NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0827n.06
No. 15-1015 FILED
Dec 21, 2015
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. )
ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR THE
BRIAN SEVREY, )
WESTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
)
BEFORE: DAUGHTREY, ROGERS, and WHITE, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. After defendant Brian Sevrey pleaded
guilty to a charge of sexual exploitation of a child, the district judge sentenced him to
300 months in prison, to be followed by a lifetime of supervised release. Sevrey now contends
that the district court erred in denying him a three-level decrease in his adjusted Guidelines
offense level for his acceptance of criminal responsibility. He further asserts that the 300-month
prison sentence is both procedurally and substantively unreasonable. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At some time prior to April 3, 2014, the National Center for Missing and Exploited
Children received a report from Google that an internet protocol (IP) address associated with
14 email accounts had been used to upload photographs containing child pornography. The IP
address was registered to the Escape Bar and Grill in Cadillac, Michigan, an establishment
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located directly below defendant Sevrey’s apartment. Further investigation revealed that, in
February and March 2014, Sevrey used email accounts slammytammy33@gmail.com,
tammyslammy2@gmail.com, tommysmith1580@gmail.com, and tammydorsey11@gmail.com
to post on a Google+ account numerous images and videos that depicted naked, prepubescent
girls masturbating, digitally penetrating themselves, or being touched or penetrated by adult
males.
Based upon that information, law enforcement officials searched Sevrey’s residence
pursuant to a state warrant and recovered numerous items, including a digital camera. In initial
conversations with the authorities, Sevrey denied having a computer or accessing the internet,
other than to check baseball scores and his email. Later, however, he admitted that he did search
for and post pornographic images and videos of prepubescent girls but, he claimed, only in an
attempt to entice pedophiles to the site so that he could then report them to the police.
A subsequent forensic examination of the camera found in Sevrey’s apartment led to the
recovery of seven deleted photographs taken on November 9, 2013. Those photographs depicted
“a 2 or 3 year old girl, naked, displaying her pubic area to the camera; spreading her vagina with
her hands; and digitally penetrating herself.” The girl was later identified as the defendant’s
granddaughter, with whom he had been babysitting on the date the photographs were taken.
The girl’s mother later reported to the United States Probation Office that since
November 9, 2013, the child continued the inappropriate touching, and one evening while
watching television, “touched her vaginal area and stated, ‘Papa do this!’” Although the
evidence of his guilt of the crime for which he was charged was overwhelming, Sevrey
attempted to put a more innocent spin on his actions. He testified at his change-of-plea hearing
that “[his granddaughter] was going through a phase where she was touching herself and she was
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discovering herself, and [he took additional] pictures to show [his] son and daughter-in-law that
she’s still doing it.” He explained that:
I was babysitting her that day and [her parents] had neglected to bring some fresh
clothes and she had accidentally wet herself, so I was washing her clothes. When
I came back from throwing them in the dryer, she was on the couch touching
herself, and I kept holding her hand back and she kept on doing it anyway.
In response to a question whether he then went to get his camera, Sevrey further explained that
he already had taken “probably . . . a hundred pictures of [his] granddaughter that day.”
Despite the explanation Sevrey offered for his actions, law enforcement authorities noted
that “almost all” of the later pornographic images of other young girls that the defendant
uploaded to the internet “were exactly the type of images taken of the 2-year-old female child—
images of young girls naked and/or masturbating/digitally penetrating themselves, taken from an
angle focused [from below] towards the child’s genitals.” Furthermore, despite his claimed
justification for taking the photographs of his granddaughter, Sevrey never explained the need to
take as many as seven such photos nor why he failed to show the photos to the girl’s parents or
express his concerns to them.
Given the preposterous explanations offered by Sevrey for his actions and his own
recognition that “nobody’s going to believe” his accounts of why he photographed his
granddaughter in pornographic poses or uploaded sexually suggestive pictures of other young
girls to a Google+ account, the defendant entered into a plea agreement with the government.
Pursuant to that agreement, Sevrey admitted his guilt of the charge of sexual exploitation of a
child and waived many of his rights to perfect direct and collateral appeals of his conviction and
sentence. However, he specifically reserved the right to challenge any sentence that:
(1) exceeded the greater of the Guidelines range or the statutory mandatory minimum;
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(2) incorrectly determined the Guidelines range; (3) exceeded the statutory maximum; or (4) was
“based upon an unconstitutional factor, such as race, religion, national origin or gender.”
Convinced that the plea was entered knowingly and voluntarily, the district court
accepted Sevrey’s admission of guilt. Then, after the preparation and revision of a presentence
investigation report by the United States Probation Office, the district court held a sentencing
hearing, at the conclusion of which it accepted the Probation Office’s calculation that Sevrey
should be sentenced under criminal history category I, at an offense level of 40, yielding an
advisory Guidelines range of 292-365 months. However, because the statutory maximum
sentence for the offense of conviction was 30 years, the district court determined that the
effective Guidelines range actually was 292-360 months. Rejecting the defendant’s argument
that he was entitled to a three-level reduction in his offense-level calculation because of his
acceptance of responsibility, the district judge imposed a prison term of 300 months, to be
followed by lifetime supervised release. From those sentencing decisions, Sevrey now appeals.
DISCUSSION
Acceptance of Responsibility
In the first of his three challenges to the propriety of his 300-month sentence, Sevrey
argues that the district court erred in denying him a three-level, acceptance-of-responsibility
reduction in his Guidelines offense level. According to Sevrey, although it was “difficult for him
to fully admit” the prurient intent behind his actions on November 9, 2013, he nevertheless
pleaded guilty to the charged crime, fully admitting his involvement in the offense.
Section 3E1.1(a) of the United States Sentencing Guidelines allows for a two-level
decrease in a defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of
responsibility for his offense.” Furthermore, certain defendants who timely notify the
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prosecution of their intent to plead guilty can, “upon motion of the government,” be granted an
additional one-level decrease in their sentencing ranges. U.S.S.G. § 3E1.1(b). Because “[a]
district court’s finding regarding acceptance of responsibility is a finding of fact,” we review
such a determination “under a clearly erroneous standard.” United States v. Lutz, 154 F.3d 581,
589 (6th Cir. 1998). “The sentencing judge is in a unique position to evaluate a defendant’s
acceptance of responsibility. For this reason, the determination of the sentencing judge is
entitled to great deference on review.” U.S.S.G. § 3E1.1., cmt. n.5; United States v. Angel,
355 F.3d 462, 476 (6th Cir. 2004).
When seeking a sentence reduction for acceptance of responsibility, the defendant bears
the burden of establishing, by a preponderance of the evidence, that he or she indeed has taken
full responsibility for the crime committed. United States v. Mahaffey, 53 F.3d 128, 134 (6th
Cir. 1995). Moreover, “[a] defendant who enters a guilty plea is not entitled to an adjustment
under [§ 3E1.1] as a matter of right.” U.S.S.G. § 3E1.1, cmt. n.3. Indeed, even “[a]n admission
of regret for the result of criminal actions without a corresponding admission of criminal intent
does not constitute acceptance of responsibility within the context of the Sentencing Guidelines.”
Lutz, 154 F.3d at 589.
In light of these sentencing principles, we conclude that the district court did not commit
error—clear or otherwise—in denying Sevrey’s request for a sentence reduction based upon his
claimed acceptance of responsibility. True enough, Sevrey did enter a timely guilty plea to the
offense charged; he did admit that he took photographs of his then-two-year-old granddaughter
in pornographic poses; and he did express remorse for the pain he had caused his family. At no
point during the change-of-plea hearing or the sentencing hearing, however, did Sevrey admit to
the prurient, criminal motives underlying his actions. Instead, he steadfastly adhered to his
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incredible explanations that he had posted child pornography on a Google+ account only to
entrap pedophiles who might view the images, and that he had photographed his granddaughter’s
genitalia from a camera angle below the young child only in an effort to alert the girl’s parents to
her actions.
The district judge was able to view and evaluate Sevrey’s testimony at the two hearings
and clearly disbelieved his explanations of his motives. The hearing testimony showed that
Sevrey never contacted the victim’s parents about the genital touching that allegedly concerned
him and never contacted law enforcement officials about the attempt to catch other pedophiles
viewing the pornographic images of prepubescent girls. Those facts undermined the
explanations offered by Sevrey to such an extent that the district court was justified in denying
Sevrey’s attempt to reduce his offense level through application of the Guidelines’ acceptance-
of-responsibility provisions.
Procedural Reasonableness of Sentence
Sevrey also claims that his 300-month prison sentence is procedurally unreasonable
because the district court relied upon a clearly erroneous fact in calculating an appropriate
punishment. As has been well-established, “[w]e review a district court’s sentencing
determination, under a deferential abuse-of-discretion standard, for reasonableness.” United
States v. Pearce, 531 F.3d 374, 384 (6th Cir. 2008) (citation and internal quotation marks
omitted). That reasonableness review “has both a procedural and a substantive component.”
United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008) (citing Gall v. United States, 552
U.S. 38, 51 (2007)). Procedural errors include “failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
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explain the chosen sentence—including an explanation for any deviation from the Guidelines
range.” Gall, 552 U.S. at 51.
However, when a party fails to object to a procedural error in response to the district
court’s invitation for objections, as here, we review the claim for plain error. United States v.
Lumbard, 706 F.3d 716, 720-21 (6th Cir. 2013). Accordingly, to the extent Sevrey argues that
the district court’s reliance on a clearly erroneous fact constitutes a procedural error distinct from
the district court’s denial of his requested acceptance-of-responsibility reduction, we review for
plain error. Under the plain-error standard, Sevrey must show that “(1) there is error; (2) the
error was ‘clear or obvious rather than subject to reasonable dispute’; (3) it affected the
defendant's substantial rights, which in the ordinary case means it affected the outcome of the
district court proceedings; and (4) it seriously affected the fairness, integrity or public reputation
of judicial proceedings.” United States v. Massey, 663 F.3d 852, 856 (6th Cir. 2011) (quoting
United States v. Marcus, 560 U.S. 258, 262 (2010)).
In this appeal, Sevrey highlights a comment made by the district court when discussing
the propriety of granting a reduction in his offense level for acceptance of responsibility. He
points to the district court’s statement that “the salient issue here was there was not only sexual
exploitation of this child, a hundred and some pictures of this child, but also that of a lot of
others in a collection.” According to Sevrey, that comment reflects the district court’s mistaken
belief that Sevrey took “a hundred and some” lewd photos of his granddaughter, not just the
seven that were discussed by the government and defense counsel at the various hearings in this
matter. Although the district court’s comments could be interpreted as Sevrey suggests, the
district judge never explicitly stated that all “hundred and some pictures of this child” were
pornographic, only that Sevrey took “a hundred and some” photographs of his granddaughter,
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some of which were sexually inappropriate and exploitative. Furthermore, at one point during
the change-of-plea hearing, the district judge asked to see the photos recovered from Sevrey’s
camera. The record on appeal contains no evidence that the district judge was shown more than
the seven pictures that provided the basis for Sevrey’s arrest, or that anything other than those
seven pictures (and the pornographic photos of other young girls that Sevrey uploaded) factored
into the district court’s sentencing decision.
Moreover, the number of pornographic images recovered from Sevrey’s camera did not
affect the district court’s calculation of the relevant offense level. And, whether Sevrey took
seven inappropriate photographs of his granddaughter or many times that number, the district
court still would have denied the acceptance-of-responsibility reduction based upon Sevrey’s
denial of his true motivation in taking and viewing pornographic images of children.
Substantive Reasonableness of Sentence
Finally, Sevrey contends that his sentence was substantively unreasonable, both because
it was more severe than necessary and because much shorter sentences have been imposed on
other individuals guilty of more egregious acts of child sexual abuse. However, neither of these
grounds fits within one of the four limited categories of challenges permitted by his appeal
waiver. In particular, neither of these grounds constitutes a claim that the district court
“incorrectly determined the final Guideline range.” Because the defendant waived his right to
contest his sentence on substantive-reasonableness grounds, Sevrey is precluded from pursuing
this challenge on appeal.
CONCLUSION
For the reasons set out above, we AFFIRM the judgment of the district court.
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