NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0210n.06
No. 08-6426 FILED
Apr 06, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff -Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF KENTUCKY
)
DONALD R. MARTIN, ) OPINION
)
Defendant-Appellant. )
)
BEFORE: COLE, GILMAN, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Donald R. Martin (“Martin”) was charged with
violating 18 U.S.C. §§ 2251(a) (production of child pornography) and 2252(a)(4)(B) (possession of
child pornography). He pled guilty, and based on a Guideline calculation range of 324-405 months,
received a sentence of 360 months. On appeal, this Court identified an error in the calculation of the
Guideline range, and remanded for resentencing. United States v. Martin (Martin I), 291 F. App’x
765, 772 (6th Cir. 2008). On remand, the Guideline range was recalculated as 235-293 months.
The district court imposed a within-Guideline sentence of 284 months that was nevertheless higher
than the sentence Martin requested. Martin appeals, claiming both procedural and substantive error.
We AFFIRM.
I.
No. 08-6426
United States v. Martin
After two juveniles informed their school counselor and the Rockcastle County Sheriff’s
Department that they had been photographed nude, deputies obtained and executed a search warrant
for Martin’s residence. The search yielded disks containing photographs and videos of naked
minors, props used in their production, and child pornography images downloaded from the internet.
Three victims were eventually identified, all of whom provided information to investigators
regarding Martin’s involvement in the production of child pornography.1
II.
At the resentencing hearing, Martin’s attorney argued, without citation or support, that
Martin I implied that the district court should impose a “sentence somewhere in the middle” of the
corrected Guideline range, and requested a sentence of 260 months. Martin addressed the court
himself, apologized for his crimes, and reported that he had begun working towards obtaining his
GED degree and was on a waiting list for a sex-offender class. The government requested a sentence
“at the top of [the] guideline range.” The district court then addressed the sentencing factors and
Martin’s request for a mid-range sentence, and imposed a sentence of 284 months,2 finding it to be
“sufficient but not greater than necessary to comply with the purposes of Title 18, Section
3553(a)(2).” The district court also “recommend[ed] that the defendant during his term of
1
Further exposition of the facts leading to Martin’s conviction can be found in this Court’s
opinion in Martin’s first appeal. Martin I, 291 F. App’x at 766-67.
2
Martin was sentenced to 284 months on Count 1 and 120 months on Count 2, to run
concurrently. The district court also imposed concurrent lifetime sentences of supervised release on
each count, a $200 assessment, and required Martin to forfeit property he used in the production of
the illegal photographs and videos pursuant to 18 U.S.C. § 2253.
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imprisonment participate in the Bureau of Prisons sex offender treatment program . . . and that he
participate in the education program working toward completion of his GED . . . .” The district court
waived the fine requirement because it did not believe that Martin had the ability to pay. Martin
timely appealed.
III.
Martin argues that the district court committed both procedural and substantive error. In the
district court, Martin objected to the length of his sentence, but stated that he had no objections to
the sentencing procedures. We therefore review his claim of substantive error for reasonableness
and his claim of procedural error for plain error. United States v. Simmons, 587 F.3d 348, 353 (6th
Cir. 2009). A reasonableness review is the same as a review for abuse of discretion. United States
v. Carter, 510 F.3d 593, 600 (6th Cir. 2007).
A. Procedural Reasonableness
A resentencing hearing requires just as full a consideration of the 18 U.S.C. § 3553(a) factors
as does an initial sentencing hearing. United States v. Thomas, 498 F.3d 336, 340-41 (6th Cir. 2007).
“[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). A district court’s consideration of the 18 U.S.C. § 3553(a) factors must “explain
its reasoning to a sufficient degree to allow for meaningful appellate review” and “set forth enough
facts to satisfy this court that it considered the parties’ arguments and had a reasoned basis for
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exercising its own legal decision-making authority.” Id. at 510. This Court has also held that when
a sentence imposed by a court is within the Guidelines, the explanation for the sentence generally
“need not be lengthy.” United States v. Wilms, 495 F.3d 277, 280 (6th Cir. 2007). As reflected in
the sentencing transcript, the district court expressly considered: “[t]he harm in this particular case,”
see 18 U.S.C. § 3553(a)(1) & (a)(2)(A); that Martin’s crimes were a “very serious offense,” and
therefore an offense that needed a “lengthy sentence in order to deter not just the defendant . . . but
to deter others as well,” see 18 U.S.C. § 3553(a)(1), (a)(2)(A) & (a)(2)(B); that “[s]tatistical
information that is available indicates that individuals that commit these types of crimes . . . tend to
be repeat offenders,” see 18 U.S.C. § 3553(a)(2)(C); that the court hoped that “when the defendant
completes the program that he’s not enrolled in yet, but hopes to enroll in, then he will be able to
avoid future problems when he is released . . . ,” and recommended that Martin “participate in the
Bureau of Prisons sex offender treatment program . . . and that he participate in the education
program working toward completion of his GED,” see 18 U.S.C. § 3553(a)(2)(D); “the need to avoid
unwarranted sentencing disparities,” see 18 U.S.C. § 3553(a)(6); the Guidelines range, see 18 U.S.C.
§ 3553(a)(4); and that a fine would be futile because “this defendant does not have the ability to pay
a fine,” see 18 U.S.C. § 3553(a)(1). Thus, the district court expressly addressed the majority of the
§3553(a) factors, and also stated that it had considered all of the § 3553(a) factors, thereby providing
sufficient analysis to facilitate our review.
Martin also argues that the district court failed to consider his arguments for a lower sentence.
The extent of Martin’s attorney’s argument regarding what sentence the district court should impose
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was that he interpreted this Court’s prior opinion to imply a “sentence somewhere in the middle” of
the Guideline range. He then stated: “A sentence of 260 months would be dead center of the
guidelines, and we would ask the Court to impose that factor [sic].” Martin then addressed the court
on his own behalf. The entirety of his statement was:
Your Honor, the first thing I want to do is apologize to the courts on my
behalf. What I did was wrong and I know it, and do my prison time. In the last
couple of years, I’ve had time to think about what I have done and I’m very sorry it
happened and I’ve been doing everything in the prison that I can possibly do, I’ve
been programming and doing what I need to do and keep myself clean and doing
everything you’ve asked of me. I’ve got into education for my GED and I signed up
for the sex education class, and there is a waiting period there, so—but I am on the
list, and, once again, I apologize.
Martin’s attorney’s request for a sentence of 260 months was a request without supporting
argument. The district court adequately addressed the request when it stated that it would “not
impose a sentence at the mid-range that has been requested by the defendant . . . .” Further, the
transcript of the resentencing hearing shows that the court did address the points raised by Martin
himself. Specifically, the district court stated:
Mr. Martin has expressed regret and remorse for his actions, and the Court
takes him at his word when he says that he’s sorry and he’s attempting to turn himself
around and to better himself through GED and through other programs that are offered
through the Bureau of Prisons, and I’m certainly hopeful that he completes all those
programs that are offered.
The district court also noted that it was not required to consider Martin’s conduct since his first
sentencing hearing, but would do so anyway, and explained that such conduct was the reason it did
not “impose a sentence above the guideline range and really not at the very top of the guideline range
. . . .”
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Because the district court sufficiently addressed the 18 U.S.C. § 3553(a) factors to allow for
review and responded to Martin’s arguments for a lower sentence, it did not commit procedural error,
plain or otherwise.
B. Substantive Reasonableness
This Court “afford[s] sentences within the applicable Guidelines range the presumption of
reasonableness.” Vowell, 516 F.3d at 509. When reviewing a sentence for substantive
reasonableness, this Court “consider[s] more than simply the length of the sentence”; it also considers
“the factors the district court evaluated in determining its sentence.” Id. at 510. “A sentence may be
substantively unreasonable if the district court ‘select[s] the sentence arbitrarily, bas[es] the sentence
on impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an unreasonable
amount of weight to any pertinent factor.’” Id. (quoting United States v. Smith, 474 F.3d 888, 894
(6th Cir. 2007)). However, this Court “do[es] not require a mechanical recitation of the § 3553(a)
factors,” but rather “an explanation of why the district court chose the sentence that it did.” Id. That
this Court “might reasonably have concluded that a different sentence was appropriate is insufficient
to justify reversal of the district court.” Id. at 511. Further, that a district court “did not give a
defendant the exact sentence he sought is not a cognizable basis to appeal, particularly where the
district court followed the mandate of section 3553(a) in all relevant respects.” United States v.
Jackson, 466 F.3d 537, 540 (6th Cir. 2006).
Martin claims that his sentence is substantively unreasonable because the district court gave
unreasonable weight to the factor stated at 18 U.S.C. § 3553(a)(6), “the need to avoid unwarranted
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sentencing disparities among defendants with similar records who have been found guilty of similar
conduct,” and also that the district court misapplied that factor by controlling for disparities among
similar defendants who had come before that court, as opposed to applying a national standard.
The record does not support these claims. As discussed above, the record demonstrates that
the district court considered a number of the § 3553(a) factors. Further, assuming, arguendo, that the
district court afforded more weight to § 3553(a)(6) than to other factors, as opposed to simply
spending more time discussing that factor, “the Sixth Circuit has never held that a district court must
give equal weight to the factors under § 3553(a).” United States v. Thomas, 337 F. App’x 505, 510
(6th Cir. 2009). In fact, it has expressly rejected this position. Id.; United States v. Webb, 403 F.3d
373, 385 n.9 (6th Cir. 2005) (“[W]e decline to indicate what weight the district courts must give to
the appropriate Guidelines range, or any other § 3553(a) factor . . . .”).
We also find that the district court did not err in applying the sentencing-disparity factor. The
district court noted that this factor “looks first to national disparities” but “does not prohibit the Court
from looking at other disparities, such as disparities within a particular case involving multiple
defendants or even disparities within the district, the Eastern District of Kentucky or within the Sixth
Circuit, in determining what other individuals are receiving for these offenses.” In United States v.
Presley, 547 F.3d 625, 631 (6th Cir. 2008), this Court explained:
We have noted that subsection 3553(a)(6) is concerned with national disparities
among the many defendants with similar criminal backgrounds convicted of similar
criminal conduct. Because § 3553(a)(6) is not concerned with disparities between one
individual’s sentence and another individual’s sentence, despite the fact that the two
are co-defendants, the district court is not required to consider that type of disparity
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under § 3553(a)(6). A district judge, however, may exercise his or her discretion and
determine a defendant’s sentence in light of a co-defendant’s sentence.
(internal citation, quotation marks, and brackets omitted) (emphasis in original); see also United
States v. Brewer, 332 F. App’x 296, 307 (6th Cir. 2009) (district court may consider local disparities);
cf. United States v. Conatser, 514 F.3d 508, 521 (6th Cir. 2008) (noting § 3553(a)(6)’s concern with
national disparities and that “[d]isparties between the sentences of coconspirators can exist for valid
reasons”). Thus, the district court’s consideration of sentencing disparities other than on a national
basis was not improper.3
Martin’s arguments fail to overcome the presumption of reasonableness to which the district
court’s within-Guidelines sentence is entitled.
We AFFIRM the judgment of the district court.
3
Martin does not argue that his sentence is disparate at a national level.
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