                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0138n.06

                                            No. 08-5669

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                    FILED
UNITED STATES OF AMERICA,                          )                            Mar 09, 2011
                                                   )                      LEONARD GREEN, Clerk
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
JASON HAWKINS,                                     )   WESTERN DISTRICT OF KENTUCKY
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )



       Before: GILMAN, and GRIFFIN, Circuit Judges; and COLLIER, Chief District Judge.*

       CURTIS L. COLLIER, Chief District Judge. Defendant-Appellant Jason Hawkins

(“Hawkins”) appeals the district court’s sentencing determination as procedurally and substantively

unreasonable on the grounds that the district court failed to address all of the nonfrivolous arguments

presented by Hawkins in favor of a larger downward variance from the advisory Guidelines range.

The parties have waived oral argument, and we unanimously agree that oral argument is not needed

in this case. Fed. R. App. P. 34(a).

       For the reasons set forth below, we AFFIRM the district court’s judgment.




       *
       The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District
of Tennessee, sitting by designation.
No. 08-5669
United States v. Jason Hawkins

                                         I. Relevant Facts

       Hawkins was sentenced in 2008 to a term of imprisonment of 720 months (60 years), with

a lifetime period of supervised release after pleading guilty to (1) transportation of child

pornography, in violation of 18 U.S.C. § 2252(a)(1); (2) receipt of child pornography, in violation

of 18 U.S.C. § 2252(a)(2); (3) possession of child pornography, in violation of 18 U.S.C. §

2252(a)(4)(B) and (b)(2); and (4) persuading a minor to engage in the production of child

pornography, in violation of 18 U.S.C. § 2251(a) and (e). Although the Guidelines range was life

imprisonment, the aggregate statutory maximum was determined to be 80 years.

       Both Hawkins and the government filed sentencing memoranda to be considered by the

district court. In his sentencing memorandum, Hawkins advanced six arguments regarding why the

district court should grant a downward variance in his case. Specifically, defense counsel asked the

court to consider that:

       (a)     Mr. Hawkins [had] 0 criminal history points.

       (b)     He [was] 30 years old and [had] never been engaged in any sort of
               inappropriate sexual conduct other than the conduct alleged in the instant
               Indictment.

       (c)     Mr. Hawkins was himself molested when he was a very young child. He was
               aware of the act. Such experience has forever changed the direction of his
               life[,] and he has never received any sort of treatment. Any photographs [of
               a victim] taken by Mr. Hawkins were taken when the child was asleep and
               therefore unaware of the activity.

       (d)     Mr. Hawkins is aware of the seriousness of his conduct and acknowledges by
               letter to [the district court] that he deserves to be strongly punished; however,
               the guidelines range of life far exceeds even the maximum allowed by the
               statutes. Even when the [district] court looks to the statutory maximum, it is

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No. 08-5669
United States v. Jason Hawkins

               still unreasonable taking into account that even a person accused of taking a
               life may not be sentenced to eighty (80) years in custody.

       (e)     . . . after prison, Mr. Hawkins will be a registered sex offender and also
               subject[ed] to the [Sex Offender Registration and Notification Act’s
               (“SORNA”)] possible civil commitment for the remainder of his life.

       (f)     Unequal sentences would result if [the district court] sentenced Mr. Hawkins
               to either life or eighty years.

       In asking for a downward variance, Hawkins failed to request a specific sentence. He did,

however, cite cases in which individuals he believed were similarly situated received substantially

lower sentences.

       After reviewing the presentence report (“PSR”), the court heard from the parties and the

father of two of Hawkins’s victims. At the sentencing hearing, defense counsel argued that the

district court should impose a sentence consistent with sentencing determinations made in other child

pornography or child molestation cases, but defense counsel did not discuss the other arguments

addressed in Hawkins’s sentencing memorandum. In turn, the district court granted Hawkins’s

motion for a downward variance and imposed a sentence twenty years below the statutory maximum.

       When pronouncing the sentence, the sentencing judge explained that he was imposing a

sentence that he “believe[d] [was] reasonable under the circumstances and given all the other

sentencing factors, . . . one of which is to try to be consistent [in sentencing defendants].” He did

not want Hawkins “to necessarily get out of prison,” but he was not going to give Hawkins the

maximum sentence. The district court specifically noted the “egregiousness” of the offense.




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No. 08-5669
United States v. Jason Hawkins

        However, the district court did not acknowledge whether it considered the sentencing

memoranda filed by Hawkins or the government.

        Hawkins now appeals the district court’s sentencing determination on the grounds of

reasonableness.

                                        II. Standard of Review

A.      Abuse-of-Discretion Standard

        A district court’s sentencing determination is typically reviewed under an abuse-of-discretion

standard for reasonableness. United States v. Presley, 547. F.3d 625, 629 (6th Cir. 2008). There are

two components to a reasonableness inquiry: procedural reasonableness and substantive

reasonableness. United States v. Robertson, 309 F. App’x 918, 921 (6th Cir. 2009).

        1.      Procedural Reasonableness

        In order to determine whether a district court’s sentencing determination was procedurally

sound, this Court should ensure that the sentencing court did not “[fail] to calculate (or improperly

calculat[e]) the Guidelines range, . . . [fail] to consider the [18 U.S.C.] § 3553(a) factors, . . . or [fail]

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

also United States v. Jones, 489 F.3d 243, 250 (6th Cir. 2007) (explaining when evaluating the

reasonableness of a sentence, the Court should consider “not only the length of the sentence but also

the factors evaluated and the procedures employed by the district court in reaching its sentencing

determination”).




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No. 08-5669
United States v. Jason Hawkins

       At issue here is the district court’s explanation of the chosen sentence. Although there is a

preference for district judges to address each nonfrivolous argument presented by a defendant, see

United States v. Petrus, 588 F.3d 347, 353 (6th Cir. 2009), whether the district judge gave an

adequate explanation often turns on the “specific factual circumstances” of the case. United States

v. Herrod, 342 F. App’x 180, 185-86 (6th Cir. 2009). Nevertheless, the relevant question “is

whether the record makes clear that the sentencing judge listened to each argument, considered the

supporting evidence, was fully aware of the defendant’s circumstances and took them into account

in sentencing him.” United States v. Lafarga, No. 09-5632, 2010 WL 3521949, at *2 (6th Cir. Sept.

2, 2010) (citing United States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010)). Indeed, the sentencing

judge must “set forth enough [of a statement of reasons] to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007); see also United States

v. Pritchard, No. 08-4402, 2010 WL 3398471, at *5 (6th Cir. Aug. 24, 2010) (explaining that “the

record still must reflect that the district court understood and considered Defendant’s nonfrivolous

arguments for a lower sentence, even if the explanation is more cursory than extensive”).

       2.      Substantive Reasonableness

       This Court is required to reach the question of substantive reasonableness only if it finds that

Hawkins’s sentence was “procedurally sound.” Gall, 552 U.S. at 51. “A sentence is substantively

unreasonable if the district court selects a sentence arbitrarily, bases the sentence on impermissible

factors, . . . or gives an unreasonable amount of weight to any pertinent factor.” United States v.


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No. 08-5669
United States v. Jason Hawkins

Mendez, 362 F. App’x 484, 486 (6th Cir. 2010) (citing United States v. Lapsins, 570 F.3d 758, 772

(6th Cir. 2009)). However, “the fact that the district court did not give the defendant the exact

sentence he sought is not a cognizable basis to appeal.” United States v. Jackson, 466 F.3d 537, 540

(6th Cir. 2006). Indeed, this Court should give “considerable discretion” to the district court when

determining whether a particular sentence was substantively reasonable. United States v. Vonner,

516 F.3d 382, 392 (6th Cir. 2008). In addition, this Court should “take into account the totality of

the circumstances, including the extent of any variance.” Gall, 552 U.S. at 51.

B.     Plain-Error Standard

       The government, however, argues that Hawkins’s sentence should be reviewed for plain

error, rather than under an abuse-of-discretion standard, because Hawkins failed to object to the

sentence imposed by the district court during the sentencing. “At a sentencing hearing, as at every

other phase of a criminal proceeding, each party has a duty to object to rulings by a court in order

to preserve them for appeal.” Vonner, 516 F.3d at 385. Indeed, a “defendant ‘must object with [a]

reasonable degree of specificity which would have adequately apprised the trial court of the true

basis for his objection.’” United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir. 1980) (quoting

United States v. Fendley, 522 F.2d 181, 186 (5th Cir. 1975)); see also United States v. Bostic, 371

F.3d 865, 871 (6th Cir. 2004). If a party fails to make an objection, the party “forfeits the argument

and may obtain relief on appeal only if the error is ‘plain’ and ‘affects substantial rights.’” Vonner,

516 F.3d at 385; Fed. R. Crim. P. 52(b).




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No. 08-5669
United States v. Jason Hawkins

       However, Rule 51(b) of the Federal Rules of Criminal Procedure makes clear that a party

must have the opportunity to object in order for a failure to object to “later prejudice that party.”

Specifically, in regards to sentencings, a district court must “ask the parties whether they have any

objections to the sentence just pronounced that have not previously been raised” before the

sentencing hearing is adjourned. Bostic, 371 F.3d at 872.

       In this case, after pronouncing the sentence of sixty (60) years, the district judge asked

Hawkins if he understood the sentence. The judge next discussed the issue of restitution and then

instructed the clerk of the court to advise Hawkins of his right to appeal the sentence. Immediately,

following the clerk’s instructions, the district judge asked the parties, “Anything else?”. Hawkins’s

counsel answered, “No, your honor. Thank you.” The hearing then concluded. Despite the

government’s argument, it is clear that a district court cannot satisfy the procedural rule under Bostic

this way. United States v. Clark, 469 F.3d 568, 571 (6th Cir. 2006) (finding such phrase as

“Anything else?” to be ambiguous). At no point did the sentencing judge give the parties an

opportunity to object to the sentence explicitly. Therefore, Hawkins should not be subjected to a

plain-error review.

                                            III. Analysis

A.     Procedural Reasonableness

       Hawkins primarily argues that the sentence imposed by the district court was procedurally

unreasonable because the district court did not address each of the arguments presented by Hawkins

in his sentencing memorandum. It is clear from the record that the district court judge “thought


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No. 08-5669
United States v. Jason Hawkins

about [Hawkins’s] sentence long before [that day],” and he explicitly addressed the more compelling

arguments presented by Hawkins, such as the need to avoid sentencing disparities among defendants

and the need for public protection. Still, Hawkins contends that the district judge erred because he

did not address all of Hawkins’s arguments, such as the effects of childhood abuse on Hawkins’s

conduct, Hawkins’s lack of a prior criminal record, and Hawkins’s status as a sex offender as a

means to protect the public. Indeed, a defendant generally has the right to have the sentencing judge

consider all of his arguments for a lower sentence. Wallace, 597 F.3d at 805.

Nonetheless, there are exceptions to the general rule that a district court must demonstrate that it

considered all of a defendant’s arguments. United States v. Simmons, 587 F.3d 348, 361 (6th Cir.

2009). Indeed, a district judge is not required to address “every mitigating factor” a defendant

presents if those arguments were “raised only in passing.” See United States v. Madden, 515 F.3d

601, 611 (6th Cir. 2008). For example, arguments that clearly lack “merit can, and for the sake of

judicial economy should, be passed over in silence.” United States v. Gale, 468 F.3d 929, 940 (6th

Cir. 2006) (quoting United States v. Cunningham, 429 F.3d 673, 678 (7th Cir. 2005)). Here, two of

Hawkins’s arguments-that he never engaged in any sort of inappropriate sexual conduct other than

the conduct alleged in the indictment, and that he was molested as a child and never received

treatment-have no factual bases to support them. If there is no factual basis for an argument, the

district court does not have to address it. United States v. McGee, 494 F.3d 551, 558 (6th Cir. 2007).

Hawkins also argued in his sentencing memorandum that he should be granted a downward variance

because he had zero criminal history points. However, this is “not a particularly strong argument”


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No. 08-5669
United States v. Jason Hawkins

either. See United States v. Duane, 533 F.3d 441, 453 (6th Cir. 2008). Hawkins’s criminal history

category was taken into account in the PSR, which calculated his advisory guidelines range.

Although this argument is nonfrivolous, the failure of the district court to address it, does not by

itself, constitute an abuse of discretion. Id.

        Finally, the district court failed to address Hawkins’s argument that he may be subject to

SORNA’s civil commitment for the remainder of his life. As with Hawkins’s other arguments, the

district judge did not articulate his reasons for rejecting this argument. However, when a defendant

presents an issue that is “conceptually straightforward,” as it is here, this Court “may assume, even

absent express analysis by the judge, that the sentence reflects consideration of the argument.”

Simmons, 587 F.3d at 361-62 (6th Cir. 2009). The sentencing court made it clear that the most

important factor in sentencing Hawkins’s was the egregiousness of the offense. It concluded that

the most appropriate type of punishment was imprisonment, rather than some other alternative such

as civil commitment.

        Given the lack of strong arguments presented by Hawkins and the fact the district judge

granted Hawkins’s downward variance, it is clear that there was a diminished need to explain at

length the reasons for the sentence imposed. Petrus, 588 F.3d at 355; see also United States v.

Staton, 378 F. App’x 553, 555 (6th Cir. 2010) (explaining where a judge accepts a defendant’s

arguments and gives the defendant a more lenient sentence than requested, there is less need for

explanation). Although the explanation given by the sentencing court was less than ideal, and




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No. 08-5669
United States v. Jason Hawkins

anything less might be grounds for a remand, we find that the sentence imposed was procedurally

reasonable.

B.     Substantive Reasonableness

       Although Hawkins focuses almost exclusively on the procedural reasonableness of his

sentence for the purpose of appeal, he also challenges the substantive reasonableness of his sentence

on the grounds that the district court should have granted a larger variance. This is an unusual

challenge for this Court. Therefore, “rather than asking whether considerations based upon §

3553(a) are sufficiently compelling to justify the sentence, this [C]ourt must determine whether the

considerations based upon § 3553(a) are so compelling as to necessitate a shorter sentence.” United

States v. Kirchhof, 505 F.3d 409, 414-15 (6th Cir. 2007); Mendez, 362 F. App’x 484 (finding a 600

month sentence reasonable where it constituted a downward variance from the Guidelines range of

life imprisonment).

       In other words, Hawkins has to present arguments to show that his case is so “extraordinary”

that the district court’s downward variance of twenty years is “unreasonably small.” See Kirchhof,

505 F.3d at 416. For the reasons stated above, none of the arguments advanced by Hawkins in his

sentencing memorandum was particularly strong. In addition, although it is clear that the district

court gave the most weight to the nature of the offense, this Court should not substitute its judgment

where the district court concluded “that whatever mitigation [provided by any other factors] was

outweighed” by the egregiousness of Hawkins’s conduct. Id.




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No. 08-5669
United States v. Jason Hawkins

                                      IV. Conclusion

       For these reasons, we AFFIRM the district court’s judgment.




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No. 08-5669
United States v. Jason Hawkins

       RONALD LEE GILMAN, Circuit Judge, dissenting. Because I agree that Hawkins’s 60-

year sentence is substantively reasonable, I understand the temptation to find that it is also

procedurally reasonable. And I agree with the majority that the district court properly calculated the

applicable Guidelines range and discussed the various 18 U.S.C. § 3553(a) sentencing factors. But

I respectfully disagree with the majority’s conclusion that the district court adequately explained its

reasons for the sentence imposed. I therefore believe that Hawkins’s sentence is procedurally

unreasonable.

       The third consideration in reviewing a sentence for procedural reasonableness is whether the

district court “adequately articulated its reasoning for imposing the particular sentence chosen,

including any rejection of the parties’ arguments for an outside-Guidelines sentence.” United States

v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007).

       At sentencing a “judge should set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). “The appropriateness

of brevity or length, conciseness or detail . . . depends upon the circumstances.” Id. But where a

party presents nonfrivolous reasons for imposing a particular sentence, a “judge will normally go

further and explain why he has rejected those arguments.” Id. at 357; see also United States v.

Wallace, 597 F.3d 794, 806–08 (6th Cir. 2010) (remanding the case for resentencing because the

record did not reflect whether the district court considered the defendant’s primary, nonfrivolous

argument for a lesser sentence).


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No. 08-5669
United States v. Jason Hawkins

       As the majority notes, Hawkins presented six arguments in his sentencing memorandum for

why the district court should have granted him a downward variance. The district court addressed

only one of these arguments—the need to avoid sentencing disparities among defendants. And this

factor provided the primary basis, if not the sole basis, for the sentence imposed. But there is

nothing in the sentencing transcript to show that the court read, much less considered, Hawkins’s

sentencing memorandum, which included at least one nonfrivolous argument in support of a

downward variance.

       “The district judge in this case did not make even a cursory mention” of Hawkins’s other

arguments for a below-Guidelines sentence. See Wallace, 597 F.3d at 804. In fact, the court’s entire

reasoning for why it imposed a 60-year sentence appears in two and a half pages of the sentencing

transcript. The court’s utter failure to acknowledge Hawkins’s other arguments and at least briefly

explain why it was rejecting them constitutes, in my opinion, an abuse of discretion. As a result, I

conclude that Hawkins’s sentence is procedurally unreasonable. I would therefore vacate his

sentence and remand the case for resentencing.




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