United States v. Zachary Ryan Balusik ( 2024 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 24a0162n.06
No. 23-3474
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 11, 2024
KELLY L. STEPHENS, Clerk
)
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee ON APPEAL FROM THE
)
UNITED STATES DISTRICT
)
v. COURT FOR NORTHERN
)
DISTRICT OF OHIO
)
ZACHARY RYAN BALUSIK, )
OPINION
Defendant-Appellant. )
)
)
Before: SUTTON, Chief Judge; WHITE and THAPAR, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Defendant-Appellant Zachary Balusik challenges
the procedural and substantive reasonableness of his 168-month sentence imposed after he pleaded
guilty to one count of receipt and distribution of child pornography. We AFFIRM.
I.
A.
In March 2021, an undercover agent from the Federal Bureau of Investigation (FBI)
entered various online chat groups where users were sharing child pornography. In one group—
with a title referencing the rape of infants and toddlers—the agent observed Balusik streaming
videos of child sexual abuse while he and others masturbated. The FBI tracked Balusik’s IP
address to his home in Toledo and executed a search warrant in February 2022. Balusik admitted
his use of the chat application and live streaming. A search of his electronic devices revealed
numerous child-pornography images and videos, many featuring particularly sadistic and
masochistic conduct. Agents identified other chat groups in which Balusik regularly participated
No. 23-3474, United States v. Balusik
through video conference sessions and messages expressing enthusiasm for child pornography and
abuse.
During a polygraph, Balusik admitted he had been downloading and sharing child
pornography for a decade. However, he failed the polygraph question asking whether he had
sexual contact with any children, and the government obtained information from Balusik’s ex-
boyfriend that he and Balusik had abused a 12- or 13-year-old boy.
B.
The government filed an information charging Balusik with one count of receipt and
distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2). Balusik pleaded guilty
without a plea agreement. The probation office prepared a presentence investigation report (PSR)
that calculated his Sentencing Guidelines offense level as 34 and criminal-history category as III,
resulting in a Guidelines range of 188 to 235 months.
Balusik filed several objections to the PSR and requested a significant downward variance
from his Guidelines range. At the sentencing hearing, the district court overruled his objections
and, after hearing from both parties and from Balusik himself, sentenced Balusik to a below-
Guidelines sentence of 168 months’ imprisonment and supervised release for life.
Balusik now appeals.
II.
Balusik challenges both the procedural and substantive reasonableness of his sentence.1
We review the reasonableness of a district court’s sentence “under a deferential abuse-of-
discretion standard.” United States v. Albaadani, 863 F.3d 496, 504 (6th Cir. 2017) (quoting
1
Although Balusik’s brief suggests he only raises a substantive reasonableness challenge, his arguments are
directed at procedural reasonableness as well and the government treats them as such.
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No. 23-3474, United States v. Balusik
United States v. Solano-Rosales, 781 F.3d 345, 351 (6th Cir. 2015)). We review unpreserved
procedural unreasonableness claims for plain error. United States v. Wallace, 597 F.3d 794, 802
(6th Cir. 2010).
A.
Balusik primarily challenges his sentence as substantively unreasonable. A sentence is
substantively reasonable if it is “proportionate to the seriousness of the circumstances of the
offense and offender, and sufficient but not greater than necessary, to comply with the purposes of
§ 3553(a).” United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008) (quoting United States v.
Ronald Smith, 505 F.3d 463, 470 (6th Cir. 2007)). A sentence may be substantively unreasonable
“where the district court selects the sentence arbitrarily, bases the sentence on impermissible
factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to
any pertinent factor.” United States v. Moon, 513 F.3d 527, 543 (6th Cir. 2008) (cleaned up).
“[T]he district court is entitled to deference in its sentencing decisions because of its ‘ringside
perspective on the sentencing hearing and its experience over time in sentencing other
individuals.’” Vowell, 516 F.3d at 510 (quoting United States v. Poynter, 495 F.3d 349, 352 (6th
Cir. 2007)). We apply a presumption of reasonableness to within-Guidelines sentences, and that
“same presumption ‘naturally extends to sentences below the Guidelines range.’” United States
v. Libbey-Tipton, 948 F.3d 694, 705 (6th Cir. 2020) (quoting United States v. Pirosko, 787 F.3d
358, 374 (6th Cir. 2015)).
Balusik first argues that his criminal-history category of III “does not accurately reflect the
lack of contacts [he] has had with the criminal justice system or the relatively minor offenses he
was convicted of,” warranting a downward departure under U.S.S.G. § 4A1.3(b)(1). Appellant
Br. at 14. The PSR calculated Balusik’s criminal history score as four. His two prior convictions
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for operating a motor vehicle while under the influence (OVI) resulted in a criminal history score
of two. And Balusik committed the instant offense while under a sentence for the second of the
two OVIs, adding two criminal-history points.2 Criminal history scores of four, five, and six
correspond to a criminal-history category of III. Balusik argues that his two “traffic offenses”—
as he characterizes the OVIs—put him in a too-severe criminal history category. This argument
did not appear in Balusik’s sentencing memorandum. It was, however, included in an addendum
to the PSR addressing Balusik’s objections.
The district court overruled Balusik’s objection, observing that the PSR correctly
calculated Balusik’s criminal history and properly categorized him at level III. It then noted that
Balusik’s argument that his criminal history was overstated could be a basis for a variance.
Defense counsel did not return to this argument in later addressing the court.
Although Balusik categorizes his offenses as “traffic offenses,” they both involved Balusik
driving while under the influence, and at least one resulted in a motor-vehicle accident.
Particularly in light of the long-running nature of the present offense, the district court did not
abuse its discretion in declining to depart or further vary on this basis.
Balusik next argues that his offense level was unfairly increased by several enhancements.
warranting a downward variance from the district court. Balusik’s base offense level was twenty-
two. A total of fifteen points were added based on specific enhancements for child-pornography
offenses found in § 2G2.2, including the involvement of a child under 12, the portrayal of sadistic
and masochistic conduct, and the use of a computer. Balusik argues that these enhancements—
2
Balusik was sentenced under the 2021 Guidelines, prior to the changes made effective November 1, 2023.
At the time of his sentencing, two points were added under § 4A1.1(d) if the defendant committed the instant offense
“while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work
release, or escape status.” All references to the Guidelines in this opinion are to the 2021 Guidelines.
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some of which are applicable in the majority of child-pornography cases—are “outdated and
redundant” and are not based on the Sentencing Commission’s institutional expertise. Appellant
Br. at 15.
Although a district court is free to vary downward based on disagreement with a Guideline,
it is not required to. We have repeatedly held that district courts are entitled to rely on the
Guidelines, including the child-pornography enhancements in § 2G2.2. See, e.g., United States v.
Burrows, 832 F. App’x 381, 385 (6th Cir. 2020); United States v. Cunningham, 669 F.3d 723, 733
(6th Cir. 2012) (collecting cases). And here the district court explained that although the
enhancements may not always be appropriate, in this case they were because, for example,
although almost every child-pornography offender uses a computer and therefore triggers the
enhancement in § 2G2.2(b)(6), Balusik used a “two way . . . group participation” function, thus
using the computer as more than “purely a viewing device.” R.39, PageID 516–18. Accordingly,
although the district court had discretion to vary downward based on disagreement with the
Guidelines—something the district court stated it regularly did—it was under no obligation to vary
further downward here.
Balusik’s final argument in favor of a more substantial downward variance is based on a
report conducted by Dr. David Delmonico, a defense expert who evaluated Balusik and prepared
a psychological report in advance of his sentencing. Delmonico concluded that Balusik is not
antisocial—a trait Balusik asserts is associated with a higher recidivism risk—and he is not
pedophilic. Delmonico concluded instead that Balusik acted out of a desire to “shock” others. The
district court heard argument from both sides on the value of Delmonico’s report, and determined
that its conclusions were not fully believable. We cannot say that its decision not to place more
weight on the report and vary further downward was an abuse of discretion.
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B.
Balusik also contends that the district court erred in failing to expressly address the
impropriety of the § 2G2.2 enhancements, Delmonico’s report, and Balusik’s limited criminal
history. A district court commits procedural error in sentencing if it fails to adequately explain the
chosen sentence, and must “set forth enough facts to satisfy this court that it considered the parties’
arguments and had a reasoned basis for exercising its own legal decision-making authority.”
Vowell, 516 F.3d at 510.
After announcing Balusik’s sentence, the district court asked the parties if there were any
procedural or substantive objections, and Balusik’s counsel said no. We therefore review
Balusik’s procedural reasonableness challenge for plain error. See United States v. Bostic, 371
F.3d 865, 873 (6th Cir. 2004).
A district court need not explain its consideration of every argument; it is sufficient that
the “‘context and the record make clear’ that the sentencing judge understood [the mitigation
arguments] but did not believe they outweighed other § 3553(a) factors that the judge found more
pertinent.” United States v. Liou, 491 F.3d 334, 340 (6th Cir. 2007) (quoting Rita v. United States,
551 U.S. 338, 359 (2007)). “On appeal, ‘[w]e focus less on what the transcript reveals that the
court said and more on what the transcript reveals that the court did.’” United States v. Paden,
743 F. App’x 621, 624 (6th Cir. 2018) (alteration in original) (quoting United States v. Taylor, 696
F.3d 628, 634 (6th Cir. 2012)).
The district court considered each argument Balusik raises here. It agreed with Balusik
that the enhancements applied in the majority of cases, even stating that it “agree[d] that that would
be something that the Sentencing Commission should consider.” R.39, PageID 518. And the court
acknowledged that it “frequently come[s] off of the guidelines a significant amount because . . . in
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many instances, they are overstated in child pornography cases, particularly as we start adding
up . . . enhancements.” Id. at PageID 540. But the court determined that in Balusik’s case, a
sentence closer to the Guidelines range was appropriate.
And although the district court did not directly refer to either Delmonico’s report or
Balusik’s criminal history when pronouncing the sentence, it discussed both during the sentencing
hearing and referenced Delmonico’s report in its explanation. See, e.g., R.39, PageID 541
(expressing skepticism over Delmonico’s conclusion that Balusik was acting just for “shock
value”). It then gave a detailed explanation for its below-Guidelines sentence. That is enough to
assure us that the district court fairly considered Balusik’s arguments and to understand why it
imposed the sentence it did.
III.
For the reasons set out above, we AFFIRM the district court’s judgment.
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