United States v. Michael Huber

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0153n.06
No. 09-6557 FILED
Mar 16, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE WESTERN DISTRICT OF
) TENNESSEE
MICHAEL TODD HUBER, )
)
Defendant-Appellant. )
Before: BOGGS, GRIFFIN, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Memphis police searched Michael Huber’s house after his
neighbor’s three-year-old daughter accused him of sexually molesting her. They seized Huber’s
computer and found over 600 visual depictions of child pornography. Huber ultimately pled guilty
to two counts of knowing receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2), and
one count of knowing possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).
At the sentencing hearing, the district court allowed Huber’s neighbor to testify over Huber’s
objection. The neighbor described Huber’s conduct with his daughter and said he had heard that
Huber had raped another young girl. Huber objected to this testimony as hearsay. The district court
overruled the objection, but said it would not consider any hearsay in determining Huber’s sentence.
No. 09-6557
United States v. Huber
The Guidelines range for Huber’s sentence was 210 to 260 months’ imprisonment. Huber
argued that he should receive a below-Guidelines sentence in light of his lack of criminal history and
a psychologist’s opinion that he was unlikely to recidivate. The district court disagreed and
sentenced him to 210 months for each of the receipt-of-pornography counts and 120 months for the
possession count, all to be served concurrently. Huber brought this appeal.
Huber first argues that his sentence is substantively unreasonable. We presume the contrary
since his sentence is within the Guidelines range. See United States v. Vonner, 516 F.3d 382, 389
(6th Cir. 2008) (en banc). Huber tries to overcome this presumption by noting that he has no
criminal history and that his sentence is only thirty months short of the statutory maximum. See 18
U.S.C. § 2252(b)(1). But Huber’s sentence is close to the maximum because he received multiple
enhancements under the Guidelines. And the reason he received those enhancements is that his
conduct was particularly vile. Among other things, he had over 600 images of child pornography,
with some of the images involving sadomasochism, and some portraying children under the age of
12. See U.S.S.G. § 2G2.2. Huber’s argument is meritless.
Huber next argues that the district court showed too much deference to the Guidelines. But
the court expressly noted that the Guidelines were advisory and explained why the 18 U.S.C.
§ 3553(a) factors supported a sentence of 210 months. So that argument is meritless. The same is
true for his argument that the district court assigned too much weight to the neighbor’s testimony.
The court had broad discretion to consider evidence for the purposes of Huber’s sentencing. See
Roberts v. United States, 445 U.S. 552, 556 (1980). We see no abuse of that discretion here.
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No. 09-6557
United States v. Huber
Huber also argues that his sentence amounts to more than one punishment for the same
offense, thereby violating the Double Jeopardy Clause of the Fifth Amendment. He failed to raise
this challenge below, so we review it for plain error. See United States v. Branham, 97 F.3d 835,
841-42 (6th Cir. 1996).
The Double Jeopardy Clause “prohibits multiple punishments for the same criminal act or
transaction.” United States v. Graham, 275 F.3d 490, 519 (6th Cir. 2001). Here, Huber received
a separate sentence for each count. Count 1 of the indictment charged that, on June 1, 2007, Huber
received three specific videos depicting child pornography. Count 2 charged that Huber received
two different videos on June 2, 2007. Count 3 charged Huber with possessing a computer and a hard
drive containing over 600 depictions of child pornography on June 29, 2007.
Counts 1 and 2 involved different depictions, so they do not concern a single act or
transaction. Count 3 included the depictions on which Counts 1 and 2 were based, but also included
600 or so other depictions. Under these circumstances, it was not plain error for the district court
to treat the conduct alleged in each count as a different transaction. We likewise see no plain error
with respect to Huber’s argument under Bryan v. United States, 721 F.2d 572 (6th Cir. 1983).
The district court’s judgment is affirmed.
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