United States v. Ryan Day

NOT RECOMMENDED FOR PUBLICATION

No. 17-5866

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 11, 2018
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
RYAN JAMES DAY, ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
Defendant-Appellant. )
)
)

BEFORE: BATCHELDER, SUTTON, and WHITE, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. Defendant-Appellant Ryan Day argues that

the district court imposed a procedurally unreasonable sentence for his conviction on four counts

of producing child pornography. We disagree and AFFIRM.

Day repeatedly sexually abused his girlfriend’s minor daughter, A.E., beginning when she

was four or five years old. He photographed and videotaped many of his abuses of A.E. and,

eventually, sent some of these images to an undercover police officer posing online as a person

interested in child pornography. The police arrested Day and found on his phone more

pornographic images of A.E.

The government charged Day with four counts of producing child pornography in violation

of 18 U.S.C. § 2251(a), (d). Each count related to his production of pornographic images of A.E.
No. 17-5866, United States v. Day

on four different days between November 2012 and August 2013, when she was eight years old.

Day pleaded guilty to all four counts without a plea agreement.

Day faced a lengthy sentence. His guidelines range was life in prison,1 and 18 U.S.C.

§ 2251(e) required that he be sentenced to a mandatory minimum of 15 years and a maximum of

30 years on each count. The probation officer recommended concurrent sentences of 360 months

on counts one through three and a consecutive sentence of 360 months on count four, for a total of

720 months—a 60-year sentence.

Day and the government each filed a sentencing memorandum. Day argued that the district

court should vary downward and impose a sentence of 25 years’ imprisonment based on difficult

circumstances of his upbringing. The government requested a sentence of 50 years’ imprisonment,

noting that Day had, multiple times over a period of years, sexually abused a minor in his care,

photographed the abuse, and distributed the images online in an effort to obtain images of other

minors being abused.

The court imposed a sentence of 50 years’ imprisonment. After handing down the

sentence, the court asked the parties “does anyone have objections to my sentence that have not

been previously raised?” Day’s counsel responded, “in order to preserve any appellate review, I

think I need to make an objection under United States versus Bostic, so we do make that objection

to the 50-year sentence.” See United States v. Bostic, 371 F.3d 865 (6th Cir. 2004). The court

acknowledged Day’s objection and informed him of his right to appeal. Day filed this timely

appeal.

1
After applying the appropriate sentencing enhancements and reductions, the probation officer calculated
Day’s total offense level to be 48, five levels above the maximum sentencing level in the guidelines. The probation
officer reduced Day’s offense level to 43 per guidelines instructions. See USSG Ch. 5, Pt.A, cmt. 2. Day’s prior
criminal history produced a criminal history score of 6 and a criminal history category of III, yielding a life sentence.
However, because the maximum statutorily authorized sentence was 30 years’ imprisonment, that became the
guidelines sentence for each count.

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No. 17-5866, United States v. Day

II.

Day argues that the district court imposed a procedurally unreasonable sentence because it

failed to (1) “explain how Mr. Day’s background informed the sentence,” and (2) “address the

potential for sentencing disparities created by this lengthy sentence.” We find no error and affirm

the judgment of the district court.

The parties dispute the appropriate standard of review. The government asserts that “Day’s

perfunctory reference to Bostic was insufficient to preserve his claims for appellate review”; hence,

we must review for plain error. Day asserts that his objection before the trial court was specific

enough to warrant review under an abuse of discretion standard.

To trigger an abuse of discretion standard of review, “[a] party ‘must object with that

reasonable degree of specificity which would have adequately apprised the trial court of the true

basis for his objection.’” Bostic, 371 F.3d at 871 (quoting United States v. LeBlanc, 612 F.2d

1012, 1014 (6th Cir. 1980)). “[A] boilerplate response (such as an objection to a sentence ‘on both

procedural and substantive grounds’) is not ‘specific enough to give the district court an

opportunity to correct the alleged error.’” United States v. Davis, 702 F. App’x 247, 251 (6th Cir.

2017) (quoting United States v. Simmons, 587 F.3d 348, 353, 356 (6th Cir. 2009)). If a defendant

intends to challenge the adequacy of a district court’s explanation for a sentence—as Day wished

to do here—he must “assert a specific objection to the allegedly inadequate” explanation. Id.

(quoting United States v. Penaloza, 648 F. App’x 508, 536 (6th Cir. 2016)). Day’s objection to

the “50-year sentence” was “not specific enough to give the district court an opportunity to correct

the alleged error.” Id. (quoting Simmons, 587 F.3d at 356). And though Day attempts to overcome

his deficient objection by arguing that Bostic is a “flexible” and “practical” standard, this court has

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No. 17-5866, United States v. Day

plainly rejected similar arguments. See id. at 251–52 (“flexible, practical” standard does not

excuse insufficiently specific objection). We review Day’s appeal under a plain-error standard.

Under plain-error review we may reverse only where there is “an ‘error’ that is ‘plain’ and

that ‘affects substantial rights.’” United States v. Olano, 507 U.S. 725, 732 (1993) (alteration

omitted); Fed. R. Crim. P. 52(b). Even where those three factors are met, we still do not reverse

unless the error “seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Id. (quoting United States v. Young, 470 U.S. 1, 15 (1985)). “Absent any error, our

inquiry is at an end.” United States v. Lumbard, 706 F.3d 716, 721 (6th Cir. 2013) (quoting United

States v. Mahon, 444 F.3d 530, 533 (6th Cir. 2006)).

We may handily reject Day’s procedural unreasonableness argument.2 A district court

imposes a procedurally unreasonable sentence by “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

explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). “The district court

must provide an articulation of the reasons [it] reached the sentence ultimately imposed . . . [that]

allow[s] for meaningful appellate review.” United States v. Solano–Rosales, 781 F.3d 345, 351

(6th Cir. 2015) (citations and internal quotations omitted).

Day’s assertion that the district court failed to address his background sufficiently is belied

by the sentencing transcript. At sentencing, Day “agree[d] with . . . the circumstances of this case,”

acknowledged that “the only issue . . . [wa]s what’s the appropriate sentence,” and asked the court

to impose a sentence of 25 years because a longer sentence would be an effective life sentence.

2
Even under an abuse of discretion standard, Day’s argument would fail.

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No. 17-5866, United States v. Day

The court, running through an abbreviated but detailed recitation of Day’s family history,

education, and mental history, emphasized his adoption, his ADHD and mental health issues, that

his adoptive family regretted taking him off of medication, and that Day likely inherited some of

the mental health issues from his biological mother who suffered from bipolar disorder and

schizophrenia. Because Day’s conduct was “one of the most serious crimes that ever comes before

the Court” and was “much, much more serious than simply viewing child pornography,” the court

imposed a sentence of 50 years with 30 years on each of counts one through three to run

concurrently and 20 years on count four to run consecutively.3 The court stated that this sentence

“will reflect the seriousness of the offense, promote respect for the law, be a just punishment,

protect the public from further crimes, and hopefully provide this defendant with needed mental

health treatment. It will not create unwarranted sentencing disparities.” The district court’s

discussion shows that it gave adequate consideration to Day’s troubled background. The court did

not err, plainly or otherwise.

Day’s argument that the district court failed to address whether his sentence would create

an unwarranted disparity likewise fails. Before the district court, Day merely requested a 25-year

sentence, noting that such a sentence would mirror the sentence imposed in another case involving

the production of child pornography, United States v. Kolb, No. 3:13-cr-00062 (M.D. Tenn. Sept.

23, 2014). At no point did Day argue (in briefing or orally) what he now aims to argue—that the

50-year sentence requested by the government would create an unwarranted disparity with Kolb

or any other case.

3
Though Day characterizes the district court’s sentence as an “upward departure” in his reply brief, the
court’s 50-year sentence was—as the district court noted during sentencing—technically “a bit of a [downward]
variance” from the life sentence guidelines range.

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No. 17-5866, United States v. Day

Even if Day had made this argument, it would fail. 18 U.S.C. § 3553(a)(6) concerns

“national disparities” and “the Guidelines themselves represent the best indication of national

sentencing practices.” United States v. Houston, 529 F.3d 743, 752 (6th Cir. 2008). “[T]he district

court’s very act of correctly calculating and reviewing the advisory range indicates that a district

judge ‘necessarily gave significant weight and consideration to the need to avoid unwarranted

disparities.’” Simmons, 587 F.3d at 363 (quoting Gall, 552 U.S. at 54). By reasonably weighing

the Section 3553(a) factors and then sentencing defendant below the advisory life guidelines range,

the district court “adequately observed the need to avoid unwarranted disparities—especially

considering that defendant did not raise any such argument, factual or legal, at the time of

sentencing.” United States v. Samayoa-Baltazar, 436 F. App’x 620, 623 (6th Cir. 2011) (citing

Simmons, 587 F.3d at 363).

III.

For the foregoing reasons, we AFFIRM the judgment of the district court.

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