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United States v. Walters

United States Court of Appeals, Sixth Circuit

January 2, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MICHAEL S. WALTERS, Defendant-Appellant

Argued, November 19, 2014

Page 779

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 5:13-cr-00071-1--Christopher A. Boyko, District Judge.

ARGUED:

Lawrence L. Delino, Jr, Akron, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

ON BRIEF:

Lawrence L. Delino, Jr, Akron, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

DONALD, J., delivered the opinion of the court in which WHITE, J., joined. WHITE, J., delivered a separate concurring opinion. MERRITT, J., delivered a separate dissenting opinion.

OPINION

Page 780

BERNICE BOUIE DONALD, Circuit Judge.

Defendant-Appellant Michael S. Walters (" Walters" ) appeals his sentence for possessing, receiving, and distributing child pornography in violation of 18 U.S.C. § § 2252(a)(2) (" Count 1" ) and 2252A(a)(5)(B) (" Count 2" ). Walters pleaded guilty to both counts in October 2013 without a plea agreement. In January 2014, the district court sentenced him to 151 months' imprisonment on Count 1 and 120 months' imprisonment on Count 2, to be served concurrently.

On appeal, Walters challenges three enhancements the district court applied to his sentence: 1) a two-point enhancement for " distribution" pursuant to U.S.S.G. § 2G2.2(b)(3)(F); 2) a four-point enhancement for engaging in the receipt and distribution of materials depicting sadism, masochism, or other violence pursuant to U.S.S.G. § 2G2.2(b)(4); and 3) a two-point enhancement for " use of a computer" in distributing child pornography pursuant to U.S.S.G. § 2G2.2(b)(6). Walters argues that these enhancements constitute impermissible double counting in violation of his right to due process and freedom from double jeopardy under the Fifth and Fourteenth Amendments. For the reasons that follow, we AFFIRM the district court's decision.

I. BACKGROUND

This case involves the exchange of child pornography online via peer-to-peer software. In 2012, federal agents acting under the auspices of the Ohio Internet Crimes Against Children Task Force located a computer downloading several videos depicting real children engaged in sexually explicit conduct. Between April and November 2012, the computer was used repeatedly to connect with peer-to-peer software that enabled the user to access other computers and vice versa. Through this software, the user searched for and downloaded several hundred videos of child pornography. These materials were saved in a shared drive on the computer to allow other users to access them.

On January 9, 2013, the agents executed a search warrant on Walters' neighbors' house based on the billing address from the computer's internet service provider. During questioning, the neighbor stated that he had no knowledge of the child pornography, but revealed that he had shared his wireless internet password with Walters.

The agents subsequently questioned Walters at his home. Walters consented to a search of his computer, telling the agents that if there was anything on the computer, they could erase it and it would not happen again. While on site, the agents recovered multiple pornographic videos of children from the computer and confronted Walters with this discovery. Walters admitted to having downloaded certain pornographic images through the peer-to-peer network over a period of time. He also admitted he knew others could obtain child pornography from him through the network.

Walters estimated that, over the course of the previous year, he had viewed 500 pornographic videos primarily depicting female minors between the ages of five and fourteen having oral sex, vaginal sex, and anal sex with an adult male. Among the files on Walters' computer when agents

Page 781

interviewed him at his home were videos of an adult male engaged in genital-to-genital intercourse with a prepubescent female, a video of a male subject engaged in genital-to-genital intercourse with a female toddler, and a video of an adult male engaged in anal intercourse with a prepubescent male. The probation officer who drafted Walters' sentencing recommendation observed that he appeared to be attracted to father-daughter pornography in particular. Walters stated that, although he had never sexually touched his then-nine-year-old daughter, he had entertained sexual thoughts about her.

Walters was indicted on two counts: 1) that he " did knowingly receive and distribute" child pornography, by any means, including by computer, in violation of 18 U.S.C. § 2252(a)(2) (Count 1); and 2) that he did knowingly possess a computer containing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 2). Walters pleaded guilty to both counts in October 2013. There was no plea agreement.

At sentencing, Walters objected to three of the point enhancements recommended in the Presentencing Report (" PSR" ), all of which he claimed constituted impermissible double counting: 1) a two-level enhancement for " distribution" ; 2) a four-level enhancement for " sadistic, masochistic or other violent images" ; and 3) a two-level enhancement for " use of a computer" in commission of the crime. The court overruled his objections, and applied all three enhancements to his base offense level of 22. Combined with other enhancements and deductions, Walters was assigned a total offense level of 34 and a criminal history category of I. Based on the statute and the Sentencing Guidelines, Walters had a sentencing range of 151 to 188 months' imprisonment for Count 1 and a maximum of 120 months' imprisonment on Count 2. The court sentenced Walters to 151 months and 120 months on Counts 1 and 2, respectively, and mandated that they be served concurrently. Walters now appeals.

II. ANALYSIS

A. Standard of Review

" We review sentences under a deferential abuse-of-discretion standard." United States v. Howard, 570 F.App'x 478, 480 (6th Cir. 2014) (citing Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). To determine whether a district court abused its discretion, we look to whether the sentence is reasonable. Id. (citing Gall, 552 U.S. at 46). Sentences must be both procedurally and substantively reasonable. United States v. Sullins, 529 F.App'x 584, 588 (6th Cir. 2013) (citing Gall, 552 U.S. at 51).

When considering a sentence determined under the federal Sentencing Guidelines, we review a district court's factual findings for clear error; we then review de novo the court's interpretation and application of the Guidelines. Howard, 570 F.App'x at 480 (citing United States v. Benson, 591 F.3d 491, 504 (6th Cir. 2010)). In this context, a sentence is procedurally unreasonable if, for example, the court " improperly calculat[es] the Sentencing Guidelines range, consider[s] the Sentencing Guidelines mandatory, ignor[es] the § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence." Id. (citing Gall, 552 U.S. at 51). Whether the district court properly applied a sentence enhancement under the Guidelines is also a matter of procedural reasonableness. United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010) (citing United States v. Flack, 392 F.App'x 467, 470 (6th Cir. 2010)). Walters

Page 782

does not challenge the substantive reasonableness of his sentence.

Accordingly, we review de novo the district court's application of enhancements to Walters' ...


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