United States v. Slade Williams ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0566n.06
No. 18-3995
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Nov 12, 2019
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
SLADE A. WILLIAMS, )
NORTHERN DISTRICT OF
)
OHIO
Defendant-Appellant. )
)
Before: MOORE, McKEAGUE, and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. Slade Williams pleaded guilty without a plea agreement to
receiving and distributing child pornography. The district court sentenced him to 120 months’
imprisonment, well below the original Sentencing Guidelines range of 210 to 240 months. The
district court also ordered Williams to pay $10,000 in restitution. Williams now challenges the
reasonableness of his sentence and the ordered restitution. We AFFIRM both the sentence and the
restitution order.
I.
Pursuant to an investigation in California, agents of the Department of Homeland Security
seized the cellular phone of Angel Hernandez because it had been used to distribute child
pornography. Forensic examination of Hernandez’s phone revealed that, via the mobile
application Kik Messenger, he had exchanged fifty-three files containing child pornography with
someone using the username “The_Blader25.” Upon further investigation, federal agents
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United States v. Williams
discovered that Williams operated under the “The_Blader25” username. Williams received
twenty-nine files from Hernandez (eighteen images and eleven videos) and sent twenty-four files
(sixteen images and eight videos). In addition to the files, the agents also discovered twenty-seven
pages “of conversation . . . between Williams and Hernandez.”
Williams was indicted for receiving and distributing child pornography in violation of
18 U.S.C. § 2252(a)(2). After his arrest, Williams “admitted to previously obtaining child
pornography.” He pleaded guilty to the charges without a plea agreement. The presentence
investigation report (PSR) calculated Williams’ total offense level at thirty‑seven, which resulted
in a Guidelines range of 210 to 240 months.
At sentencing, the district court and the parties agreed with the PSR’s total offense level
calculation. The district court noted that Williams’ base offense level was twenty-two, but the
Guidelines called for several enhancements: a two‑level increase because the pornographic
images at issue depicted prepubescent minors; a five‑level increase because Williams distributed
child pornography in exchange for valuable consideration (in this case, more child pornography);
a four‑level increase because the images depicted sadistic, masochistic, or sexually abusive
conduct; a five‑level increase because Williams possessed more than 600 images1 of child
pornography; and finally, a two‑level increase because Williams used a computer to receive and
distribute those images. With those enhancements, the Guidelines called for an adjusted offense
level of forty. The district court then reduced Williams offense level by three levels for acceptance
of responsibility, arriving at the PSR’s calculated total offense level of thirty-seven. But the district
1
Under the Guidelines, a video counts as seventy-five images. U.S.S.G. § 2G2.2, cmt. n.6(B)(ii).
Because Williams possessed or exchanged nineteen videos with Hernandez, he possessed more
than 600 images.
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court declined to credit the two-level increase for “the use of the computer” to carry out the offense
because “every single case [he had] encountered as a [j]udge in 20 years involved the use of a
computer.” With that reduction, Williams’ Guidelines range was 168 to 210 months (14 to 17.5
years).
Williams argued that the district court should exercise its discretion to vary downward from
the Guidelines and instead impose the statutory minimum sentence of five years, see 18 U.S.C.
§ 2252(a)(2), because he was a first-time offender, “has been deaf since birth,” and “has a very
close and supportive relationship” with his family. The district court disagreed that five years was
the appropriate sentence but agreed that even a sentence at the bottom of the Guidelines range—
fourteen years—was too long. Instead, the district court imposed a sentence of ten years with five
years of supervised release. The district court also ordered Williams to pay $10,000 in restitution
to “Violet,”2 one of the children depicted in at least two videos that Williams possessed.
Williams then timely appealed, challenging both the reasonableness of his sentence and the
district court’s restitution order.
II.
“A criminal sentence must be both procedurally and substantively reasonable.” United
States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019). A sentence is procedurally reasonable if
the district court “properly calculate[d] the guidelines range, treat[ed] that range as advisory,
consider[ed] the sentencing factors in 18 U.S.C. § 3553(a), refrain[ed] from considering
impermissible factors, select[ed] the sentence based on facts that are not clearly erroneous, and
adequately explain[ed] why it chose the sentence.” United States v. Rayyan, 885 F.3d 436, 440
(6th Cir. 2018). A challenge to substantive reasonableness focuses on the length of the sentence,
2
“Violet,” as the pseudonym of the victim, will always appear in quotes.
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Parrish, 915 F.3d at 1047, particularly whether “the court placed too much weight on some of the
§ 3553(a) factors and too little on others in sentencing the individual,” id. (quoting Rayyan, 885
F.3d at 442). “We review claims of both procedural and substantive unreasonableness for an abuse
of discretion,” while reviewing the district court’s underlying factual findings for clear error and
its legal conclusions de novo. Id.
Williams makes no objection to the trial court’s calculation of the Guidelines range—168
to 210 months in prison. Instead, Williams’ challenges to both the procedural and substantive
reasonableness of his sentence center around the district court’s selection of the ultimate sentence.
That sentence varied downward from the Guidelines range, resulting in a prison sentence of 120
months.
Procedural Reasonableness. In deciding whether, and how much, to vary downward from
the Guidelines range, the trial court considered the factors required by 18 U.S.C. § 3553(a). The
court considered, for example, testimony from both Williams and his mother, letters Williams’
family sent on his behalf, Williams’ disability, and his lack of prior criminal history. It also
considered the nature of the crime—receipt and distribution of “images that brutalize children and
torment them . . . so long as the[] images” exist, images that revictimize children every “time
they’re viewed, downloaded, or shared.” He also noted that the Guidelines ranges for this conduct
are “pitched very, very high,” in part to deter producers and dampen demand. In the end, the
district court determined the need to “strike a balance” between the competing considerations.
As one factor in this balance, the district court expressed concern that Williams would be
a danger to children. Williams argues that that determination was clearly erroneous, rendering his
sentence procedurally unreasonable. In concluding that Williams could be a danger to children,
the district court relied on a text exchange between Williams and Hernandez, which we reluctantly
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recite here. After Hernandez and Williams had initially exchanged pornographic images,
Hernandez expressed his desire to perform a sex act on the child in the image sent by Williams;
the following conversation ensued:
Williams: Me too . . . make me really wish I have a daughter of my own to f*** ;)
Hernandez: Yes that would prefect [sic] to have your own little f*** toy
Williams: Exactly. A perfect family . . . my son f*** his mother while I f*** my
own daughter ;) And I would let my son f*** my daughter ;) But I will take my
daughter virginity first and impregnate her first ;) my wife would take my son’s
virginity and let him impregnate her ;) that would be perfect family for me.
Hernandez: That would be amazing to watch it all happen
Williams: Oh yea . . . I would record it all . . .
Williams argued at sentencing that he did not mean what he said. His counsel argued that
Williams was just trying to “puff the goods,” to make himself look more credible to Hernandez.
Williams, through his interpreter, agreed, stating that he was “just trying to make a connection,”
by which he meant that he was “just trying to get more information in tradings [sic] from
[Hernandez], not actually do anything.” The court listened to these explanations. It considered
the fact that there was no evidence that Williams had previously carried out any sexual violence
toward children and that his sisters had vouched for his treatment of children. But the court still
concluded Williams presented a danger to children:
I’ve got his own words [in the chat]. Mr. Williams has given an explanation, but if
I don’t credit that explanation, I’m left with his own words, which has only one
explanation that I can discern or has a—a lot of implications or inferences, but
there’s one pretty direct one . . . .
We cannot say that the district court clearly erred. The district court’s factual findings are
given considerable deference—we can only overturn them if the record leaves us with a “definite
and firm conviction” that they were mistaken. See United States v. Greco, 734 F.3d 441, 449 (6th
Cir. 2013) (quoting United States v. Boudreau, 564 F.3d 431, 435 (6th Cir. 2009)). No definite
and firm conviction exists here, given the “graphic and vile nature” of the images and videos
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Williams possessed (as described by the district court) and the abhorrent nature of the acts
Williams said he would like to commit. The district court heard, but was not convinced by,
Williams’ contrary explanation for the statements. We cannot say that the district court based his
sentence on a clearly erroneous fact.3
Substantive Reasonableness. Williams next argues that his claim is substantively
unreasonable—“that his sentence was longer than it should have been.” United States v. Pyles,
904 F.3d 422, 426 (6th Cir. 2018). “That is a difficult claim to support because we give
considerable deference to a district court’s decision about the appropriate length of a sentence.”
Id. (citing Gall v. United States, 552 U.S. 38, 51 (2007)). When, as here, the district court has
varied downward from the Guidelines range, the defendant must overcome an “even more
demanding” burden to establish that his sentence was not sufficiently lenient. United States v.
Curry, 536 F.3d 571, 573 (6th Cir. 2008); see also United States v Greco, 734 F.3d 441, 450 (6th
Cir. 2013) (describing the defendant’s burden when challenging a below-Guidelines sentence as
“heavy”). Williams claims his sentence is substantively unreasonable because the district court
selected a sentence that was “double[]the[]minimum” by failing “to fully consider . . . strongly
mitigating factors” and giving “grossly disproportionate and unreasonable weight to the lewd
fantasy text-chat.” This argument fails for two reasons.
3
For the first time on appeal, Williams argues that “the empirical literature . . . generally concludes
that there is little—if any—evidence of a direct correlation between viewing child pornography
and the viewer’s commission of ‘contact’ sexual offenses.” Appellant Br. at 24 (quoting United
States v. Marshall, 870 F. Supp. 2d 489, 492 (N.D. Ohio 2012)). We decline to opine in the first
instance on evidence not presented to the district court. See Glossip v. Gross, 135 S. Ct. 2726,
2740–42 (2015) (conducting clear error review “based on [the] evidence presented to the [district]
court”); cf. Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“[A] federal appellate court does not
consider an issue not passed upon below.”). We note, however, that the government did present
the district court with academic literature of its own, which purports to cast doubt on these
conclusions. We express no view on the validity of either position.
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First, Williams’ argument misunderstands the sentencing process. Williams repeatedly
asserts that his sentence is “too high,” and therefore substantively unreasonable, because the
district court inappropriately “increased” or “doubled” his sentence from the statutory minimum
of five years to ten. But a sentencing court does not begin with the minimum sentence and work
up; it starts with the Guidelines range. Gall, 552 U.S. at 49 (“[A] district court should begin all
sentencing proceedings by correctly calculating the applicable Guidelines range. . . . [T]he
Guidelines should be the starting point and the initial benchmark.”). The district court did not
increase Williams’ sentence when it imposed a ten-year sentence; it varied downward from the
Guidelines range. R. 31, PageID 332 (the district court explaining that because the applicable
Guidelines range was 168 to 210 months, “that’s where I’m starting”).
Second, we cannot say that the district court abused its discretion by failing to adequately
consider mitigating factors or by placing too much weight on Williams’ text-chat with Hernandez.
The sentencing transcript shows that the district court adequately considered mitigating factors.
The district court heard testimony from Williams’ mother and from Williams himself, and when
it made its sentencing decision, it referenced Williams’ “supportive family” and the letters they
wrote on his behalf, his “disability,” and his lack of prior criminal history.
But the district court acknowledged that there were also factors counseling in favor of a
longer sentence, noting in particular three reasons for the 120-month sentence: (1) the “trading
and exchanging [of] images,” (2) the “number of images and the[ir] graphic and vile nature,” and
(3) the “grave and real concern” that Williams would be a danger to children created by the “clear
and graphic and repulsive” fantasies he expressed. The district court did not give preeminence to
any one of these reasons but explained that it had “to weigh all this”—Williams’ arguments
favoring leniency and the factors supporting a more severe sentence—and “strike a balance.” The
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district court did just that, varying downward substantially from the Guidelines range, but stopping
short of the statutory minimum.
We cannot conclude that the district court abused its discretion by striking this balance.
Williams has not carried his “demanding” burden of establishing that his below-Guidelines
sentence is substantively unreasonable. See Curry, 536 F.3d at 573.
III.
Williams next challenges the district court’s restitution order. In child pornography cases,
the sentencing court determines the amount of restitution by considering “the full amount of the
victim’s losses that were incurred or are reasonably projected to be incurred by the victim as a
result of the trafficking in child pornography depicting the victim” and then ordering restitution
“in an amount that reflects the defendant’s relative role in the causal process that underlies the
victim’s losses.” 18 U.S.C. § 2259(b)(2)(A)–(B). A defendant may only be ordered to pay
restitution “to the extent the defendant’s offense proximately caused a victim’s losses.” Paroline
v. United States, 572 U.S. 434, 448 (2014). The Government bears “[t]he burden of demonstrating
the amount of the loss sustained by a victim as a result of the offense.” 18 U.S.C. § 3664(e).
The district court ordered Williams to pay $10,000 in restitution to “Violet,” one of the
children depicted in a video that Hernandez sent Williams, a longer version of which Williams
claimed he already had. Before the district court, Williams objected to the amount of restitution,
arguing that he could not pay it and questioning “where the $10,000 number emanates from.” On
appeal, Williams makes two arguments: first, that the government failed to establish that Williams
possessed images of “Violet,”4 and second, that $10,000 is excessive.
4
Because Williams did not argue below that the government failed to provide evidence that
Williams possessed or distributed any images of “Violet,” the government asks us to apply plain
error review. Williams responds that his objections at the sentencing hearing “fully preserve[d]”
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Williams contends that the government did not “present evidence that [Williams] possessed
images of [‘Violet’].” In support, he points to the restitution request, which states, “Violet is not
informed as to whether [Williams] distributed, either actively or passively, any of her images.”
But the request refers to distribution, not possession, either of which is sufficient to support an
award of restitution. 18 U.S.C. §§ 2259(b)(2), (c)(3), 2252(a)(4)(B). And, in any event, that
request was submitted in January 2018, five months before Williams pleaded guilty and nine
months before the PSR was compiled. In the intervening months, the government’s sentencing
memorandum and the PSR made the connection between a video of “Violet” described in the
restitution request and the video Williams received from Hernandez. Thus, the record indicates
that he possessed a video of “Violet.”
Williams next argues that the amount of restitution is excessive. The Supreme Court
described the process by which sentencing courts determine the amount of restitution as one
“involv[ing] the use of discretion and sound judgment,” not “a precise mathematical inquiry.”
Paroline, 572 U.S. at 459. The Court did not “prescribe a precise algorithm for determining the
proper restitution amount” because doing so “would unduly constrain the decisionmakers closest
to the facts of any given case.” Id. at 459–60. Thus, we review the amount of restitution awarded
for abuse of discretion. United States v. Evers, 669 F.3d 645, 654 (6th Cir. 2012). “An abuse of
discretion occurs when the reviewing court is left with the definite and firm conviction that the
trial court committed a clear error of judgment.” United States v. Batti, 631 F.3d 371, 379 (6th
Cir. 2011) (quoting United States v. Hunt, 521 F.3d 636, 648 (6th Cir. 2008)).
this argument. The result is the same under either standard, so we do not address the preservation
issue.
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The Supreme Court has offered “a variety of factors district courts might consider” when
exercising this discretion, including:
the number of past criminal defendants found to have contributed to the victim’s
general losses; reasonable predictions of the number of future offenders likely to
be caught and convicted for crimes contributing to the victim’s general losses; any
available and reasonably reliable estimate of the broader number of offenders
involved (most of whom will, of course, never be caught or convicted); whether the
defendant reproduced or distributed images of the victim; whether the defendant
had any connection to the initial production of the images; how many images of the
victim the defendant possessed; and other facts relevant to the defendant’s relative
causal role.
Paroline, 572 U.S. at 459–60. “These factors need not be converted into a rigid formula”; rather,
they should “serve as rough guideposts for determining an amount that fits the offense.” Id. at
460.
In “Violet’s” restitution request, she claimed her total losses amount to $794,118.35, and
she requested “an apportioned amount of restitution for documented general losses of $10,000.00
together with attorneys’ fees of $1,500.” Her restitution request laid out the Paroline factors and
analyzed them. After reviewing the request’s analysis and considering the parties’ arguments, the
district court agreed to order the $10,000 in restitution, determining that amount to be “appropriate,
given the overall harm” and “necessary” to allow “Violet” to “get on with [her] li[fe].”
Williams now argues that “[t]o the extent [the restitution award was] based on the
submission by ‘Violet’s’ attorney,” it “was based on speculation, not facts.” But the restitution
request was attached to the PSR, and Williams did not make a meaningful objection in this vein
below. Although Williams did question the provenance of “the $10,000 number,” he also
acknowledged that he had reviewed the restitution request, which provided an explanation for its
restitution calculation. If Williams perceived any particular defect in “Violet’s” calculations, he
did not alert the district court to that deficiency.
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We therefore conclude that the district court did not abuse its “discretion and sound
judgment” by ordering Williams to pay $10,000 in restitution. See Paroline, 572 U.S. at 459. As
we noted, there is no “precise algorithm for determining the proper restitution amount.” Id. at
459–60. And neither the district court’s approach nor its ultimate determination has “left [us] with
the definite and firm conviction that the [district] court committed a clear error of judgment.” See
Batti, 631 F.3d at 379 (quoting Hunt, 521 F.3d at 648). We affirm the restitution order.
***
For the reasons stated, we AFFIRM both Williams’ sentence and the district court’s
restitution order.
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