United States v. Jordan Wheeler ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0191n.06
Case No. 20-1550
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 15, 2021
) DEBORAH S. HUNT, Clerk
)
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
JORDAN C. WHEELER, )
Defendant-Appellant. ) OPINION
)
BEFORE: CLAY, SUTTON, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. After admitting to sexually exploiting two children in his
care and distributing videos of his sexual abuse, Jordan Wheeler pled guilty to the production of
child pornography. The district court sentenced Wheeler to the Guidelines sentence of 360
months’ imprisonment, the statutory maximum for his crimes. Wheeler appeals, claiming both
procedural and substantive errors in his sentence. First, Wheeler argues that the district court
erroneously found that Wheeler was a high risk to recidivate despite a psychological evaluation
that reached a different conclusion. Next, Wheeler argues that the district court failed to consider
two of his arguments for a downward variance. And finally, Wheeler argues that district court
improperly weighed the 18 U.S.C. § 3553(a) sentencing factors by giving too much weight to the
protection of the public and too little weight to the other factors.
We find these arguments to be without merit and AFFIRM Wheeler’s sentence.
Case No. 20-1550, United States v. Wheeler
I
In late October 2019, FBI agents were interviewing a subject in a different investigation
who said that he had spoken to Jordan Wheeler about sexually exploiting young children. Wheeler
had told the subject that he had molested a young boy, later identified as Wheeler’s son, and sent
the subject two videos depicting child abuse. On October 30, 2019, FBI agents executed a search
warrant at Wheeler’s home, seized a laptop and tablet that contained child pornography, and
arrested Wheeler. After Wheeler was arrested, he spoke to the agents and told them that he
developed an interest in child pornography in 2005, when he was 16 years old, and that he stopped
looking at it for a while but began again in 2010. Through a written statement and multiple
interviews with law enforcement, Wheeler detailed the sexual abuse of his nephew and son as well
as his history of creating and downloading child pornography and exchanging child pornography
with others.
On November 20, 2019, a grand jury indicted Wheeler for violations of 18 U.S.C. §§ 2251,
2252A, and 2256, for one count of production of child pornography, one count of distribution of
child pornography, and one count of receipt of child pornography. On January 13, 2020, pursuant
to a plea agreement, Wheeler pled guilty to production of child pornography in exchange for
dismissal of the other two counts.
The probation officer calculated Wheeler’s total offense level at 43 with a criminal history
category of I, resulting in an advisory Guidelines sentence of the statutory maximum term of 360
months’ imprisonment. At the sentencing hearing, after addressing Wheeler’s arguments for a
downward variance and considering the § 3553(a) factors, the district court sentenced Wheeler to
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Case No. 20-1550, United States v. Wheeler
360 months’ imprisonment. After announcing the sentence, the court asked if there were any
objections from the defense, and there were none.
This appeal followed.
II
We review sentences, whether within or outside of the advisory Guidelines range, for an
abuse of discretion. United States v. Fleischer, 971 F.3d 559, 567 (6th Cir. 2020); see also Gall
v. United States, 552 U.S. 38, 51 (2007). “[W]e review the district court’s factual findings for
clear error and its legal conclusions de novo.” United States v. Parrish, 915 F.3d 1043, 1047 (6th
Cir. 2019). After announcing its sentence, a district court must “ask the parties whether they have
any objections to the sentence just pronounced that have not previously been raised.” United States
v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004). If a defendant does not raise a procedural objection
at that time, an appeal on that objection is reviewed only for plain error. Id. at 872–73; see also
United States v. Herrera-Zuniga, 571 F.3d 568, 578 (6th Cir. 2009). Plain error exists only where
a defendant demonstrates “(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 the judicial
proceedings.’” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (quoting
United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).
Review comes in two stages: first, we determine whether the sentence was procedurally
reasonable by examining whether “the trial court follow[ed] proper procedures and [gave]
adequate consideration to [the 18 U.S.C. § 3553(a)] factors.” United States v. Perez-Rodriguez,
960 F.3d 748, 753 (6th Cir. 2020) (quoting Holguin-Hernandez v. United States, 140 S. Ct. 762,
766 (2020)). Next, we presume that a within-Guidelines sentence is substantively reasonable, and
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review to ensure that it was not “selected arbitrarily” or “based on impermissible factors,” as well
as to ensure that the district court did not “fail[] to consider a relevant sentencing factor” or give
“an unreasonable amount of weight to any pertinent factor.” United States v. Rosenbaum, 585
F.3d 259, 267 (6th Cir. 2009) (citing United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008)).
“In short, procedural review of a sentence concerns the propriety of the factors that go into a
sentence; substantive review assesses the reasonableness of the sentence that results.” Perez-
Rodriguez, 960 F.3d at 753.
Wheeler makes three arguments regarding his sentence, two procedural and one
substantive. We address each argument in turn.
A. Risk of Recidivism
First, Wheeler claims that the district court erred by finding that he was a high risk to
recidivate despite Wheeler providing a psychological evaluation that concluded he was only an
average risk to recidivate. Wheeler claims that this finding regarding his risk of recidivism led the
court to fail to adequately consider the other § 3553(a) factors. Wheeler didn’t raise these
arguments below, so they’re reviewed for plain error. See Bostic, 371 F.3d at 873.
Wheeler’s sentencing memorandum argued that he was only an “average” risk for
recidivism and provided a psychological evaluation to support that conclusion. The district court
viewed Wheeler’s risk differently, stating that “as to the conclusion [of average risk] I just
disagree.” Wheeler claims that disregarding the expert report’s conclusion and finding that
Wheeler had a high risk of recidivism was a clearly erroneous finding of fact. Not so. District
courts are not bound by conclusions contained within expert reports at sentencing. See United
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Case No. 20-1550, United States v. Wheeler
States v. Bell, 385 F. App’x 448, 453 (6th Cir. 2010) (upholding a district court’s decision to
“carefully consider[]” a defendant’s expert report before “decid[ing] to reject it”).
And here, the district court extensively explained why it disagreed with the expert report.
First, the court discussed the graphic nature of Wheeler’s offenses, the sexual abuse of his son and
nephew, and his thousands of searches related to child pornography. Next, the court noted that the
report indicated that Wheeler’s “responses indicate an immature and impulsive personality with
little genuine guilt over his present behavior” and that Wheeler “feels that he’s been unjustly
blamed for others’ problems and gotten a raw deal.” The court thought that the expert report failed
to fully account for those statements, combined with Wheeler’s significant offenses, in the report’s
analysis of Wheeler’s recidivism risk. Therefore, after reviewing the facts from the report as well
as everything else that had been presented to the district court, it found Wheeler was “a significant
risk for recidivist behavior.” Procedural reasonableness requires that district court address expert
reports at sentencing, see United States v. Pritchard, 392 F. App’x 433, 440–41 (6th Cir. 2010)
(reversing and remanding for resentencing when a district court entirely failed to address an
expert’s conclusion regarding the likelihood of recidivism), but not that they take conclusions from
those reports as dispositive. To reverse on clear error, we must believe that the conclusion the
district court drew regarding Wheeler’s risk of recidivism was “against the clear weight of the
evidence.” United States v. Domenech, 675 F. App’x 519, 524–25 (6th Cir. 2017) (quoting Smith
v. Fireman’s Fund. Ins. Co., 16 F.3d 1221, at *3 (6th Cir. 1994) (per curiam) (table)). The district
court’s thorough explanation of how it reached a different conclusion than the expert was
sufficient, so there was no error here.
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Furthermore, the record contradicts Wheeler’s argument that the district court failed to
consider the other § 3553(a) factors because of its conclusion regarding Wheeler’s risk of
recidivism. The district court announced it would examine all the § 3553(a) factors and focused
on the seriousness of Wheeler’s offense, the need to protect the public, and the need to promote
respect for the law. The district court discussed Wheeler’s mental health and medical issues, as
well as his positive achievements in his employment and the community, but noted they didn’t
offset “the seriousness of the offense behavior here” and “the impact on the victim.” Viewed as a
whole, the record shows a detailed, careful consideration of Wheeler’s individual circumstances,
and that “personalized assessment by the district court is just the sort of consideration required by
§ 3553(a).” United States v. Cunningham, 669 F.3d 723, 731 (6th Cir. 2012). There was no plain
procedural error here.
B. Downward Variance
Next, Wheeler argues that the district court failed to address two of his arguments for a
downward variance. When a defendant raises a nonfrivolous argument for a lower sentence, “the
record must reflect both that the district judge considered the defendant’s argument and that the
judge explained the basis for rejecting it.” United States v. Wallace, 597 F.3d 794, 803 (6th Cir.
2010) (quoting United States v. Gapinski, 561 F.3d 467, 474 (6th Cir. 2009)). Like his first claim,
Wheeler did not raise this argument below and so we review it for plain error. See Bostic, 371
F.3d at 873. Wheeler’s two arguments for a variance were that the child-pornography Guidelines
are overly punitive and not based on empirical evidence, and that Wheeler could reduce his risk of
recidivism through treatment and therefore deserved a lower sentence.
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Contrary to Wheeler’s claims, the district court addressed both of Wheeler’s arguments at
sentencing and found them unavailing. The district court examined the punitive nature of the child
pornography Guidelines and their specific application to Wheeler’s case. The court noted that the
Guidelines “are certainly punitive” and that he would “sometimes vary” when they resulted in a
“seemingly arbitrary pathway[] up to” a high sentence. But the court made clear that it saw this
case differently. This was not a “more traditional child pornography case where the main offense
. . . is gathering, viewing, and distributing child pornography.” Instead, it was “sexual exploitation
of a child . . . who is in the care and custody” of Wheeler as well as the distribution of images of
that abuse to “over 20 people at least.” The district court addressed whether the Guidelines were
overly punitive in Wheeler’s case and determined they “appropriately reflect[ed] the nature of” his
conviction, so Wheeler cannot show plain error on this ground.
Similarly, the district court addressed Wheeler’s claim that he could reduce his risk of
recidivism through treatment. The court agreed that Wheeler would benefit from treatment,
finding that Wheeler was “certainly a person in need of significant treatment” and that the court
would “recommend appropriate sex offender assessment and treatment as well as overall mental
health assessment and treatment.” Simply put, the district court considered Wheeler’s need for
treatment but concluded it did not warrant a downward variance from the Guidelines sentence.
The record is clear that the court “listened to” Wheeler’s argument, “considered the supporting
evidence,” and took that information “into account in sentencing him.” Vonner, 516 F.3d at 387(quoting Rita v. United States, 551 U.S. 338, 358 (2007)). Wheeler cannot show plain error here.
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C. Substantive Reasonableness
Finally, Wheeler challenges the substantive reasonableness of his sentence by claiming that
the district court unreasonably focused on the protection of the public to the exclusion of the other
§ 3553(a) factors. His support for this argument is that his “sentence is far too long” because it
was at the statutory maximum, which undermined a “principle of proportionality” by leaving “no
room” for giving other offenders a higher sentence. This argument misunderstands how
sentencing operates. Despite Wheeler’s lack of criminal history, the seriousness of his offense
gave him a Guideline sentence at the statutory maximum of 360 months’ imprisonment. And
“[s]entences within a defendant’s Guidelines range are presumptively substantively reasonable.”
United States v. Pirosko, 787 F.3d 358, 374 (6th Cir. 2015). An argument that a Guidelines
sentence is too long because it is at the statutory maximum cannot rebut that presumption. Wheeler
suggests that because he was “not the worst offender that could have come before the court,” a
sentence below the statutory maximum was warranted. In other words, Wheeler argues that the
district court should have balanced the § 3553(a) factors differently. Such an argument is “simply
beyond the scope of our appellate review.” United States v. Sexton, 512 F.3d 326, 332 (6th Cir.
2008) (quoting United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006)). Wheeler has shown no
error here.
III
We AFFIRM the sentence of the district court.
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