                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0229n.06

                                           No. 19-1109


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                       )                                      FILED
                                                 )                                 Apr 28, 2020
        Plaintiff-Appellee,                      )                            DEBORAH S. HUNT, Clerk
                                                 )
 v.                                              )
                                                      ON APPEAL FROM THE UNITED
                                                 )
                                                      STATES DISTRICT COURT FOR THE
 WILLIAM JOHN EASTERLING,                        )
                                                      WESTERN DISTRICT OF MICHIGAN
                                                 )
        Defendant-Appellant.                     )
                                                 )
                                                 )



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

       MARTHA CRAIG DAUGHTREY, Circuit Judge. A jury convicted defendant William

Easterling of two counts of sexual exploitation of a child, one count of attempted sexual

exploitation of a child, and one count of possession of child pornography. After a sentencing

hearing, the district court sentenced Easterling to 1,080 months (90 years) in prison and ordered

him to pay a special assessment of $400 and an additional assessment of $5,000 mandated by the

Justice for Victims of Trafficking Act (JVTA) of 2015, Pub. L. No. 114-22, 129 Stat. 227. On

appeal, Easterling does not challenge the validity of his convictions but contends that the district

court erred in ordering the $5,000 assessment and in imposing the 90-year prison sentence.

Specifically, he argues that the lengthy prison sentence is substantively unreasonable and that the

JVTA assessment should not have been imposed upon him in the absence of a finding that he was

not indigent. For the reasons discussed below, we affirm.
No. 19-1109, United States v. Easterling


                     FACTUAL AND PROCEDURAL BACKGROUND

       As noted by the government during its argument at Easterling’s sentencing hearing, the

defendant appeared to the outside world to be “a pillar of the community and an example to

follow,” “present[ing] himself as a volunteer, a church youth group leader, a foster father, a Big

Brother, mentor.” In reality, however, Easterling used those positions, as well as gifts, outings,

and outdoor opportunities, to gain the trust of young, teenage boys. Once he had ingratiated

himself with the minors, Easterling at least twice convinced 16-year-old victim L.V., a boy

suffering from cerebral palsy, to create videos of himself masturbating in the basement of the

defendant’s home. He also promised 13-year-old victim A.D. that he would let the minor drive

Easterling’s truck if the boy made videos of himself using a sex toy while naked. Furthermore, a

search of the hard drive of one of Easterling’s home computers revealed three images of A.D.’s

13-year-old twin brother “exposing his erect penis” in what appeared to be Easterling’s home.

       The trial testimony of the minor victims, in conjunction with the forensic evidence

recovered from computers and phones owned by Easterling, convinced the jury to convict the

defendant of the charged offenses. At the ensuing sentencing hearing, relatives of the victims

testified regarding the trust they had placed in Easterling to mentor the boys and the damage the

defendant had done to the young boys’ lives. Easterling also offered his own statement in support

of his request for leniency. In that rambling allocution, he claimed bizarrely that the boys were

involved in Satan worship, that they had committed various acts of violence, and that his only

objective in interacting with the teenagers was to prevent them from committing suicide.

       In arriving at its sentencing determination, the district court took note of the fact that

Easterling had no prior criminal history, that he had multiple post-high-school degrees, and that

he had been employed regularly prior to his arrest for the crimes for which he was convicted. The


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district court also explained, however, that Easterling’s crimes had affected the victims and their

families significantly and that the defendant had violated the trust placed in him as a mentor in the

Big Brother/Big Sister program. Furthermore, because Easterling did not seem to understand that

what he had done to the victims was wrong, the district court concluded that there needed to be

special protection of the public from future acts of the defendant. The district court also discussed

the need to deter Easterling and others from committing similar crimes, the need to promote respect

for the law, and the need to provide appropriate punishment to reflect the seriousness of the

offenses committed.

         The U.S. Probation Office preliminarily calculated Easterling’s total offense level to be 44.

With a criminal history category of I, the probation officer concluded that Easterling’s Guidelines

sentence ordinarily would be life in prison. See U.S.S.G. ch. 5, pt. A. However, because the

statutory maximum sentence for each of the sexual-exploitation charges was 30 years, 18 U.S.C.

§ 2251(e), and the statutory maximum sentence for the possession-of-child-pornography charge

was ten years, id. § 2252A(b)(2), those statutory maximums became the appropriate Guidelines

sentences. See United States v. Buchanan, 933 F.3d 501, 512 (6th Cir. 2019) (“Where the

statutorily authorized maximum sentence is less than the minimum of the applicable guideline

range, the statutorily authorized maximum sentence shall be the guideline sentence.” (quoting

U.S.S.G. § 5G1.1(a))). The district court then sentenced Easterling to 360 months (30 years) on

each of the three counts involving sexual exploitation of a child, all three sentences to be served

consecutively to each other, and to an additional 120 months (ten years) on the possession-of-

child-pornography count, that sentence to be served concurrently with the other three sentences,

“for a total period of incarceration of 1,080 months.” The district court then announced in open

court:


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       The Court does not intend to impose a fine. The special assessment of $100 on
       each count for a total of $400 is ordered, plus the special assessment of $5,000
       pursuant to the Justice for Victims of Trafficking Act of 2015. The special
       assessment shall be ordered due and payable immediately. Special assessments,
       the total is $5,400.

       As I said before, the Court finds the defendant does not have the ability to pay a
       fine. Accordingly, the fine is waived in this case.

(Emphasis added.)

                                           DISCUSSION

Justice for Victims of Trafficking Act Assessment

       On appeal, Easterling first insists that the district court erred in imposing upon him the

additional $5,000 JVTA assessment. In pertinent part, 18 U.S.C. § 3014(a) provides:

       Beginning on the date of enactment of the Justice for Victims of Trafficking Act of
       2015 and ending on September 30, 2021, in addition to the assessment imposed [for
       each felony for which a defendant is convicted], the court shall assess an amount
       of $5,000 on any non-indigent person or entity convicted of an offense
       under . . . chapter 110 (relating to sexual exploitation and other abuse of children).

18 U.S.C. § 3014(a)(3) (emphases added). Easterling maintains, however, that because the district

court never made a finding of non-indigency in this case, the JVTA assessment was improper.

       Easterling did not raise this objection at sentencing. Thus, our review is for plain error

only. See, e.g., United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004). Under that standard of

review, a defendant must “show (1) error (2) that was obvious or clear, (3) that affected defendant’s

substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial

proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (internal

quotation marks and citation omitted).

       We previously have made clear that 18 U.S.C. § 3014 does not require the district court to

make an explicit finding of non-indigency. United States v. Shepherd, 922 F.3d 753, 760 (6th Cir.

2019). “Indeed, the court has done its duty if the record makes clear that the sentencing judge

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listened to each argument, considered the supporting evidence, was fully aware of the defendant’s

circumstances and took them into account in sentencing him.” Id. (internal quotation marks and

citations omitted). Moreover, because 18 U.S.C. § 3014’s assessment “is akin to a fine imposed

as part of a sentence,” “the defendant bears the burden of proving indigency.” United States v.

Wandahsega, 924 F.3d 868, 889–90 (6th Cir. 2019) (citing U.S.S.G. § 5E1.2(a)).

       In an effort to make the required showing of indigency, Easterling argues that his “divorce

was finalized while he was in custody, and in lieu of spousal support, all his assets were given to

his ex-wife.” Consequently, he presently has no assets whatsoever and owes $427 on a Sears credit

card. He further submits that his inability to pay the assessment is evidenced by the facts that he

had a court-appointed attorney, that the presentence report did not recommend imposition of the

JVTA assessment, and that, despite the defendant’s work history and college degrees, he has no

future earning capacity outside of prison because “the sentence here is one that he ordinarily would

not survive.” Finally, Easterling points out that the district court waived the imposition of any fine

in this case because “the Court finds the defendant does not have the ability to pay a fine.”

       In Shepherd, we noted that although a district court’s appointment of an attorney for a

defendant is probative of indigency, it is not dispositive of the issue because the standards for

eligibility for appointment of counsel under the Criminal Justice Act, 18 U.S.C. § 3006A, and for

a finding of indigency under 18 U.S.C. § 3014 are different. See Shepherd, 922 F.3d at 758–59

(holding that, under the JVTA, a defendant must demonstrate both present and future

impoverishment). And, even though Easterling most likely will spend the rest of his life in prison,

incarceration does not necessarily mean that he cannot earn money in the future. See id. at 756

(“expected earnings from prison jobs range from $ .12 to—at most—$ .40 per hour”). Although

those earnings are indisputably meager, they are funds that can be assigned to Easterling’s financial


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obligations and support the district court's finding that he will have the ability to work in prison.

See also Wandahsega, 924 F.3d at 889

       It is true that the court’s determination that Easterling was unable to pay a fine could

provide evidence that Easterling was indigent for purposes of the JVTA assessment. It is equally

possible, however, that the district court merely found that Easterling was not financially able to

pay the fine recommended by the probation officer because of the imposition of the JVTA

obligation.

       Easterling not only did not challenge the JVTA assessment before the district court, he

failed to satisfy his burden of offering sufficient evidence of his indigency.         Under these

circumstances, we cannot conclude that the district court committed plain error in imposing the

JVTA assessment.

Substantive Reasonableness of the 90-Year Prison Sentence

       In his only other issue on appeal, Easterling challenges the substantive reasonableness of

his prison sentence. We review such a reasonableness challenge under a deferential abuse-of-

discretion standard. United States v. Pearce, 531 F.3d 374, 384 (6th Cir. 2008). When conducting

review of a sentence for substantive reasonableness, we “will, of course, take into account the

totality of the circumstances, including the extent of any variance from the Guidelines range.”

Gall v. United States, 552 U.S. 38, 51 (2007). A claim of substantive unreasonableness is, at its

heart, “a complaint that the court placed too much weight on some of the [18 U.S.C.] § 3553(a)

[sentencing] factors and too little on others in sentencing the individual.” United States v. Rayyan,

885 F.3d 436, 442 (6th Cir.), cert. denied, 139 S. Ct. 264 (2018). We “may apply a rebuttable

presumption of reasonableness to sentences within the Guidelines,” Pearce, 531 F.3d at 384 (citing

Gall, 552 U.S. at 51), and may not reverse a district court’s sentencing determination simply


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because we “might reasonably have concluded that a different sentence was appropriate.” Gall,

552 U.S. at 51.

       Easterling claims that the 1,080-month sentence imposed upon him was substantively

unreasonable because other individuals convicted of similar crimes received more lenient

sentences and because the district court placed too much emphasis on the deterrent effect of a

lengthy sentence and not enough emphasis on the facts that Easterling did not abuse his victims

physically. There is no dispute that 18 U.S.C. § 3553(a)(6) requires a sentencing court to consider

“the need to avoid unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct.” In arguing that the district court in this case gave short

shrift to that consideration, Easterling points to three cases in which defendants received sentences

less than 1,080 months for acts that Easterling alleges were more egregious than his.

       The first of those cases, United States v. Prive, No. 6:14-CR-33-Orl-28KRS, 2015 WL

12966285 (M.D. Fla. Apr. 27, 2015), aff’d, 653 F. App’x 896 (11th Cir. 2016) (per curiam),

involved a defendant who sexually abused another man’s three-year-old daughter by “rubb[ing]

his penis against the child’s vagina, plac[ing] his penis in the child’s mouth, touch[ing] the child’s

vagina with his hand, and ejaculat[ing] on the child’s stomach.” Id. at *1. Although Prive’s actions

involved physical, sexual contact with a minor child, the district court in that case sentenced Prive

to 365 months in prison, a sentence roughly one-third as long as Easterling’s sentence. Id. at *8.

Other factors, however, justify the increased punishment in Easterling’s case. As revolting as

Prive’s actions were, they involved only one child, rather than the three individuals exploited by

Easterling. Moreover, Prive pleaded guilty to the charges against him, resulting in a lower

Guidelines sentencing range. Easterling, on the other hand, refused to concede that he had done

anything wrong in gaining the teenagers’ trust and convincing them to record themselves in


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No. 19-1109, United States v. Easterling


compromising activities. Furthermore, although Easterling claims that he had no physical contact

with any of the boys that he enticed to video themselves in the nude, victim L.V. told the probation

officer during an interview that, besides being asked by the defendant on multiple occasions to

take pictures and videos of himself, Easterling “would touch or fondle him,” beginning “around

when [L.V.] was 13.” According to L.V., “this happened for the first time when [L.V.] was

sleeping and occurred when they would watch movies together. [L.V.] said the conduct continued

and occurred almost every time he went to the Easterling home for a two-year period of time.”

Thus, Easterling too engaged in inappropriate, illegal, sexual contact with at least one victim of

his crimes.

       In United States v. Warner, 399 F. App’x 88, 89 (6th Cir. 2010), the defendant received a

360-month sentence after pleading guilty to producing and distributing child pornography and

admitting that he twice engaged in sexual relations with a 12-year-old boy. Again, as did the

defendant in Prive, Warner admitted his guilt and expressed “extreme remorsefulness” for his

crimes. Id. at 93. Such contrition stands in stark contrast to Easterling’s allocution in which he

blamed the victims themselves for his own misdeeds.

       Finally, Easterling highlights the fact that the defendant in Wandahsega received a sentence

of only 288 months for touching the genitalia of his six-year-old son on multiple occasions.

Wandahsega, 924 F.3d at 876, 878. Again, however, Easterling also fondled at least one of his

victims on multiple occasions and exploited more than one victim. These facts could justify

imposing consecutive sentences that would exceed the punishment imposed upon another

individual who sexually abused only one child.

       Other § 3553(a) factors in this case also support the district court’s sentence that ultimately

was 120 months, or ten years, below the maximum possible Guidelines-range sentence. As the


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No. 19-1109, United States v. Easterling


district court noted, because Easterling continued to deny that he had done anything wrong in his

interactions with the boys, it was especially important to protect society from further contact with

the defendant and to deter not only Easterling but other individuals like him from similar actions.

Moreover, the fact that Easterling used his positions of trust as a youth leader, a mentor, and a Big

Brother to prey upon children magnified the effect of his offenses.

       As the Supreme Court explained in Gall, “The sentencing judge is in a superior position to

find facts and judge their import under § 3553(a) in the individual case.” 552 U.S. at 51. Nothing

in this appellate record leads us to conclude that Easterling has rebutted the presumption that the

sentence imposed upon him in this case was substantively reasonable. Because the district court

did not abuse its discretion in weighing the § 3553(a) factors to fashion an appropriate prison

sentence for Easterling, this issue is without merit.

                                          CONCLUSION

       For the reasons discussed, we find that Easterling has failed to establish error in the district

court’s determination of the proper components of the defendant’s sentence. We thus AFFIRM

the judgment of the district court.




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