                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0316n.06

                                           No. 10-4436
                                                                                          FILED
                             UNITED STATES COURT OF APPEALS                           Mar 22, 2012
                                  FOR THE SIXTH CIRCUIT
                                                                               LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )
v.                                                   )       ON APPEAL FROM THE UNITED
                                                     )       STATES DISTRICT COURT FOR
MARK R. SCHIMLEY,                                    )       THE NORTHERN DISTRICT OF
                                                     )       OHIO
       Defendant-Appellant.                          )




       BEFORE: KEITH, MARTIN, and BOGGS, Circuit Judges.



       PER CURIAM. In 2008, Schimley was charged with receiving and distributing visual

depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2), and

possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Schimley moved to

suppress the evidence against him and for an evidentiary hearing under Franks v. Delaware, 438

U.S. 154 (1978). Schimley alleged that the affidavit supporting a warrant to search his home

contained materially false and unreliable information. The district court denied the motions,

concluding that any false statements in the affidavit were not made recklessly or intentionally, and

that such statements were not material to a finding of probable cause. The court denied Schimley’s

subsequent motion for reconsideration.

       In 2010, pursuant to a conditional plea agreement, Schimley pled guilty to the two charges.

The district court determined that Schimley’s base offense level was twenty-two. The court added

two levels because the pornographic material involved minors under the age of twelve, five levels

because Schimley distributed the pornography for profit, four levels because the material portrayed
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sadistic or masochistic conduct, two levels because the crimes were committed using a computer,

and five levels based on the number of images. The court subtracted three levels for acceptance of

responsibility, resulting in a total offense level of thirty-seven. Based on this total offense level and

a criminal history category of I, the district court determined that Schimley’s advisory sentencing

guidelines range was seventeen years and six months to twenty years of imprisonment for the

receiving and distributing charge and ten years of imprisonment for the possession charge. The

district court sentenced Schimley to concurrent terms of seventeen years and six months’

imprisonment and ten years’ imprisonment.

        On appeal, Schimley argues that the district court erred by denying his request for a Franks

hearing and that his sentence was both procedurally and substantively unreasonable. “We review

the district court’s denial of a Franks hearing under the same standard as for the denial of a motion

to suppress: the district court’s factual findings are reviewed for clear error and its conclusions of

law are reviewed de novo.” United States v. Graham, 275 F.3d 490, 505 (6th Cir. 2001). A

defendant is entitled to a Franks hearing “if he makes a substantial preliminary showing that a false

statement knowingly and intentionally, or with reckless disregard for the truth, was included by the

affiant in the warrant affidavit, and the allegedly false statement is necessary to the finding of

probable cause.” Id. (alterations, citation, and internal quotation marks omitted).

        Special Agent Joseph Russ provided an affidavit in support of the search warrant. The

affidavit set forth the following facts. On February 13, 2007, Trooper Robert Erdely, using an
internet-connected computer, launched a file-sharing program and conducted a keyword search using

a specific term known to be the name of a child-pornography video. Erdely downloaded a movie

file depicting child pornography from a user later identified as Schimley. The downloaded file had

the specific name that Erdely used in his keyword search. Erdely used the “SHA-1 hash value,”

which is a unique signature or fingerprint for a file, to verify that the child-pornography video he had

downloaded was the same file being shared by Schimley.

        Schimley asserted, and the government conceded, that there were two false statements in the

affidavit: (1) Erdely did not perform a keyword search using the name of the known child
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pornography movie file; and (2) the file that Erdely downloaded from Schimley’s computer did not

bear the same name as the known child-pornography movie file. In its response to Schimley’s

motion for a Franks hearing, the government explained the false statements as follows. Erdely

maintains a computerized text file with the names and SHA-1 hash values of child pornography

images recovered from other investigations. He conducts a keyword search with the file-sharing

program using a term commonly associated with child pornography. When Erdely downloads a file

with the same SHA-1 hash value as a file stored in his text file, the file is automatically assigned the

name used in the text file. Russ misinterpreted Erdely’s report and stated in the affidavit that Erdely

had conducted a search using a particular file name and downloaded a file of the same name from

Schimley. In fact, Erdely had conducted a search using a general term and the file-sharing program

renamed the file that he downloaded from Schimley because the SHA-1 hash value of Schimley’s

file matched the value of a known child-pornography video in the text file. The government further

noted that the child-pornography movie file that Erdely downloaded from Schimley was found on

Schimley’s computer, albeit under a different name than the name referenced in Russ’s affidavit.

        The district court properly denied Schimley’s request for a Franks hearing. The district court

did not make clearly erroneous factual findings, and we agree that Schimley failed to make a

substantial preliminary showing that Russ knowingly or recklessly included false statements in the

warrant affidavit. See id. The false statements were not necessary to establish probable cause

because the affidavit otherwise established that Erdely downloaded a file from Schimley, that the
file contained child pornography, and that Erdely used the SHA-1 hash values to verify that the file

he downloaded was the same file found on Schimley’s computer.

        Schimley next argues that his sentence is procedurally and substantively unreasonable. He

asserts that the sentence is procedurally unreasonable because the district court failed to consider all

of the sentencing factors under 18 U.S.C. § 3553(a) and failed to adequately explain its decision to

reject Schimley’s arguments for a below-guidelines sentence. Schimley argues that his sentence is

substantively unreasonable because: (1) the district court put undue emphasis on the nature of his

offenses and his history and characteristics; (2) the sentence was greater than necessary to comply
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                                                -4-

with the sentencing purposes set forth in section 3553(a); and (3) several of the offense-level

enhancements erroneously increased his sentencing range.

       “A district court’s sentencing determination is reviewed under a deferential abuse-of-

discretion standard for reasonableness, which has both a procedural and a substantive component.”

United States v. O’Georgia, 569 F.3d 281, 287 (6th Cir. 2009) (citation and internal quotation marks

omitted). To determine whether a sentence is procedurally reasonable, this court must “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(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). “A sentence

may be substantively unreasonable if the district court selects the sentence arbitrarily, bases the

sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an

unreasonable amount of weight to any pertinent factor.” United States v. Vowell, 516 F.3d 503, 510

(6th Cir. 2008) (alterations, citation, and internal quotation marks omitted). We apply a rebuttable

presumption of reasonableness to a within-guidelines sentence. See United States v. Vonner, 516

F.3d 382, 389 (6th Cir. 2008) (en banc).

       Schimley’s sentence is procedurally reasonable. The district court correctly calculated the

guidelines range and recognized the advisory nature of the guidelines. Before imposing its sentence,

the court discussed several pertinent sentencing factors under section 3553(a). The district court
noted the significant number of images and movie files involved in the crimes. The court further

noted the fact that the circumstances tended to contradict Schimley’s claim that he was not interested

in viewing the pornography himself, but downloaded the material only to sell to another individual.

The court considered the types of sentences that were available, and recognized the need to impose

a punishment that would protect potential child victims and to emphasize to society the significance

of child pornography offenses. The district court also discussed Schimley’s lack of criminal history,

his substance abuse problems, his abusive childhood, his education, his job skills, and his conversion

to Buddhism. Given the district court’s extensive discussion of the pertinent sentencing factors and
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its reliance on the sentencing guidelines range, the district court set forth a sufficient basis for

imposing its chosen sentence and for rejecting Schimley’s arguments for a below-guidelines

sentence. See United States v. Duane, 533 F.3d 441, 451-52 (6th Cir. 2008). The district court was

not required to explicitly consider each of the section 3553(a) factors, see id. at 452, nor was it

required to delve into the history of the child-pornography guidelines to determine their applicability.

See United States v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011), cert. denied, 131 S. Ct. 3077 (2011).

        Schimley’s sentence is also substantively reasonable. Although the district court engaged

in a lengthy discussion of the nature of Schimley’s crimes and his history and characteristics, the

record does not support Schimley’s assertion that the court gave an unreasonable amount of weight

to these factors in formulating its sentence. Further, the district court’s application of the offense-

level enhancements and its decision to adhere to the advisory sentencing guidelines range did not

result in a sentence that was greater than necessary to comply with the sentencing goals set forth in

section 3553(a).

        We affirm the district court’s judgment.
