United States v. Ronald Whitmore , 546 F. App'x 568 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a1018n.06
No. 12-4433
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) FILED
) Dec 05, 2013
Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk
)
v. )
)
RONALD L. WHITMORE, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
Defendant-Appellant. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
BEFORE: BOGGS and ROGERS, Circuit Judges; STEEH, District Judge.*
PER CURIAM. Ronald L. Whitmore appeals his 300-month sentence for possession and
production of child pornography. As set forth below, we affirm Whitmore’s sentence.
Pursuant to a plea agreement, Whitmore pleaded guilty to possession of child pornography
in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 1) and production of child pornography in
violation of 18 U.S.C. § 2251(a) (Count 2). The district court calculated Whitmore’s guidelines
range as 235 to 293 months based on a total offense level of 38 and a criminal history category of I.
After considering the sentencing factors under 18 U.S.C. § 3553(a), the district court varied upward
from that range and sentenced Whitmore to 300 months of imprisonment.
*
The Honorable George C. Steeh III, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 12-4433
United States v. Whitmore
On appeal, Whitmore contends that his sentence was procedurally unreasonable because the
district court varied upward from the guidelines range and ignored his nonfrivolous arguments for
lenity. We review a sentence for procedural reasonableness under an abuse-of-discretion standard.
United States v. Stafford, 721 F.3d 380, 400 (6th Cir. 2013). We must “ensure that the district court
committed no significant procedural error, such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence – including an explanation for any deviation from the Guidelines range.” Gall v. United
States, 552 U.S. 38, 51 (2007).
Whitmore asserts that the district court varied upward from the guidelines range despite the
negotiated plea agreement. The plea agreement, however, stated: “The parties have no agreement
about the sentencing range to be used or sentence to be imposed in this case, other than to stipulate
to the computation of the advisory Sentencing Guidelines offense level.” Plea Agreement 5
(emphasis added). The parties agreed on an offense level of 40, not including an adjustment for
acceptance of responsibility, for Count 2. The district court used that offense level, less two levels
for acceptance of responsibility, to calculate the advisory guidelines range. Nothing in the plea
agreement prevented the district court from varying from that range.
The record belies Whitmore’s claim that the district court ignored his request for lenity based
on his physical and mental health. At sentencing, the district court acknowledged Whitmore’s
physical condition, including blindness in one eye, lung disease, and a self-diagnosed stroke, and
his lack of any past mental-health treatment or substance abuse. The district court noted that defense
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No. 12-4433
United States v. Whitmore
counsel had identified Whitmore’s age and physical condition as possible grounds for departure.
The district court stated, before imposing the sentence, that it would consider Whitmore’s health
problems and, after imposing the sentence, that it ultimately chose not to impose the statutory
maximum sentence because of Whitmore’s age and health issues.
Whitmore’s brief could be construed as challenging the substantive reasonableness of his
sentence. “The essence of a substantive-reasonableness claim is whether the length of the sentence
is ‘greater than necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United
States v. Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010). We review a sentence for
substantive reasonableness under an abuse-of-discretion standard, “tak[ing] into account the totality
of the circumstances, including the extent of any variance from the Guidelines range.” Gall, 552
U.S. at 51. We “may consider the extent of the deviation, but must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id.
The district court imposed a 300-month sentence, justifying the slight upward variance from
the guidelines range based on the “heinous” nature and circumstances of the offense: Whitmore
repeatedly engaged in sexually explicit conduct with a four-year-old girl who was in his care,
custody, and control, videotaped that conduct, and made a “ridiculous” attempt to minimize the
severity of the offense by claiming that the girl initiated the conduct. Sentencing Tr. 28-29. The
district court factored in evidence discovered in this case indicating the sexual abuse of a male
toddler, and 1992 allegations, reportedly substantiated by Stark County Children Services, of the
sexual abuse of two male children. The district court also noted that the victims of child
pornography suffer long-term effects – “the violation of innocence in perpetuity” – and that child
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No. 12-4433
United States v. Whitmore
pornography “degrades us as a civilized human race.” Id. at 29. We can discern no abuse of
discretion in the 300-month sentence, including the seven-month upward variance.
Accordingly, we affirm Whitmore’s sentence as procedurally and substantively reasonable.
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