Aaron Wikkerink had an extensive criminal history that included a conviction for a sex offense (aggravated incest that had resulted in an eight-year prison sentence) when he was arrested again in February 2014 in Shreveport, Louisiana on 41 counts of possession of child pornography.


In October of 2014, Wikkerink, through his attorney, entered into a plea agreement with the U.S. Attorney’s Office for the Western District of Louisiana in which he would plead guilty to one count of possession of child pornography in violation of U.S.C. § 2252A(a)(2).


U.S. District Court Judge S. Maurice Hicks, Jr. accepted the plea and ordered a presentence report (“PSR”). This is standard procedure in the federal sentencing scheme. Defense attorneys are served with a copy of the PSR at the time it is submitted to the court and the U.S. Attorney’s Office. Defense counsel can then to file written objections to the PSR and submit a sentencing memo to the court arguing for a variance or downward departure from the sentence recommended in the PSR.


Based on Wikkerink’s prior sex offense conviction, the PSR noted that § 2252A(b)(1) required a minimum term of imprisonment of 15 years. The PSR further informed the court that because Wikkerink was a “repeat and dangerous sex offender against a minor,” U.S. Sentencing Guideline § 4B1.5 placed his offense level at 34 and put his criminal history in category V. Because he accepted responsibility for his actions through his guilty plea, his offense level was reduced from 34 to 31.


Because of his offense level and criminal history, the normal Guideline range of sentencing range for Wikkerink would have been 168 to 210 months. However, because § 2252A(b)(1) required a mandatory 15-year minimum, the PSR recommended a sentencing range of 180 to 210 months (210 months is 17.5 years).


Judge Hicks had a particular disdain for Wikkerink, calling him one of the worst sexual predators he had encountered. While the judge accepted he “factual findings” of the PSR, he was not about to accept the recommended PSR sentence.


30 Year Sentence Goes Uncontested


Citing Wikkerink’s prior aggravated incest conviction, the judge instead imposed a 30-year sentence. Wikkerink’s attorney objected to the sentence during the sentencing hearing, but did not put into the record any reason(s) for the objection, nor did he object to the PSR. That inaction and lack of action proved to be costly errors.


Assistant U.S. Attorney Stephanie A. Finley was pleased with the sentence.


“This office is dedicated to the protection of children,” Finley stated. “We have and will continue to make the prosecution of child exploitation and child pornography cases a priority. Those who hid behind technology to conduct these heinous acts should know that the internet is not a safe haven for their crimes…”


Wikkerink appealed his sentence to the Fifth Circuit Court of Appeals, but as the court pointed out, it’s review of the above-guidelines sentence imposed on him would have to be confined to a plain error review.


In its October 31, 2016 decision, the appeals court pointed out that plain error occurs when: 1) there was an error, 2) the error was clear and obvious, and 3) the error affected the defendant’s substantial rights.


Clear and Obvious Error Not Enough


The Fifth Circuit found that Judge Hicks had committed a “clear and obvious error” by treating the prior aggravated incest conviction as a qualifying “prior conviction” under § 2252A(b)(1) and by treating it as a “sex offense conviction” under U.S.S.G. § 4B1.5(a) based “solely on the PSR” conclusion that “sentencing enhancements” were warranted.


Thus, the appeals court found that Wikkerink had satisfied the “three prongs” of the plain error rule. But that did not end the inquiry.  The court noted it could reverse Wikkerink’s sentence “only if the error seriously affect[ed] the fairness, integrity, or public reputation of [the] judicial proceedings.”


No Showing of Miscarriage of Justice


Put simply, the Fifth Circuit said it does not “view the fourth prong as automatic if the other three prongs are met.” The appeals court’s position is strict: it will not exercise its discretion to correct an illegal sentence under the plain error rule unless it is conclusively shown that a “miscarriage of justice” would otherwise result. The court concluded that Wikkerink’s 360-month sentence did not amount to a “miscarriage of justice” for the following reasons:


“During Wikkerink’s sentencing hearing, the district court stated that the offense was ‘quite troubling’ and explained, ‘I don’t know, frankly, that the Guidelines correctly captured the nature and extent of the behavior in this defendant’s collection of child pornography.’ The district court described the disturbing images and videos found in connection with Wikkerink’s internet protocol address and found on a computer seized from his residence. Moreover, the district court noted that Wikkerink had previously been convicted of aggravated incest for molesting his seven-year old niece. Accordingly, the district court concluded that the 360-month sentence was ‘a just and reasonable sentence under the history and characteristics of this defendant, the nature and circumstances of the instant offense, the need to afford adequate deterrence to future criminal conduct by this defendant, as well as the need to protect the public from further crimes of the defendant.’”


Based on these conclusions drawn by Judge Hicks, the Fifth Circuit said it was not convinced that the 30-year sentence imposed seriously affected the fairness, integrity, or public reputation of the sentencing proceedings.


Difficult Cases Require Zealous Advocates


While these types of cases are difficult and some defendants may deserve harsh prison sentences, it is vital that defense attorneys file and argue legitimate objections at sentencing.  It may not always be the popular thing to do, but our duty, and the legitimacy of the criminal justice system, requires us to be zealous advocates for all our clients, not just the popular ones…