NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0669n.06
No. 08-4598 FILED
Nov 01, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) NORTHERN DISTRICT OF OHIO
CHRISTOPHER MICHAEL McCORMICK, )
)
Defendant-Appellant. )
Before: BOGGS and CLAY, Circuit Judges; and WISEMAN, District Judge.*
WISEMAN, District Judge. Defendant-Appellant Christopher Michael McCormick appeals
the sentence of imprisonment imposed upon his plea of guilty to the charge of receiving child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He contends that his 225-month prison
sentence is substantively unreasonable in light of the lifetime period of supervised release to follow
it. Appellant submits that “a lesser sentence, through a variance, would meet all the goals of [§]
3553(a), given the protections—and consequences—that lifetime supervised release provides.”
(Appellant’s Br. 7–8.) He also argues that the district court violated his rights under the Sixth
Amendment because it enhanced his sentence above the base offense level based on judge-found
facts. Finding no merit to either of the Defendant’s arguments, we affirm.
*
The Honorable Thomas A. Wiseman, Jr., Senior United States District Judge for the Middle
District of Tennessee, sitting by designation.
No. 08-4598
United States v. McCormick
I.
A criminal complaint was issued on May 29, 2008, charging McCormick with knowingly
possessing images of child pornography that had been transported in interstate commerce by any
means, including by computer, in violation of 18 U.S.C. § 2252A(a)(2)(A). McCormick waived
indictment and the case proceeded by way of an Information. He pleaded guilty to the single charge
in the Information on August 4, 2008.
After McCormick entered his guilty plea, a Presentence Investigation Report (“PSR”) was
prepared, to which neither party filed objections. As set out in the PSR, the base offense level for
receipt of child pornography is 22. U.S. Sentencing Guidelines (“USSG”) § 2G2.2(a)(2). Specific
offense characteristics provided for enhancements that resulted in an adjusted offense level of 40.1
(PSR ¶¶ 34–37.) Three levels were deducted for acceptance of responsibility, yielding a total offense
level of 37. (PSR ¶ 42–43, 46.) Because McCormick had no criminal history points, he fell within
criminal history category I. (PSR ¶ 49.) By statute, the minimum term for a violation of 18 U.S.C.
§ 2252A is five years; the maximum, twenty years. 18 U.S.C. § 2252A(a)(2)(A) & (b)(1). (PSR ¶
87.) Although the recommended Sentencing Guidelines range for a total offense level of 37 and
1
These enhancements included a two-level enhancement for criminal activity involving
prepubescent minors, USSG § 2G2.2(b)(2), PSR ¶ 34; a five-level enhancement for possessing,
distributing and trading with the expectation of receipt of a thing of value, USSG § 2G2.2(b)(3)(B),
PSR ¶ 35; a four-level enhancement for material involving sadistic and/or masochistic conduct,
USSG § 2G2.2(b)(4), PSR ¶ 36; a two-level enhancement for use of a computer in the offense,
USSG § 2G2.2(b)(6), PSR ¶ 36; and a five-level enhancement because the number of images,
including the computation of videos to images, totaled more than 600, USSG § 2G2.2(b)(7)(D), PSR
¶ 37.
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United States v. McCormick
criminal history category I is 210 to 262 months, the effective Guidelines range in McCormick’s case
was 210 to 240 months as a result of the statutory maximum.
Pursuant to statute, the authorized term of supervised release for any offense under § 2252A
“is any term of years not less than 5, or life.” 18 U.S.C. § 3583(k). The policy statement embodied
in USSG § 5D1.2(b) recommends that if the offense of conviction is a sex offense, “the statutory
maximum term of supervised release” be imposed. The probation officer who prepared the PSR in
this case did not identify any sentencing factors under 18 U.S.C. § 3553(a) that warranted a variance.
(PSR ¶ 106.)
McCormick appeared before district judge Jack Zouhary for sentencing on November 3,
2008. The judge asked whether either side had any objections to the PSR as prepared, and counsel
for both parties confirmed that they had reviewed the PSR and had no formal objections to it.
(Sentencing Tr. 2:11–20.) After giving counsel for both parties and the defendant himself an
opportunity to be heard, Judge Zouhary imposed a sentence of 225 months of imprisonment (within
the Guidelines range of 210 to 240 months), to be followed by a lifetime period of supervised release
(also in accordance with the Guidelines), and directed that McCormick participate in treatment
programs for substance abuse and for sex offenders at the direction of the Bureau of Prisons.
(Sentencing Tr. 15:3–12, 16:7–15; R. 17.) In fashioning the sentence, the judge noted on the record
that he had considered the § 3553(a) factors in ensuring a sentence that was “sufficient but not
greater than necessary to comply with the purposes of the statute.” (Sentencing Tr. 8:13–21.) Based
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United States v. McCormick
on his review of the relevant sentencing factors and the statutory mandates, the judge determined that
a variance from the Guidelines range was not appropriate.
Specifically with respect to the period of supervised release, the government requested
imposition of a lifetime term of supervised release, based on a presumption that “the best way to
ensure that [the defendant did not reoffend was] for him to be continuously supervised.” (Sentencing
Tr. 7:21–8:3.) Judge Zouhary apparently agreed, as he stated, when announcing that the sentence
would include a life term of supervised release: “[T]hat’s to make sure, Mr. McCormick, that you
always know you have a life line there. If there’s nobody else in your life when you get out of your
prison to help you, probation will be there to help you, so I hope you’ll utilize them as a lifeline.”
(Sentencing Tr. 15:12–16.)
The Judgment was filed November 4, 2008 (R. 17), and Defendant filed a timely notice of
appeal (R. 18).
II.
Although McCormick did not raise any specific objection to the sentence at the time it was
imposed, he now argues that (1) the 225-month prison term imposed by the district court was
substantively unreasonable and that a variance from the Guidelines was warranted; and (2) the
eighteen-level enhancement (from a base offense level of 22 to an adjusted offense level of 40)
violated his Sixth Amendment right to a trial by jury. We consider each of these arguments in turn.
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No. 08-4598
United States v. McCormick
A.
This court reviews sentences for reasonableness, which has both a procedural and a
substantive component. United States v. Thomas, 498 F.3d 336, 339 (6th Cir. 2007); Gall v. United
States, 522 U.S. 38, 49–50 (2007). McCormick does not claim any procedural error, however, so
we review the sentence for substantive reasonableness only, under the highly deferential abuse-of-
discretion standard. Gall, 552 U.S. at 51 (2007). Under that standard, a sentence may be considered
substantively unreasonable if the district court “selects a sentence arbitrarily, bases the sentence on
impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount
of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008)
(citations omitted).
McCormick does not argue that the sentence is arbitrary or based on impermissible factors,
nor does he contend that Judge Zouhary failed to consider relevant sentencing factors or gave an
unreasonable amount of weight to any particular factor. Instead, he argues that the 225-month prison
term is substantively unreasonable in light of the protections afforded by the lifetime term of
supervised release that Judge Zouhary also imposed.2 He concedes that he does not have any
2
McCormick was twenty-four years old at the time of sentencing. In his brief, he states that,
according to the Bureau of Prisons’ website, he is due to be released on September 26, 2024 at the
age of 41 and that, presuming a life expectancy of 70 years or more, he will likely be on supervised
release for at least thirty years.
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No. 08-4598
United States v. McCormick
authority to support his contention that this factor renders the prison term substantively
unreasonable.3
McCormick simply has not presented any facts or argument suggesting the district court
abused its discretion in imposing a within-Guidelines sentence. To the contrary, it is clear that the
district court expressly and individually addressed the sentencing factors set out in 18 U.S.C. §
3553(a), and particularly noted that McCormick had admitted that his attraction to young girls,
specifically girls seven to eight years old, was like an addiction. Among numerous other factors, the
court discussed the fact that McCormick had admitted to sexually abusing his half-sister
intermittently over the course of thirteen years, and also admitted to sexually abusing at least six
additional minor victims. Based on these and other facts, the court concluded that a variance was
not appropriate in this case and that a within-Guidelines sentence of 225 months was sufficient but
not greater than necessary to fulfill the purposes of sentencing set out in § 3553(a).
“The fact that the appellate court might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51.
Moreover, sentences that fall within a properly calculated Guidelines range enjoy a presumption of
reasonableness on appeal. United States v. Vonner, 516 F.3d 382, 389 (6th Cir.) (en banc), cert.
denied, 129 S. Ct. 68 (2008); see also Rita v. United States, 551 U.S. 338, 347 (2007) (“[A] court
3
McCormick did not object to the substantive reasonableness of his sentence at the time of
sentencing. However, unlike a challenge to procedural reasonableness, a party generally does not
have to raise an objection to substantive reasonableness before the trial court in order to preserve the
argument for appeal. United States v. Houston, 529 F.3d 743, 755 (6th Cir. 2008), cert. denied, 129
S. Ct. 2764 (2009).
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United States v. McCormick
of appeals may apply a presumption of reasonableness to a district court sentence that reflects a
proper application of the Sentencing Guidelines.”). In the present case, particularly in light of
McCormick’s admitted and continuing sexual obsession with very young children, it was not an
abuse of discretion for the district court to find that a 225-month prison term, to be followed by a
lifetime term of supervised release, was warranted. This court cannot conclude that the sentence was
substantively unreasonable.
B.
McCormick’s second claim of error is likewise meritless. The defendant does not argue that
the district court increased his sentence beyond the statutory maximum based upon judge-found
facts. He argues instead that the court violated his Sixth Amendment right to a trial by jury when
it found facts by a preponderance of the evidence that increased his sentence beyond the conduct to
which he admitted, and resulted in a Guidelines range significantly higher than it otherwise would
have been but for the judge-found facts. He contends his argument has not been foreclosed by the
Supreme Court, as confirmed by Judge Scalia’s concurrence in Rita v. United States, 551 U.S. 338,
375 (2007), observing that the majority opinion in that case did “not rule out as-applied Sixth
Amendment challenges to sentences that would not have been upheld as reasonable on the facts
encompassed by the jury verdict or guilty plea.”
This court reviews a constitutional challenge to a defendant’s sentence de novo wherever the
defendant preserves the claim for appellate review. Where a defendant fails to make an objection,
this court must review the claim for plain error. United States v. Copeland, 321 F.3d 582, 601 (6th
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United States v. McCormick
Cir. 2003) (citing United States v. Strayhorn, 250 F.3d 462, 467 (6th Cir. 2001)). McCormick did
not raise an objection at his sentencing hearing to the computation of his total offense level based
upon judge-found facts, so the clear-error standard applies.
As an initial matter, even if McCormick’s argument had any legal merit, he would not be
entitled to relief because, by declining to object to the facts set forth in the PSR upon which the
various enhancements were based, he is deemed to have admitted those facts. United States v.
Moore, 582 F.3d 641, 644 (6th Cir. 2009) (noting that a defendant “is bound by the factual
allegations in the PSR to which he did not object”) (citing United States v. Adkins, 429 F.3d 631,
632–33 (6th Cir. 2005)). Because he is bound by those facts, his Sixth Amendment right to a trial
by jury was not violated.
Moreover, irrespective of McCormick’s admission of the facts in the PSR, this circuit has
repeatedly held that a sentencing court does not violate a defendant’s Sixth Amendment rights when
it considers uncharged or dismissed conduct for sentencing purposes by making findings based upon
a preponderance of the evidence before it, so long as the court understands that the Guidelines are
advisory only, and it does not rely upon judge-found facts to impose a sentence above the statutory
maximum. United States v. Sexton, 512 F.3d 326, 329–30 (6th Cir. 2008); United States v. Haj-
Hamed, 549 F.3d 1020, 1026 (6th Cir. 2008). The crime to which McCormick pleaded guilty carried
a maximum sentence of 240 months, 18 U.S.C. § 2252A(a)(2), plus a supervised release period of
five years to life, 18 U.S.C. § 18 U.S.C. § 3583(k). The judge-found facts did not increase
McCormick’s sentence above the statutory maximum, and the district court clearly understood the
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United States v. McCormick
advisory nature of the Guidelines. Thus, even if McCormick had not expressly admitted to the
conduct that led to the sentencing enhancements, his Sixth Amendment rights would not have been
violated by the trial court’s reliance upon those facts at sentencing.
III.
For the reasons articulated herein, we AFFIRM the district court’s judgment.
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