USA v. Kyle Dale Ritsema

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14622
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D.C. Docket No. 8:18-cr-00068-MSS-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KYLE DALE RITSEMA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 4, 2021)
Before WILLIAM PRYOR, Chief Judge, LUCK and ED CARNES, Circuit
Judges.
PER CURIAM:
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This sentencing appeal challenges the reasonableness of a below-guidelines
sentence for producing, possessing, and distributing child pornography. The
defendant argues that the district court considered improper factors, failed to
consider relevant factors, and imposed a higher sentence than necessary. The
sentence was reasonable, so we affirm.
I. BACKGROUND
Kyle Ritsema worked in Florida as a middle school math teacher and
assistant principal until 2018, when he was arrested on child pornography charges.
Police officers discovered Ritsema’s interest in young teenagers during their
investigation of another school official, William Napolitano. Ritsema sent
Napolitano pornographic pictures Ritsema had taken of a 14-year-old boy and
described his sexual relationship with the child. Ritsema called the child “[B.]
Boy,” referring to the victim’s first name. Police began investigating Ritsema, and
they learned that he had sexual contact with B. at least five times over the course of
a year. He may have abused a second child—the record is unclear—and he
solicited several other children. One of the children was a former student. Officers
also learned that Ritsema sent messages to other pedophiles expressing a plan to
abuse a 13-year-old relative and a desire to travel to other countries “to sleep with
young boys.”
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Ritsema was charged with a total of four counts of producing, possessing,
and distributing child pornography. 18 U.S.C. §§ 2251(a), (e), 2252(a)(2),
(a)(4)(B), (b)(1)–(2). He pleaded guilty to all four counts without a plea agreement.
The presentence report and testimony at the sentencing hearing revealed
several relevant facts about Ritsema’s background. Ritsema grew up in a religious
home and concluded during middle school that he was gay. After struggling with
his sexuality throughout his childhood, he eventually told his parents that he was
gay. They expressed disappointment and temporarily “disowned” him, but they
became more accepting over time. In fact, 18 family members and friends attended
his sentencing hearing, and his mother and cousin spoke on his behalf.
Evidence also revealed that Ritsema has been infected with human
immunodeficiency virus since 2005. His attorney represented to the district court
that treatment has controlled the virus effectively and that Ritsema’s viral load has
been too low for sexual transmission of the virus “for decades.” Regardless,
Ritsema did not tell B. about his diagnosis before they engaged in oral and anal
sex.
Ritsema consulted with a forensic psychologist before his sentencing
hearing. The psychologist reported that Ritsema suffered from depression,
“adjustment issues related to his sexuality,” and “pedophilic disorder.” She
concluded that he would benefit from therapy focused on “age-appropriate partner
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selection,” and she explained that he was less likely than some other sex offenders
to continue abusing children. She based her opinion in part on the view that
Ritsema had no previous sexual offenses, which she defined as arrests or
indictments.
At the sentencing hearing, Ritsema expressed remorse for “ma[king] some
horrible mistakes” during what he described as “an isolated episode.” He asked for
a lenient sentence because he would be “more of a burden on society behind bars
than being a productive citizen on the street.” And he reasoned that a short
sentence would be adequate because he was “not [being sentenced] for thousands,
hundreds, or even tens of photos or videos,” but instead “because of [his]
inappropriate sexual behavior, five photos, four of which were pornography
without a face and one only a face shot.”
The district court pointed out that Ritsema “never once” mentioned during
his statement that he had raped children. It also pointed out that Ritsema was
“different than most child porn[ography] defendants” because he “committed the
conduct that gave rise to the photographs.” And it observed that Ritsema’s
behavior would have consequences for parents’ trust of school administrators like
Ritsema. The district court found that Ritsema’s guidelines range was 960 months
of imprisonment, the statutory maximum. It sentenced Ritsema to 420 months of
imprisonment: 360 months on the production count and 60 months on each of the
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other three counts, to run concurrent to each other and consecutive to the 360-
month sentence. It also sentenced Ritsema to lifetime supervised release.
II. STANDARD OF REVIEW
A sentence is substantively unreasonable if the district court failed to
consider relevant factors that should have carried “significant weight,” afforded
significant weight to an improper or irrelevant factor, or committed a clear error of
judgment in its consideration of the 18 U.S.C. § 3553(a) factors. United States v.
Dixon, 901 F.3d 1322, 1351 (11th Cir. 2018) (internal quotation marks omitted).
Weighing each statutory factor falls squarely within the discretion of the
sentencing court. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). We
will vacate a sentence only upon a “definite and firm conviction that the district
court committed a clear error of judgment in weighing the [statutory] factors by
arriving at a sentence that lies outside the range of reasonable sentences dictated by
the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)
(en banc) (internal quotation marks omitted).
III. DISCUSSION
Ritsema’s substantially below-guidelines sentence is not unreasonably long.
The judge heard evidence about the especially serious aspects of Ritsema’s
behavior: his young victims, his undisclosed disease, his position of trust in the
community, his lack of remorse during his allocution, his plans for future sexual
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abuse of children, and his pattern of soliciting and sexually abusing children. And
she heard evidence about the aspects of Ritsema’s background that he argued were
mitigating: his difficult childhood, his supportive family and friends, and his
relatively low risk of reoffending. At the end of the hearing, based on all the
evidence and arguments and after weighing the statutory factors, the district court
selected a substantially below-guidelines sentence. We cannot conclude that the
district court committed a clear error of judgment by sentencing Ritsema to less
than half of the guidelines range instead of the 180-month statutory minimum
sentence he sought. Cf. United States v. Croteau, 819 F.3d 1293, 1310 (11th Cir.
2016) (concluding that a sentence is more likely to be reasonable if it is well below
the statutory maximum). Ritsema makes three arguments, which we reject in turn.
Ritsema first argues that the district court should not have considered the
fact that he was an assistant principal or the fact that he did not disclose his human
immunodeficiency virus diagnosis. Those facts are irrelevant, he says, because he
never successfully seduced any of his current students and he could not have
transmitted the virus. But Ritsema admitted that he solicited a former student, and
as the district court pointed out, Ritsema’s job was independently relevant because
his crimes eroded trust in school administrators. And Ritsema agreed that he
should have told his victims about his diagnosis even if he was correct that they
faced no risk of infection.
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Ritsema next argues that the district court insufficiently considered the
mitigating factors of his difficult childhood and the psychologist’s opinion that he
was less likely to reoffend than some other sex offenders. But the district court
announced its sentence after considering Ritsema’s mitigation arguments, and
Ritsema points to nothing in the record to suggest that the district court overlooked
his arguments. Nor is it a great distinction to be among the less likely sex offenders
to reoffend; sex offenders who abuse children have “appalling rates of recidivism,”
United States v. Pugh, 515 F.3d 1179, 1201 (11th Cir. 2008), and sex offenders in
general are “much more likely than any other type of offender” to commit sex
crimes in the future, McKune v. Lile, 536 U.S. 24, 33 (2002) (opinion of Kennedy,
J.). At bottom, Ritsema’s argument amounts to a contention that the district court
misweighed the factors, but the weight each factor deserves is reserved to the
discretion of the district court. Amedeo, 487 F.3d at 832.
Ritsema last argues that his sentence created an unwarranted disparity with
other sentences for similar conduct. See 18 U.S.C. § 3553(a)(6). He draws three
comparisons to support his argument. He first points out that many people
convicted of a Florida crime involving sexual abuse of children received less
serious sentences than he did. But disparities between state and federal sentences
for different crimes are not a relevant consideration. United States v. Docampo,
573 F.3d 1091, 1101–02 (11th Cir. 2009). Ritsema next compares his sentence to
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the sentences of four defendants who committed child pornography crimes. But
Ritsema does not contend that any of those crimes involved sexual contact with the
victims, so the criminals are not similarly situated to Ritsema and the comparison
fails. See United States v. Johnson, 980 F.3d 1364, 1386 (11th Cir. 2020); United
States v. Azmat, 805 F.3d 1018, 1048 (11th Cir. 2015). Ritsema’s last comparison
is with William Napolitano, the pedophile to whom Ritsema sent explicit images of
“[B.] Boy.” Napolitano targeted younger children, abused a specific victim for a
longer time, and had an extensive collection of graphic child pornography. He
received a life sentence. Ritsema says he too effectively received a life sentence
because he will be released in his early seventies. So, Ritsema argues, a sentencing
disparity exists because he received essentially the same sentence as Napolitano
even though Napolitano’s conduct was more serious than Ritsema’s. We see no
unwarranted disparity. Napolitano’s conduct and sentence were more severe than
Ritsema’s conduct and sentence. Ritsema will be released in his early seventies, if
not earlier, see Irey, 612 F.3d at 1176 nn.10 & 11 (citing 18 U.S.C. § 3624), but
Napolitano is assured that he will spend the rest of his life in prison.
IV. CONCLUSION
We AFFIRM.
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