The opinion
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0230n.06
No. 08-6463 FILED
Apr 13, 2010
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
v. ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
RICHARD STEVEN BROWN )
)
Defendant-Appellant. )
)
BEFORE: KEITH, CLAY, and GRIFFIN, Circuit Judges.
PER CURIAM.
Richard Brown (“Brown”) pled guilty to six counts of shipping, receiving, and possessing
child pornography in violation of 18 U.S.C. §2252A(a)(1), (2), and (5). The district court sentenced
Brown to 235 months of imprisonment, based in part on a sentencing enhancement which increased
his sentence based on the amount of images he possessed. Brown now appeals, arguing that his
sentence was procedurally and substantively unreasonable, and that the enhancement itself is
unconstitutional. For the reasons that follow, we affirm.
I.
For decades, Brown lived the life of a responsible adult. In recent years, he found himself
working night shifts and surfing the Internet while at home during the day. As early as August 2004,
he began trading child pornography with other adults in online chat rooms, including an undercover
No. 08-6463
United States of America v. Richard Steven Brown
FBI agent. In February of 2007, a warrant was issued to search Brown’s residence for child
pornography. During the search, police found approximately 95 images and 15 videos depicting the
sexual exploitation of prepubescent children. Some of the videos included bondage, bestiality, and
the penetration of very young children.
Upon questioning, Brown acknowledged that he had acquired many more images, but his
previous computer had crashed and had been discarded. His current computer was only a few
months old. Also during questioning, Brown denied that he had ever engaged in any hands-on
sexual exploitation of children. However, because Brown was living with his wife and her two small
children, the FBI Agent was troubled and notified local law enforcement. As part of that collateral
investigation, the mother of the children placed a controlled telephone call to the defendant. During
that call, Brown admitted that he had displayed pornography to both of the children and that, on one
occasion, he had molested his nine year old stepdaughter. Brown was subsequently charged with
aggravated sexual battery and pled guilty to attempted aggravated sexual battery. He was sentenced
to serve three years in jail, with all but six months suspended. In December 2007, just before Brown
was released from state custody, the government initiated the instant case.
II.
“No procedural principle is more familiar to this Court than that a constitutional right may
be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it.” Yakus v. United States, 321 U.S. 414, 444
(1944) (internal citations omitted). When an argument is not raised at the trial level, this Court may
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either decline to entertain the claim or exercise its discretion to consider the matter and apply the
plain error standard. See United States v. Copeland, 321 F.3d 583, 601 (6th Cir. 2003). Brown does
not dispute his failure to challenge the constitutionality of the amount-of-images enhancement at the
sentencing hearing on November 17, 2008. However, he argues that the issue was effectively
preserved because he criticized the amount-of-images enhancement in an earlier motion submitted
nearly four months before sentencing.
This earlier motion, however, made no mention of the constitutionality of the amount-of-
images enhancement. Instead, Brown argued that because the enhancement was “driven by
Congressional directives” and created an “illogical” Sentencing Guidelines range, it should be
“afforded less weight.” Brown never raised any argument in this earlier motion that would have led
the district court to rule on the constitutionality of the enhancement.
Federal Rule of Criminal Procedure 51(b) states that a party may preserve a claim of error
by informing the court when the court ruling or order is made or sought of the action the party wishes
the court to take, or the party’s objection to the court’s action and the grounds for that objection.
Fed. R. Crim. P. 51(b). Because Brown never informed the district court of the constitutional
grounds for his objection to the court’s use of the amount-of-images enhancement, and because
Brown declined to raise the issue when prompted to do so at the sentencing hearing, the issue was
not properly preserved upon appeal.
Accordingly, this court declines to exercise its discretion to consider the constitutional claim
in this case.
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III.
We review a sentence imposed by the district court for procedural and substantive
reasonableness under an abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 52
(2007). Review for procedural reasonableness seeks to ensure that the district court committed no
significant procedural error, such as “failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider the § 3553 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.” Id. at 51. The Sixth Circuit
has also consistently held that “a sentence may be procedurally unreasonable if the district court did
not consider the applicable Guidelines range or neglected to consider the factors set forth in 18
U.S.C. § 3553(a), and instead simply chose a sentence that the judge deemed appropriate.” United
States v. Vowell, 516 F.3d 503, 510 (6th Cir. 2008).
The defendant argues that the use of the amount-of-images enhancement was unreasonable
because the district court misunderstood it to be promulgated by the Sentencing Commission when,
according to the appellant, it was in fact promulgated by Congress. This argument is wrongheaded
for two reasons. First, and most importantly, the district court follows the Sentencing Guidelines
as mandated by Booker, and its understanding of how those Guidelines were promulgated would not
be dispositive. Additionally, the district court’s statement that it decided to follow the Guidelines
because it felt that this was “the kind of case that Congress and the Sentencing Commission meant
to apply what can be considered fairly draconian guidelines to” shows that the court understood the
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United States of America v. Richard Steven Brown
intimate interplay between Congress and the Sentencing Commission that produced the guidelines,
and indeed endorsed it.
The defendant also argues that the district court did not fully appreciate its freedom to vary
from the Guidelines range because it used the word draconian to describe the sentence. However,
Brown misinterprets the tenor of the district court’s statement at the sentencing hearing. The court
stated that the Guidelines punishments were “draconian” and “harsh,” but deservedly so, and this
case demonstrated the reasons why. The court described the child pornography’s “horrible sadistic
behavior on small children, very small children,” and went on to list other additional factors
applicable under §3553(a). It then concluded that “the court can find no reason to do anything but
give you the guideline sentence in this case given the seriousness with which this is viewed in our
society at the moment.” This implies that the district court fully understood its discretion to vary
from the Guidelines, and if the court found reason to give Brown a sentence outside the Guidelines,
it would have. It is clear that the sentence was procedurally reasonable.
IV.
If the district court’s sentence is procedurally sound, this court next considers the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard. Gall, 552 U.S. at 51.
When conducting this review, the court will take into account the totality of the circumstances. Id.
However, when a sentence falls within the advisory Guidelines range, we apply a rebuttable
presumption of reasonableness. United States v. Vonner, 516 F. 3d 382, 389 (6th Cir. 2008) (en
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United States of America v. Richard Steven Brown
banc). The fact that the we might reasonably have concluded that a different sentence would be
appropriate is insufficient to justify a reversal of the district court. Gall, 552 U.S. at 51.
Brown incorrectly argues that, because he has no prior criminal history and a past record of
good conduct, what he calls the near statutory maximum sentence of 235 months was substantively
unreasonable. In fact, the defendant pleaded guilty to six counts of offense conduct, five of which
have a maximum sentence of twenty years, pursuant to 18 U.S.C. § 2252(A)(b)(1), and the last of
which has a maximum sentence of ten years, pursuant to 18 U.S.C. § 2252(A)(b)(2). Thus, the
defendant’s sentence of 235 months actually falls in the bottom range of the statutory penalty,
leaving ample room for higher, consecutive sentencing for defendants who do not accept
responsibility, have more serious criminal histories, or have larger collections of child pornography
than Mr. Brown. See 18 U.S.C. § 3584; U.S.S.G. §5G1.2(d).
At sentencing, the district court properly noted the nature and circumstances of the crime,
including Brown’s status as a first-time offender, finding that he “lived a productive life” as “a
responsible human being” until he engaged in the conduct that gave rise to the instant charges.
However, the court also mentioned several other factors.
The court properly emphasized Brown’s use of the pornography to attempt to molest his nine
year-old stepdaughter. As the court stated, “that to the court is an extremely aggravating
circumstance because it’s not just being used in the privacy of one’s home,” but rather “to molest
a nine year old child living in the home.” Another factor is that Brown admitted that he was showing
the pornography to both of the young children who were in his care.
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For a sentence to be substantively reasonable, “it must be proportionate to the seriousness
of the circumstances of the offense and offender, and ‘sufficient but no greater than necessary to
comply with the purposes’” of § 3553(a). United States v. Smith, 505 F.3d 463, 470 (6th Cir. 2007).
In determining Brown’s sentence the district court properly considered all the relevant factors, even
stating that “the court is obligated to give Mr. Brown a sentence that is sufficient but not greater than
necessary to comply with the purposes of sentencing.” In light of the deferential abuse-of-discretion
standard with which we review a lower court’s sentence, and the presumption of reasonableness
given to sentences that fall within the Guideline range, this Court concludes that the district court
did not abuse its discretion here, and the sentence applied was substantively reasonable.
V.
For the reasons stated above, we AFFIRM.
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