said before she

took her last breath, "I hope he gets everything that comes to.

him."

It's so hard to speak about this, but — and I

I;;

wasn't going to speak today, but hearing that young man speak,

I want to make sure you get everything that's coming to you.

That's all I have to say, Your Honor.

THE COURT:

Anything else?

MS. SPAUGH:

Just for the record, that was Chris Faw.

THE COURT:

Thank you.

No, Your Honor.

Adi right.

I’m confident are, a child predator.

JA313

k... t.

Mr. Hoover, you were, and

Over the■course of many

years with at least eight victims you demonstrated that you

were a child predator, victimizing them not only then but for

the rest of their lives, as we've heard. ■' And then even at”

trial watching those young men have to sit there and watch a

jury watch them watch a.video of them masturbating was painful

to see.

The Gourt has considered your attorney's request for

a variance and the Court has considered, as it must, your1

history and characteristic's, some of which are good.

navy service is much appreciated.

that you may suffer from PTSD from Desert Storm, which it is a

common thing, but it's not particularly well supported in the

records and you seemed to function awfully well at work for an

awfully long time, so that seems an insufficient reason to

vary downward.

Your

The presentence report" says

•

Your counsel has also argued that the sentencing

guidelines for these kind of cases are overly harsh,

understand the legal arguments there, but I'm telling you when

I just talk to folks I know about child pornography, child

abuse, they don't think any sentence is too long.

know what the sentencing commission might do in the future

with respect to some of these things, but my guess is the

public is unconcerned with the harshness of these guidelines,

and the Court is unconcerned as well

satisfied with the way the guidelines are right now.

JA314

And I

So I don't

The Court is fully

The Court also notes that even your own forensic

psychologist put you at, they call it the low end of medium

risk.

care which end of it you are.

that you wouldn't be a recidivist if given the chance,

the psychologist also made note of your total lack of

acceptance of responsibility for these offenses and that you

even minimized them.

Medium risk is significant risk to this Court,

I don't

I have no reason to believe

And

Now, the Court could vary downward;for mere

appearance sake so that the court of appeals would know that I

knew that I could and maybe took some of these arguments into

account.

did, I would impose a sentence that I was satisfied would make

sure you never saw the light of day.

do that.

trying to appear that I didn't think a guideline sentence was

appropriate and still impose a sentence that I would be

confident would be the rest of your life, so I'm just going to

stick with the guidelines.

sentence.

Even if I did, which I'm not going to, even if I

Forty might.

Probably 50 years might

But I'm not going to play a game of

I think that's the appropriate

So pursuant to the Sentencing Reform Act of 1984 and

U.S. versus Booker, it is the order of the Court, having

considered all of the factors in 3553(a), that the defendant,

Michael Scott Hoover, is hereby committed to the custody of

the United States Bureau of Prisons to be imprisoned for a

JA315

kU-3

tern.of 360 months on each of counts one and two to be served

consecutively, and a term.of 120 months on count three to be

served.consecutive•to the terms imposed on counts one and two

to the extent necessary to produce a total term of 840 months,

which is 70 years.

The Court calls to the attention of the custodial

authorities that the defendant has a history of mental health

issues and recommends he be allowed to participate in any

available mental health treatment programs while incarcerated.

The Court recommends that the defendant participate

in a sex offender treatment program while incarcerated, if

eligible..

Upon release from imprisonment, the defendant shall

be placed on supervised release for a term of life on each

count .to be served concurrently.

necessary in the Court's judgment, if there ever is a

supervised.release term, because of his — the long history of

this offense, the period over which it occurred, and his own

forensic psychologist's estimation of a significant risk of

recidivism.

The term of life is

Within 72 hours of release from the custody of the

Bureau of Prisons, you are to report in person to the

probation office in the district into which you are released.

. '

While on supervised release, you shall abide by each

of the.discretionary conditions of supervised release that

Appends A

fili1

JA316

;

-4

AO 245B (Rev. 7/15) Judgment in a Criminal Case

Attachment (Page 1)— Statement of Reasons

DEFENDANT:

CASE NUMBER:

DISTRICT:

Michael Scott Hoover

DNCW5:20CR00088-001

North Carolina - Western

STATEMENT OF REASONS

(Not for Public Disclosure)

ses.

Sections I, II, III, IV, and VIII ofthe Statement ofReasons form must be completed in allfelony and Class A

COURT FINDINGS ON PRESENTENCE INVESTIGATION REPORT

A □ The Court adopts the presentence investigation report without change.

B IS The Court adopts the presentence investigation report with the following changes: (Use Section VIII ifnecessary)

{Check all that apply and specify court determination, findings, or comments, referencing paragraph numbers in the presentence report)

Chapter Two of the United States Sentencing Commission Guidelines Manual determinations by court (briefly summarize the changes

including changes to base offense level, or specific offense characteristics):

The Court grants the objection to the 2 level enhancement for use of a computer. Due to the original total offense level of 45 the resulting

offense level remains 43.

□

Chapter Three of the United States Sentencing Commission Guidelines Manual determinations by court (briefly summarize the changes,

including changes to victim-related adjustments, rote in the offense, obstruction ofjustice, multiple counts, or acceptance ofresponsibility):

Chapter Four of the United States Sentencing Commission Guidelines Manual determinations by court (briefly summarize the changes,

including changes to criminal history category or scores, career offender status, or criminal livelihood determinations):

Additional Comments or Findings (include comments orfactual ifndings concerning any information in the presentence report, including

information that the Federal Bureau ofPrisons may rely on when it makes inmate classification, designation, or programming decisions; any

other rulings on disputedportions ofthe presentence investigation report; identification ofthose portions ofthe report in dispute butfor which

a court determination is unnecessary because the matter will not affect sentencing or the court will not consider it):

The Court overruled the remaining objections.

C □ The record establishes no need for a presentence investigation report pursuant to Fed.R.Crim.P. 32.

Applicable Sentencing Guideline (ifmore than one guideline applies, list the guideline producing the highest offense level):______

COURT FINDINGS ON MANDATORY MINIMUM SENTENCE (Check all that apply.)

A IS

B □

One or more counts of conviction carry a mandatory minimum term of imprisonment and the sentence imposed is at or above the applicable

mandatory minimum term.

One or more counts of conviction carry a mandatory term of imprisonment, but the sentence imposed is below the mandatory minimum term because

the court has determined that the mandatory minimum term does not apply based on:

□ findings of fact in this case (Specify):

□ substantial assistance (18 U.S.C. § 3553(e))

C] the statutory safety valve (18 U.S.C. § 3553(f))

C D No count of conviction carries a mandatory minimum sentence.

Ill

COURT DETERMINATION OF GUIDELINE RANGE (BEFORE DEPARTURES OR VARIANCES):

Total Offense Level: _43________________________

Criminal History Category: J____________________

Guideline Range (after application of§5G1.1 and§5G1.2):

840 months

Ct 1:5 years-life

Ct. 2: 5 years-life Ct. 3: 5 years-life

$50,000-$250,000

Supervised Release Range:

Fine Range:

IS Fine waived or below the guideline range because of inability to pay.

Case 5:20-cr-00088-KDB-DSC Document 51 Filed 05/23/22 Page lot 4

JA485

207

For you to find the defendant guilty of using a

minor to produce a visual depiction of a minor engaging in

sexually explicit conduct charged in these two counts, the

government must prove the following elements beyond a

reasonable doubt:

First, that the minor named in counts one and two of

the superseding bill of indictment was under the age of 18;

Two, that the defendant used or employed or

persuaded or induced or enticed or coerced the minor named in

counts one and two to engage in sexually explicit conduct for

the purpose of producing a visual depiction of that conduct;

and

Third, that the visual depiction was produced using

materials that had been mailed, shipped, or transported in and

affecting interstate or foreign commerce by any means,

including by computer.

I will now define certain terms used in these

essential elements.

consider the evidence.

words, you will assign to them their usual, ordinary, everyday

meanings.

You are to apply these definitions as you'

If I do not define certain concepts or

As used in these instructions, the term "minor"

means any person under the age of 18 years.

whether a person is under the age of 18, you may use your life

experience in observing children.

When you consider

The government does not

Apptlix: vi-1

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.