                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0230n.06

                                           No. 08-6463                                   FILED
                                                                                     Apr 13, 2010
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
               v.                                        )        COURT FOR THE MIDDLE
                                                         )        DISTRICT OF TENNESSEE
RICHARD STEVEN BROWN                                     )
                                                         )
       Defendant-Appellant.                              )
                                                         )



BEFORE: KEITH, CLAY, and GRIFFIN, Circuit Judges.

       PER CURIAM.

       Richard Brown (“Brown”) pled guilty to six counts of shipping, receiving, and possessing

child pornography in violation of 18 U.S.C. §2252A(a)(1), (2), and (5). The district court sentenced

Brown to 235 months of imprisonment, based in part on a sentencing enhancement which increased

his sentence based on the amount of images he possessed. Brown now appeals, arguing that his

sentence was procedurally and substantively unreasonable, and that the enhancement itself is

unconstitutional. For the reasons that follow, we affirm.

                                                 I.

       For decades, Brown lived the life of a responsible adult. In recent years, he found himself

working night shifts and surfing the Internet while at home during the day. As early as August 2004,

he began trading child pornography with other adults in online chat rooms, including an undercover
No. 08-6463
United States of America v. Richard Steven Brown


FBI agent. In February of 2007, a warrant was issued to search Brown’s residence for child

pornography. During the search, police found approximately 95 images and 15 videos depicting the

sexual exploitation of prepubescent children. Some of the videos included bondage, bestiality, and

the penetration of very young children.

       Upon questioning, Brown acknowledged that he had acquired many more images, but his

previous computer had crashed and had been discarded. His current computer was only a few

months old. Also during questioning, Brown denied that he had ever engaged in any hands-on

sexual exploitation of children. However, because Brown was living with his wife and her two small

children, the FBI Agent was troubled and notified local law enforcement. As part of that collateral

investigation, the mother of the children placed a controlled telephone call to the defendant. During

that call, Brown admitted that he had displayed pornography to both of the children and that, on one

occasion, he had molested his nine year old stepdaughter. Brown was subsequently charged with

aggravated sexual battery and pled guilty to attempted aggravated sexual battery. He was sentenced

to serve three years in jail, with all but six months suspended. In December 2007, just before Brown

was released from state custody, the government initiated the instant case.

                                                 II.

       “No procedural principle is more familiar to this Court than that a constitutional right may

be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right

before a tribunal having jurisdiction to determine it.” Yakus v. United States, 321 U.S. 414, 444

(1944) (internal citations omitted). When an argument is not raised at the trial level, this Court may


                                                -2-
No. 08-6463
United States of America v. Richard Steven Brown


either decline to entertain the claim or exercise its discretion to consider the matter and apply the

plain error standard. See United States v. Copeland, 321 F.3d 583, 601 (6th Cir. 2003). Brown does

not dispute his failure to challenge the constitutionality of the amount-of-images enhancement at the

sentencing hearing on November 17, 2008. However, he argues that the issue was effectively

preserved because he criticized the amount-of-images enhancement in an earlier motion submitted

nearly four months before sentencing.

        This earlier motion, however, made no mention of the constitutionality of the amount-of-

images enhancement. Instead, Brown argued that because the enhancement was “driven by

Congressional directives” and created an “illogical” Sentencing Guidelines range, it should be

“afforded less weight.” Brown never raised any argument in this earlier motion that would have led

the district court to rule on the constitutionality of the enhancement.

        Federal Rule of Criminal Procedure 51(b) states that a party may preserve a claim of error

by informing the court when the court ruling or order is made or sought of the action the party wishes

the court to take, or the party’s objection to the court’s action and the grounds for that objection.

Fed. R. Crim. P. 51(b). Because Brown never informed the district court of the constitutional

grounds for his objection to the court’s use of the amount-of-images enhancement, and because

Brown declined to raise the issue when prompted to do so at the sentencing hearing, the issue was

not properly preserved upon appeal.

        Accordingly, this court declines to exercise its discretion to consider the constitutional claim

in this case.


                                                 -3-
No. 08-6463
United States of America v. Richard Steven Brown


                                                 III.

       We review a sentence imposed by the district court for procedural and substantive

reasonableness under an abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 52

(2007). Review for procedural reasonableness seeks to ensure that the district court committed no

significant procedural error, such as “failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the § 3553 factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-

including an explanation for any deviation from the Guidelines range.” Id. at 51. The Sixth Circuit

has also consistently held that “a sentence may be procedurally unreasonable if the district court did

not consider the applicable Guidelines range or neglected to consider the factors set forth in 18

U.S.C. § 3553(a), and instead simply chose a sentence that the judge deemed appropriate.” United

States v. Vowell, 516 F.3d 503, 510 (6th Cir. 2008).

       The defendant argues that the use of the amount-of-images enhancement was unreasonable

because the district court misunderstood it to be promulgated by the Sentencing Commission when,

according to the appellant, it was in fact promulgated by Congress. This argument is wrongheaded

for two reasons. First, and most importantly, the district court follows the Sentencing Guidelines

as mandated by Booker, and its understanding of how those Guidelines were promulgated would not

be dispositive. Additionally, the district court’s statement that it decided to follow the Guidelines

because it felt that this was “the kind of case that Congress and the Sentencing Commission meant

to apply what can be considered fairly draconian guidelines to” shows that the court understood the


                                                -4-
No. 08-6463
United States of America v. Richard Steven Brown


intimate interplay between Congress and the Sentencing Commission that produced the guidelines,

and indeed endorsed it.

       The defendant also argues that the district court did not fully appreciate its freedom to vary

from the Guidelines range because it used the word draconian to describe the sentence. However,

Brown misinterprets the tenor of the district court’s statement at the sentencing hearing. The court

stated that the Guidelines punishments were “draconian” and “harsh,” but deservedly so, and this

case demonstrated the reasons why. The court described the child pornography’s “horrible sadistic

behavior on small children, very small children,” and went on to list other additional factors

applicable under §3553(a). It then concluded that “the court can find no reason to do anything but

give you the guideline sentence in this case given the seriousness with which this is viewed in our

society at the moment.” This implies that the district court fully understood its discretion to vary

from the Guidelines, and if the court found reason to give Brown a sentence outside the Guidelines,

it would have. It is clear that the sentence was procedurally reasonable.

                                                 IV.

       If the district court’s sentence is procedurally sound, this court next considers the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard. Gall, 552 U.S. at 51.

When conducting this review, the court will take into account the totality of the circumstances. Id.

However, when a sentence falls within the advisory Guidelines range, we apply a rebuttable

presumption of reasonableness. United States v. Vonner, 516 F. 3d 382, 389 (6th Cir. 2008) (en




                                                 -5-
No. 08-6463
United States of America v. Richard Steven Brown


banc). The fact that the we might reasonably have concluded that a different sentence would be

appropriate is insufficient to justify a reversal of the district court. Gall, 552 U.S. at 51.

        Brown incorrectly argues that, because he has no prior criminal history and a past record of

good conduct, what he calls the near statutory maximum sentence of 235 months was substantively

unreasonable. In fact, the defendant pleaded guilty to six counts of offense conduct, five of which

have a maximum sentence of twenty years, pursuant to 18 U.S.C. § 2252(A)(b)(1), and the last of

which has a maximum sentence of ten years, pursuant to 18 U.S.C. § 2252(A)(b)(2). Thus, the

defendant’s sentence of 235 months actually falls in the bottom range of the statutory penalty,

leaving ample room for higher, consecutive sentencing for defendants who do not accept

responsibility, have more serious criminal histories, or have larger collections of child pornography

than Mr. Brown. See 18 U.S.C. § 3584; U.S.S.G. §5G1.2(d).

        At sentencing, the district court properly noted the nature and circumstances of the crime,

including Brown’s status as a first-time offender, finding that he “lived a productive life” as “a

responsible human being” until he engaged in the conduct that gave rise to the instant charges.

However, the court also mentioned several other factors.

        The court properly emphasized Brown’s use of the pornography to attempt to molest his nine

year-old stepdaughter.     As the court stated, “that to the court is an extremely aggravating

circumstance because it’s not just being used in the privacy of one’s home,” but rather “to molest

a nine year old child living in the home.” Another factor is that Brown admitted that he was showing

the pornography to both of the young children who were in his care.


                                                  -6-
No. 08-6463
United States of America v. Richard Steven Brown


        For a sentence to be substantively reasonable, “it must be proportionate to the seriousness

of the circumstances of the offense and offender, and ‘sufficient but no greater than necessary to

comply with the purposes’” of § 3553(a). United States v. Smith, 505 F.3d 463, 470 (6th Cir. 2007).

In determining Brown’s sentence the district court properly considered all the relevant factors, even

stating that “the court is obligated to give Mr. Brown a sentence that is sufficient but not greater than

necessary to comply with the purposes of sentencing.” In light of the deferential abuse-of-discretion

standard with which we review a lower court’s sentence, and the presumption of reasonableness

given to sentences that fall within the Guideline range, this Court concludes that the district court

did not abuse its discretion here, and the sentence applied was substantively reasonable.

                                                   V.

        For the reasons stated above, we AFFIRM.




                                                  -7-
