                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0145n.06

                                           No. 14-1329

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                 Feb 24, 2015
                                                                             DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                        )
                                                 )
        Plaintiff-Appellee,                      )        ON APPEAL FROM THE
                                                 )        UNITED STATES DISTRICT
v.                                               )        COURT FOR THE EASTERN
                                                 )        DISTRICT OF MICHIGAN
MICHAEL MAZEL,                                   )
                                                 )
                                                                   OPINION
        Defendant-Appellant.                     )
                                                 )


Before: MOORE, GIBBONS, and GRIFFIN, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Michael Mazel pleaded guilty to receipt

and possession of child pornography.       The district court sentenced him to 210 months of

imprisonment for receipt and 120 months of imprisonment for possession. Mazel now appeals

on the grounds that his sentence is substantively unreasonable and that his convictions violate the

Double Jeopardy Clause. For the reasons set forth in this opinion, we AFFIRM the sentence of

the district court on Count One (receipt), VACATE the conviction and sentence on Count Two

(possession), and REMAND to the district court for the limited purpose of dismissing Count

Two and reducing the special assessment to $100.

                                      I. BACKGROUND

       In May 2012, Homeland Security agents noticed a user—later confirmed to be Mazel—

on a peer-to-peer file sharing network “as a potential download source” for 111 files previously

identified by law enforcement as likely containing child pornography. R. 1 (Crim. Compl. ¶ 5)
No. 14-1329
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(Page ID #3). The agents subsequently downloaded several videos shared by Mazel on the

network and confirmed that they depicted child pornography. Id. ¶¶ 6–7 (Page ID #3–4). After

obtaining a search warrant, the agents searched Mazel’s residence and seized electronic media

later determined to contain approximately 295 images and 112 videos of child pornography. Id.

¶ 14 (Page ID #6).

       Mazel was charged by federal criminal complaint. R. 1 (Crim. Compl.) (Page ID #1–6).

The magistrate judge released Mazel on bond and required that he wear an electronic monitoring

device. R. 6 (Order Setting Conditions of Release at 3) (Page ID #16). Mazel later proceeded by

information and pleaded guilty without a Rule 11 plea agreement to one count of receipt of child

pornography and one count of possession of child pornography in violation of 18 U.S.C.

§ 2252A(a)(2) and § 2252A(a)(5)(B) respectively. R. 10 (Information) (Page ID #26–29); R. 27

(Plea Tr. at 4) (Page ID #62). Mazel’s guidelines range was calculated to be 151 to 188 months

of imprisonment based on a total offense level of 34 with a criminal history category I. R. 6-1

(PSR ¶ 60). This reflected a three-point reduction for acceptance of responsibility under the U.S.

Sentencing Guidelines (“U.S.S.G.”) § 3E1.1(a) and (b). Id. ¶¶ 33–34.

       Three days before his sentencing hearing, Mazel fled the jurisdiction. R. 22 (Pet. for

Action) (Page ID #54). Federal agents apprehended Mazel approximately ten days later. R. 32

(Gov’t Sent’g Mem. Add. at 2) (Page ID #91). At Mazel’s sentencing hearing, the government

requested that the district court remove the two-point reduction for acceptance-of-responsibility

under U.S.S.G. § 3E1.1(a) and stated that the government was withdrawing its recommendation



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United States v. Mazel


of the one-point reduction under § 3E1.1(b). R. 37 (Sent’g Tr. at 5–6) (Page ID #109–10). The

district court agreed with the government, and the new guidelines range was calculated to be 210

to 262 months of imprisonment based on a total offense level of 37. Id. at 6 (Page ID #110). At

the conclusion of the hearing, the district court sentenced Mazel to 210 months of imprisonment

for Count One (receipt) and 120 months of imprisonment for Count Two (possession), to be

served concurrently.     Id. at 18 (Page ID #122).   The district court also ordered a special

assessment of $200 and five years of supervised release. Id. at 19 (Page ID #123).

       On appeal, Mazel argues that his sentence is substantively unreasonable and that his

convictions on the counts of receipt and possession violate the Double Jeopardy Clause.

Appellant Br. at 5.

                                        II. ANALYSIS

A. Standard of Review

       We review the substantive reasonableness of a sentence for an abuse of discretion. Gall

v. United States, 552 U.S. 38, 51 (2007).       “A sentence may be considered substantively

unreasonable when 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). We “apply a rebuttable presumption of substantive reasonableness” for within-

guidelines sentences like the sentence in this case. United States v. Bolds, 511 F.3d 568, 581




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(6th Cir. 2007). “The fact that [we] 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.

B. Substantive Reasonableness of Mazel’s Sentence

       Mazel argues that the district court’s sentence is substantively unreasonable for two

reasons. First, he argues that the district court placed excessive weight on the guidelines for

child pornography offenses because the guidelines are “grossly inflated” and recommend a

sentence that is not proportionate to the severity of Mazel’s offense. Appellant Br. at 7–12.

Second, Mazel points to several factors that he claims counsel in favor of a below-guidelines

sentence: Mazel is a first-time offender; he pleaded guilty; he took a federally administered

polygraph test that indicated “he truthfully answered that he has never engaged in any sexual

contact with a child”; and a psychologist who examined Mazel concluded that Mazel “does not

have antisocial personality disorder, a distinguishing feature of a dangerous individual.” Id. at 8.

       We hold that the district court did not abuse its discretion and the sentence it imposed

was substantively reasonable. Regarding Mazel’s first argument, the district court properly

considered the guidelines range as its starting point in considering Mazel’s sentence. United

States v. Peppel, 707 F.3d 627, 635 (6th Cir. 2013) (“The applicable Guidelines range represents

the starting point for substantive-reasonableness review because it is one of the § 3553(a) factors

and because the Guidelines purport to take into consideration most, if not all, of the other

§ 3553(a) factors.”) (internal quotation marks omitted). The district court did not treat the

guidelines as mandatory. R. 37 (Sent’g Tr. at 16) (Page ID #120). “[A] district court confronted



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with an argument that [a] . . . Guidelines range is flawed must confront the merits of any

scientific or policy-based arguments and articulate its reasons for rejecting such arguments.”

United States v. Kamper, 748 F.3d 728, 744 (6th Cir. 2014). However, a district court is not

required to accept those arguments. United States v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011)

(“[T]he fact that a district court may disagree with a Guideline for policy reasons and may reject

the Guidelines range because of that disagreement does not mean that the court must disagree

with that Guideline or that it must reject the Guidelines range if it disagrees.”).

       The district court did not abuse its discretion in rejecting Mazel’s policy arguments

against the guidelines range for his offense. The district court acknowledged that Mazel’s policy

arguments against the guidelines might be justified in some cases. However, the district court

found that those criticisms did not apply to Mazel’s case because several factors, discussed

below, indicated that Mazel posed a danger to the community. R. 37 (Sent’g Tr. at 17) (Page ID

#121) (“I think there are a lot of circumstances where the severity of the time reflected in the

guideline range is exaggerated and unnecessarily harsh. I don’t think this is one of those

cases.”).

       Nor did the district court abuse its discretion in deciding that the § 3553(a) factors

counseled in favor of a low-end within-guidelines sentence in Mazel’s case. Mazel’s guidelines

range accounted for the fact that he was a first-time offender and that he had never molested a

child before. R. 6-1 (PSR ¶ 37); United States v. Camiscione, 591 F.3d 823, 834 (6th Cir. 2010)

(“[I]t is not logical to justify a more lenient sentence on the basis that Camiscione did not make



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United States v. Mazel


or distribute child pornography or molest a child. Just as the federal sentencing laws impose

greater sentences upon sellers of controlled substances than upon those who are caught

possessing such substances, . . . the federal child sexual offense laws do so as well.”). The

district court reasonably concluded that Mazel posed a risk to the community despite the findings

of the psychologist and thus “separation from the community [was] required to [e]ffect . . .

protection.” R. 37 (Sent’g Tr. at 18) (Page ID #122). The district court pointed to the fact that

Mazel had absconded before his original sentencing hearing date. Id. at 17 (Page ID #121). As

the government adds, Mazel was found with survival gear, loaded handguns, and a computer

hard drive, which initial forensic examination revealed contained child pornography downloaded

beginning in April 2013. R. 32 (Gov’t Sent’g Mem. Add. at 2–3) (Page ID #91–92). The district

court also cited emails introduced by the government at sentencing that showed that Mazel had

been engaging in sexually explicit conversations with individuals whom Mazel thought were

eleven to thirteen year-old girls. R. 37 (Sent’g Tr. at 9–11, 18) (Page ID #113–15; 122). Mazel

emailed child pornography to the individuals in some of these conversations. Id. at 11 (Page ID

#115). The district court also concluded that Mazel’s sentence was justified “to serve the

objective of deterrence . . . given our current state of knowledge and our general inability to

successfully treat individuals with this issue.” Id. at 18 (Page ID #122).

       In sum, Mazel’s within-guidelines sentence is substantively reasonable.




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C. Double Jeopardy Clause Claim

       Mazel argues that his conviction for both receipt and possession of child pornography

violates the Double Jeopardy Clause because possession is a lesser-included offense of receipt.

Appellant Br. at 13. The government agrees. Appellee Br. at 18–19. The parties disagree about

the proper remedy. Mazel argues that we should merge Counts One and Two and remand to the

district court for resentencing on the receipt count. Appellant Br. at 15. The government argues

that we should vacate Mazel’s conviction for possession without remanding for resentencing

because the district court ordered that Mazel’s convictions on Counts One and Two be served

concurrently. Appellee Br. at 20–21.

       We agree that Mazel’s convictions here for receipt and possession of the same child

pornography violate the Double Jeopardy Clause. United States v. Ehle, 640 F.3d 689, 694–95

(6th Cir. 2011). The government’s charging documents and evidence introduced at sentencing

do not establish separate conduct that could support a conviction for both receipt and possession

of child pornography. United States v. Dudeck, 657 F.3d 424, 430 (6th Cir. 2011). Thus, we

must vacate Mazel’s conviction for possession of child pornography because it is the lesser-

included offense. United States v. DeCarlo, 434 F.3d 447, 457 (6th Cir. 2006).

       We further agree with the government that remanding for resentencing is not warranted

in this case. Unlike in Ehle, the district court ordered that Mazel’s convictions for possession

and receipt of child pornography run concurrently, rather than consecutively. Ehle, 640 F.3d at

692. Thus, Mazel would serve 210 months of imprisonment for receipt on Count One regardless



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United States v. Mazel


of whether he was convicted of possession on Count Two. United States v. Gerick, 568 F. App’x

405, 408 (6th Cir. 2014). Mazel’s $200 special assessment must also be reduced to $100. Id.

                                    III. CONCLUSION

       For the reasons set forth above, we AFFIRM the sentence of the district court on Count

One (receipt), VACATE the conviction and sentence on Count Two (possession), and

REMAND to the district court for the limited purpose of dismissing Count Two and reducing

the special assessment to $100.




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