United States v. Dustin Naida ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0406n.06
No. 21-4205
UNITED STATES COURT OF APPEALS
FILED
FOR THE SIXTH CIRCUIT Oct 14, 2022
DEBORAH S. HUNT, Clerk
)
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
DUSTIN NAIDA, ) DISTRICT OF OHIO
Defendant-Appellant. )
) OPINION
Before: SUTTON, Chief Judge; DONALD and MURPHY, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Defendant-Appellant Dustin Naida was
convicted of receipt and distribution of child pornography. The District Court sentenced him to
96 months’ imprisonment. Naida now appeals his conviction, arguing that there was insufficient
evidence to support it because the Government failed to show that he knowingly possessed the
prohibited images, and challenges the reasonableness of his sentence. For the foregoing reasons,
we affirm Naida’s conviction.
I.
A. Factual Background
On April 14, 2017, Detective Joshua Seney conducted an undercover download of 171
images of child pornography from IP address 71.72.101.641 in Northwest Ohio. These images
1
There is a discrepancy noted in the IP address. The last two digits of the one cited in R. 64, PageID 522 is
71.72.101.61 but the IP address cited in the briefs and throughout the trial record ends is 71.72.101.64.
No. 21-4205, United States v. Naida
contained depictions of prepubescent female minors, in various stages of nudity, including images
of female genitalia. Within the 171 downloaded image files was the name “Sandra,” which Seney
said he had seen in other child pornography investigations. Records obtained from Charter
Communications later revealed that Dustin Naida was the subscriber for IP address 71.72.101.64
and that he had obtained service at 8912 East Riverview Avenue, Apartment 23 from October 22,
2015 to September 26, 2017, with a username of “rabidwolf43545@yahoo.com.”
On June 9, 2017, two days after obtaining the records, Seney consulted and partnered with
Special Agent Steven Snyder to begin investigating Naida. As part of the investigation, Seney and
Snyder traveled to 891 East Riverview, Apartment 23, to obtain a detailed description of the
property for a search warrant. Seney conducted a passive scan for wi-fi access outside of
Apartment 23 but did not identify any open wi-fi access points.
On June 26, 2017, when Seney, Agents from the U.S. Secret Service, and the Napoleon
Police Department arrived at Apartment 23 to execute the search warrant, they discovered that
Naida had relocated to Apartment 5B of a different apartment complex - approximately a half mile
away. When the investigators arrived at Apartment 5B, Naida answered the door and provided
consent to enter. Seney testified that Naida also consented to a search of his laptop (which was in
plain view), an external hard drive connected to his Xbox gaming system, and a Dragon Touch
Tablet. Seney found files on the laptop labeled “Sandra[,]” which were consistent with the initial
peer-to-peer file investigation. Naida was not arrested that day, but his laptop and other devices
were confiscated.
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There is also a discrepancy regarding Naida’s address. R. 64, PageID 676 says the address is 891 East Riverview
but PageID 678 and 690 says that the address is 892 East Riverview.
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No. 21-4205, United States v. Naida
A subsequent forensic examination of the laptop revealed a user account for “Dustin,”
which contained remnants of child pornography images and was linked to two email addresses,
“rabidwolf43545” and “Dustinmnaida,” which were later connected to Naida’s financial and social
media accounts. Seney also found (1) 197 thumbnail child pornography images, (2) a zip LNK
file named “Sandra,” and (3) the name “Sandra” in the search history of Seney’s laptop. In
addition, the examination showed that in early June 2017 someone used Naida’s laptop to access
his financial accounts within minutes of searching for child pornography. Upon presenting some
of this evidence at trial, the jury chose to convict Naida.
B. Procedural History
At the close of the prosecution’s case, Naida moved for judgment of acquittal on both
counts under Federal Rule of Criminal Procedure 29. The Government opposed. The district court
reserved its ruling and submitted the case to the jury. On February 13, 2020, the jury convicted
Naida on both counts. On April 13, 2020, Naida again moved for judgment of acquittal on both
counts under Rule 29 of the Federal Rules of Criminal Procedure, arguing that there was
insufficient evidence to sustain a conviction on either count. The district court denied the motion
on Count 1 (receipt and distribution of child pornography) but granted it on Count 2 (possession
of child pornography). With regard to Count 2, the district court reasoned that because the external
drive that contained the actual images was never recovered and there was no evidence that Naida
used the required specialized forensic software to access the thumbnail cache, the guilty verdict
for possession of child pornography must be vacated.
Naida’s presentence report found that he had a criminal history category of I, which
resulted in a recommended sentencing range of 188 to 235 months’ imprisonment. In fashioning
Naida’s sentence, the district court declined to apply a four-level enhancement for the 197 total
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No. 21-4205, United States v. Naida
images associated with Count 2 because it had vacated Count 2. Instead, it applied only a three-
level adjustment for the 171 images solely involved in Count 1. Consequently, the district court
determined that Naida had a total offense level of 35 and a criminal history category of I, which
resulted in a sentencing range of 168 to 210 months.
Naida requested the statutory minimum sentence of 60 months imprisonment, but the
Government opposed and argued for a within-Guidelines sentence. The district court considered
Naida’s military service, the fact that he was honorably discharged, and his lack of criminal history
as mitigating factors, and decided to vary downward by 72 months to impose a 96-month sentence.
Naida now appeals his conviction for Count 1, arguing that there was insufficient evidence
to support a conviction for receiving and distributing child pornography because the Government
failed to show that he knowingly possessed the prohibited images and that his sentence is
procedurally and substantively unreasonable.
II.
A. Naida Knowingly Received and Distributed Child-Pornography
We review de novo the district court’s judgment denying Naida’s motion for acquittal on
Count 1. United States v. Blanchard, 618 F.3d 562, 574 (6th Cir. 2010). In reviewing Naida’s
challenge to the sufficiency of the evidence, we “view[ ] the evidence in the light most favorable
to the prosecution” and must affirm if “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Washington, 715 F.3d 975,
979 (6th Cir. 2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We afford the same
weight to both circumstantial and direct evidence. See United States v. Graham, 622 F.3d 445,
448 (6th Cir. 2010) (citing United States v. Gallo, 763 F.2d 1504, 1518 (6th Cir. 1985)). Thus,
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“[c]ircumstantial evidence alone is sufficient to sustain a conviction.” United States v. Blackwell,
459 F.3d 739, 760 (6th Cir. 2006).
Naida argues that the Government failed to prove that he was aware of the images on his
laptop, and thus, knowingly possessed child pornography.
To convict Naida under 18 U.S.C. § 2252(a), the Government must prove that he “[was]
aware that his receipt of the illegal images ‘is practically certain to follow from his conduct.’”
United States v. Ogden, 685 F.3d 600, 604 (6th Cir. 2012) (quoting United States v. Schwarte,
645 F.3d 1022, 1032-33 (8th Cir. 2011)); see also United States v. Brown, 25 F.3d 307, 309-10
(6th Cir. 1994) (explaining that the defendant must have known that the material was child
pornography).
Here, the government presented sufficient evidence to conclude beyond a reasonable doubt
that Naida knowingly received the child pornography images. Seney’s undercover download
revealed that 171 child pornography images had been downloaded by someone using Naida’s
IP address and that those images included images of “Sandra,” which depicted partially or fully
nude photos of prepubescent girls’ genitalia. According to Seney, in order to access child
pornography, one would need to consent to an agreement to use the dark network. A BitTorrent
user also received notices “advis[ing] [them]” on how to reshare files acquired from the network.
[R. 64, PageID 530-33.]
In addition, Naida’s laptop search history, which revealed the name “Sandra,” his user
account “Dustin,” which was linked to his social media and financial accounts, and other child
pornography search terms used (in one instance soon after logging into Naida’s financial
accounts), provide sufficient evidence for a jury to infer that Naida was “aware” of his receipt of
illegal images. Moreover, if that isn’t enough, the hidden folder containing remnants of the child
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No. 21-4205, United States v. Naida
pornography would also lead a reasonable juror to infer that Naida was aware that the images were
on the laptop. Thus, we affirm Naida’s conviction for knowingly receiving and distributing child
pornography.
B. Naida’s Sentence is Procedurally and Substantially Reasonable.
Sentences imposed by the district court are reviewed for reasonableness, and only a
procedurally erroneous or substantively unreasonable sentence will be set aside. See Gall v. United
States, 552 U.S. 38, 51 (2007). The reasonableness analysis has both a procedural and substantive
component. United States v. Jones, 489 F.3d 243, 250 (6th Cir. 2007). In conducting its review,
an appellate court should ensure that the district court committed no significant procedural error
and then consider the substantive reasonableness of the sentence imposed under an abuse of
discretion standard. United States v. Smith, 516 F.3d 473, 476 (6th Cir. 2008).
Generally, a district court procedurally abuses its sentencing discretion if it “commit[s] [a]
significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51.
“Sentences within a defendant’s Guidelines range are presumptively substantively reasonable, a
presumption that naturally extends to sentences below the Guidelines range.” United States
v. Pirosko, 787 F.3d 358, 374 (6th Cir. 2015). Further, our task “is not to pick the sentence that
we would prefer (whether higher or lower), but only to ensure that the sentence chosen by the
district court fell within its broad range of reasoned discretion.” United States v. Lynde, 926 F.3d
275, 283 (6th Cir. 2019).
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No. 21-4205, United States v. Naida
1. Procedurally Reasonable
Naida argues that the district court abused its discretion when it applied various
enhancements that increased his adjusted offense level by four levels.
In determining Naida’s sentence, the district court considered the sentencing factors under
18 U.S.C. § 3553(a). Section 3553 outlines numerous considerations that the district court must
take into account when formulating a sentence. 18 U.S.C. § 3553. Specifically, § 3553(a) provides
that when crafting a sentence, “[t]he 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 Code
goes on to state that in determining the particular sentence to be imposed, the court shall consider:
(1) The nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) The need for the sentenced 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.
…
Id. § 3553(a)(1)-(2).
With regard to enhancements, in accord with the Sentencing Commission, the district court
supported a base offense level of 22 for computer material involving prepubescent minors.
However, the district court explained that enhancements, beyond those for computer use and
prepubescent minors, resulted in a Guidelines range that inadequately distinguished Naida from
other defendants. Although Naida argued for the 60-month mandatory minimum sentence, the
district court explained that it was not appropriate given that his conduct was “among the most
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No. 21-4205, United States v. Naida
serious that comes before the court” and that it “[had] to send a message” that when people “dabble
in this dark art and these dark places in terms of downloading these images, there will be severe
consequences . . . .” [R. 93, PageID 1274-75.] However, considering Naida’s lack of criminal
history and successful history with the military, the district court decided to vary downward, by
72 months, to impose a 96-month sentence that was below the Guidelines range.
There are no facts to indicate that the district court failed to calculate the Guidelines range,
treated the Guidelines as mandatory, or selected a sentence based on clearly erroneous facts. Gall,
552 U.S. at 51. And nothing about the computer-use or prepubescent-minor enhancements are
unreasonable because the offense involved a laptop and images of partially or fully nude
prepubescent minors. As such, we do not find that Naida’s sentence is procedurally unreasonable.
2. Substantively Unreasonable
Naida contends that the district court also erred in its evaluation of the § 3553(a) factors
and thus, the sentence imposed is substantively unreasonable.
When reviewing a sentence for substantive reasonableness, this Court is required to
conduct an “[inquiry] into . . . ‘the length of the sentence’ and the ‘factors evaluated . . . by the
district court in reaching its sentencing determination.’” United States v. Herrera-Zuniga, 571
F.3d 568, 581 (6th Cir. 2009) (quoting United States v. Liou, 491 F.3d 334, 338 (6th Cir. 2007)).
Here, as discussed supra, the district court explained why it rejected Naida’s request for
the mandatory minimum sentence. When sentencing Naida, the district court also considered the
individual characteristics of the defendant, namely his military service and lack of criminal history.
Thus, contrary to Naida’s argument, the court did not fail to appropriately evaluate the § 3553
factors in crafting a sentence that comports with the statutory sentencing goals.
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No. 21-4205, United States v. Naida
Accordingly, we find that the district court’s imposition of a 96-month sentence, which
was 72-months below the advisory Guideline range, was sufficient but not greater than necessary
to serve the statutory sentencing purposes, and we affirm the decision of the district court.
III.
We affirm.
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