                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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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No. 08-4598
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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No. 08-4598
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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No. 08-4598
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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No. 08-4598
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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No. 08-4598
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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