USA v. Audra Mabel

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-15060
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AUDRA MABEL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cr-00068-RBD-DCI-1
____________________
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2 Opinion of the Court 19-15060
Before J ILL PRYOR , BRANCH, and L AGOA , Circuit Judges.
PER CURIAM:
In the summer of 2017, Audra Mabel made eight videos in
which she depicted her toddler son lasciviously, including posing
him naked and fondling his penis. She also made sexually explicit
videos featuring herself at her job as a first-grade teacher. She did
this to please her then-boyfriend, Justin Ritchie, who she knew
was sexually attracted to children.
In May of 2018, Mabel terminated the relationship with
Ritchie because he would not leave his wife. In the Spring of
2019, Central Florida police arrested Ritchie after Ritchie’s wife,
Sarah Ritchie, called the police after discovering that Richie had
sexually assaulted their daughter. Pursuant to a warrant, the po-
lice seized Ritchie’s digital devices and found the videos Mabel
recorded and sent him. Days later, the police arrested Mabel.
Richie’s wife was also arrested for engaging in the distribution of
child pornography herself.
Mabel was charged with one count of sexual exploitation of
a child and one count of distributing child pornography. Mabel
entered into a plea agreement with the government and pleaded
guilty to only the count of sexual exploitation. The plea agree-
ment contained a waiver of appeal. Mabel’s guidelines range for
sentencing was life imprisonment, but the statutory maximum
was thirty years. After considering a multitude of factors, includ-
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19-15060 Opinion of the Court 3
ing the heinousness of the crime and Mabel’s own mitigating cir-
cumstances, the district court sentenced her to 262 months’ im-
prisonment.
On appeal, Mabel argues her sentence violates both the
Eighth Amendment, because it is grossly disproportional to the
sentence imposed on Ritchie’s wife, and the Sixth Amendment,
because her attorney failed to argue certain mitigating factors.
For the reasons discussed below, we affirm.
I. RELEVANT BACKGROUND
Sometime in early 2017, Mabel, who lived in Michigan, be-
gan a romantic relationship with Justin Ritchie, a married man
with children living in Florida. Mabel, a first-grade teacher, knew
that Ritchie was sexually interested in children.
Beginning in or about May 2017, Mabel began sexually ex-
ploiting her two-year-old son, MV1,1 to create videos for Ritchie.
Over the course of about two months, Mabel created at least
eight videos exploiting MV1:
a) 844.mov is 48 seconds long and consist[s] of a
close up of [MV1]’s penis while Mabel manipulates
the child’s penis until it becomes erect. The video
continues for several seconds focused on the child’s
erect penis.
1 Names and identifying details of all minors are omitted throughout to pre-
serve anonymity. The pseudonyms are consistent with the Presentence Re-
port (“PSR”) and factual statement appended to the guilty plea.
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4 Opinion of the Court 19-15060
b) 845.mov is 13 seconds long and consist[s] of a
close up of [MV1]’s penis.
c) 846.mov is 18 seconds long and consist[s] of a
close up of [MV1]’s penis, while Mabel applies oint-
ment to the child’s penis.
d) 847.mov is 43 seconds long and consist[s] of a
close up of [MV1]’s penis while the child bathes with
Mabel who is also naked.
e) 848.mov . . . is 36 seconds long and consist[s] of a
close up of [MV1]’s penis. The child is shown fon-
dling his penis while Mabel talks to him.
f) 84b.mov is 53 seconds long and consist[s] of a
close up of [MV1]’s penis while Mabel lactates onto
the child’s penis and genital area. Mabel’s exposed
breast is shown in the video.
g) 84a.mov is five seconds long and consists of a
close up of [MV1]’s penis.
h) 849.mov is 43 seconds long and consists of a close
up of [MV1]’s penis while Mabel talks and taps on
the child’s thigh.
Ritchie saved the videos to his iPhone on July 25, 2017.
Around the same time, Mabel also made at least seven ex-
plicit videos for Ritchie featuring herself:
a) 84c.mov is two minutes and 56 seconds long.
This video consists of Mabel masturbating with a
phallic device. Approximately one minute into the
video Mabel is seen breast feeding [MV1]. Mabel
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19-15060 Opinion of the Court 5
continues to masturbate while the child [is] lying on
top of her breast.
b) 84d.mov is a video produced inside the school
where Mabel worked as a first-grade teacher in Lan-
sing, Michigan. In that video, Mabel used her iPh-
one to record her exposed vagina from underneath
her skirt. Mabel then pulled the iPhone from under
her skirt and focused the camera on her face. Mabel
then turned the camera and focused the camera on a
classroom of what appears to be first graders who
were in her immediate vicinity. Mabel engaged sev-
eral children in conversation and recorded the chil-
dren while she talked to them.
c) 8c7.mov, 8cc.mov, 8c9.mov, and 8ca.mov are four
separate videos that range from 11 seconds to 35
seconds long. These videos consist of Mabel mas-
turbating on June 8, 2017, with a popsicle while in
the elementary school restroom. [2]
d) 8cd.mov is 34 seconds long and consist of Mabel
masturbating with a cupcake while in the elemen-
tary school restroom.
Around October of 2017, Mabel relocated from Michigan
to live with her father in Casselberry, Florida. Shortly afterwards,
Mabel recorded a video of herself masturbating and talking to
Ritchie, verbally fantasizing about engaging Ritchie’s minor
2 Mabel returned the popsicles to their box and later filmed herself giving
popsicles of the same colors to her students.
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6 Opinion of the Court 19-15060
daughter, CV1, in sexual activity. She and Ritchie would some-
times incorporate role-play and fantasies of child sex abuse into
their sexual relations, at times using the names of Ritchie’s chil-
dren.
Mabel terminated the relationship at some point in 2018
because Ritchie would not leave his wife. According to Mabel,
the last time she saw Ritchie was May 2018.
On March 5, 2019, Ritchie’s wife called the Sanford Police
Department and reported that her daughter, CV1, disclosed to
her that Ritchie had touched and licked her vulva. Ritchie’s wife
knew that Ritchie was a pedophile for at least a year, including
that he viewed child pornography and had naked images of a
child that she knew.
On March 8, 2019, the Sanford Police Department arrested
Ritchie in Seminole County, Florida, and, pursuant to a warrant,
seized Ritchie’s digital devices and conducted a search. On Ritch-
ie’s iPhone they found: (1) thirty-nine videos depicting Ritchie
sexually exploiting three prepubescent children from January 2017
to March 2, 2019; (2) text communications in which Ritchie dis-
tributed thirteen images of child pornography to Ritchie’s wife in
June 2018; and (3) the videos created by Mabel described above.
On March 13, 2019, law enforcement officers contacted
Mabel at her home in Seminole County. After waiving her
Mi-
randa rights, she admitted to recording the pornographic videos.
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19-15060 Opinion of the Court 7
In April 2019, a grand jury indicted Mabel on one count of
sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a),
(e) and 18 U.S.C. § 2, and one count of distribution of child por-
nography, in violation of 18 U.S.C. § 2252A(a)(2), (b)(1) and 18
U.S.C. § 2.
On July 3, 2019, Mabel pleaded guilty to count one, sexual
exploitation of a minor. She admitted to sexually exploiting MV1,
as described above. She also waived any right to appeal, except as
to: “(a) the ground that the sentence exceeds the defendant’s ap-
plicable guidelines range . . . ; (b) the ground that the sentence ex-
ceeds the statutory maximum penalty; or (c) the ground that the
sentence violates the Eighth Amendment to the Constitution,”
unless the government appealed first. In exchange, the govern-
ment dropped the child pornography count and agreed to consid-
er her assistance to the prosecution when recommending a sen-
tence.
The PSR calculated the guidelines range for Mabel’s sen-
tence. The base offense level for sexual exploitation of a child is
thirty-two. That was enhanced by four because MV1 was young-
er than twelve years old, and by another four because it portrayed
an infant or toddler. To that forty was added another two for
each of: 1) the offense involved a sexual act; 2) Mabel knowingly
distributed it; and 3) Mabel was MV1’s parent. Next, that forty-six
was enhanced by five, because Mabel committed eight individual
instances of the offense, and another five, because she engaged in
a pattern of behavior, for a total of fifty-six. Mabel accepted re-
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8 Opinion of the Court 19-15060
sponsibility and aided the authorities, which reduced the sentence
by three. As a result, her total offense level was fifty-three. That
was reduced to forty-three because that is the maximum level an
offense can reach, pursuant to U.S.S.G. § 5A, comment 2. For any
criminal history category, that level would equate to life impris-
onment. However, 18 U.S.C. § 2251(a) and (e) create a statutory
range of 15 to 30 years’ imprisonment. Consequently, the guide-
lines range was the maximum statutory term of imprisonment:
thirty years, or 360 months.
On October 21, 2019, during the sentencing hearing, the
district court judge explained in open court that he
found [him]self struggling with how to properly
characterize adequately the depth of depravity that
would explain a mother utilizing her own child in
order to gratify the deviant sexual desires of a casual
boyfriend . . . [and] struggled mightily to try and un-
derstand how to fashion a sentence that would ade-
quately encompass . . . encouraging . . . a man sex-
ually abusing his own child, this from a mother and
a first grade teacher.
The district court, however, noted that Mabel took responsibil-
ity, that she showed “remarkable insight and remorse,” that she
was “subject to manipulation by a truly evil man,” that the letters
and appearances showed her family support and the body of work
over her life, that the behavior was aberrant, and that an expert
witness testified that she had “no sexual interest in children.” Ul-
timately, the district court determined that 262 months’ impris-
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19-15060 Opinion of the Court 9
onment was a sentence that was sufficient but not greater than
necessary to achieve the statutory purposes of sentencing.
This appeal ensued, and in response, the government filed
a motion to dismiss the appeal based on Mabel’s sentencing ap-
peal waiver.
II. STANDARD OF REVIEW
We review the validity of a sentence appeal waiver
de no-
vo.
United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008).
We also review the constitutionality of a sentence
de novo.
Unit-
ed States v. Carthen, 906 F.3d 1315, 1322 (11th Cir. 2018). Where
a defendant fails to challenge the constitutionality of a sentence
before the district court, however, on appeal we will review only
for plain error.
See United States v. Raad, 406 F.3d 1322, 1323
(11th Cir. 2005) (per curiam).
III. ANALYSIS
On appeal, Mabel raises two arguments. First, Mabel con-
tends that her sentence violates the Eighth Amendment because it
is “grossly disproportionate to the sentence imposed on the more
culpable co-defendant, Sarah Ritchie.” Second, Mabel argues that
defense counsel deprived “Mabel of her Sixth Amendment right
to effective assistance of counsel during sentencing by failing to
argue obvious grounds for a lighter sentence.” We consider these
arguments in turn.
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10 Opinion of the Court 19-15060
A. Mabel’s Eighth Amendment Argument
We first address Mabel’s Eighth Amendment argument.
The Eighth Amendment to the United States Constitution prohib-
its “cruel and unusual punishments.” A defendant can show that
a sentence is so disproportionate as to be cruel and unusual using
a two-step framework. First, the defendant must make a thresh-
old showing that the sentence is “grossly disproportionate to the
offense committed.”
United States v. Johnson, 451 F.3d 1239,
1243 (11th Cir. 2006) (per curiam) (quoting
Raad, 406 F.3d at
1324). Second, a reviewing court may then look to “sentences
imposed on other criminals in the same jurisdiction” and “sen-
tences imposed . . . in other jurisdictions.”
United States v. Brant,
62 F.3d 367, 368 (11th Cir. 1995) (per curiam).
But here, Mabel is silent at step one; she argues that her
sentence is grossly disproportionate to another defendant,
not to
the offense committed.
See United States v. Bushert, 997 F.2d
1343, 1355 (11th Cir. 1993) (“[C]hallenges to sentencing because a
co-defendant received a less severe penalty are ‘frivolous.’” (quot-
ing
United States v. Hendrieth, 922 F.2d 748, 752 (11th Cir.1991))).
Moreover, Mabel cannot show that her sentence is grossly dis-
proportionate with the offense committed, given the heinous na-
ture of her crime and the fact that she was sentenced to about
eight years less than the guidelines recommended. We therefore
conclude that her sentence does not violate the Eighth Amend-
ment.
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19-15060 Opinion of the Court 11
B. Mabel’s Sixth Amendment Argument.
i. Mabel’s Waiver Was Valid.
A sentence appeal waiver will be enforced if it was “made
knowingly and voluntarily.”
Johnson, 541 F.3d at 1066. This can
be shown either directly, if “the district court specifically ques-
tioned the defendant concerning the sentence appeal waiver dur-
ing the [plea] colloquy,” or indirectly, if “it is manifestly clear
from the record that the defendant otherwise understood the full
significance of the waiver.”
Bushert, 997 F.2d at 1351.
Here, Mabel’s waiver falls into the direct category. At the
plea hearing, the magistrate engaged in the following plea collo-
quy with Mabel:
THE COURT: [Y]ou agree the Court has jurisdic-
tion and can sentence you up to the maximum al-
lowed by law, the statutory maximum. You also
waive your right to appeal your sentence on any
ground including that the district judge made a mis-
take in calculating your sentencing guidelines range.
Normally a defendant convicted of an offense can
appeal their sentence on any ground. You’re waiv-
ing your right to appeal your sentence except on
four narrow grounds. First, you can appeal your
sentence if it exceeds the guidelines range the district
judge determines. Second, you can appeal your sen-
tence if it exceeds the statutory maximum. Third,
you can appeal your sentence if it violates the Eighth
Amendment to the United States Constitution. And
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12 Opinion of the Court 19-15060
fourth, if the Government appeals, you can appeal as
well. Do you understand what you’re giving up
there?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Any questions for me about the sen-
tence appeal waiver?
THE DEFENDANT: No, Your Honor.
THE COURT: Any of the particular provisions
you’d like me to go over, Ms. Gable?
MS. GABLE: No, Your Honor.
. . . .
THE COURT: Do you understand everything we
discussed up to this point, including your rights, the
rights you give up by pleading guilty, the charge
against you, the potential penalties and consequenc-
es, the sentencing guidelines, and your plea agree-
ment?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Let me ask you directly, then. How
do you plead, guilty or not guilty, to count one of
the Indictment?
THE DEFENDANT: Guilty.
Because Mabel’s plea was knowing and voluntary, it is enforcea-
ble. We therefore now turn to whether Mabel has waived this
argument.
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19-15060 Opinion of the Court 13
Specifically, Mabel’s plea agreement waived her right to
appeal nearly all issues. The provision at issue stated that:
The defendant . . . expressly waives the right to ap-
peal defendant’s sentence on any ground, including
the ground that the Court erred in determining the
applicable guidelines range pursuant to the United
States Sentencing Guidelines, except (a) the ground
that the sentence exceeds the defendant’s applicable
guidelines range
as determined by the Court pursu-
ant to the United States Sentencing Guidelines; (b)
the ground that the sentence exceeds the statutory
maximum penalty; or (c) the ground that the sen-
tence violates the Eighth Amendment to the Consti-
tution; provided, however, that if the government
exercises its right to appeal the sentence imposed, as
authorized by 18 U.S.C. § 3742(b), then the defend-
ant is released from his waiver and may appeal the
sentence as authorized by 18 U.S.C. § 3742(a).
Based on this explicit provision, there are four—and only four—
valid grounds upon which Mabel can appeal. A Sixth Amend-
ment violation at sentencing is not one of them.3
3 Importantly, this is not a case where the defendant alleges ineffective assis-
tance of counsel regarding the
voluntariness of the waiver, which “goes to
the heart of whether the guilty plea, including the waiver of appeal, is en-
forceable.”
United States v. Puentes-Hurtado, 794 F.3d 1278, 1285 (11th Cir.
2015) (alteration adopted) (quoting
United States v. Portillo–Cano, 192 F.3d
1246, 1250 (9th Cir.1999));
see also id. at 1284 (“If the agreement is involun-
tary, or otherwise unenforceable, then the defendant is entitled to appeal.”
(quoting
United States v. Wenger, 58 F.3d 280, 282 (7th Cir.1995))). Rather,
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14 Opinion of the Court 19-15060
Mabel raises two counterarguments seeking to avoid the
natural reading of the waiver. First, she argues that it is not
waived because the appeal waiver only applies to challenging a
“sentence,” not to challenging the assistance of counsel at sen-
tencing. But her own argument asserts that counsel was ineffec-
tive by “failing to argue obvious grounds for a lighter sentence.”
It strains credulity to say that this is not an appeal of her sentence
under the guise of ineffective assistance of counsel. Moreover, we
have held ineffective assistance of counsel claims waived in the
past.4
See United States v. Hanlon, 694 F. App’x 758, 759 (11th
Cir. 2017) (“Hanlon’s sentence appeal waiver bars his sentence
claims and his claims that his trial counsel was ineffective at sen-
tencing”).
Second, Mabel argues that holding ineffective assistance of
counsel claims waived “trivializ[es] Ms. Mabel’s Sixth Amend-
ment right to effective assistance of counsel at ‘the most critical
stage of criminal proceedings’ as explicitly guaranteed by the
Constitution.” On the contrary, “[t]he preferred means for decid-
ing a claim of ineffective assistance of counsel is through a 28
Mabel’s argument here is “an indirect challenge to [her] sentence.”
United
States v. Hanlon, 694 F. App’x 758, 759 (11th Cir. 2017).
4 We are also mindful that “a contrary result would permit a defendant to
circumvent the terms of the sentence-appeal waiver simply by recasting a
challenge to his sentence as a claim of ineffective assistance, thus rendering
the waiver meaningless.”
Williams v. United States, 396 F.3d 1340, 1342
(11th Cir. 2005).
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19-15060 Opinion of the Court 15
U.S.C. § 2255 motion ‘even if the record contains some indication
of deficiencies in counsel’s performance,’”
United States v. Patter-
son, 595 F.3d 1324, 1328 (11th Cir. 2010) (quoting
Massaro v.
United States, 538 U.S. 500, 504 (2003)), because it is important
that “the district court . . . entertain the claim [and] develop a fac-
tual record,”
United States v. Bender, 290 F.3d 1279, 1284 (11th
Cir. 2002).
Because Mabel’s plea was knowing and voluntary, it is en-
forceable. We therefore hold that based on this appeal waiver
Mabel waived her right to appeal the issues raised and affirm Ma-
bel’s sentence.
AFFIRMED.
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