United States v. Lawrence Lynde

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0121p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

> No. 18-3725

v. │

│

│

LAWRENCE MICHAEL LYNDE, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 5:17-cr-00429-1—Dan A. Polster, District Judge.

Decided and Filed: June 7, 2019

Before: COOK, NALBANDIAN, and MURPHY, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Manuel B. Russ, Nashville, Tennessee, for Appellant. Danielle K. Angeli,

UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________

MURPHY, Circuit Judge. Section 2G2.2 of the Sentencing Guidelines increases the

recommended sentence in child-pornography cases if the offense involves a minor under the age

of 12, the use of a computer, or other aggravating factors. This Guideline has repeatedly been

subject to the criticism that its enhancements apply in most child-pornography cases and

generate unduly harsh sentences. Our court has just as repeatedly rebuffed claims that courts

must decline to follow § 2G2.2 because it arose from too much democratic tinkering by Congress

No. 18-3725 United States v. Lynde Page 2

and not enough empirical research by the Sentencing Commission. United States v.

Cunningham, 669 F.3d 723, 733 (6th Cir. 2012). Lawrence Lynde, who pleaded guilty to a

child-pornography offense, asks us to depart from our cases and reject § 2G2.2 because the

Commission added its expert voice to the criticism in a 2012 report to Congress. But just as this

report cannot compel the legislative branch to depart from its policy choices about § 2G2.2’s

content, cf. United States v. Bistline, 665 F.3d 758, 761–64 (6th Cir. 2012), so too it cannot

compel the judicial branch to depart from its legal judgment about § 2G2.2’s validity. We thus

affirm Lynde’s sentence.

Before detailing our reasoning, we start with the facts. In October 2015, federal officials

received a tip from Canadian authorities that Lynde had been trading child pornography online.

An investigation uncovered that he had exchanged 62 images with another individual on the

online application “Kik” between October and December 2014. Executing a search warrant at

Lynde’s home in December 2015, federal agents recovered 322 images and five videos of child

pornography. The images showed, among other things, prepubescent minors, including toddlers,

engaged in genital-to-genital intercourse with adult males. Lynde ultimately pleaded guilty to

receiving and distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2).

The knowing receipt and distribution of child pornography carries a statutory minimum

of five years’ imprisonment and a statutory maximum of twenty years. 18 U.S.C. § 2252(b)(1).

The Sentencing Guidelines assigned Lynde’s crime a base offense level of 22. U.S.S.G.

§ 2G2.2(a)(2) (2016). His presentence report applied five § 2G2.2 enhancements: (1) Lynde’s

offense involved children under 12, id. § 2G2.2(b)(2); (2) Lynde knowingly distributed child

pornography, id. § 2G2.2(b)(3)(F); (3) the child pornography presented sadistic or masochistic

conduct and the sexual abuse of a toddler, id. § 2G2.2(b)(4); (4) Lynde had used a computer, id.

§ 2G2.2(b)(6); and (5) Lynde possessed over 600 images, id. § 2G2.2(b)(7)(D). (Under the

Guidelines commentary, every video is “considered to have 75 images.” Id. § 2G2.2, cmt.

n.6(B)(ii).) After reductions for acceptance of responsibility, Lynde’s total offense level was 34.

With no criminal history, he faced a Guidelines range between 151 and 188 months.

At sentencing, Lynde’s counsel objected to the § 2G2.2 enhancements. Counsel

conceded that they applied. But he described § 2G2.2 as “broken” because it produced harsh

No. 18-3725 United States v. Lynde Page 3

sentences through enhancements that enlarge the punishment in most cases. Counsel also

highlighted Lynde’s otherwise productive life and strong family support. A married father of

three who provided care to his sick wife, Lynde served in the military and then began a career

servicing x-ray equipment, which occasionally took him overseas on charitable work. Lynde’s

counsel thus requested the statutory minimum—a five-year sentence.

The district court agreed that the presentence report correctly calculated the Guidelines

range, but decided that a Guidelines sentence would be “longer than necessary” under 18 U.S.C.

§ 3553(a). It rejected the use-of-a-computer enhancement because the court had never presided

over a child-pornography case that did not involve a computer. It also decreased the offense

level because of Lynde’s family circumstances. All in all, its reductions reduced the Guidelines

range to between 97 and 121 months. Because of Lynde’s “particularly exemplary life,” the

court settled on a 97-month sentence.

We review this sentence “under a deferential abuse-of-discretion standard.” Gall v.

United States, 552 U.S. 38, 41 (2007). While a sentence must be both procedurally and

substantively reasonable, id. at 51–52, Lynde does not identify any procedural problems with his

sentence. He simply disputes the bottom-line number, arguing that his 97-month sentence is “too

long.” United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). Lynde presents wholesale

and retail challenges in support of this substantive argument: He broadly asserts that the district

court should have rejected the § 2G2.2 enhancements on policy grounds that would apply to

most defendants, and he narrowly asserts that the district court wrongly balanced the § 3553(a)

factors in his case.

Wholesale Challenge. We typically start with an appellate presumption of

reasonableness if the district court imposes a sentence within the Guidelines range (or a sentence

below that range where, as here, the defendant is the one appealing). United States v. Curry, 536

F.3d 571, 573 (6th Cir. 2008). This “presumption reflects the fact that, by the time an appeals

court is considering a within-Guidelines sentence on review, both the sentencing judge and the

Sentencing Commission will have reached the same conclusion as to the proper sentence in the

particular case.” Rita v. United States, 551 U.S. 338, 347 (2007). And when a judge departs

downward from the Guidelines range, “simple logic compels the conclusion” that a “defendant’s

No. 18-3725 United States v. Lynde Page 4

task of persuading us that the more lenient sentence . . . is unreasonably long is even more

demanding.” Curry, 536 F.3d at 573. Flipping this logic on its head, Lynde argues that we

should treat as unreasonable even a below-Guidelines sentence that relies on § 2G2.2’s

enhancements. That is so, Lynde claims, because those enhancements neither (1) arise from the

Commission’s careful study into the courts’ past sentencing practices nor (2) adequately

distinguish among child-pornography offenders.

We have not taken kindly to Lynde’s claim that § 2G2.2 deserves to be cast aside because

of its “purported lack of empirical grounding.” Cunningham, 669 F.3d at 733. His premise is

correct. Congress has actively policed § 2G2.2, so the Commission’s usual statistical methods

have taken a backseat to Congress’s “desire to cast a wider criminal net[] and impose harsher

punishments.” United States v. McNerney, 636 F.3d 772, 775–76 (6th Cir. 2011). But Lynde’s

conclusion does not follow. To the contrary, Congress’s direct involvement is a “virtue, rather

than [a] vice,” in a republic like ours because “[t]he Constitution is fundamentally a democratic

document, not a technocratic one.” Bistline, 665 F.3d at 762. If the representatives who are

accountable to the People reach “a retributive judgment that certain crimes are reprehensible and

warrant serious punishment as a result,” the Commission cannot stand in their way. Id. at 764.

We have also rejected Lynde’s claim that § 2G2.2’s enhancements must be disregarded

because they apply in most cases and do not adequately distinguish among offenders. See United

States v. Walters, 775 F.3d 778, 786–87 (6th Cir. 2015). If “the harm [an enhancement]

addresses is real,” we have reasoned, “the enhancement is valid, no matter how often it applies.”

United States v. Lester, 688 F. App’x 351, 352 (6th Cir. 2017) (alteration in original) (citation

omitted). Here, Lynde does not dispute that real harms undergird two of the enhancements that

he attacks—those for pornography involving children under 12, and for pornography that

includes sadistic or masochistic conduct or the abuse of toddlers. U.S.S.G. § 2G2.2(b)(2), (b)(4).

(The phrase “res ipsa loquitur” comes to mind.) Rather, Lynde makes only the legally

insufficient point that these enhancements arise frequently. See Lester, 688 F. App’x at 352;

Walters, 775 F.3d at 786–87. With respect to the enhancement for offenses involving “600 or

more images,” U.S.S.G. § 2G2.2(b)(7)(D), Lynde does additionally argue that the commentary

arbitrarily treats video clips as “75 images,” U.S.S.G. § 2G2.2, cmt. n.6(B)(ii). But one could

No. 18-3725 United States v. Lynde Page 5

reasonably decide “that videos and movies” cause more harm and so “should be weighed much

more heavily than photos or pictures.” United States v. Hanson, 693 F. App’x 521, 523 (9th Cir.

2017). (As a disclaimer, we note that Lynde does not dispute that this § 2G2.2 enhancement

factually applies, so we do not address whether the commentary’s bright-line rule correctly

interprets § 2G2.2(b)(7). Cf. United States v. Geerken, 506 F.3d 461, 464–66 (6th Cir. 2007).)

To be sure, the Guidelines have been advisory since United States v. Booker, 543 U.S.

220 (2005). Thus, a district court may disagree with § 2G2.2’s enhancements “for policy

reasons, and may reject the Guidelines range based on that disagreement.” United States v.

Brooks, 628 F.3d 791, 799–800 (6th Cir. 2011). But a district court faces a “formidable task”

when it seeks to reject the policies underlying a Guideline, like § 2G2.2, that “comes bristling

with Congress’s own empirical and value judgments.” Bistline, 665 F.3d at 764. If that is true, a

district court cannot be said to have abused its discretion merely because it followed § 2G2.2

(and agreed with its policies). Cunningham, 669 F.3d at 733. As we have said, “‘the mere fact

that a sentencing court has the discretion to disagree with the guidelines on policy grounds does

not mean that it is required to do so’—and that is true no matter how persuasive an appellate

court finds the defendant’s policy arguments.” United States v. Souders, 747 F. App’x 269, 278

(6th Cir. 2018) (citation omitted).

Even so, Lynde replies, the district court acted arbitrarily in this case by charting a

middle course: It declined to impose § 2G2.2’s use-of-a-computer enhancement on the ground

that the enhancement applies in most cases, but refused to extend the same logic to the other

enhancements. Yet the broad discretion granted to district courts in sentencing means that they

need not follow Lynde’s “‘in for a penny, in for a pound’ approach.” See Neder v. United States,

527 U.S. 1, 17 n.2 (1999). And a district court could reasonably conclude that the use of a

computer does not warrant extra punishment while also deciding that, for example, trading in

images of toddler rape does. See United States v. Klepper, 520 F. App’x 392, 392–93 (6th Cir.

2013) (per curiam).

Our existing precedent would fully rebut Lynde’s attack on § 2G2.2 but for a new turn

that he takes. Lynde says that the Sentencing Commission itself “offered significant criticism of

[§ 2G2.2’s] enhancements” in a December 2012 report to Congress recommending changes. See

No. 18-3725 United States v. Lynde Page 6

U.S. Sentencing Comm’n, Federal Child Pornography Offenses 322–25 (Dec. 2012). Does this

report require us to reassess our cases upholding § 2G2.2’s general validity? No. That’s

analogous to suggesting that Congress can compel the Supreme Court to depart from its

authoritative interpretation of the law—not by amending the law through Article I’s

bicameralism and presentment process—but by issuing a congressional report critical of the

decision. Cf. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–25 (1995); United States v.

Wise, 370 U.S. 405, 411 (1962). Since Congress cannot supersede judicial interpretations in this

way, it should go without saying that the Commission—which has been described as “a sort of

junior-varsity Congress,” Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J.,

dissenting)—cannot either. See also Bistline, 665 F.3d at 761–62. And while the Commission

may follow the prescribed process for amending the Guideline (or convince Congress to do so

for subsections out of its control), see 28 U.S.C. § 994(p), Lynde concedes that neither Congress

nor the Commission has amended § 2G2.2 in response to this report.

We are not alone in taking this view. Other circuits have held that the Commission’s

“report does not render the non-production child pornography guidelines in § 2G2.2 invalid or

illegitimate.” United States v. Cubero, 754 F.3d 888, 900 (11th Cir. 2014); United States v.

Sigsbury, 817 F.3d 1114, 1115–16 (8th Cir. 2016); United States v. McLaughlin, 760 F.3d 699,

707–08 (7th Cir. 2014); cf. United States v. Grigsby, 749 F.3d 908, 911 (10th Cir. 2014). While

“Congress and the Commission are responsible for altering the Guidelines,” they have not done

so. Grigsby, 749 F.3d at 911. The report thus “does not change the statutory sentencing scheme,

the applicable sentencing guidelines, or the binding precedent about § 2G2.2 in this Circuit.”

Cubero, 754 F.3d at 900. That said, a district court may consider the report’s policy concerns

when deciding whether to follow § 2G2.2’s enhancements. Id. If, however, the court opts to

adhere to § 2G2.2, the normal standards of appellate review apply. Id.

In sum, notwithstanding the Commission’s report, a sentence does not become

unreasonable “because U.S.S.G. § 2G2.2 [is] involved.” Brooks, 628 F.3d at 799. Instead, a

sentence following this Guideline receives the same appellate presumption of reasonableness that

applies to a sentence following any other Guideline. See United States v. Wroten, 744 F. App’x

245, 249 (6th Cir. 2018).

No. 18-3725 United States v. Lynde Page 7

Retail Challenge. Apart from his arguments against § 2G2.2, Lynde asserts that the

district court arbitrarily applied the § 3553(a) factors to his case. Recall, however, that Lynde’s

97-month sentence fell well below the Guidelines range of 151 to 188 months’ imprisonment.

“Although it is not impossible to succeed on a substantive-reasonableness challenge to a below-

guidelines sentence, defendants who seek to do so bear a heavy burden.” United States v. Greco,

734 F.3d 441, 450 (6th Cir. 2013). Lynde has not met that burden here.

Indeed, the district court thoroughly weighed § 3553(a)’s sentencing factors, factors that

it called “[t]he touchstone of sentencing.” It recognized the nature and severity of Lynde’s

offense, which causes “incalculable” and “devastating” harm to child victims. 18 U.S.C.

§ 3553(a)(1), (a)(2)(A). It acknowledged the need to deter this conduct and protect children,

recognizing that the sentence must “affect and attack the demand side” of child pornography. Id.

§ 3553(a)(2)(B)–(C). It identified the Guidelines range, see id. § 3553(a)(4), and the criticisms

(like those that Lynde now presses) about the way that this range has been set. The court

likewise considered Lynde’s personal characteristics. Id. § 3553(a)(1). It agreed that he had “led

a particularly exemplary life” until this offense, and also reduced the sentence because of his

wife’s illness. These factors led it to settle on the lowest end of an adjusted Guidelines range.

That sentence, the court concluded, accomplished the various purposes of sentencing. Id.

§ 3553(a)(2).

Against all this, Lynde can only nitpick the district court’s reasoning. He says, for

example, that the district court did not expressly address his “educational or vocational” needs.

Id. § 3553(a)(2)(D). But that factor has little relevance to Lynde, an already skilled technician.

The district court did not abuse its discretion by failing to make an “explicit[] reference” to it.

United States v. Morris, 448 F.3d 929, 932 (6th Cir. 2006).

While conceding that the district court relied on various mitigating factors to reduce his

sentence, Lynde also asserts that it did not reduce the sentence enough. Lynde may feel that the

district court’s already lenient sentence was not lenient enough, but its decision properly (not

arbitrarily) balanced the relevant factors. In that respect, Lynde noticeably omits mentioning one

factor—the one requiring the district court to consider “the need to avoid unwarranted sentence

disparities.” 18 U.S.C. § 3553(a)(6). The greater the departure from the Guidelines range, the

No. 18-3725 United States v. Lynde Page 8

more this factor rises to the fore. See Bistline, 665 F.3d at 767. And here, the district court’s

sentence was already more than one-third shorter than the low end of the Guidelines range. The

district court thus made a “reasoned and reasonable decision that the § 3553(a) factors, on the

whole, justified the sentence.” Gall, 552 U.S. at 59–60.

* * *

Anyone who has reviewed the sentencing materials in this case—both the materials

detailing the severe and lasting harm that child pornography causes its victims and those showing

the effects of this conviction on Lynde and his family—would recognize that the district court

faced a difficult decision. Our task as appellate judges is not to pick the sentence that we would

prefer (whether higher or lower), but only to ensure that the sentence chosen by the district court

fell within its broad range of reasoned discretion. On that, we are confident in the answer.

We affirm.