NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0149n.06
No. 15-4232
FILED
UNITED STATES COURT OF APPEALS Mar 07, 2017
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
ANTONIO SIBLEY, ) DISTRICT OF OHIO
)
Defendant-Appellant. )
Before: GIBBONS, COOK, KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Antonio Sibley took pornographic pictures of a 17 year-
old girl named Diamond. A jury later convicted Sibley of sexually exploiting a minor, and the
district court sentenced him to 330 months in prison. Sibley appeals on six grounds relating to
his indictment, trial, and sentencing. We reject all of his arguments and affirm.
I.
Diamond was a runaway who at various times prostituted herself to survive. She met
Sibley when he was 36 years old and she was 15. Soon Diamond moved into Sibley’s home,
joining his children and their mother there. Diamond and Sibley began a sexual relationship,
which they maintained over the next two years—even as Diamond spent time in juvenile
detention, jail, and several foster homes.
Diamond ran away with Sibley soon after she turned 17. In July 2014, he took her to the
Casa Villa Motel in Columbus, Ohio, where they stayed for most of the month. Sibley forbade
her from seeing her sister, and whenever she tried to get away from him he would track her
No. 15-4232, United States v. Sibley
down. When Sibley started running out of cash, he suggested that Diamond prostitute herself.
Diamond was surprised and angry, but eventually she agreed because she felt she had no other
options. Sibley created ads for dates with “Benzi” (a pseudonym for Diamond) and posted them
on the adult section of Backpage.com. Sibley listed his own phone number on the ads and
posted various photographs of Diamond, which he had taken with his cell phone. On July 15,
20, and 26, he took more photographs of Diamond, this time showing her in sexually explicit
positions. (These pictures he kept private.) Meanwhile, men responded to the Backpage
advertisements and paid Diamond for sex; Sibley kept all the money.
In late July, the National Center for Missing and Exploited Children sent Detective Aaron
Dennis a tip about a missing girl who was likely being prostituted in Columbus, Ohio. The tip
included a picture of the girl, a link to a Backpage.com ad, and a phone number. Dennis went to
Backpage.com, found the ad for dates with Benzi, and texted the phone number on the ad. He
arranged to meet the girl at the Casa Villa Motel. When Dennis arrived, Diamond introduced
herself as Benzi and invited him into a motel room, where they “negotiated vaginal intercourse
for $120.” Then Dennis revealed that he was a police officer. He called other officers into the
room and identified Benzi as Diamond, the girl in the missing-child report. The officers
determined that the motel room was in Sibley’s name. They arrested him when he got back.
When they searched the motel room, they found Sibley’s cell phone, which had the same phone
number as the Backpage.com account and was associated with the same email address:
Luvdathoe@gmail.com. On the phone itself, the officers found at least nine sexually explicit
photographs of Diamond, three of which also featured male genitalia.
A grand jury thereafter indicted Sibley on one count of child sex trafficking in violation
of 18 U.S.C. §§ 1591(a)(1), 1591(b)(2), and 1594(a), and one count of sexually exploiting a
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minor in violation of 18 U.S.C. § 2251(a). The indictment specifically alleged that Sibley had
used a cell phone (which had been manufactured in interstate commerce) to produce “digital
image files depicting [Diamond] partially nude with a focus on her genitals and anus and
engaged in oral sexual copulation[.]”
At trial, Diamond testified that she was the girl in the nine pornographic pictures, that
Sibley had taken all of them, and that the male genitalia in the photos belonged to Sibley. The
government later called as a witness Dr. Sharon Cooper, offering her as an expert in the area of
child prostitution. The court recognized her as an expert in front of the jury. After the close of
evidence, the government asked the court to instruct the jury that “[a] minor may not legally
consent to being sexually exploited.” The court gave that instruction over Sibley’s objection,
observing that the instruction was “right out of” the opinion in an Eighth Circuit case.
The jury convicted Sibley of sexually exploiting Diamond, but did not reach a verdict on
the charge for child sex-trafficking, which the district court later dismissed. At sentencing, the
court increased Sibley’s Guidelines range by five offense levels because it found that Sibley had
“engaged in a pattern of . . . prohibited sexual conduct” by taking pornographic pictures of
Diamond on multiple occasions. U.S.S.G. § 4B1.5(b). That gave Sibley a sentencing range of
324 to 360 months. The court then discussed in detail the nature and circumstances of the
offense, Sibley’s history and characteristics, the importance of promoting respect for the law and
imposing a just punishment, as well as the other relevant 18 U.S.C. § 3553(a) factors. The court
sentenced Sibley to 330 months’ imprisonment. This appeal followed.
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No. 15-4232, United States v. Sibley
II.
A.
Sibley argues that the count of his indictment that charged him with producing sexually
explicit photographs of Diamond—the count of which he was convicted—was “duplicitous,” i.e.,
that it charged him with “separate and distinct crimes[.]” United States v. Singer, 782 F.3d 270,
275 (6th Cir. 2015) (citation omitted). Sibley did not make this argument below, so we review it
only for plain error. Id. Under 18 U.S.C. § 2251(a), a person is guilty of sexual exploitation of a
minor if (in addition to an interstate commerce element) he “employs, uses, persuades, induces,
entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of
producing any visual depiction of such conduct.”
Here, the indictment alleged that Sibley had used Diamond to produce multiple
pornographic digital-image files over a ten-day period. The government introduced nine of these
images in evidence at trial. Sibley asserts that each of those nine images represented a distinct
offense that the government was required to charge in a separate count.
To obtain relief on plain-error review, Sibley must show among other things that the
district court made a clear error that affected his substantial rights. United States v. Bonds, 839
F.3d 524, 527 (6th Cir. 2016) (citation omitted). We cut to the question whether the putative
duplicity affected Sibley’s substantial rights. He says it did, because in his view some members
of the jury might have thought he took some of the photos while other members might have
thought he took only others. Thus, he says, the jury might have convicted him without reaching
unanimous agreement as to any single photograph. See United States v. Campbell, 279 F.3d 392,
398 (6th Cir. 2002). But Sibley “points to nothing in the record that would allow a juror to infer”
that he had taken some of the photographs but not others. United States v. Kakos, 483 F.3d 441,
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No. 15-4232, United States v. Sibley
446 (6th Cir. 2007). And Diamond testified that he took all nine of the pictures. Thus, we see no
prejudice in the government’s decision to charge him in one count rather than nine. Singer,
782 F.3d at 276; see Bonds, 839 F.3d at 527.
B.
Sibley next argues that the district court erred when it identified a government witness,
Dr. Sharon Cooper, as an expert. Sibley did not object at trial, so again we review for plain
error. United States v. Collins, 799 F.3d 554, 574 (6th Cir. 2015).
The district court should not have referred to Cooper as an expert in front of the jury,
because doing so “lends a note of approval to the witness that inordinately enhances [her] stature
and detracts from the court’s neutrality and detachment.” United States v. Johnson, 488 F.3d
690, 697 (6th Cir. 2007). But that does not mean that Sibley is entitled to relief under plain-error
review. Instead he must show that the error affected his substantial rights. United States v.
Sherer, 770 F.3d 407, 412 (6th Cir. 2014).
Sibley contends that Cooper’s testimony portrayed Diamond as a victim, which might
have caused the jury to discount Sibley’s defense that someone besides Sibley took the
photographs. Cooper testified about child prostitution, the circumstances that make children
vulnerable to sex trafficking, the relationships between victims and their traffickers, and the
psychological effects of trafficking on its victims. She mentioned sexually explicit photographs
twice, when she noted that sex traffickers and child abusers sometimes take pornographic photos
to use as blackmail or to memorialize sexual abuse. But no one at trial accused Sibley of taking
pictures of Diamond for those purposes. Cooper did not express a view on (nor was she asked
about) whether Sibley had taken pornographic pictures. Instead, Diamond was the witness who
identified Sibley as the photographer. And the jury believed Diamond’s story despite Cooper’s
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No. 15-4232, United States v. Sibley
testimony, not because of it: Cooper admitted that children sometimes make false accusations
about trafficking or abuse, either to protect themselves or because they have a vendetta against
the person accused. Moreover, the district court’s jury instructions—that the jurors could reject
Cooper’s opinions, and that they alone should decide “how much of [Cooper’s] testimony to
believe and how much weight it deserves”—minimized any risk that the court’s reference to
Cooper as an expert might have improperly influenced the jury. See Johnson, 488 F.3d at 698
(citation omitted). Thus, Sibley’s argument—that Cooper might have made the jury more
inclined to think that he took the photographs—is meritless.
C.
Sibley next argues that the jury lacked sufficient evidence to convict him of sexually
exploiting Diamond. See 18 U.S.C. § 2251(a). We affirm the conviction if, “viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Hill v. Mitchell, 842 F.3d 910,
933 (6th Cir. 2016) (citation omitted).
Sibley challenges the proofs only as to a single element of 18 U.S.C. § 2251(a): namely,
the requirement that he “used” or otherwise exploited a minor. Sibley concedes that he used
Diamond for the purposes of 18 U.S.C. § 2251(a) if he photographed her to create child
pornography. See United States v. Wright, 774 F.3d 1085, 1091 (6th Cir. 2014). But he asserts
that the photographs here were not child pornography for two reasons: first, because Diamond
consented to the photography and was “of legal age to enter into a sexual relationship” under
Ohio law; and second, because “neither Diamond nor Sibley ever intended the photographs to be
seen by any other person.” The definition of “child pornography,” however, includes “any visual
depiction” produced using “a minor engaging in sexually explicit conduct,” regardless of the
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No. 15-4232, United States v. Sibley
photographer’s intent to share the image or the minor’s consent. 18 U.S.C. § 2256(8); see
Wright, 774 F.3d at 1091 (gathering cases). And whether Ohio law permitted the sexual conduct
in the photographs is irrelevant to whether Sibley violated the federal child-pornography laws.
Thus, the jury had enough evidence to find that Sibley used Diamond, a 17 year-old girl, in
violation of 18 U.S.C. § 2251(a).
That conclusion likewise disposes of Sibley’s next argument: that the district court erred
when it instructed the jury that “[a] minor may not legally consent to being sexually exploited.”
As shown above, Diamond’s consent is irrelevant to the question whether Sibley used her for the
purposes of 18 U.S.C. § 2251(a). See Wright, 774 F.3d at 1091. The district court’s instruction
was correct. United States v. Raplinger, 555 F.3d 687, 692-93 (8th Cir. 2009).
D.
Sibley’s remaining two arguments concern his sentence. Sibley first argues that the
district court improperly enhanced his Guidelines range under U.S.S.G. § 4B1.5(b), which
increases the defendant’s offense level by five if the “instant offense of conviction is a covered
sex crime . . . and the defendant engaged in a pattern of activity involving prohibited sexual
conduct[.]” U.S.S.G. § 4B1.5(b). The district court found that Sibley had engaged in a pattern
of producing child pornography when he took sexually explicit photographs of Diamond on three
different days in July 2015. Sibley now asserts that the district court could not derive a pattern
from those photographs because they were all part of the underlying “offense of conviction[.]”
Id. We review de novo the district court’s interpretation of a Guidelines provision. United
States v. Henry, 819 F.3d 856, 864 (6th Cir. 2016).
A defendant engages in “a pattern of activity” if he has committed prohibited sexual acts
(which include producing child pornography) “on at least two separate occasions[.]” U.S.S.G.
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No. 15-4232, United States v. Sibley
§ 4B1.5(b) cmt. n. 4(B)(i). A court may consider “[a]n occasion” of misconduct as a part of a
pattern “without regard to whether the occasion (I) occurred during the course of the instant
offense; or (II) resulted in a conviction for the conduct that occurred on that occasion.” Id.
§ 4B1.5(b) cmt. n. 4(B)(ii). The Guidelines Commentary thus makes clear that a district court
may apply this enhancement based on conduct giving rise to the conviction, which is all the
district court did here. Sibley’s argument is without merit.
Finally, Sibley argues that his 330-month sentence is substantively unreasonable and
“borders on Constitutional error.” We review the substantive reasonableness of Sibley’s
sentence for an abuse of discretion. United States v. Carpenter, 819 F.3d 880, 893 (6th Cir.
2016). A sentence is substantively unreasonable when the district court bases it “on
impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable
amount of weight to any pertinent factor.” United States v. Moon, 808 F.3d 1085, 1090 (6th Cir.
2015) (citation omitted). Here, we presume that Sibley’s sentence was not substantively
unreasonable because it fell within his Guidelines range of 324 to 360 months. See Carpenter,
819 F.3d at 893.
Sibley thinks that his 330-month sentence is unreasonable for two reasons. First, he
contends that his sentence should have been shorter because the photographs depicted conduct
that was legal in Ohio. Consensual or not, however, Sibley repeatedly took photographs of a
partially nude 17 year-old girl posing in sexual positions and performing oral sex on him. The
district court noted that the circumstances of Sibley’s offence were “terrible” and that sexual
exploitation of minors is a “very serious crime.” We see no abuse of discretion in that reasoning.
Second, Sibley contends that the district court overlooked mitigating evidence, including that he
was “turning his life around” at the time of the offense. We disagree: the district court broadly
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considered mitigating evidence (including that Sibley had tried “to be a good father”), but found
that Sibley’s long criminal record and the other § 3553(a) factors supported a within-Guidelines
sentence. Sibley’s 330-month sentence was substantively reasonable.
* * *
The district court’s judgment is affirmed.
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