United States v. Duane ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0257p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 06-6536
v.
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JOHN JOSEPH DUANE, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 06-00013—Charles R. Simpson III, District Judge.
Argued: November 27, 2007
Decided and Filed: July 17, 2008
Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge; BELL, Chief District Judge.*
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COUNSEL
ARGUED: Henry Louis Sirkin, SIRKIN, PINALES & SCHWARTZ, Cincinnati, Ohio, for
Appellant. Madison T. Sewell, ASSISTANT UNITED STATES ATTORNEY, Louisville,
Kentucky, for Appellee. ON BRIEF: Henry Louis Sirkin, Jennifer M. Kinsley, Scott Ryan
Nazzarine, SIRKIN, PINALES & SCHWARTZ, Cincinnati, Ohio, for Appellant. Terry M. Cushing,
Monica Wheatley, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for
Appellee.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. John Joseph Duane appeals his sentence for
receiving and possessing child pornography in violation of 18 U.S.C. § 2252(a)(2) and (a)(4).
Duane contends that: (1) calculating his sentence using the 2005 Sentencing Guidelines violated the
Ex Post Facto Clause; (2) the district court erred in enhancing Duane’s sentence pursuant to
U.S.S.G. § 2G2.2(b)(4) for receiving and possessing sadistic images; and (3) his sentence is
unreasonable. For the following reasons, we affirm.
*
The Honorable Robert Holmes Bell, Chief United States District Judge for the Western District of Michigan,
sitting by designation.
1
No. 06-6536 United States v. Duane Page 2
I.
On November 10, 2005, federal agents lawfully obtained Duane’s computer. The agents
found 3,728 images of child erotica, 674 images of child pornography, and 15 images of sadistic
child pornography. Duane eventually pled guilty to receiving child pornography in violation of
18 U.S.C. § 2252(a)(2) arising out of internet transactions that occurred on March 15 and April 12,
2003, and possessing child pornography in violation of § 2252(a)(4) based on images that remained
on his computer when it was obtained on November 10, 2005.
Using the 2005 Sentencing Guidelines, the Presentence Investigation Report (“PSR”)
calculated Duane’s base offense level as 22 pursuant to U.S.S.G. § 2G2.2(a)(2). This calculation
accounted for receiving child pornography pursuant to 18 U.S.C. § 2252(a)(2). The PSR then added
two levels because some material involved a prepubescent minor; added four levels because the
offense involved materials that portrayed sadistic conduct; added two levels because the offense
involved the use of a computer; added five levels because the offense involved more than 600
images; subtracted two levels because Duane had no intent to traffic in child pornography; and
subtracted three levels because Duane accepted responsibility. All told, the PSR recommended an
adjusted offense level of 30. Given Duane’s criminal history category I, this resulted in a Guidelines
range of 97-121 months.
Duane filed a Sentencing Memorandum with the district court, objecting to the use of the
2005 Guidelines and to the § 2G2.2(b)(2) sadistic image enhancement. Duane also argued that he
should be sentenced below the Guidelines range because: (1) he had zero criminal history points;
(2) the majority of images on his computer consisted of child erotica, not pornography; (3) he was
57 years old, yet had no history of previous sexual misconduct; (4) he did not touch any children and
was not at risk to do so in the future; and (5) he was amenable to treatment.
At the sentencing hearing, the district court overruled Duane’s objections to the use of the
2005 Guidelines and to the § 2G2.2(b)(2) enhancement. First, citing United States v. Barton, 455
F.3d 649, 655 n.4 (6th Cir. 2006), it determined that calculating Duane’s Guidelines range using the
2005 Guidelines did not implicate the Ex Post Facto Clause because the Guidelines “inform . . . but
do not control” the court’s sentence. Second, it determined that the § 2G2.2(b)(2) enhancement for
possessing sadistic images was appropriate regardless of the number of images Duane possessed or
whether he intended to possess these images.
Duane’s expert witness, Dr. Breeding, testified that Duane was not at risk for committing
bodily contact sex offenses but was likely to remain involved with pornography. He also testified
that Duane would be amenable to treatment for “sexual addiction,” recommended a two-year
program, and opined that there would not be any clinical benefit to a longer period of incarceration.
Before announcing Duane’s sentence, the district court noted that
in looking at the 3553(a) factors, we’re counseled to consider the nature and
circumstances of the offense, certainly other things, the history and characteristics
of the defendant, and the other factors. The sentence needs to reflect the seriousness
of the offense and provide deterrence, protect the public.
The district court then emphasized the seriousness of Duane’s crime and that it was “not because
the defendant . . . has ever acted out the things that are portrayed on some of these pictures or that
he has tried to contact or molest a child . . . .” Instead, the crime was serious because it involved
“little children,” and “there is a market for this stuff because people like Mr. Duane acquire it, and
that market drives victimization of these children.” The court acknowledged that the images ranged
from “masochistic portrayals of deviancy” to “so-called erotica[,]” but noted that “even [the latter]
is a terrible victimization . . . .” In addition, the district court added that “[d]eterrence should be part
No. 06-6536 United States v. Duane Page 3
of the sentencing factor here,” given that child pornography is produced “for the gratification and
purchase by Mr. Duane and unfortunately others.” The district court also recognized that it was
“obliged to consider” the recommended Guidelines range, and that “[t]here’s no doubt that Mr.
Duane needs treatment and assistance while serving this sentence so that he does not re-offend, and
I believe that that will be provided for him.”
The court eventually sentenced Duane to 97 months of imprisonment, explaining that this
sentence was “sufficient given Mr. Duane’s age to make certain that he is not further involved in this
disgusting business,” and “sufficient to meet sentencing objectives of punishment, incapacitation,
[and] general deterrence.”
Before adjourning the hearing, the district court initiated the following dialogue with Ms.
Lawless (the government’s attorney) and Ms. Wyrosdick (Duane’s attorney):
Court: Are there any objections that I haven’t heard to this sentence, Ms. Lawless?
Ms. Lawless: Not for the United States, Your Honor.
The Court: Ms. Wyrosdick?
Ms. Wyrosdick: No, sir.
The Court: All right. Then that sentence announced will be imposed.
II.
Duane first contends that calculating his Guidelines range using the 2005 Guidelines violated
the Ex Post Facto Clause of the Constitution because two of the three offenses he was sentenced for
occurred prior to the enactment of the 2005 Guidelines. Duane received child pornography in
violation of 18 U.S.C. § 2252(a)(2) on two occasions in 2003. He continued to possess child
pornography in violation of § 2252(a)(4) on November 10, 2005, after the 2005 Guidelines had gone
into effect November 1, 2005. Using the 2005 Guidelines, the PSR calculated Duane’s base offense
level as 22 and applied a five-level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(7)(D), because
the offense involved more than 600 images. Under the 2002 Guidelines in effect when Duane
received the images, Duane’s base offense level would have been 17, and would not have been
enhanced based on the number of images he possessed. See U.S.S.G. § 2G2.2 (2002). Duane
argues that this retroactive application of the 2005 Guidelines violated the Ex Post Facto Clause.
Again, the district court determined, based on United States v. Barton, 455 F.3d 649, 655 n.4 (6th
Cir. 2006), that the Ex Post Facto Clause was not implicated because the advisory Guidelines
“inform . . . but do not control” the court’s sentencing determination.
Ex post facto challenges present questions of law that the court reviews de novo. United
States v. VanHoose, 437 F.3d 497, 500 (6th Cir. 2006). The Ex Post Facto Clause “forbids the
imposition of punishment more severe than the punishment assigned by law when the act to be
punished occurred.” Weaver v. Graham, 450 U.S. 24, 30 (1981); see also Collins v. Youngblood,
497 U.S. 37, 42 (1990) (“[A]ny statute which . . . makes more burdensome the punishment for a
crime, after its commission, is prohibited as ex post facto.”) (internal citation and quotation marks
omitted). The purpose of the clause is to protect citizens against a “lack of fair notice and
governmental restraint when the legislature increases punishment beyond what was prescribed when
the crime was consummated.” Weaver, 450 U.S. at 30.
Resolving Duane’s claim potentially involves two distinct constitutional inquiries:
(1) whether the retroactive use of a revised version of the Guidelines implicates the Ex Post Facto
Clause now that the Guidelines are advisory post-Booker; and (2) if so, whether the application of
No. 06-6536 United States v. Duane Page 4
U.S.S.G. § 1B1.11(b)(3)—under which a revised version of the Guidelines is used if a defendant is
convicted of offenses occurring before and after that version became effective—violates the Ex Post
Facto Clause. We address each issue in turn.
A.
The first issue is whether a change to the Guidelines even implicates the Ex Post Facto
Clause. Prior to United States v. Booker, 543 U.S. 220 (2005), this court held that “where
Congressional revision of the . . . Guidelines ‘changes the legal consequences of acts completed
before its effective date’ to the detriment of the convict,” to satisfy ex post facto concerns, “the
Guidelines in effect at the time of the criminal act must be applied.” United States v. Kussmaul, 987
F.2d 345, 351-52 (6th Cir. 1993) (quoting in part Miller v. Florida, 482 U.S. 423, 431(1987)).
Therefore, at least prior to Booker, the use of a revised version of the Guidelines assigning a greater
base offense level to a defendant’s conduct than would have applied using the Guidelines in effect
at the time of a defendant’s offense violated the Ex Post Facto Clause. Id. at 352.
Following Booker, this court has not directly addressed whether a change to the Guidelines
implicates the Ex Post Facto Clause. In United States v. Barton, 455 F.3d 649 (6th Cir. 2006), we
examined a slightly different issue. In that case, Barton pled guilty before Booker but was given an
above-Guidelines sentence following Booker. Id. at 650-52. Barton argued that the retroactive
application of the Booker decision, which gave the district court discretion to sentence Barton above
the Guidelines range, violated the Ex Post Facto Clause as applied to judicial decisions through the
Due Process Clause. Id. at 652. The Barton court concluded that applying Booker retroactively did
not violate the Due Process Clause. Id. at 657.
In a footnote, the Barton court also distinguished the “ex post facto-type due process
concerns” implicated by applying Booker retroactively from the Ex Post Facto Clause problem—
identified in Kussmaul—of retroactively applying mandatory Guidelines. Id. at 655 n.4. Because
mandatory Guidelines operated similarly to a statute, the retroactive application of new Guidelines
directly implicated the Ex Post Facto Clause and the need to restrict arbitrary or vindictive
legislative acts. Id. But, we noted, the Ex Post Facto Clause itself is applied “in a more stringent
fashion” than “the ex post facto aspect of the Due Process Clause” implicated by retroactive
application of Booker discretion. Id. As we explained:
Now that the Guidelines are advisory, the Guidelines calculation provides no such
guarantee of an increased sentence, which means that the Guidelines are no longer
akin to statutes in their authoritativeness. As such, the Ex Post Facto Clause itself
is not implicated. Thus, the dual concerns of notice and the need to prevent arbitrary
or vindictive legislative acts present in our earlier cases are no longer present in the
same way they were when we analyzed changes to the Guidelines under the Ex Post
Facto Clause.
Id. Overall, we concluded that the retroactive application of Booker did not violate the Due Process
Clause for two reasons. First, notice concerns were “minimized” in Barton because the new
prospect of an above-Guidelines sentence following Booker would have been unlikely to change
Barton’s conduct. Id. at 655-56. Second, in any event, the Booker decision was not “unexpected
and indefensible by reference to the law which had been expressed prior to the conduct in issue,”
id. at 654 (quoting Rogers v. Tennessee, 532 U.S. 451, 457 (2001)).
Although we recognize that some language from the above quoted Barton footnote could be
read to suggest that a change to the Guidelines does not raise an ex post facto concern, we decline
to read Barton as announcing such a broad rule. After all, Barton was concerned with retroactively
No. 06-6536 United States v. Duane Page 5
applying Booker—a judicial decision—rather than a new version of the Guidelines.1 As the Barton
opinion noted, these inquiries are somewhat different. Moreover, following Barton this court has
continued to examine the ex post facto implications of applying a revised version of the Guidelines
retroactively. See United States v. Jeross, 521 F.3d 562, 572-73 (6th Cir. 2008) (suggesting that a
version of the Guidelines taking effect after the defendant committed an offense could only be
applied if doing so would not result in a higher Guidelines range). Finally, such an approach is
somewhat inconsistent with our recognition—in the context of parole guidelines—that “the
[Supreme Court has] made clear that guidelines that affect discretion, rather than mandate
outcomes, are nevertheless subject to ex post facto scrutiny: ‘The presence of discretion does not
displace the protections of the Ex Post Facto Clause.’” See Michael v. Ghee, 498 F.3d 372, 382 (6th
Cir. 2007) (quoting in part Garner v. Jones, 529 U.S. 244, 253 (2000)).
For these reasons, we assume arguendo that a retroactive change to the Guidelines could
implicate the Ex Post Facto Clause. We therefore address whether U.S.S.G. § 1B1.11(b)(3) violates
the Ex Post Facto Clause.
B.
Guidelines policy statements provide that a sentencing court must apply the version of the
Guidelines in effect at the time of sentencing unless doing so would violate the Ex Post Facto
Clause. U.S.S.G. § 1B1.11(a), (b)(1). In addition, “[t]he Guidelines Manual in effect on a
particular date shall be applied in its entirety.” Id. § 1B1.11(b)(2). Under this “one book rule,”
courts “shall not apply, for example, one guideline section from one edition of the Guidelines
Manual and another guideline section from another edition of the Guidelines Manual.” Id. If a
defendant is convicted of two offenses occurring both before and after a revised version of the
Guidelines became effective, § 1B1.11(b)(3) provides that the revised version of the Guidelines is
to be applied to both offenses. In this case, Duane was convicted of offenses that occurred before
and after the 2005 Guidelines became effective. Pursuant to § 1B1.11(b)(3), the district court used
the revised 2005 version of the Guidelines to determine Duane’s Guidelines range for all three
offenses. Although we have not previously had occasion to directly address this issue in a published
decision, we now conclude that § 1B1.11(b)(3)—at least as applied in this case—does not violate
the Ex Post Facto Clause.
“Critical to relief under the Ex Post Facto Clause is not an individual’s right to less
punishment, but the lack of fair notice and governmental restraint when the legislature increases
punishment beyond what was prescribed when the crime was consummated.” Weaver, 450 U.S.
at 30. Recognizing this principle, the majority of circuit courts considering the issue—before and
after Booker—have concluded that §1B1.11(b)(3) does not create an ex post facto problem. See
United States v. Foote, 413 F.3d 1240, 1249 n.5 (10th Cir. 2006) (citing United States v. Sullivan,
255 F.3d 1256, 1259-63 (10th Cir. 2001)); United States v. Lewis, 235 F.3d 215, 217-18 (4th Cir.
2000); United States v. Vivit, 214 F.3d 908, 919 (7th Cir. 2000); United States v. Kimler, 167 F.3d
1
Addressing the ex post facto implications of applying revised Guidelines retroactively, the Seventh Circuit
has concluded that “the ex post facto clause should apply only to laws and regulations that bind rather than advise.”
United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006), cert. denied, 127 S. Ct. 3055 (2007). But a number of other
circuits have continued, post-Booker, to analyze whether applying revised Guidelines retroactively violates the Ex Post
Facto Clause. See United States v. Rodarte-Vasquez, 488 F.3d 316, 322-24 (5th Cir. 2007) (concluding that application
of a revised version of the Guidelines that took effect after defendant committed offense “constituted an ex post facto
violation” and that “under this [Post-Booker] advisory regime, a district court, is still required, as a first step in deciding
on the requisite reasonable sentence, to calculate the applicable guidelines range”); United States v. Carter, 490 F.3d
641, 643 (8th Cir. 2007) (noting that following Booker, the Eight Circuit has still “recognized that retrospective
application of the Guidelines implicates the ex post facto clause”) (citation, quotation marks, and alteration omitted); see
also United States v. Gilman, 478 F.3d 440, 449 (1st Cir. 2007) (recognizing Demaree, but noting that it “is doubtful”
that the First Circuit would conclude that Booker eliminates ex post facto concerns).
No. 06-6536 United States v. Duane Page 6
889, 893-95 (5th Cir. 1999); United States v. Bailey, 123 F.3d 1381, 1402-07 (11th Cir. 1997);
United States v. Cooper, 35 F.3d 1248, 1250-53 (8th Cir. 1994), vacated, 514 U.S. 1094 (1995),
reinstated without opinion, 63 F.3d 761 (8th Cir. 1995); see also United States v. Cruzado-
Laureano, 404 F.3d 470, 488 (1st Cir. 2005) (noting that defendant should be sentenced under
revised version of Guidelines where offenses occurred both before and after the Guidelines were
revised). These courts have generally concluded that a criminal who commits additional similar
crimes following the enactment of revised Guidelines would have constructive notice (1) of the new
Guidelines themselves, and (2) that pursuant to §1B1.11(b)(3) and the § 3D1.2(d) grouping rules,
their sentence would be determined by the revised version of the Guidelines. As the Fourth Circuit
explained:
Section 1B1.11(b)(3) was added to the guidelines [in 1993]. [The defendant]
therefore had ample warning, when she committed the later acts . . . that those acts
would cause her sentence for the earlier crime to be determined in accordance with
the Guidelines Manual applicable to the later offenses, and thus that the intervening
amendment to [Guidelines] would apply.
Lewis, 235 F.3d at 218; see also Cooper, 35 F.3d at 1250 (“At the time [defendant] elected to
commit the third firearms violation he was clearly on notice of the [Guidelines amendments] and
the fact that they increased the offense levels for the firearms crimes in question.”); Kimler, 167 F.3d
at 895 (“[The defendant] had proper notice that, if he continued to commit related offenses that
would be grouped under § 3D1.2(d), he would be sentenced under the guidelines in use when he
committed the last offense in the grouped series.”). According to this rationale, because a defendant
is on notice that new Guidelines will apply to previous crimes if he commits additional crimes, the
defendant is not disadvantaged by the amended Guidelines or § 1B1.11(b)(3), but by his “election
to continue criminal activity after the . . . amendments became effective.” See Cooper, 35 F.3d at
1250; accord Lewis, 235 F.3d at 218 (“[I]t was not § 1B1.11(b)(3) that disadvantaged [defendant],
but rather her decision to commit further [offenses] after the effective date of the [revised]
guidelines.”).
Some courts have found further support in the Sentencing Commission’s explanation for
§1B1.11(b)(3). See Sullivan, 255 F.3d at 1263 (noting the Commission’s recognition of the
“anomaly” that could result if pre-amendment Guidelines were applied to all of a defendant’s counts
of conviction); Cooper, 35 F.3d at 1252 (same). The commentary to the Guidelines notes that
because of the grouping rules and relevant conduct considerations, “a contrary conclusion would
mean that [a defendant committing offenses before and after a revised version of the Guidelines
became effective would be] subject to a lower guideline range than if convicted only of the second
offense.” See U.S.S.G. § 1B1.11(b)(3), cmt. background.
On the other hand, the Third and Ninth Circuits have concluded that §1B1.11(b)(3) does
violate the Ex Post Facto Clause. See United States v. Ortland, 109 F.3d 539, 547 (9th Cir. 1997);
United States v. Bertoli, 40 F.3d 1384, 1404 (3d Cir. 1994). These decisions primarily take issue
with the Sentencing Commission’s justification for § 1B1.11(b)(3). See Ortland, 109 F.3d at 547
(“The harm caused by the earlier offenses can be counted in sentencing the later one. That does not
mean that the punishment for the earlier offenses themselves can be increased, simply because the
punishment for the later one can be.”) (internal citation omitted); Bertoli, 40 F.3d at 1404 (“The fact
that various counts of an indictment are grouped cannot override ex post facto concerns.”). But
neither Ortland nor Bertoli persuasively address what to us seems the better argument in favor of
§1B1.11(b)(3)’s constitutionality: that a Guidelines revision, §1B1.11(b)(3) itself, and the
§ 3D1.2(d) grouping rules provide a criminal fair warning that committing future similar crimes may
subject him to increased penalties for similar prior offenses.
No. 06-6536 United States v. Duane Page 7
This court has not directly addressed this issue in a published decision. But our unpublished
opinion in United States v. Lacefield is consistent with the majority of circuits that have concluded
that defendants are on notice that committing additional similar offenses may cause their previous
offenses to be sentenced under revised Guidelines. 146 F. App’x 15, 22 (6th Cir. 2005) (“[T]he
grouping rules, enacted in 1987, provide warning to criminals that completing another criminal
offense similar to one committed previously places them in peril of sentencing under a revised
version of the Guidelines.”) (quoting in part Sullivan, 255 F.3d at 1262-63). To be sure, in
Lacefield, we concluded that there was an ex post facto violation based on the particular facts in that
case. Lacefield committed two sets of offenses—one set before and one set after an amended
version of the Guidelines had gone into effect. Both sets of offenses were consolidated for the
purposes of the sentencing hearing even though the offenses had been charged in two separate
indictments, prosecuted separately, and were not grouped together under § 3D1.2(d) for the purposes
of sentencing. Id. at 22. To apply an amended version of the Guidelines to the earlier set of offenses
under these circumstances—where the grouping rules did not provide Lacefield notice that his
dissimilar offenses would be sentenced together under an amended version of the
Guidelines—violated the Ex Post Facto Clause. Id. Those unique circumstances are not present
in this case. Duane was sentenced for receiving child pornography in violation of 18 U.S.C.
§ 2252(a)(2) and possessing child pornography in violation of § 2252(a)(4). These similar offenses
were grouped together pursuant to § 3D1.2(d).
We agree with the majority of circuits addressing the issue that where, as here, offenses
grouped together for sentencing purposes were committed before and after an amended version of
the Guidelines went into effect, the use of the amended version of the Guidelines does not violate
the Ex Post Facto Clause. Therefore, the application of §1B1.11(b)(3) in this case presented no ex
post facto problem. After receiving child pornography on two occasions in 2003, Duane continued
to possess child pornography, in violation of § 2252(a)(4), following the enactment of the 2005
Guidelines. Section 1B1.11(b)(3), enacted in 1993, and the grouping rules, enacted in 1987,
provided Duane constructive notice that this continued possession of child pornography would
make the 2005 Guidelines applicable to all such related trafficking and possession offenses. Thus
Duane had fair warning that continuing to possess the child images would subject him to a greater
Guidelines range and to a five-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(7)(D) (2005).
III.
Duane next asserts that the district court erred in enhancing his sentence pursuant to
U.S.S.G. § 2G2.2 (b)(4) for receiving and possessing sadistic images.2
A.
This court reviews a district court’s interpretation of the Guidelines de novo, and the district
court's findings of fact for clear error. United States v. Kozinski 480 F.3d 769, 774 (6th Cir. 2007)
(citation omitted). We defer to the district court’s application of the Guidelines to the facts. Id.
(citing United States v. Charles, 138 F.3d 257, 266 (6th Cir. 1998)).
B.
U.S.S.G. § 2G2.2(b)(4) provides a four-level enhancement “[i]f the offense involved material
that portrays sadistic . . . conduct.” Duane first argues that the enhancement was inappropriate
because few (15) of the many (over 4,000) total images were sadistic, and because the small number
2
In the alternative, Duane argues that the district court should have considered the relatively small number of
sadistic images in determining his overall sentence. As discussed in Part IV, the district court did consider the types of
images Duane possessed, and we conclude that its explanation and the length of the sentence were both reasonable.
No. 06-6536 United States v. Duane Page 8
suggests that Duane did not intend to possess the images. But even Duane concedes that the district
court did not err as a matter of law. The commentary to § 2G2.2(b)(4) explicitly provides that
whether a defendant intended to possess sadistic images is irrelevant. U.S.S.G. § 2G2.2, cmt. n. 2.
Nor does § 2G2.2(b)(4) specify that its application is contingent upon any particular number of
sadistic images or percentage of sadistic images in relation to other prohibited images. See United
States v. Stulock, 308 F.3d 922, 926 (8th Cir. 2002) (upholding four-level enhancement where
among thousands of images of child pornography, three files portrayed violent images).
Accordingly, the district court did not err in enhancing Duane’s offense level pursuant to U.S.S.G.
§ 2G2.2(b)(4).
IV.
Finally Duane contends that his sentence is unreasonable. Following Booker v. United
States, we review sentences for reasonableness. 543 U.S. 220, 260-262 (2005). This review has
both procedural and substantive components. See Gall v. United States 128 S. Ct. 586, 597 (2007).
First, 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 18 U.S.C. § 3553(a) factors,3 selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence . . . .” Id. at 597. Second, we
consider the substantive reasonableness of the sentence under the abuse of discretion standard,
which applies regardless of whether a sentence is inside or outside the Guidelines range. Id. Duane
challenges his sentence on both procedural and substantive grounds.
A.
First, Duane argues that his sentence is procedurally unreasonable because the district court’s
explanation did not demonstrate that it adequately considered the § 3553(a) factors or his arguments
for a lesser sentence.
1.
Because Duane did not seek further explanation for the sentence imposed when given an
opportunity to do so, we review this claim for plain error. In United States v. Bostic, this court
explained that:
after pronouncing the defendant's sentence but before adjourning the sentencing
hearing, [the district court must] ask the parties whether they have any objections to
the sentence just pronounced that have not previously been raised. . . . If a party
3
Title 18 U.S.C. § 3553(a) provides:
The court shall impose a sentence sufficient, but not greater than necessary, to comply with the
purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be
imposed, shall consider--
(1) the nature and circumstances of the offense and the history and characteristics of the
defendant;
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner.
No. 06-6536 United States v. Duane Page 9
does not clearly articulate any objection . . . then that party will . . . face plain error
review on appeal.
371 F.3d 865, 872-73 (6th Cir. 2004). “A district court can satisfy the requirements of the Bostic
rule only by clearly asking for objections to the sentence that have not been previously raised.”
United States v. Clark, 469 F.3d 568, 570 (6th Cir. 2006).
In this case, by asking if there were “any objections that I haven’t heard to this sentence,”
the district court was clearly eliciting objections not previously raised. Because Duane did not
object to the district court’s explanation, we review this explanation for plain error. To establish
plain error, Duane must show “(1) error, (2) that was obvious or clear, (3) that affected [his]
substantial rights, and (4) that affected the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (internal
quotations and citation omitted). “Only in exceptional circumstances . . . where the error is so plain
that the trial judge was . . . derelict in countenancing it[,]” will we find such error.” Id. (internal
citation, quotation marks, and brackets omitted).
2.
In United States v. Rita, 127 S. Ct. 2456 (2007), the Supreme Court recently addressed what
constitutes a sentencing court’s sufficient explanation, pursuant to 18 U.S.C. § 3553(c), for a given
sentence. Overall, a sentencing court should “set forth enough to satisfy the appellate court that [it]
has considered the parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Id. at 2468. But the Court emphasized that “[t]he appropriateness of
brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.
Sometimes a judicial opinion responds to every argument; sometimes it does not . . . . The law
leaves much, in this respect, to the judge’s own professional judgment.” Id.
A lengthy explanation may be particularly unnecessary where a defendant’s arguments are
“straightforward [and] conceptually simple” and where a sentencing court imposes a within-
Guidelines sentence. Id. at 2469; accord Vonner, 516 F.3d at 387; compare 18 U.S.C. § 3553(c)(2)
(requiring sentencing court to give “the specific reason” for imposing an outside-Guidelines
sentence). For example, in Rita, where the district court imposed a within-Guidelines sentence and
the arguments were straightforward, the district court’s explanation was sufficient where “[t]he
record ma[de] clear that the sentencing judge listened to each argument,” “considered the supporting
evidence,” was “fully aware” of the defendant’s circumstances, and “imposed a sentence that [took]
them into account.” 127 S. Ct. at 2469; accord Vonner, 516 F.3d at 387.
To be sure, ideally a district court will address a defendant’s nonfrivolous arguments for a
lesser sentence. See Vonner, 516 F.3d at 386 (“[A] court is more likely to advance the goals of
sentencing if it clearly explains to the defendant why the court denied his request for leniency.”);
United States v. Liou, 491 F.3d 334, 340 (6th Cir. 2007) (“[T]he better practice, post- Rita, is for a
sentencing judge to ‘go further and explain why he has rejected [each of the defendant’s
nonfrivolous] arguments’ for imposing a sentence lower than the Guidelines range.”) (quoting Rita,
127 S. Ct. at 2468.) But ultimately, a sentencing court has great discretion in terms of whether to
respond to a given argument. Rita, 127 S. Ct. at 2468.
In addition, the district court is not required to explicitly consider each of the § 3553(a)
factors or to engage in a “ritualistic incantation.” United States v. Trejo-Martinez, 481 F.3d 409,
413 (6th Cir. 2007). Instead, the record must “demonstrate[] that the sentencing court addressed the
relevant factors in reaching its conclusion.” Id.
No. 06-6536 United States v. Duane Page 10
In this case, the district court’s explanation explicitly addressed the relevant § 3553(a) factors
and most of the defendant’s arguments for a lesser sentence. We conclude that this explanation did
not constitute error.
First, the record demonstrates that the sentencing court addressed the § 3553(a) factors that
it found most relevant. In addition to the Guidelines range, the court focused on the seriousness of
the offense. This was a proper consideration under § 3553(a)(2)(A) and a response to Duane’s
argument that his offense was victimless. In addition, observing that Mr. Duane is “not the only
one” who has purchased child pornography, the district court noted that “[d]eterrence should be a
part of the sentencing factor here.” This was an appropriate consideration pursuant to
§ 3553(a)(2)(B). Finally, the district court referenced Duane’s need for treatment, a proper
consideration under § 3553(a)(2)(D).
The district court also addressed four out of five of Duane’s arguments for a lesser sentence.
Again, Duane’s arguments were that: (1) he had zero criminal history points; (2) the majority of the
images on his computer consisted of child erotica, not actual child pornography; (3) despite being
57 years old he had no history of sexual misconduct; (4) his conduct did not include touching
children and he does not present a risk of such behavior; and (5) he would be amenable to treatment.
The district court responded in some form to Duane’s second, third, fourth, and fifth arguments. As
to Duane’s second argument, the district court noted that the images ranged from “masochistic
portrayals of deviancy” to “so-called erotica, but even [the latter] is a terrible victimization . . . .”
In response to Duane’s third argument, the court explained that its sentence was “sufficient given
Mr. Duane’s age to make certain that he is not further involved in this disgusting business.”
Regarding Duane’s fourth argument, the district court emphasized that this crime was serious “not
because the defendant . . . has tried to contact or molest a child,” but because “offenders like Duane
help drive this market.” Finally, in response to Duane’s fifth argument, the court recognized that
“there’s no doubt that Mr. Duane needs treatment . . . so that he does not re-offend, and I believe that
will be provided for him.”
To be sure, the district court did not respond to Duane’s first argument—that he deserved
a more lenient sentence because he had zero criminal history points.4 This was not a particularly
strong argument given that Duane’s criminal history category was taken into account in determining
his Guidelines range. But the argument was not completely frivolous. Because Duane had zero
points at age 57, he might plausibly argue that even category I—which applies when a defendant
has zero or one criminal history point(s)—overstated his criminal history to some degree. Although
the district court would have ideally addressed this argument, we can hardly say that this failure
alone constituted error in this case. Given that the district court imposed a within-Guidelines
sentence, addressed the factors it found relevant, and addressed the majority of Duane’s arguments,
we conclude that the district court did not err.
B.
Duane also argues that the length, or substance, of his sentence was unreasonable. “[A]
sentence may [be] substantively unreasonable where the district court [1] select[s] the sentence
arbitrarily, [2] bas[es] the sentence on impermissible factors, [3] fail[s] to consider pertinent
§ 3553(a) factors or [4] giv[es] an unreasonable amount of weight to any pertinent factor.” United
States v. Jones, 489 F.3d 243, 252 (6th Cir. 2007) (citation and quotation marks omitted). Duane
4
The district court also did not explicitly address Duane’s second argument with respect to the proportion of
erotic verses pornographic images. But this argument seems particularly unpersuasive. Duane’s offense level was
determined in part by his possession of over 600 pornographic images. That he also possessed an additional 3,728 erotic
child images hardly seems to weigh in his favor.
No. 06-6536 United States v. Duane Page 11
argues that the district court failed to consider pertinent § 3553(a) factors and gave too much weigh
to the Guidelines calculation.
Because Duane was sentenced within the Guidelines range, a rebuttable presumption of
reasonableness attaches to his sentence. See United States v. Williams, 436 F.3d 706, 708 (6th Cir.
2006); see also Rita, 127 S. Ct. at 2467 (approving of this presumption). Duane does little to rebut
this presumption. Again, 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.
Neither the district court’s correct observation that it was “obliged to consider” the recommended
Guidelines range nor the fact that it actually sentenced Duane within this range alone suggest that
it gave this factor disproportionate weight. Duane’s sentence was substantively reasonable.
V.
For the foregoing reasons, we affirm Duane’s sentence.