United States v. Paull ( 2009 )


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  •                       RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit Rule 206
    File Name: 09a0008p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    Plaintiff-Appellee, -
    UNITED STATES OF AMERICA,
    -
    -
    -
    No. 07-3482
    v.
    ,
    >
    -
    Defendant-Appellant. -
    JERRY PAULL,
    -
    N
    Appeal from the United States District Court
    for the Northern District of Ohio at Cleveland.
    No. 05-00246—Donald C. Nugent, District Judge.
    Argued: October 23, 2008
    Decided and Filed: January 9, 2009
    Before: BOGGS, Chief Judge; and MERRITT and GRIFFIN, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Dean Boland, Lakewood, Ohio, for Appellant. Michael A. Sullivan,
    ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:
    Dean Boland, Lakewood, Ohio, Kevin M. Cafferkey, LAW OFFICES, Cleveland, Ohio, for
    Appellant. Dean M. Valore, ASSISTANT UNITED STATES ATTORNEY, Cleveland,
    Ohio, for Appellee.
    BOGGS, C. J., delivered the opinion of the court. GRIFFIN, J. (pp. 19-23),
    delivered a separate opinion concurring in part and dissenting in part. MERRITT, J. (pp. 24-
    27), delivered a separate dissenting opinion.
    _________________
    OPINION
    _________________
    BOGGS, Chief Judge. Jerry Paull was convicted pursuant to a conditional plea
    agreement on four counts of knowing possession of child pornography under the Child
    Pornography Protection Act, 18 U.S.C. § 2252 et seq. and sentenced to imprisonment for 210
    1
    No. 07-3482                 United States v. Paull                                        Page 2
    months. He now appeals both his conviction and sentence. He claims that the district court
    ruled improperly on a variety of pre-trial motions, including his motions to suppress for
    violations of his Fourth Amendment and Miranda rights, and his motions to dismiss the
    indictment because the statute is void for vagueness and because it deprived him of a fair
    trial. He also appeals his sentence, claiming that the district court incorrectly calculated his
    guideline range and abused its discretion in failing to vary downward in light of his efforts
    at rehabilitation and his poor health. For the reasons discussed below we affirm Paull’s
    conviction and his sentence.
    I. Factual & Procedural History
    In 2004, Special Agent Hagan of Immigration and Customs Enforcement (ICE)
    became aware, through multiple investigations of websites known to traffic in images of
    child pornography, of Jerry Paull’s online activity involving child pornography. In June of
    that year, Hagan obtained a search warrant for Paull’s Amherst, Ohio residence based on an
    affidavit detailing Paull’s subscriptions to websites containing advertising with images of
    child pornography and her experience as an investigator of child pornography. While
    executing the warrant, Agent Hagan informed Paull that he was not under arrest and that the
    officers were there only to execute the warrant. She asked whether he was willing to explain
    his “side of the story” but Paull declined to speak with her. She thereafter left him under
    supervision of a local officer and joined the search. Conversation in passing between Paull
    and the searching officers continued but there was no subsequent discussion regarding the
    search or the suspected crime.
    In the course of the search, officers found a garbage can in the garage with “a
    number of double and triple bagged bundles” in it. In those bundles “there were printed
    images of child pornography” and “a number of floppy disks, a number of CDs, videotapes,
    as well as a number of computer printouts of Mr. Paull’s.” The collection of child
    pornography totaled over 3,700 images, not including the video tapes. Agent Hagan took
    this evidence from the garage into the kitchen and laid it on the table in front of Paull, telling
    him that she no longer needed “to talk with [him] because . . . [she] had the evidence there”
    and then left the kitchen. Paull immediately requested to speak with her and she returned
    to the kitchen.
    No. 07-3482                 United States v. Paull                                      Page 3
    Before Paull made any statement, Agent Hagan advised him again that he was not
    under arrest. She nevertheless informed him of his Miranda rights and gave Paull a
    statement and waiver of those rights, which he read and signed. He proceeded to give an
    oral statement taking responsibility for “all the items that were in the garage [and admitting]
    that they contained child pornography.” He subsequently provided a written statement that
    memorialized his confession and explained his history of involvement with child
    pornography.
    Paull was ultimately indicted on four counts of possession of child pornography
    under § 2252A(a)(2). Paull made a number of pre-trial motions, all of which the district
    court denied. First, he moved to suppress the evidence found under the Fourth Amendment.
    Paull argued that the search violated his Fourth Amendment rights because the warrant was
    based on an insufficient affidavit, and was overbroad. The court held that there was probable
    cause to search the entire premises based on the type of evidence and crime involved even
    considering the delay between the gathering of the warrant evidence and the search. In the
    alternative, the court held that there was “a good faith basis that the officers believe[d] that
    the magistrate was correct” and, therefore, the search fit within the exception of United
    States v. Leon.
    Second, Paull argued that his confessions were obtained in violation of the Miranda
    rule. Both Paull and Mrs. Paull had testified that, after the initial conversation with Hagan,
    Paull was interrogated by multiple officers throughout the two-hour search, and that in
    response repeatedly requested legal counsel. The executing police officers testified to the
    contrary, claiming that there was no repeated interrogation and Paull never asked for
    counsel. The district court decided the credibility issue in favor of the officers, describing
    Paull’s testimony as “completely not believable” and Mrs. Paull’s testimony as “completely
    unbelievable.” Even if the credibility issue came out the other way, the court held that the
    interaction was non-custodial because the police tactics were merely reasonable measures
    to ensure officer safety and did not rebut the presumption that conversations in the home are
    non-custodial.
    No. 07-3482                 United States v. Paull                                       Page 4
    Paull also moved to dismiss the indictment based on a vagueness challenge to § 2252
    and his allegations that his right to a fair trial was violated. The district court rejected both
    as meritless.
    Having failed to obtain suppression of the evidence against him or a dismissal of the
    charges, Paull entered a conditional plea of guilty on all four counts of the indictment,
    reserving his right to appeal any rulings on pre-trial motions and his eventual sentence. The
    agreement stipulated to an applicable offense level of 30, which included several
    enhancements based on the circumstances of the crime (enhancements of two levels for
    images containing a prepubescent minor, four levels for images portraying
    sadistic/masochistic conduct; two levels for the use of computer; and five levels for the
    possession of over 600 illegal images). The agreement also left open the possibility of
    additional reductions or enhancements to this agreed-upon offense level. To that end, the
    Pre-Sentence Investigation Report recommended two additional enhancements: two levels
    for obstruction of justice under U.S.S.G. § 3C1.1 and five levels for a pattern of activity
    involving the sexual abuse of a minor under U.S.S.G. § 2G2.2(b)(5). The report also
    recommended against a downward adjustment for acceptance of responsibility pursuant to
    U.S.S.G. § 3E1.1(a) because of Paull’s obstruction of justice. The addition of these
    adjustments yielded an offense level of 37 and a guideline range of 210 to 262 months of
    imprisonment.
    At the sentencing hearing, the district court made findings of fact and adopted the
    report’s recommendations. First, the court held that Paull had not demonstrated sufficient
    acceptance of responsibility to support a reduction because he only cooperated when it was
    in his best interest and because his behavior supported an obstruction of justice enhancement.
    Indeed, the court held that two courses of behavior supported the upward adjustment
    for obstruction of justice. The court’s credibility determination at the suppression hearing
    supported a finding that Paull perjured himself in giving his version of events. The court
    concluded that “it’s pretty clear to me based on my observation of his demeanor and other
    testimony that was given at that hearing that he testified falsely.” The court also found Paull
    had consistently “wiped the computer for the reason . . . that he could be caught possessing
    this material . . . .”
    No. 07-3482                United States v. Paull                                     Page 5
    Third, the court held that the evidence supported the adjustment for a pattern of
    activity involving the sexual abuse of a minor. The court based this enhancement on
    allegations from Andrew Barry, a friend of Paull’s son, that during the early and mid-80s,
    Paull molested him. The court relied on a letter sent from Barry to the United States
    Attorney’s office and testimony from the probation officer assigned to the case that
    recounted telephone interviews with Barry and several of his family members and concluded
    the allegations were credible. The court rejected Paull’s argument that only “live testimony
    from Andrew Barry” should be used.
    The district court then sentenced Paull to 210 months in prison, the bottom of the
    guideline range for an offense level of 37. In doing so, the court rejected Paull’s argument
    for downward variances based on his poor health, his on-going rehabilitation, and his own
    history of child sexual abuse. The court explained that “your age, your health, your lack of
    a criminal history under [18 U.S.C. §] 3553 are factors that the Court must and I have
    considered. I also consider the fact that there’s mandatory minimum sentences in this case
    that are required.”   But in addition, § 3553 requires “taking into consideration the
    information . . . about what happens to the victims . . . .” The court emphasized that Paull
    demonstrated no “empathy, emotion, sorrow, compassion for those children, those thousands
    of children that are put in this position by people in a place of trust.” The court concluded
    that because the § 3553(a) factors point in opposite directions, “the only fair thing to do is
    to sentence you within the guidelines.”
    No. 07-3482                     United States v. Paull                                                Page 6
    1
    II. Pre-Trial Motions
    A
    Paull advances two Fourth Amendment theories under which the district court
    erred in denying his motion to suppress the evidence seized from his home. Paull first
    argues that the warrant did not establish probable cause because, in his view, the
    affidavit relied on events that were “at least thirteen months [after] the last time the
    accused subscribed to the suspect website . . . .” The district court held that the affidavit
    was sufficient as a matter of law, and, in the alternative, that even if probable cause was
    lacking, evidence should not be suppressed because the search was in good faith within
    the meaning of United States v. Leon. We review both of these conclusions de novo.
    United States v. Kincaide, 
    145 F.3d 771
    , 779 (6th Cir. 1998).
    As a general matter, Paull is correct that an affidavit must allege “facts so closely
    related to the time of the issue of the warrant as to justify a finding of probable cause at
    that time.” Sgro v. United States, 
    287 U.S. 206
    , 210 (1932). But that principle alone
    does not demand suppression in this case. Instead, “[t]he expiration of probable cause
    is determined by the circumstances of each case and depends on the inherent nature of
    the crime.” United States v. Hython, 
    443 F.3d 480
    , 485 (6th Cir. 2006) (citing 
    Sgro, 287 U.S. at 210-11
    ).
    Applying this approach to child pornography, we have reasoned that because the
    crime is generally carried out in the secrecy of the home and over a long period, the
    1
    There is some dispute over whether we have jurisdiction to hear the appeal on issues beyond
    sentencing. Paull’s Notice of Appeal is not a model of clarity, stating: “[T]he Defendant . . . hereby gives
    Notice of Appeal . . . from the sentencing . . . on the questions of law and fact on the above entitled cause
    entered by the said district court in its sentencing of defendant on April 5, 2007.” On one view, this limits
    the issues on appeal to only the designated sentencing issue. See McLaurin v. Fischer, 
    768 F.2d 98
    , 101-
    02 (6th Cir. 1985). But the better reading, in light of the fact that, as the Notice indicates, “counsel was
    advised . . . to file a Notice of Appeal in a timely manner without the Judgment and Commitment Order,
    which, to date, has not been journalized,” is that this is a generalized notice of appeal sufficient to give us
    jurisdiction over Paull’s entire appeal. This broader reading is confirmed by the Notice’s second paragraph
    beginning “[t]he appeal will also challenge . . . the legality of the sentence” – language that would not
    make sense unless Paull intended to challenge the conviction and pre-trial orders as well. Moreover, our
    circuit has avoided “overly technical reading[s]” of the notice of appeal requirement, Caudill v. Hollan,
    
    431 F.3d 900
    , 904 (6th Cir. 2005), in an effort to apply the principle that “[a] mistake in designating the
    judgment appealed from is not always fatal, so long as the intent to appeal . . . can fairly be inferred . . .
    and the other party was not misled or prejudiced.” Sanabaria v. United States, 
    437 U.S. 54
    , 68 n.21
    (1978). Thus, we have jurisdiction to review both the pre-trial and sentencing portions of Paull’s appeal.
    No. 07-3482               United States v. Paull                                    Page 7
    same time limitations that have been applied to more fleeting crimes do not control the
    staleness inquiry for child pornography. See United States v. Wagers, 
    452 F.3d 534
    , 540
    (6th Cir. 2006) (“[E]vidence that a person has visited or subscribed to websites
    containing child pornography supports the conclusion that he has likely downloaded,
    kept, and otherwise possessed the material.”). This approach to staleness in child
    pornography cases comports with the practice of other circuits. See, e.g., United States
    v. Martin, 
    418 F.3d 148
    , 157 (2d Cir. 2005); United States v. Froman, 
    355 F.3d 882
    ,
    890-91 (5th Cir. 2004). Indeed, in a case similar to Paull’s the Ninth Circuit affirmed
    the denial of a motion to suppress because “the nature of the crime . . . provided good
    reason to believe the computerized visual depictions [of child pornography] downloaded
    by [the defendant] would be present in his apartment when the search was conducted ten
    months later.” United States v. Lacy, 
    119 F.3d 742
    , 746 (9th Cir. 1997) (internal
    quotation marks omitted).
    The affidavit in this case alleged that Paull subscribed to child pornography
    websites and that he continued to do so over the course of two years. Paull argues that
    these allegations are too generalized and remote to provide probable cause against him
    at the time of the search. But he does not dispute that the affidavit alleges that he was
    subscribing and downloading images from multiple sites. This makes the habits of
    similarly situated consumers of child pornography relevant. See 
    Lacy, 119 F.3d at 746
    n.6 (“The affidavit in this case contained sufficient evidence that [the defendant] had
    downloaded computerized visual depictions of child pornography to provide a
    foundation for evidence regarding practices of possessors of such pornography.”). For
    instance, one of the websites to which Paull subscribed was described as an “online-
    sharing-community” that was “created specifically for sharing child pornography
    collections.”   The affidavit’s expert description of the barter economy in child
    pornography provides context for that subscription: Paull was likely involved in an
    exchange of images and he therefore is likely to have a large cache of such images in
    order to facilitate that participation. Moreover, while Paull last purchased a subscription
    thirteen months prior to the search, the record is silent regarding how long it was for or
    whether it had indeed expired at the time of the search. Cf. 
    Wagers, 452 F.3d at 538-39
    No. 07-3482               United States v. Paull                                    Page 8
    (upholding probable cause despite all three of the defendant’s website subscriptions
    having lapsed prior to the government investigation). In light of the nature of the crime,
    these allegations are sufficient to establish a fair probability of on-going criminal
    activity.
    In any case, even if the affidavit did not support probable cause, it fits
    comfortably within the Leon good-faith exception, which allows admission of evidence
    “seized in reasonable, good-faith reliance on a search warrant that is subsequently held
    to be defective.” United States v. Leon, 
    468 U.S. 897
    , 905 (1984). Paull argues that the
    affidavit’s generalities make it “bare bones” and therefore ineligible for this exception,
    but our cases on point hold that even where an officer’s experience provides too little
    evidence to establish probable cause, it suffices to make the affidavit not bare bones by
    providing a reasonable connection between the defendant and the alleged crime. See
    United States v. Schultz, 
    14 F.3d 1093
    , 1098 (6th Cir. 1994) (“[A]lthough we have held
    [an affiant’s] training and experience were not sufficient to establish a nexus of probable
    cause . . . the connection was not so remote as to trip on the ‘so lacking’ hurdle.”). To
    the extent that one is persuaded that there are gaps in the evidence caused by the delay
    between the investigation and the search, they were filled in by Agent Hagan’s
    experience, whose familiarity with consumers of child pornographers gave her adequate
    reason to suspect that Paull continued to possess illegal images. That is sufficient for a
    seizing officer to have relied on the warrant in good faith.
    Next, Paull argues that the search warrant was “overbroad” because it permitted
    the search of his garage in addition to the residence. This argument fails because it
    assumes, without authority, that a garage is presumptively excluded from a valid warrant
    to search a house. Our law presumes the opposite, that “a warrant for the search of a
    specified residence or premises authorizes the search of auxiliary and outbuildings
    within the curtilage.” United States v. Watkins, 
    179 F.3d 489
    , 505 (6th Cir. 1999)
    (Boggs, J. concurring) (collecting cases). To be sure, there are cases similar to those
    described in United States v. Ross where “probable cause to believe that undocumented
    aliens are being transported in a van will not justify a warrantless search of a suitcase.”
    No. 07-3482               United States v. Paull                                     Page 9
    
    456 U.S. 798
    , 824 (1982). But this case is not such a case. In a case like Paull’s, where
    the evidence sought includes images that the defendant likely wants to keep secret, even
    from his wife, and can easily be concealed in storage in a garage or basement, a
    reasonable search includes those areas. See 
    Watkins, 179 F.3d at 506
    (“[T]he weight of
    the authority is clear that when searching for small portable items such as drugs and
    records, there is no need to provide separate probable cause or identification of auxiliary
    structures.”). In other words, if there was probable cause to believe Paull possessed
    child pornography at his residence, there was probable cause to search in the most likely
    hiding places.
    B
    Paull argues that both his oral and written confessions were obtained in violation
    of his Miranda rights and therefore should have been suppressed. Because the district
    court’s resolution of this issue involved rejecting Paull’s version of events, he must
    demonstrate both that the district court’s factual conclusions were in error and that its
    legal holding was wrong. We review the factual question for clear error and the legal
    question de novo. See United States v. Foster, 
    376 F.3d 577
    , 583 (6th Cir. 2004).
    Paull makes no attempt to demonstrate that the district court clearly erred in
    crediting the officers’ testimony. Paull only repeats his insistence that his testimony
    (and his wife’s corroboration) that he was questioned during the search and that, during
    these interrogations, he repeatedly requested a lawyer should be believed. Having no
    new reason now, reviewing a cold transcript under a deferential standard, to revisit the
    district court’s conclusions, we will not displace the district court’s findings that the
    Paulls were not credible and that the officers’ version was the truthful one. See
    Anderson v. City of Bessemer City, 
    470 U.S. 564
    , 574 (1985) (“Where there are two
    permissible views of the evidence, the factfinder’s choice between them cannot be
    clearly erroneous.”); United States v. White, 
    270 F.3d 356
    , 366 (6th Cir. 2001)
    (upholding district court factual findings because district court credited officer testimony
    over the appellant’s). On that view of the evidence, the officers asked Paull only once
    for an interview and, after he declined, they had no substantive conversations with him
    No. 07-3482               United States v. Paull                                   Page 10
    until he offered to make a statement and never requested a lawyer. Absent a claim he
    was interrogated or asked for an attorney, there can be no Miranda violation.
    C
    Paull claims that the intersection of prosecutorial discretion and the harshness of
    18 U.S.C. § 2252A would have denied him a fair trial in violation of his Due Process and
    Sixth Amendment rights. This argument is premised on the fact that the statute has no
    explicit exception for those who possess or view illegal images in connection with a trial
    defense and, therefore, any expert (or counsel) would necessarily violate the law (and
    chance prosecution) by undertaking an analysis of the images. For example, Paull
    argues that a defendant wishing to put on a defense that the images he possessed were
    not illegal photographs but legal digitally generated images could not do so because no
    expert capable of distinguishing the images would be willing to undertake the attendant
    risk of prosecution. Worse, Paull argues, the government’s experts are inoculated from
    this risk by prosecutorial discretion. In light of this alleged handicap to his defense,
    Paull concludes that he should not be tried at all for his possession of child pornography.
    Paull, however, makes no allegations that the government used the law to disrupt
    his defense or that any specific expert witness would not cooperate. Nor does he show
    that, if this had been the case, he could not have asked the district court for relief short
    of dismissal. See United States v. Miller, 
    2007 U.S. Dist. LEXIS 4332
    at * 12-13 (N.D.
    Ohio Jan. 22, 2007) (“There is no indication that defendant has been deprived of the
    content of the actual images charged. Nor is there any persuasive argument as to why
    a limited protective immunity order could not be issued in this matter.”);United States
    v. Halter, 
    2006 U.S. Dist. LEXIS 54276
    at *9-10 (N.D. Ohio March 31, 2006) (“The
    Court conferred with counsel on this very issue prior to trial and the United States
    proposed that the [illegal] images be made available for Defense counsel’s review,
    subject to a protective order, with the supervision of the FBI.”). Indeed, the state court
    decision Paull cites as authority for this fair trial argument proves this point: the court
    dismissed the charges under the Ohio child pornography statute because “the Defendant
    . . . may be prosecuted by the Federal Government. The Court feels that would be the
    No. 07-3482               United States v. Paull                                   Page 11
    preferable outcome” because a federal court could try the case “without running the risk
    that the Defense expert would find himself indicted for the possession of this material.”
    State v. Drady, Case No. 2004-CR-349 at 8 (Ohio Court of Common Pleas 2004). Paull
    was tried in a federal court and could have worked with the district court and the
    government to ensure that he could put on the defense he wanted. But he chose not to.
    There was no violation of Paull’s right to a fair trial.
    D
    Paull’s final pre-trial argument was that § 2252 et seq. is unconstitutionally
    vague because “he lacks the capacity to know whether the charged items contain actual
    minors” or virtual images of simulated child pornography protected under Ashcroft v.
    Free Speech Coalition, 
    535 U.S. 234
    (2002).                This argument fails because it
    misapprehends the void for vagueness doctrine. “Vagueness doctrine is an outgrowth
    not of the First Amendment but of the Due Process Clause of the Fifth Amendment. A
    conviction fails to comport with due process if the statute under which it is obtained fails
    to provide a person of ordinary intelligence fair notice of what is prohibited, or is so
    standardless that it authorizes discriminatory enforcement.” United States v. Williams,
    
    128 S. Ct. 1830
    , 1845 (2008). These due process origins mean that “[w]hat renders a
    statute vague is not the possibility that it will sometimes be difficult to determine
    whether the incriminating fact it establishes has been proved; but rather the
    indeterminancy of precisely what that fact is.” 
    Williams, 128 S. Ct. at 1846
    . Thus, in
    Williams, the Supreme Court described the lower court’s “error [as] . . . fundamental”
    because it focused on the fact it may generate close cases and not the statute’s
    sufficiently clear description of the prohibited conduct. 
    Ibid. Paull makes the
    same fundamental error in asking us to invalidate the Child
    Pornography Prevention Act. He does not argue that a person cannot read the statute and
    determine what is illegal; instead he argues that, knowing what is illegal, he cannot
    distinguish between the prohibited and the permitted. Such an inability to determine
    whether a crime has been committed “is addressed, not by the doctrine of vagueness, but
    by the requirement of proof beyond a reasonable doubt.” 
    Williams, 128 S. Ct. at 1846
    .
    No. 07-3482               United States v. Paull                                  Page 12
    The government provides a helpful analogy: “A defendant in a drug case could use [the]
    same logic to argue the drug statutes are unconstitutionally vague because he could not
    know at the time of purchase whether he was buying authentic cocaine.” Appellee’s Br.
    at 54. Like the drug messenger arguing the substance he possessed was not real drugs,
    Paull’s refuge from illegal prosecution is not the constitution but putting the government
    to its burden to prove that he possessed child pornography.
    III. Sentencing
    In reviewing federal sentences after Booker, “the question in the end is whether
    the district court abused its discretion.” United States v. Grossman, 
    513 F.3d 592
    , 595
    (6th Cir. 2008) (citing Gall v. United States, 
    128 S. Ct. 586
    , 597 (2007)). This review
    for abuse of discretion proceeds in two dimensions. The first ensures “that the district
    court committed no significant procedural error.” 
    Gall, 128 S. Ct. at 597
    . The second
    considers “the substantive reasonableness of the sentence imposed.” 
    Ibid. Paull alleges errors
    in both dimensions and we take each in turn.
    A
    Paull charges the district court with three errors in calculating his offense level:
    the district court should not have enhanced his sentence for obstruction of justice; the
    district court should not have enhanced his sentence for a pattern of activity involving
    the sexual abuse of a minor; and the court should have reduced his sentence for
    acceptance of responsibility. When reviewing such procedural errors, our circuit defers
    to the sentencing court’s factual determinations unless clearly erroneous but reviews
    interpretations of the guidelines de novo. United States v. Davidson, 
    409 F.3d 304
    , 310
    (6th Cir. 2005).
    First, the application of the enhancement for obstruction of justice under
    U.S.S.G. § 3C1.1 was proper in this case. A finding of specific acts of perjury supports
    this enhancement. See United States v. Lawrence, 
    308 F.3d 623
    , 632 (6th Cir. 2002)
    (“[A] district court’s findings will be adequate if: 1) the record is sufficiently clear to
    indicate which statements the district court consider perjurious; and 2) the district court
    No. 07-3482                    United States v. Paull                                            Page 13
    found that the statements satisfied each element of perjury.”). The district court made
    such a finding here:
    I had to make a judgment whether the officers testified truthfully and/or
    whether Mr. Paull was testifying falsely when he accused them of lying.
    It was very clear to me, because he signed statements at the time of his
    arrest, that no promises of any leniency of any kind were made . . . and
    so either he lied then or lied during his testimony . . . And it’s pretty clear
    to me based on my observation of his demeanor, and the other testimony
    that was given at the hearing that he testified falsely.
    Like Paull’s argument for reversal on the Miranda issue, his claim here that his
    testimony was truthful and the officers were lying simply reasserts his trial court
    insistence that he testified truthfully despite the express holding that he did not. And,
    again, this assertion is without support in the record and does not demonstrate clear
    error. 
    Anderson, 470 U.S. at 574
    . Accordingly, the district court did not err in finding
    he committed perjury. On this record, enhancing Paull’s total offense level by two under
    U.S.S.G. § 3C1.1 was appropriate.2
    Second, the five-level enhancement under U.S.S.G. § 2G2.2(b)(5) for a pattern
    of activity involving sexual abuse or exploitation of a minor was appropriate. Paull
    insists that the facts were legally insufficient to support the district court’s holding.3 The
    letter from Barry detailing the abuse, however, makes specific allegations, including
    when the activity started, the time of day and year (evenings during football and
    basketball season, when Paull would be free from his other family members), and was
    corroborated by family members of the victim. Paull argued at sentencing that he was
    always at those basketball and football games to watch his son perform in the high
    2
    Because either basis could have supported the enhancement independently, there is no need to
    consider the district court’s alternative conclusion that “wiping” a computer was sufficient. We note,
    however, that Paull’s behavior probably did not support the enhancement because he did not know that he
    was under investigation when he “wiped” his computer. See United States v. Brown, 
    237 F.3d 625
    , 628
    (6th Cir. 2001) (“The obstruction adjustment applies where a defendant engages in obstructive conduct
    with knowledge that he or she is the subject of an investigation or with the correct belief that an
    investigation of the defendant is probably underway.”).
    3
    Paull also argues that the supporting facts should have been found beyond a reasonable doubt.
    This is foreclosed by previous decisions because “[t]his court has squarely rejected defendants’ contention
    that Booker and Blakely[] require all factual finding affecting a sentence’s severity to be made by a jury
    beyond a reasonable doubt.” United States v. Sexton, 
    512 F.3d 326
    , 329-30 (6th Cir. 2008).
    No. 07-3482                United States v. Paull                                   Page 14
    school band and provided the court with letters from family friends indicating that Paull
    attended all of his son’s events. Evidently, the district court credited Barry’s specifics
    over Paull’s generalities.     But, regardless, disputed facts do not make evidence
    insufficient and Paull offers no reason why it would be clear error to find that, by a
    preponderance of the evidence, Paull did molest Barry.
    Paull’s arguments also imply that basing the enhancement on hearsay evidence
    at all was error. The district court’s reliance on Barry’s letter without live testimony
    from Barry is clearly permissible under our law. See United States v. Silverman, 
    976 F.2d 1502
    , 1511 (6th Cir. 1992) (en banc) (“So long as the evidence in the presentence
    report bears some minimal indicia of reliability in respect of defendant’s right to due
    process, the district court . . . may . . . consider and rely on hearsay evidence without any
    confrontation requirement.”) (internal quotation marks omitted).              While recent
    developments in sentencing and Confrontation Clause jurisprudence “may be a broad
    signal of the future, there is nothing specific in Blakely, Booker or Crawford that would
    cause this Court to reverse its long-settled rule of law that [the] Confrontation Clause
    permits the admission of testimonial hearsay evidence at sentencing proceedings,”and
    so we will “continue to observe [our] precedent that testimonial hearsay does not affect
    a defendant's right to confrontation at sentencing.” United States v. Katzopoulos, 
    437 F.3d 569
    , 576 (6th Cir. 2006).
    We underscore that this cautious approach to a changing area of law is the proper
    result of following our precedent. Crawford dealt only with the content of what the
    Confrontation Clause requires and not the scope of when it applies. Silverman, on the
    other hand, rested on the proposition that the Confrontation Clause does not regulate
    information relied on in sentencing and not that the clause applied but it nevertheless
    permitted the use of hearsay. See 
    Silverman, 976 F.2d at 1508
    (explaining that despite
    the guidelines’ alteration of sentencing considerations, “the permissible methods of
    informing the sentencing judge and the need for information in fashioning sentences in
    light of the constitutional rights of defendants at sentencing have not essentially
    changed. The standard has always been that . . . specific procedures, such as are
    No. 07-3482                    United States v. Paull                                             Page 15
    required at trial, are simply not constitutionally mandated . . . .”). The rule in Crawford
    thus does not affect the basis for Silverman. See United States v. Stone, 
    432 F.3d 651
    ,
    654 (6th Cir. 2005) (“Because Crawford was concerned only with testimonial evidence
    introduced at trial, Crawford does not change our . . . rule that the confrontation clause
    does not apply in sentencing proceedings.”); United States v. Kirby, 
    418 F.3d 621
    , 627-
    28 (6th Cir. 2005) (holding that Crawford does not affect admissibility of hearsay in
    hearings regarding the revocation of supervised release).
    This approach of leaving Crawford’s Confrontation Clause rule where it is found
    has been adopted by every court of appeals to consider the decision’s implication for
    hearsay in sentencing hearings.4 See United States v. Beydoun, 
    469 F.3d 102
    , 108 (5th
    Cir. 2006) (“[T]here is no Crawford violation when hearsay testimony is used at
    sentencing, rather than at trial.”); United States v. Cantellano, 
    430 F.3d 1142
    , 1146 (11th
    Cir. 2005) (“Crawford dealt with trial rights and we see no reason to extend Crawford
    to sentencing proceedings. The right to confrontation is not a sentencing right.”); United
    States v. Roche, 
    415 F.3d 614
    , 618 (7th Cir. 2005) (holding Crawford does not bar
    hearsay in sentencing because “the relevant provision at sentencing is the Due Process
    Clause, not the confrontation clause . . . .”); United States v. Luciano, 
    414 F.3d 174
    , 178
    (1st Cir. 2005) (“Nothing in Crawford requires us to alter our previous conclusion that
    there is no . . . Confrontation Clause right at sentencing.”); United States v. Martinez,
    
    413 F.3d 239
    , 243 (2d Cir. 2005) (“Neither Crawford nor Booker . . . addressed the
    applicability of the right of confrontation to the sentencing context . . . nor did [they] so
    undermine the rationale of Second Circuit precedent involving the consideration of
    hearsay testimony at sentencing . . . .”).
    Third, Paull does not show that the district court erred in refusing to apply a two-
    level reduction for the acceptance of responsibility because of Paull’s obstruction of
    4
    The Eleventh Circuit has extended Confrontation Clause rights to death penalty cases but that
    extension occurred long before Crawford and was not altered by the Supreme court’s recent decisions.
    See United States v. Brown, 
    441 F.3d 1330
    , 1361 n.12 (11th Cir. 2006) (“We have held that Crawford does
    not apply in the context of non-capital sentencing. However, death is different, and we have held . . . that
    the constitutional right to cross-examine witnesses applies to capital sentencing hearings.”) (internal
    citations omitted).
    No. 07-3482               United States v. Paull                                  Page 16
    justice. In cases such as Paull’s where a defendant’s plea counsels for a reduction but
    his behavior does not, the guideline’s application note explains “[c]onduct resulting in
    an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice)
    ordinarily indicates that the defendant has not accepted responsibility. There may,
    however, be extraordinary cases . . . .” U.S.S.G. § 3E1.1, cmt. n.4. In implementing this
    “extraordinary case” exception to the proposition that obstructing justice demonstrates
    a lack of acceptance, we have “consistently granted district courts great leeway when
    making this determination,” United States v. Roberts, 
    243 F.3d 235
    , 241 (6th Cir. 2001)
    (collecting cases), and held that “the defendant has the burden of proving the
    extraordinary nature of his or her case,” United States v. Jeross, 
    521 F.3d 562
    , 582 (6th
    Cir. 2008). Here, Paull makes no argument why his obstruction is not a run-of-the-mill
    case.   Instead, he continues to rely on the very testimony the district court held
    perjurious in his suppression argument before this court, without making any new good
    faith argument that the district court erred in its credibility and factual findings. Cf.
    United States v. Gregory, 
    315 F.3d 637
    , 640-41 (6th Cir. 2003) (holding a defendant is
    not “entitled to an adjustment for acceptance of responsibility” where the obstruction is
    “on-going.”). On this record, Paull has not demonstrated the district court was acting
    impermissibly in refusing the reduction.
    B
    Paull further claims that the sentence was substantively unreasonable. Our
    circuit takes a deferential approach to this type of substantive sentencing challenge. See
    United States v. Vonner, 
    516 F.3d 382
    , 392 (6th Cir. 2008) (en banc) (“[T]he central
    lesson [of recent Supreme Court activity is] that district courts . . . deserve the benefit
    of the doubt when we review their sentences and the reasons given for them.” ). This is
    especially true in cases, like Paull’s, where the district court agrees with the
    recommendations in the sentencing guidelines. In such cases “this court has embraced
    an appellate presumption of reasonableness” that the defendant must rebut. 
    Id. at 389.
    Paull attempts to do so with two arguments. First, he alleges that the sentence
    is greater than necessary to serve the purposes of § 3553(a). Second, he argues that the
    No. 07-3482               United States v. Paull                                   Page 17
    district court over-emphasized the impact on victims and inappropriately discounted
    factors that weighed for a downward variance. Taken in concert and at full face value
    these claims make at least a plausible argument that the presumption has been rebutted:
    Paull is an old and sick man who has been extraordinary in his attempts to rehabilitate
    himself and but for the district court’s over-emphasis on the impact on the victims he
    should have received a lighter sentence. The record, however, also contains material that
    belies this characterization of the considerations relevant to Paull’s sentencing. The
    district court’s summary illustrates the competing factors:
    Now, I could vary up, and that’s something I considered in this case due
    to the nature of the volume and the number of images you had and the
    extent of what you did, or I could vary down because of your age, your
    health, and your lack of criminal background and, in fact, the things that
    you’ve done since your arrest to try to prevent yourself from ever
    engaging in this type of conduct.
    But I want you to know I’ve taken all of that into consideration, and I
    think the only fair thing to do is sentence you within the guidelines.
    Far from being impermissible or inadequate, this analysis of the considerations the court
    found most important – the defendant’s circumstances and the seriousness of the crime
    – is just the sort of balancing a sentencing court should be doing. See, e.g., United States
    v. Duane, 
    533 F.3d 441
    , 453 (6th Cir. 2008) (upholding a within-guidelines sentence as
    substantively reasonable where “the district court clearly considered the § 3553(a)
    factors that it found most pertinent – namely the seriousness of the crime, the need for
    deterrence and the guidelines range.”). Indeed, this is what is meant by the “on-the-
    scene assessment of the competing considerations” to which we are to defer. United
    States v. 
    Grossman, 513 F.3d at 596
    .
    More broadly, we cannot say, in light of our deferential review, that the sentence
    of 210 months of imprisonment was unreasonable. It is at the lower end of the
    guidelines range and accurately reflects both the reasons to vary downward and the
    severity of Paull’s offense. See 
    Vonner, 516 F.3d at 390
    . To be sure, there are reasons
    here – as in any sentencing case – to be sympathetic to the defendant. Paull is a former
    minister who has admirably worked with a sex addiction group at rehabilitating himself
    No. 07-3482               United States v. Paull                                   Page 18
    and others, and the combination of his age, his various health problems, and the length
    of his sentence mean he almost certainly will die in jail or shortly after his sentence
    expires. But our role as an appellate court is not “to impose sentences in the first
    instance or to second guess the individualized sentencing discretion when it
    appropriately relies on the § 3553(a) factors . . . .” United States v. Davis, 
    537 F.3d 611
    ,
    618 (6th Cir. 2008). Indeed, we routinely uphold the sentences of sick defendants, e.g.
    United States v. Johnson, 239 F. App’x 986, 992 (6th Cir. 2007) (unpublished decision),
    and the sentences of rehabilitated defendants, e.g. United States v. Monday, 218 F.
    App’x 419, 424 (6th Cir. 2007) (unpublished decision), over their appeals for a variance.
    This is because we are reviewing for unreasonable sentences, not sympathetic
    defendants. Defendants such as Paull are sentenced only after their crime, the actual
    possession of images of actual young children depicting actual sexual abuse has been
    proven or they, as in Paull’s case, have admitted to guilt, pursuant to a constitutionally
    prescribed process designed to guard against erroneous conviction.
    Under these circumstances, it seems to me that the dissent’s suggestion that such
    convictions “border[] on” “the thousands of witchcraft trials and burnings conducted in
    Europe and here from the Thirteenth to the Eighteenth Centuries” cannot be maintained,
    without some risk of terminological inexactitude.
    IV. Conclusion
    The judgment of the district court is therefore AFFIRMED.
    No. 07-3482               United States v. Paull                                  Page 19
    _____________________________________________________
    CONCURRING IN PART, DISSENTING IN PART
    _____________________________________________________
    GRIFFIN, Circuit Judge, concurring in part, and dissenting in part. I would hold
    that we lack jurisdiction to decide issues unrelated to defendant Paull’s sentence. Thus,
    for the reasons expressed below, I disagree and respectfully dissent from footnote 1 of
    the lead opinion. However, assuming arguendo our jurisdiction regarding all issues, I
    join the remainder of the Chief Judge’s opinion.
    In his appellate brief, defendant Paull challenges various pretrial rulings, asserts
    that he was denied a right to fair trial, contends that the statute on which his conviction
    was based is unconstitutionally vague, and appeals his sentence. Defendant’s notice of
    appeal, however, unambiguously requests review of his sentence only:
    Now comes the Defendant, Jerry Paull, by and through his attorney,
    Kevin M. Cafferkey, who hereby gives Notice of Appeal to the United
    States Court of Appeals for the Sixth Circuit from the sentencing of the
    United States District Court on the questions of law and fact on the above
    entitled cause entered by the said district court in its sentencing of
    defendant on April 5, 2007. To preserve defendant’s right to appeal,
    counsel was advised on Monday, April 16, 2007 to file a Notice of
    Appeal in a timely manner without the Judgment and Commitment
    Order, which, to date, has not been journalized for the docket in this case.
    The appeal will also challenge, pursuant to Title 18, U.S.C. 3742(a), the
    legality of the sentence, to wit: That said sentence was unreasonable and
    was greater than necessary to comply with the purposes of sentencing as
    provided for in 18 U.S.C. 3553, et seq. and was in violation of law,
    and/or was the result of an incorrect application of the Sentencing
    Guidelines and/or is greater than the sentence specified in the applicable
    guideline range.
    Given the sole basis for his appeal and the broader issues raised in defendant’s
    appellate brief, we are confronted with the threshold question of jurisdiction. “An
    appellate court has a duty to consider sua sponte whether appellate jurisdiction is
    properly invoked.” Mattingly v. Farmers State Bank, 
    153 F.3d 336
    , 336 (6th Cir. 1998).
    Rule 3(c)(1)(B) of the Federal Rules of Appellate Procedure requires that the notice of
    No. 07-3482                United States v. Paull                                   Page 20
    appeal “designate the judgment, order, or part thereof being appealed.” The Supreme
    Court has stated that “Rule 3's dictates are jurisdictional in nature, and their satisfaction
    is a prerequisite to appellate review.” Smith v. Barry, 
    502 U.S. 244
    , 248 (1992).
    Consistent with the Supreme Court’s directive, we have stated that the requirements of
    Rule 3 are “mandatory and jurisdictional in nature,” Isert v. Ford Motor Co., 
    461 F.3d 756
    , 759 (6th Cir. 2006), and that this court cannot waive them. Martin v. Gen. Elec.
    Co., 187 F. App’x 553, 557 (6th Cir. 2006) (citing Torres v. Oakland Scavenger Co., 
    487 U.S. 312
    , 317 (1988)). By enacting this provision, “Congress has limited this Court’s
    appellate review to issues designated in the notice of appeal.” United States v. Glover,
    
    242 F.3d 333
    , 335 (6th Cir. 2001). Accordingly, if an appellant “chooses to designate
    specific determinations in his notice of appeal – rather than simply appealing from the
    entire judgment – only the specified issues may be raised on appeal.” McLaurin v.
    Fischer, 
    768 F.2d 98
    , 102 (6th Cir. 1985). Accord United States v. Univ. Mgmt. Servs.,
    Inc., 
    191 F.3d 750
    , 756 (6th Cir. 1999); Caldwell v. Moore, 
    968 F.2d 595
    , 598 (6th Cir.
    1992) (“[W]here a notice of appeal specifies a particular order, only the specified issues
    related to that order may be raised on appeal.”); Wilson v. Firestone Tire & Rubber Co.,
    
    932 F.2d 510
    , 516 (6th Cir. 1991); United States v. Pickett, 
    941 F.2d 411
    , 415 n.3 (6th
    Cir. 1991) (“An appellant waives any appeal to a portion of a judgment not mentioned
    in his notice of appeal if he chooses to designate specific determinations in his notice.”)
    (internal quotation marks omitted). We are therefore precluded from considering matters
    beyond the scope of the orders, judgments, or parts thereof specifically designated in the
    notice of appeal.
    Although the Chief Judge is correct that we generally construe the notice of
    appeal liberally and avoid “overly technical” readings of Rule 3(c)’s requirements,
    defendant’s notice of appeal unambiguously challenges the district court’s
    determinations relating to his sentence. Specifically, the introductory sentence of the
    notice states:
    Now comes the Defendant, Jerry Paull, by and through his attorney,
    Kevin M. Cafferkey, who hereby gives Notice of Appeal to the United
    States Court of Appeals for the Sixth Circuit from the sentencing of the
    No. 07-3482               United States v. Paull                                   Page 21
    United States District Court on the questions of law and fact on the above
    entitled cause entered by the said district court in its sentencing of
    defendant on April 5, 2007.
    (Emphasis added.) The next paragraph of the notice further emphasizes that defendant
    is appealing his sentence, uses the words “sentence” or “sentencing” four times, and
    even designates specific parts of the sentence as the basis for his appeal:
    That said sentence was unreasonable and was greater than necessary to
    comply with the purposes of sentencing as provided for in 18 U.S.C.
    3553, et seq. and was in violation of law, and/or was the result of an
    incorrect application of the Sentencing Guidelines and/or is greater than
    the sentence specified in the applicable guideline range.
    (Emphasis added.) Defendant cites but two statutes in his notice – 18 U.S.C. § 3742(a)
    and 18 U.S.C. § 3553 – both of them sentencing statutes. Nowhere in the notice did
    defendant, who was represented by counsel, manifest an intent to appeal his conviction,
    the district court’s pretrial rulings, the alleged denial of the right to fair trial, or the
    constitutionality of the statute on which his conviction was based.
    However, footnote 1 of the lead opinion states:
    [T]he better reading, in light of the fact that, as the Notice indicates,
    “counsel was advised . . . to file a Notice of Appeal in a timely manner
    without the Judgment and Commitment Order, which, to date, has not
    been journalized,” is that this is a generalized notice of appeal sufficient
    to give us jurisdiction over Paull’s entire appeal. This broader reading
    is confirmed by the Notice’s second paragraph beginning “[t]he appeal
    will also challenge . . . the legality of the sentence” – language that
    would not make sense unless Paull intended to challenge the conviction
    and pre-trial orders as well.
    I respectfully disagree. Defense counsel referenced the Judgment and Commitment
    Order in the notice of appeal to explain why he was filing a premature notice of appeal.
    Defense counsel was clearly concerned about the impact of the district court’s delay in
    entering written judgment on his client’s right to appeal. Rule 4(b)(1)(A) of the Federal
    Rules of Appellate Procedure imposes a strict ten-day deadline for filing notices of
    appeal after entry of judgment in a criminal case. District judges carefully advise
    criminal defendants at sentencing of that unforgiving deadline. Accordingly, defendant
    No. 07-3482                   United States v. Paull                                          Page 22
    referenced the Judgment and Commitment Order in his notice not because of its content,
    but because of its timing – defendant simply intended to preserve his right to file a timely
    appeal. Consistent with this interpretation, the notice states:
    To preserve defendant’s right to appeal, counsel was advised on
    Monday, April 16, 2007 to file a Notice of Appeal in a timely manner
    without the Judgment and Commitment Order, which, to date, has not
    been journalized for the docket in this case.
    (Emphasis added.)
    The first sentence of the second paragraph does not alter this construction of
    defendant’s intent. That sentence reads, in relevant part: “The appeal will also
    challenge, pursuant to Title 18, U.S.C. 3742(a), the legality of the sentence.” In fact,
    that sentence merely confirms just what it says: that defendant intended to challenge his
    sentence. Contrary to the lead opinion, the word “also” does not demonstrate that
    defendant intended to appeal matters beyond his sentence. Having already designated
    his intent to appeal “from the sentencing” in general, defendant simply intended to then
    articulate those specific parts of the sentence to be challenged:
    That said sentence was unreasonable and was greater than necessary to
    comply with the purposes of sentencing as provided for in 18 U.S.C.
    3553, et seq. and was in violation of law, and/or was the result of an
    incorrect application of the Sentencing Guidelines and/or is greater than
    the sentence specified in the applicable guideline range.
    The notice in this case is similar to the notice in United States v. Harper, No. 07-
    3593 (6th Cir. Oct. 1, 2008) (unpublished) in which we held that the court had
    jurisdiction to consider on appeal only issues related to defendant’s sentence.1 The
    notice in Harper read:
    Notice is hereby given that the Defendant in the above-captioned action,
    Dennis P. Harper, by and through his undersigned attorney, hereby
    APPEALS to the United States Court of Appeals for the Sixth Circuit
    1
    Unpublished opinions of this court are not precedentially binding under the doctrine of stare
    decisis but may be considered for their persuasive value. United States v. Lancaster, 
    501 F.3d 673
    , 677
    (6th Cir. 2007); United States v. Sanford, 
    476 F.3d 391
    , 396 (6th Cir. 2007).
    No. 07-3482              United States v. Paull                                   Page 23
    from the Sentence of this Court, entered on April 30, 2007, with
    Judgment in a Criminal Case being filed on May 1, 2007.
    
    Id. at 1.
    Thus, in Harper, although the notice referenced the “Judgment in a Criminal
    Case,” we concluded that “there is no way to reasonably read Defendant’s notice of
    appeal as seeking review of his conviction.” 
    Id. at 3.
    Here, as well, we cannot assume post hoc that defendant intended to appeal
    issues separate from his sentence simply because the words “Judgment and Commitment
    Order” appear in the notice. To do so is to impart jurisdiction where there is none.
    Although we may give an appellant the benefit of the doubt, we cannot render
    jurisdictional requirements meaningless by stretching them beyond recognition.
    “[F]ederal courts are courts of limited jurisdiction with only such jurisdiction as is
    defined by the Constitution and granted by Congress.” 
    Glover, 242 F.3d at 335
    (internal
    quotations and citation omitted). If defendant intended to appeal matters beyond his
    sentence, he could have, and would have, so stated.
    For these reasons, I concur in part and dissent in part. I respectfully dissent from
    footnote 1 of the lead opinion. However, assuming arguendo our jurisdiction regarding
    all issues, I join the remainder of Chief Judge Boggs’s opinion.
    No. 07-3482                  United States v. Paull                                         Page 24
    __________________
    DISSENT
    __________________
    MERRITT, Circuit Judge, dissenting. As a recent October 23, 2008, Wall Street
    Journal article by Amir Efrati points out, our federal legal system has lost its bearings
    on the subject of computer-based child pornography. Our “social revulsion” against
    these “misfits” downloading these images is perhaps somewhat more rational than the
    thousands of witchcraft trials and burnings conducted in Europe and here from the
    Thirteenth to the Eighteenth Centuries, but it borders on the same thing. In 2008 alone
    the Department of Justice has brought 2,200 cases like this one in the federal courts.
    Some trial and appellate judges are sending these mentally ill defendants like Paull to
    federal prison for very long sentences. But the 17-1/2 year sentence for Paull may be
    the longest yet. He is a 65-year-old, psychologically disabled, former minister with
    Type 1 diabetes with many complications.1 How could this sentence be “not greater
    than necessary” to punish this crime?
    First, I disagree with my colleagues that the Confrontation Clause permits
    sentences based on double hearsay for the reasons I previously set out fifteen years ago
    in United States v. Silverman, 
    976 F.2d 1502
    , 1524-27 (6th Cir. 1992) (Merritt,
    dissenting with Judges Keith, Martin and Jones joining). Here the district judge — using
    a determinate sentence based on Guidelines enhancements — increased Paull’s sentence
    by five levels and many years based solely on hearsay three levels deep about events that
    are claimed to have occurred many years ago. There was no way for Paull to confront
    or cross-examine any witnesses, no showing that witnesses were unavailable, not even
    an effort to show that the evidence was reliable. The recent Supreme Court case of
    Crawford v. Washington, 
    541 U.S. 36
    , 54 (2004) (“The text of the Sixth Amendment
    does not suggest any open-ended exceptions from the confrontation requirement to be
    developed by the courts”), reinforces the views I explained in Silverman.
    1
    See the portions of the pre-sentence report concerning Mr. Paull and his problems attached as
    an appendix.
    No. 07-3482              United States v. Paull                                 Page 25
    Second, I do not agree that the other determinate sentencing enhancements that
    ratchet up to 17-1/2 years the sentence based on judge found facts are permissible under
    the Blakely-Booker-Cunningham line of cases. See, e.g., my dissenting opinions in
    United States v. Thompson, 
    515 F.3d 556
    (6th Cir. 2008), and United States v. Phinazee,
    
    515 F.3d 511
    (6th Cir. 2008). As the Supreme Court explained in Cunningham v.
    California, “Under the Sixth Amendment any fact that exposes a defendant to a greater
    potential sentence must be found by a jury, not a judge.” 
    519 U.S. 270
    , 
    127 S. Ct. 856
    ,
    863-64 (2007). See also Justice Scalia’s recent dissenting opinion from the failure to
    grant certiorari in Marlowe v. United States, 555 U.S. ____ (No. 07-1390, October 14,
    2008). I would, therefore, reverse the judgment of the district court and remand for re-
    sentencing based only on the facts corresponding to the defendant’s guilty plea.
    No. 07-3482             United States v. Paull                                Page 26
    APPENDIX
    The defendant married Donna Rankin in June 11, 1966, in Tuscarawas
    County, Ohio. Ms. Rankin is 62 years old and is a retired school teacher.
    The couple have two children: Katherine, who is 40 years old and
    resides in North Carolina; and Eric, who is 35 years old and resides in
    Tennessee. Mr. Paull indicated Katherine is not his biological daughter.
    Rather, she is the daughter of his brother, Phillip, whom the defendant
    and his wife obtained custody of when she was approximately 18 months
    old and eventually adopted when she was 5 years old.
    ...
    According to information received from the defendant’s physician, Mr.
    Paull has suffered from Type I diabetes for approximately 30 years, with
    complications resulting in retinopathy, neuropathy and frequent severe
    hypoglycemia and seizures. Mr. Paull also suffers from osteoporosis and
    Meniere’s disease which results in severe vertigo. The defendant also
    suffers from hypercholesterolemia, and has a history of bronchiectasis.
    In 2007, the defendant was also diagnosed with coronary artery disease.
    Since 1994, the defendant’s diabetes has required him to use an insulin
    pump to help regulate his glucose. According to a diagnosis in 2004 by
    the defendant’s physician, Dr. Sheehan, individuals with cardiac
    autonomic neuropathy similar to Mr. Paull can have a 50% 5 year
    No. 07-3482             United States v. Paull                                  Page 27
    mortality rate. The doctor also stated due to the defendant’s Meniere’s
    disease, he is at significant risk for acute vertigo and falls which, given
    his osteoporosis, could have disastrous consequences such as bone
    fractures. Mr. Paull is also prone to pneumonia based on having
    bronchiectasis.
    Mr. Paull is currently prescribed Novalog, Insulin Pump, Plavis,
    Pravacol, Lisinopril, Actonel Tabs 4, Dyazide, Meclizine, Diazepam
    (Valium), Nitroquick, Ketoconazole Cream, Ambien CR, and
    Tiamcinolone Acetone Cream.
    In 1991, the defendant did suffer a fall due to his Meniere disease in
    which he fractured his left shoulder and hip, requiring surgery to both.
    The defendant has also undergone Angioplasty and had two stents placed
    in his heart after suffering a heart attack in January 2007. Mr. Paull is
    currently participating in cardiovascular therapy. The defendant stated
    he as prone to episodes of vertigo regularly and was prescribed Valium
    to help reduce the frequency of the attacks. Mr. Paull stated it is
    unknown what triggers his episodes of vertigo and indicated he last
    experienced an episode in January 2007.