United States v. Michael Walters

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0001p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│ No. 14-3097
v. │
>
│
MICHAEL S. WALTERS, │
Defendant-Appellant. │
┘
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: November 19, 2014
Decided and Filed: January 2, 2015

Before: MERRITT, WHITE, and DONALD, Circuit Judges.

_________________

COUNSEL

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.
(pg. 14), delivered a separate concurring opinion. MERRITT, J. (pp. 15–17), delivered a
separate dissenting opinion.

1
No. 14-3097 United States v. Walters Page 2

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OPINION
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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.
No. 14-3097 United States v. Walters Page 3

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 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
No. 14-3097 United States v. Walters Page 4

“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
(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 does not challenge the substantive reasonableness of his sentence.
No. 14-3097 United States v. Walters Page 5

Accordingly, we review de novo the district court’s application of enhancements to
Walters’ sentence under the Guidelines.

B. Procedural Reasonableness

1. Constitutionality of Double Counting

Walters asserts that the challenged sentence enhancements constitute unconstitutional
double counting. By penalizing him twice for the same conduct, he argues, the sentence imposed
by the district court violates his right to due process and his right not to be subject to double
jeopardy. U.S. CONST. amends. V and XIV, § 1. Walters’ constitutional argument is
unpersuasive. It is well-established in this Circuit that double counting—even impermissible
double counting—does not rise to the level of a constitutional violation.

Double counting “occurs when ‘precisely the same aspect of a defendant’s conduct
factors into his sentence in two separate ways.’” United States v. Wheeler, 330 F.3d 407, 413
(6th Cir. 2003) (quoting United States v. Farrow, 198 F.3d 179, 193 (6th Cir. 1999)). “[N]o
double counting occurs if the defendant is punished for distinct aspects of his conduct.”
Battaglia, 624 F.3d at 351 (citing United States v. Moon, 513 F.3d 527, 542 (6th Cir. 2008)).
Where double counting does occur, however, it may be permissible. Id. Where it “appears that
Congress or the Sentencing Commission intended to attach multiple penalties to the same
conduct,” double counting is permitted. Id. (quoting Farrow, 198 F.3d at 194). Indeed, the
Guidelines explicitly state that “[t]he offense level adjustments from more than one specific
offense guideline are applied cumulatively (added together) unless otherwise noted.”
U.S.S.G. § 1B1.1 cmt. n. 4(A).

It is settled law in this Circuit that double counting does not violate the Constitution’s
prohibition on double jeopardy. Wheeler, 330 F.3d at 413 (“In asserting a double jeopardy
violation, Defendant unsuccessfully attempts to transform what constitutes at most a double
counting issue under the sentencing guidelines into a constitutional concern.”). In Wheeler, we
concluded that

[a]lthough the Constitution prohibits multiple criminal punishments for the same
offense, double jeopardy principles generally have no application in the
sentencing context “because the determinations at issue do not place a defendant
No. 14-3097 United States v. Walters Page 6

in jeopardy for an ‘offense.’” This rule also applies to sentencing enhancements,
which constitute increased penalties for the latest crime, rather than “‘a new
jeopardy or additional penalty for the earlier crimes.’”

Id. (quoting Monge v. California, 524 U.S. 721, 728 (1998)). Thus, when a district court applies
multiple sections of the Guidelines to determine the proper sentence for an offense, there is no
constitutional violation for double jeopardy. Id.

Walters also argues that the alleged double counting in this case violates his right to due
process. However, he fails to articulate a connection between double counting and a violation of
due process. He argues the sentence is “unfair,” but then repeatedly engages in an analysis of
whether the sentence enhancements constitute impermissible double counting—a separate
inquiry with different implications. Even though the government directly challenges him on this
point, Walters again asserts only that the sentence is “unfair,” and requests a downward
adjustment. As Walters presents no legal argument for this Court to evaluate with regards to his
due process claim, it is unnecessary to consider it further. Fed. R. App. P. 28(a)(8) (requiring
appellant to set forth both his contentions on appeal and arguments supporting them).

Properly construed, Walters’ appeal largely contends that the challenged sentence
enhancements are impermissible double counting. The relief requested—that the enhancements
be removed and the case remanded for re-sentencing—would be properly granted if he
demonstrates that the enhancements are impermissible. We therefore evaluate whether that is the
case.

2. Permissibility of Double Counting

As discussed, Walters pleaded guilty to two counts of possession, receipt, and
distribution of child pornography under 18 U.S.C. §§ 2252(a)(2) and 2252A(a)(5)(B). Walters
argues that each of the three sentence enhancements applied by the district court was already an
element of his crime. However, an examination of the language in Walters’ Indictment, the
relevant statutes, and the Sentencing Guidelines reveals that each enhancement was properly
applied under our existing jurisprudence regarding double counting.
No. 14-3097 United States v. Walters Page 7

a. Distribution

Walters first challenges a two-point sentence enhancement imposed by the district court
for “distribution” under the Sentencing Guidelines. His claim fails because the enhancement
does not constitute double counting.

Walters pleaded guilty to Count 1 of his Indictment, which stated that he “did knowingly
receive and distribute . . . numerous computer files, which files contained visual depictions of
real minors engaged in sexually explicit conduct . . . in violation of [18 U.S.C. § 2252(a)(2)].”
The statutory language supporting Count 1 states that “[a]ny person who [] knowingly receives,
or distributes, any visual depiction . . . if the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and such visual depiction is of such conduct;
shall be punished[.]” 18 U.S.C. § 2252(a)(2).

Section 2G2.2 of the Sentencing Guidelines addresses “Trafficking in Material Involving
the Sexual Exploitation of a Minor.” This section establishes a base offense level of 22 for a
defendant convicted under 18 U.S.C. § 2252(a)(2) (Count 1 of Walters’ Indictment). It then goes
on to provide for various sentence enhancements based on particular characteristics of the
offense, stating that

[i]f the offense involved:
(A) Distribution for pecuniary gain, increase by the number of levels from the
table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the
retail value of the material, but by not less than 5 levels.
(B) Distribution for the receipt, or expectation of receipt, of a thing of value, but
not for pecuniary gain, increase by 5 levels.
(C) Distribution to a minor, increase by 5 levels.
(D) Distribution to a minor that was intended to persuade, induce, entice, or
coerce the minor to engage in any illegal activity, other than illegal activity
covered under subdivision (E), increase by 6 levels.
(E) Distribution to a minor that was intended to persuade, induce, entice, coerce,
or facilitate the travel of, the minor to engage in prohibited sexual conduct,
increase by 7 levels.
(F) Distribution other than distribution described in subdivisions
(A) through (E), increase by 2 levels.
No. 14-3097 United States v. Walters Page 8

U.S.S.G. § 2G2.2(b)(3) (emphasis added).

The officer preparing Walters’ PSR recommended a two-level enhancement based on
subsection (F), highlighted above. The district court accepted the recommendation and applied
the enhancement.

At sentencing and on appeal, Walters argues that subsection (F) duplicates the
“distribution” element of his conviction under § 2252(a)(2) and therefore constitutes
impermissible double counting. He notes that subsections (A) through (E) articulate actions that
aggravate a typical case of distribution. Subsections (A) and (B) draw a distinction between
distribution alone and distribution for the purposes of a quid pro quo; subsections (C), (D), and
(E) apply increases for distribution to a minor. By contrast, Walters argues, subsection (F) adds
a two level enhancement “solely for committing the act.” He claims this unjustly punishes him
twice for the same conduct: once as an element of the offense, and again as an enhancement to
the offense.

Walters’ analysis is flawed. The sentence enhancement for distribution is not double
counting in this instance. Recall that, where a defendant is penalized for distinct aspects of his
conduct, no double counting takes place. United States v. Kizer, 517 F. App’x 415, 419 (6th Cir.
2013) (citing Moon, 513 F.3d at 542 (6th Cir. 2008)). The statute states that a defendant may be
convicted for “receipt[] or distribution”; it does not require both. 18 U.S.C. § 2252(a)(2)
(emphasis added). The Sentencing Guidelines similarly differentiate between receipt and
distribution, noting that distribution aggravates an offense under § 2252(a)(2) because it is more
than the “mere solicitation” of pornographic material by a defendant. U.S.S.G. § 2G2.2,
cmt. n. 1. The distribution enhancement is therefore distinct from sentencing for mere receipt
under the statute.

We recently affirmed this approach in United States v. Clark, 553 F. App’x 538, 539 (6th
Cir. 2014) (per curiam). Like Walters, Clark pleaded guilty to distribution under § 2252(a)(2)
and the district court applied a two-point enhancement to his sentence under § 2G2.2(b)(3)(F).
Id. On appeal, Clark argued the enhancement was “improper double counting because the fact
that he had distributed child pornography was taken into account by his conviction under
§ 2252A(a)(2)[.]” Id. We disagreed: “[d]espite Clark’s argument to the contrary, the district
No. 14-3097 United States v. Walters Page 9

court’s application of the enhancement under § 2G2.2(b)(3)(F) did not result in improper double
counting.” Id. (referencing United States v. Reingold, 731 F.3d 204, 227-28 (2d Cir. 2013)
(“Section 2252(a)(2) proscribes the knowing receipt or distribution of child pornography. . . . the
Guideline provides for an enhancement to the base offense level for offenses that involved the
distribution of child pornography. Specifically, [§ 2G2.2(b)(3)(F)] dictates a two-level
enhancement whenever an offense involved distribution[.] . . . This structure cannot be
understood to address the harm associated with the distribution of child pornography in a base
offense level of 22 that applies equally to a variety of offenses, some involving distribution and
others not. Rather, § 2G2.2 is structured so that the range of harms associated with distribution
can be addressed through various enhancements.” (internal quotation marks and citations
omitted))).

Further, the district court clarified when it sentenced Walters that it applied subsection
(F) not just for distribution, but for distribution through a peer-to-peer network. (R.42, Page ID
#183) (“As to the first objection to the addition of two points for distribution, it is true that pier-
to-pier [sic] and searching, and searching and sharing files, is distribution, that’s well settled, and
of course Mr. Walters had knowledge of how it works.”)) We have repeatedly found that
subsection (F) is appropriately applied in cases where a defendant distributed child pornography
through use of peer-to-peer software. See, e.g., Clark, 553 F. App’x at 539; United States v.
Gerick, 568 F. App’x 405, 412 (6th Cir. 2014) (“Knowing use of a file-sharing program is
sufficient to warrant the two-point increase under U.S.S.G. § 2G2.2(b)(3)(F).” (citing United
States v. Conner, 521 F. App’x 493, 499-500 (6th Cir. 2013))); United States v. Darway,
255 F. App’x 68, 72 (6th Cir. 2007). Contrary to Walters’ characterization, the district court
applied subsection (F) for distribution that is aggravated in ways not discussed in (A) through
(E): distribution aggravated through use of peer-to-peer software. The enhancement of Walters’
sentence under § 2G2.2(a)(2) was not double counting. Accordingly, the district court did not
abuse its discretion in applying the enhancement.

b. Sadistic or Masochistic Material

Walters next appeals the district court’s application of a four-point enhancement for
exchanging material that is sadistic, masochistic, or otherwise violent. He argues that this
No. 14-3097 United States v. Walters Page 10

enhancement also constitutes impermissible double counting and must be removed from his
sentence. This argument also fails.

The Sentencing Guidelines for crimes under 18 U.S.C. §§ 2252(a)(2) and 2252A(a)(5)
state that if the particular offense “involved material that portrays sadistic or masochistic conduct
or other depictions of violence,” the court should enhance the defendant’s sentencing level by
four points. U.S.S.G. § 2G2.2(b)(4). Walters contends that “every image involving children in
any sexual context or for that purpose is, at the very least, an image of violence,” and that any act
to which U.S.S.G. § 2G2.2(b)(4) might apply is always “an act that satisfies the violence
enhancement therein.” Thus, he reasons, the enhancement serves only to punish an offender
twice for the same conduct.

However, we have held that the enhancement under § 2G2.2(b)(4) does not apply to all
child pornography convictions. United States v. Phillips, 383 F. App’x 527, 532-33 (6th Cir.
2010). In Phillips, the defendant was similarly convicted under § 2252(a)(2) and the district
court applied the same four-level enhancement for sadistic and masochistic material at issue
here. Id. at 528. On appeal, Phillips argued that “‘[c]hild pornography inherently victimizes the
child [portrayed therein] through sexual dominance and control,’ and that the district court
therefore ‘misapplied the law . . . when it overruled [his] objection that U.S.S.G. § 2G2.2(b)(4)
. . . enhances a base sentence which intrinsically already contains the U.S.S.G. § 2G2.2(b)(4)
considerations.’” Id. at 532 (alterations in original) (quoting the appellant’s brief). We rejected
Phillips’ interpretation, noting that “sadistic or masochistic conduct” typically involves an
additional element: “the infliction of pain.” Id. at 532 (citing United States v. Groenendal,
557 F.3d 419, 425 (6th Cir. 2009); United States v. Quinn, 257 F. App’x 864, 866-67 (6th Cir.
2007); United States v. Fuller, 77 F. App’x 371, 383-84 (6th Cir. 2003)). We explained that

[t]he base offense[] at issue here-receiving child pornography in violation of
18 U.S.C. § 2252(a)(2) and possessing child pornography in violation of
18 U.S.C. § 2252(a)(4)(B)-need not involve the depiction of acts likely to cause
pain. Those base offenses require receiving or possessing depictions of minors
“engaging in sexually explicit conduct,” which is defined to include not just hard-
core sexual acts, but also, inter alia, “lascivious exhibition of the genitals or pubic
area.” It is clear that, at least under some circumstances, lascivious nude posing,
without more, would not inflict sufficient pain on a minor to trigger the
sadomasochism enhancement.
No. 14-3097 United States v. Walters Page 11

Id. at 532-33 (citing United States v. Borho, 485 F.3d 904, 909-10 (6th Cir. 2007) (stating that
“not all child pornography is equally sadistic” and distinguishing an image of sex between two
minors and “a video clip depicting an adult male anally raping a toddler”)). We held that the
enhancement was not double counting.1 Id. at 533.

On appeal, Walters makes the same argument as Phillips, and his argument fails for the
same reasons. Among the pornographic materials discovered on his computer at the time of his
arrest were several videos of adult males raping prepubescent boys and girls, including a video of
a male subject having genital-to-genital intercourse with a female toddler. These videos are
clearly distinguishable from materials involved in other child pornography cases. The four-level
enhancement under § 2G2.2(b)(4) does not “double count” any aspect of Walters’ crime. Rather,
it separately punishes him for exchanging and possessing the sadistic, masochistic material it is
explicitly designed to address. The district court acted within its discretion to apply the
enhancement.

c. Use of a Computer

Finally, Walters challenges the district court’s application of a two-level sentence
enhancement for “use of a computer or an interactive computer service” in commission of his
crime. U.S.S.G. § 2G2.2(b)(6). This claim fails on multiple bases.

As with his other objections, Walters asserts that application of an enhancement for use
of a computer under § 2G2.2(b)(6) constitutes impermissible double counting. He does not
explain why or how this might be; instead, he attacks the rationale behind the enhancement itself.
In particular, Walters claims that frequent application of the enhancement “blurs the logical
difference between the least and worst offenders.” He argues that there is “no reason to believe
that computer images are any more permanent than those in print,” and that, although the
enhancement is applied often, a “computer does not aggravate the offense” in every case.

1
Our interpretation regarding the enhancement for sadistic or masochistic materials is widespread. “In
[rejecting Phillips’ claim as meritless], we join[ed] every other circuit to consider this argument.” Id. at 533 (citing
United States v. Rearden, 349 F.3d 608, 616 (9th Cir. 2003) (rejecting the argument that the sadomasochism
enhancement “is already covered by the base offense level” because “the base offense . . . could, for example,
involve pictures of a naked child without physical sexual contact”); United States v. Lyckman, 235 F.3d 234, 240
(5th Cir. 2000) (same); United States v. Myers, 355 F.3d 1040, 1044 (7th Cir. 2004) (same); United States v. Hall,
312 F.3d 1250, 1263 n.17 (11th Cir. 2002) (same)).
No. 14-3097 United States v. Walters Page 12

Because Walters does not explain how these arguments apply to his sentence, his claim is best
interpreted as a facial challenge to § 2G2.2(b)(6).

Walters’ challenge lacks the facts or law necessary to succeed. In drafting § 2G2.2, the
Sentencing Commission explicitly considered whether the computer enhancement would be
frivolous. See U.S.S.G. App. C, Amend. 664, pp. 58-59. The Commission purposefully set both
the base offense level and the degree of enhancement with the frequency of computer use in
mind. Id. We have adopted that rationale and rejected arguments that the computer
enhancement should not be used simply because it is applied frequently. See, e.g., United States
v. Cunningham, 669 F.3d 723, 732-33 (6th Cir. 2012) (affirming the district court’s rejection of
defendant’s argument “that the frequency with which the enhancements applied in other cases
rendered them invalid”).

Contrary to Walters’ suggestion that computer images are no more permanent than
physical ones, the enhancement exists because the electronic nature of some videos makes them
easier to duplicate and distribute over time and across geography. There is a quantifiable cost to
copying, sending, saving, and cataloging physical materials. No comparable cost exists when it
comes to downloading, saving, and sharing electronic materials like those Walters had in his
possession.

It is often said that once a photo is online, it exists forever. Peer-to-peer software like
that Walters used ensures as much: two people on opposite sides of the globe can instantaneously
search, send, receive, and save materials at the click of a mouse. The enhancement remains
relevant—regardless of its frequency of application—because the harm it addresses is real. And
as the district court explained during sentencing, the enhancement applies in Walters’ case not
because he used a computer, but because his use of a computer ensured that thousands of people
had access to videos of children being sexually assaulted over the course of 2012. (R.42, Page
ID #192-93 (“It’s not unusual to have people commit crimes from the convenience and privacy
of their home, the computer and Internet makes that possible nowadays. . . . You can do what
you want and nobody is going to find out, and you don’t think you’re harming anybody by doing
that, but just the opposite is true.”).) The district court did not abuse its discretion in applying
the enhancement for computer use to Walters’ sentence.
No. 14-3097 United States v. Walters Page 13

III. CONCLUSION

For the foregoing reasons, we AFFIRM the sentence imposed by the district court.
No. 14-3097 United States v. Walters Page 14

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CONCURRENCE
_________________

HELENE N. WHITE, Circuit Judge, concurring. As the dissent points out, the
Guidelines applicable to convictions under the Protect Act do not reflect the considered
judgment of the Sentencing Commission, and in this regard differ from other Sentencing
Guidelines. To be sure, the Guidelines are not binding and judges are free to depart and vary
from them. But many judges are hesitant to second guess the Commission’s judgment due to the
presumed experience, expertise, and breadth of information possessed by the Commission. The
appropriate judicial response in situations such as this one is not for appellate courts to reduce
Guidelines sentences as a matter of course, but rather, for sentencing judges to recognize that
Guidelines based on the Protect Act should be carefully scrutinized. Unfortunately, as the
dissent observes, Walters’ counsel did not bring to the district court’s attention, or argue on
appeal, that the Commission considers the sentence recommended here to be excessive. In the
context of a sentencing proceeding in a child pornography case, competent counsel should be
expected to bring to the district court’s attention that the Guidelines do not, as in other contexts,
reflect the presumed superior expertise and breadth of information of the Commission, and in
fact are contrary to the Commission’s considered judgment. That, however, is a matter Walters
must properly raise in a petition under 28 U.S.C. § 2255.
No. 14-3097 United States v. Walters Page 15

_________________

DISSENT
_________________

MERRITT, Circuit Judge, dissenting. I regard the 12-plus years of incarceration the
defendant Walters received as a vast over-criminalization of the wrong involved, a sentence
vastly disproportionate to the crime. Walters downloaded a group of photos from the large
inventory of child porn photos on the Internet. He is not a pedophile. He has not physically
abused anyone. He is a young man with a wife and children whom he has not abused. He did
not, in fact, pass the photos on to anyone else; and he did not, in fact, have anything to do with
their production. He paid nothing to download the photos. He did not enter the commercial
market for child porn.

What he did is to look at photos that we would find disgusting and criminally produced.
For someone to presumably enjoy looking at them offends us, although we do not know his state
of mind for it is a strict liability crime. To assert, however, that the defendant “caused” the
production of the photos fabricates “causation.” It is a rationalization arising from our disgust
and disapproval.

Many of the groups of officials and experts who have looked into the problem of Internet
child porn have reached the conclusion that the sentencing guidelines that the District Court and
our Court have now enforced in this case should be greatly reduced. Most importantly, these
groups include the Sentencing Commission itself, which has conducted an extensive study and
then issued a 350 page Report in 2012 entitled “Federal Child Pornography Offenses” [available
at: http://www.ussc.gov/news/congressional-testimony-and-reports/sex-offense-topics/report-
congress-federal-child-pornography-offenses]. The Report asks Congress to remove the harsh
Protect Act provisions that ordered the Sentencing Commission in 2003 to write guidelines
recommending to judges the imposition of sentences such as the 12-plus year sentence in this
case. The report is based in part on the refusal of a sizeable majority of judges to follow the
guidelines1 and the opinion of experts in the field, including psychologists, medical experts and

1
A majority of federal judges reject the receipt and possession guidelines in both theory and practice. More
than two-thirds of judges responding to a Sentencing Commission survey in 2010 believed that the guideline ranges
No. 14-3097 United States v. Walters Page 16

legal scholars who have studied the problem.2 The Commission’s study arrived at the
conclusion that the present child porn guidelines have “no rational basis,” are “outmoded,” do
not “distinguish adequately among offenders based on their degrees of culpability,” and have
“enhancements,” like the ones in this case, that are “outmoded and disproportionate.” The
disagreement with the guidelines for nonproduction offenders is widespread. The Report at page
xxi concludes in part:

Numerous stakeholders—including the Department of Justice, the Federal
Defender community, and the Criminal Law Committee of the Judicial
Conference of the United States—have urged the Commission and Congress to
revise the nonproduction sentencing scheme to better reflect the growing body of
knowledge about offense and offender characteristics and to better account for
offenders’ varying degrees of culpability and dangerousness.

Unfortunately, the Department of Justice has not adequately communicated its position to its
United States Attorneys, and so we keep getting cases like this one.

It seems obvious that nothing is going to soon change the injustices such as this one that
are going on every day in the federal courts—unless the courts themselves find a solution that at
least ameliorates the problem for the time being. Defense counsel in this case did not provide the
courts with an adequate rationale for changing the guideline status quo and did not point out the
Report to the trial judge or to us. He simply argued that the guideline sentence in this case is
“unfair” and violates “due process,” but without further elaboration.

There is a partial solution available. The Supreme Court has recently summarized in
Miller v. Alabama, 132 S. Ct. 2455, 2463 (2012), the constitutional principles that should guide

and applicable mandatory minimums for those offenses “were too high.” 2012 Report at 11 n.64. After accounting
for deliberate undercharging by some U.S. Attorneys and plea agreements based on factual guideline stipulations, as
well as departures and variances by judges, the result was that almost four out of every five offenders were
sentenced below those dictated by a mechanistic guideline calculation like the one in this case. Id. at 225 (figure 8-
12). In light of this widespread judicial rejection of the guidelines, the sentencing judge’s conclusion that a
guideline sentence was appropriate for Walters because there was “[n]othing remarkable about his situation”
illustrates the failure of these guidelines when judges defer to the algorithm without considering whether the result is
just. The widespread nullification of these guidelines means that “[i]t is . . . not that a defendant who is sentenced
by a judge willing to reject the guideline is lucky . . . it is more apposite that the defendant who is sentenced by a
judge following the guideline is unlucky.” Melissa Hamilton, Sentencing Adjudication: Lessons from Child
Pornography Policy Nullification, 30 Ga. St. U. L. Rev. 375, 460 (2014).
2
See, e.g., 2012 Report at 73-106 (describing child pornography offender behavior); id. at 169-204
(describing research on prior criminal sexually dangerous behavior by non-production offenders); id. at 277-87
(assessing best practices for treating disorders associated with child pornography offenders); id. at 312-20
(summarizing “Recommendations to Congress” and empirically supporting conclusions contradicting underlying
premises of the current guidelines).
No. 14-3097 United States v. Walters Page 17

us when a sentence is extreme and lacking any “rational basis,” as the Sentencing Commission
and other experts in the field have found:

The Eighth Amendment’s prohibition of cruel and unusual punishment
“guarantees individuals the right not to be subjected to excessive sanctions.” That
right, we have explained, “flows from the basic ‘precept of justice that
punishment for crime should be graduated and proportioned’ to both the offender
and the offense.” “[T]he concept of proportionality is central to the Eighth
Amendment.” And we view that concept less through a historical prism than
according to ‘the evolving standards of decency that mark the progress of a
maturing society.’ (Omitting citations.)

If ever a sentence should be labeled “excessive” and “out of proportion” to the “offender and the
offense,” and outside “evolving standards of decency,” it is the 12-plus years of imprisonment
imposed in this case on a young man and his family because he downloaded a group of deviant
and disgusting child porn photographs. I am sorry that our panel has not acted to at least reduce
the sentence to the five-year mandatory minimum and to express its disagreement with this
unjust sentence.