                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0530n.06

                                        Case No. 17-4251

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                   FILED
                                                                              Oct 24, 2018
UNITED STATES OF AMERICA,                            )                   DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )      ON APPEAL FROM THE UNITED
v.                                                   )      STATES DISTRICT COURT FOR
                                                     )      THE NORTHERN DISTRICT OF
JAMES D. SULLIVAN,                                   )      OHIO
                                                     )
       Defendant-Appellant.                          )
                                                     )

       BEFORE: MERRITT, COOK, and LARSEN, Circuit Judges.

       COOK, Circuit Judge. The district court denied Defendant James Sullivan’s motion to

suppress, motion in limine, and motion to withdraw his guilty plea. It then varied upward from

the advisory Guidelines range and sentenced Sullivan to twenty years in prison. Sullivan appeals

each of those decisions. We AFFIRM.

                                                I.

       Sullivan served approximately thirty years for attempted rape and gross sexual imposition

of four children. In 2014, he left prison a convicted sex offender. Less than a year later, a woman

showering at a state park observed a camera protruding from a displaced ceiling tile and alerted

the police; the Ohio State Highway Patrol identified Sullivan as a suspect. Trooper Eric Souders

executed several search warrants that permitted him to obtain a DNA sample from Sullivan, search

Sullivan’s vehicle and apartment, and seize and search electronic devices found there.
Case No. 17-4251, United States v. Sullivan


The searches revealed that (1) Sullivan’s DNA matched semen found on a ceiling tile in the attic

above the state park shower, (2) Sullivan owned a camera matching the description given by the

showering woman, and (3) a laptop found in Sullivan’s apartment contained dozens of child

pornography images.

       A grand jury later charged Sullivan with knowingly accessing with intent to view child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), and attempted production of child

pornography, in violation of 18 U.S.C. § 2251(a). Sullivan moved to suppress, challenging

probable cause and particularity for the searches of his vehicle, apartment, and laptop. He also

moved to exclude evidence of his prior child molestation offenses. At the final pretrial hearing,

the district court heard oral argument and denied both of Sullivan’s motions.

       After the district court denied his motions, Sullivan agreed to plead guilty. A magistrate

judge duly administered the plea proceedings, in which Sullivan pleaded guilty to Count One of

the indictment—knowingly accessing with intent to view child pornography. Two months later,

on July 3, 2017, the district court approved and filed the written plea agreement. On July 5, the

district court adopted the magistrate’s report without objection.

       Over a week later, the district court received a letter from Sullivan, dated July 5, purporting

to withdraw his guilty plea. The district court held a hearing and denied Sullivan’s motion to

withdraw the plea based on our decision in United States v. Bashara, 27 F.3d 1174 (6th Cir. 1994).

       At sentencing, the district court calculated an advisory Guidelines range of 135 to 168

months in prison, but varied upward and imposed the statutory maximum sentence of 240 months.




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Case No. 17-4251, United States v. Sullivan


                                                  II.

       A. Motion to suppress

       When a district court denies a motion to suppress, we review factual findings for clear error

and legal conclusions de novo. United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005). On

appeal, Sullivan challenges two aspects of the district court’s denial of his motion to suppress:

(1) probable cause supporting the search warrants executed on his vehicle, apartment, and

computer, and (2) the particularity of these warrants.

Probable cause

       “[N]o [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation,

and particularly describing the place to be searched, and the persons or things to be seized.” U.S.

Const. amend. IV. An affidavit demonstrates probable cause when it contains facts establishing

“a ‘fair probability’ that evidence of a crime will be located on the premises of the proposed

search.” United States v. Jenkins, 396 F.3d 751, 761 (6th Cir. 2005) (quoting United States v.

Bowling, 900 F.2d. 926, 930 (6th Cir. 1990)). This conclusion depends on the totality of the

circumstances, a “practical, nontechnical conception” dealing with the “factual and practical

considerations of everyday life.” Illinois v. Gates, 462 U.S. 213, 231 (1983) (quotations omitted).

       The affidavits supporting the searches of Sullivan’s apartment and vehicle overwhelmingly

established probable cause to believe that Sullivan committed voyeurism, burglary, and possession

of criminal tools. They stated that Sullivan’s DNA profile matched semen found in the attic of the

park shower, he had downloaded software and a user’s manual for a camera matching the

description given by the showering victim, he was a convicted sex offender, and when questioned,

he admitted to visiting the county in which the park sits. These facts established a “fair probability”

that investigators would find evidence related to the state park incident in Sullivan’s vehicle and


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apartment. See Jenkins, 396 F.3d at 761. Moreover, the file names uncovered by the preliminary

analysis of Sullivan’s laptop established a fair probability that additional evidence relating to child

pornography would be found on the laptop. See id.

        Sullivan cites a Third Circuit case for the argument that the sexually explicit file names

found in relation to his laptop were insufficient to support probable cause for a search. See United

States v. Miknevich, 638 F.3d 178, 185 (3rd Cir. 2011). But Miknevich says quite the opposite. It

makes clear that a magistrate can determine probable cause by relying on a computer file’s highly

suggestive name without viewing its contents. Id. at 183–84. The file names discovered in the

preliminary search of Sullivan’s laptop here, such as one named “littlegirl uncensored porn,”

plainly satisfied this standard.

        Sullivan makes much of the fact that Trooper Souders could not determine precisely when

he left his semen in the attic of the state park shower, arguing that “at least some temporal reference

point is necessary” to ascertain probable cause. See United States v. Hython, 443 F.3d 480, 486

(6th Cir. 2006). But the totality of the circumstances—Sullivan’s semen on the ceiling tile, his

ownership of a user’s manual for a camera matching the one described by the victim, and his

criminal past—made it reasonable to conclude that Sullivan was at the state park on or near July

18, and that evidence of criminal behavior would be found in his apartment and vehicle.

        Finally, Sullivan challenges the nexus between the crime and the locations searched. But

Trooper Souders attested that, based on his training and experience, digital images can be

downloaded onto digital storage devices that individuals typically keep in their homes or vehicles.

See United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (“To justify a search, the

circumstances must indicate why evidence of illegal activity will be found ‘in a particular place.’”).

As for the search of Sullivan’s laptop, the affidavit established that several child pornography files


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were stored on a removable device connected to the laptop and that removable devices often leave

remnants of transfers of child pornography files. See id. at 594–95. Thus, the district court

properly concluded that probable cause supported each search warrant.

Particularity

       As to particularity, Sullivan’s arguments also fall short. “[I]tems to be seized pursuant to

a search warrant must be described with particularity to prevent ‘the seizure of one thing under a

warrant describing another.’” United States v. Blair, 214 F.3d 690, 697 (6th Cir. 2000) (quoting

Marron v. United States, 275 U.S. 192, 196 (1927)). Nevertheless, “the degree of specificity

required is flexible and will vary depending on the crime involved and the types of items sought.”

United States v. Henson, 848 F.2d 1374, 1383 (6th Cir. 1988). “[A] description is valid if it is as

specific as the circumstances and the nature of the activity under investigation permit.” Id.

(quoting United States v. Blum, 753 F.2d 999, 1001 (11th Cir. 1985)).

       The search warrants for Sullivan’s vehicle, apartment, and computer were all sufficiently

particular. The warrants for the vehicle and apartment authorized seizure of equipment that could

store digital photos taken at the state park, like digital cameras, CDs, DVDs, SD cards, thumb

drives, and portable hard drives. At the time of their issuance, Souders only knew that the suspect

used a digital camera and did not have any information about where the photos taken by the suspect

might be stored. Because Souders could not have been any more specific in his descriptions of the

equipment and storage devices, the descriptions in the warrants were proper. See United States v.

Blakeney, 942 F.2d 1001, 1027 (6th Cir. 1991) (“When a more specific description of the items to

be seized is unavailable, a general description will suffice.”). The search of Sullivan’s apartment

yielded a Dell laptop, and a preliminary Secret Service analysis of the laptop revealed four sexually

explicit file names referencing children. The search warrant for the laptop listed the four file names


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and detailed descriptions of electronic materials—such as files, electronic records, and browsing

history—related to the sexual exploitation of juveniles. Thus, the computer search warrant

described the items sought with sufficient particularity.

       Sullivan cites Wheeler v. City of Lansing, 660 F.3d 931 (6th Cir. 2011), to argue that the

item descriptions in the apartment and vehicle warrants were overbroad. In Wheeler, we found a

warrant overbroad because it failed to distinguish between stolen items and personal property.

660 F.3d at 941–42.      In addition, the law enforcement officers in Wheeler knew specific

information about the property, such as the brand names of stolen cameras, but failed to include

that information in the warrant. Id. Neither problem plagues the warrants here because no stolen

property was at issue and investigators did not hide known information. Because Trooper Souders

knew only that the suspect may have used a digital camera at the state park, the digital storage

devices listed in the warrants were as specific as possible under the circumstances.

       Sullivan attacks the particularity of the laptop search warrant because it did not narrow the

search to materials accessed within a specific timeframe. He points to United States v. Lazar for

the proposition that a warrant must be limited to relevant dates. 604 F.3d 230, 238 (6th Cir. 2010).

But the failure to specify a timeframe does not make this detailed warrant overbroad. See United

States v. Ford, 184 F.3d 566, 578 (6th Cir. 1999) (“[E]ven though [portions of the warrant] do not

contain a time limitation, their subject-matter limitation . . . fulfills the same function as a time

limitation would have done, by limiting the warrant to evidence of the crimes described in the

affidavit.”). Here, as in Ford, the laptop warrant specified a subject-matter limitation sufficient to

limit the warrant to evidence of the crimes described in the affidavit—namely, files related to child

pornography.




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Case No. 17-4251, United States v. Sullivan


       The district court properly found that each warrant satisfied the particularity requirements

of the Fourth Amendment. Because the search warrants were supported by probable cause and

sufficiently particular, we need not apply United States v. Leon’s good faith exception. 468 U.S.

897 (1984). The district court therefore properly denied Sullivan’s motion to suppress.

       B. Evidence of prior acts of child molestation

       After the government notified the district court of its intent to offer evidence of Sullivan’s

prior child molestation under Rules 414 and 404(b) of the Federal Rules of Evidence, the court

denied Sullivan’s motion to exclude such evidence. The court found that both counts of the

indictment alleged “child molestation” under Rule 414(d)(2)(B), making prior acts of child

molestation available to show propensity.       The court also deemed evidence of prior child

molestation admissible under Rule 404(b) to prove intent, motive, and absence of mistake on both

counts. Finally, the district court found the prior acts evidence prejudicial, but not unfairly so.

Sullivan challenges each finding.

Rule 414

       Sullivan first argues that Rule 414 should not have applied to the second count of the

indictment—production of child pornography—because it does not charge a child molestation

offense. We review a district court’s Rule 414 admission of prior acts of child molestation for

abuse of discretion. United States v. Underwood, 859 F.3d 386, 393 (6th Cir. 2017).

       Motivated by public policy, Rule 414 creates an exception to Rule 404(b)’s general ban on

propensity evidence in child molestation cases. See United States v. Seymour, 468 F.3d 378, 384–

85 (6th Cir. 2006). The rule applies “[i]n a criminal case in which a defendant is accused of child

molestation.” Fed. R. Evid. 414(a). Rule 414 defines “child molestation” to include attempted

production of child pornography, as found in Count Two of Sullivan’s indictment. Fed. R. Evid.


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Case No. 17-4251, United States v. Sullivan


414(d)(2)(B). Thus, evidence of Sullivan’s prior child molestation was admissible to show

propensity. Sullivan disputes the factual basis of Count Two; this did not factor into the district

court’s admissibility determination because the indictment accuses Sullivan of “child molestation”

under the statute.

       Sullivan next argues that the district court failed to conduct a sufficiently thorough Rule

403 balancing of probative value with respect to the Rule 414 evidence. But “[i]f Rule 403 could

be employed so easily to keep out instances of child molesting, Rule 414 would be effectively

gutted.” United States v. Sanchez, 440 F. App’x 436, 439–40 (6th Cir. 2011). Categorical

exclusions of “inflammatory propensity evidence” are “precisely [what] Congress intended to

overrule” by enacting Rule 414. Id. at 440 (alteration in original) (quoting United States v. Stout,

509 F.3d 796, 802 (6th Cir. 2007)). The district court thus correctly found Sullivan’s prior acts

not unfairly prejudicial.

Rule 404(b)

       Sullivan also challenges the admissibility of his prior acts of child molestation under Rule

404(b). Mirroring the district court’s three-step analysis, “[w]e review for clear error the district

court's factual determination that the other act occurred; we examine de novo the court's legal

determination that evidence of the other act is admissible for a proper purpose; and we review for

abuse of discretion the court's determination that the probative value of the evidence is not

substantially outweighed by a risk of unfair prejudice.” United States v. Barnes, 822 F.3d 914,

920–21 (6th Cir. 2016). Panels in this circuit have long debated the appropriate standard of review

in cases of this nature. See, e.g., United States v. Williams, 662 F. App’x 366, 374 (6th Cir. 2016)

(collecting cases). But regardless of the applicable standard, if Sullivan’s argument fails under the

“tripartite” standard of review, it also fails the less-stringent abuse of discretion standard. See


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United States v. Clay, 667 F.3d 689, 702–03 (6th Cir. 2012) (Kethledge, J., dissenting). Indeed,

other panels have determined that these two standards of review do not conflict. See, e.g., United

States v. Geisen, 612 F.3d 471, 495 (6th Cir. 2010).

       Rule 404 allows a district judge to admit prior acts evidence when it is introduced for a

purpose other than to show character, “such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). A

three-step process governs the admissibility of Rule 404(b) evidence:

       First, the district court must decide whether there is sufficient evidence that the
       other act in question actually occurred. Second, if so, the district court must decide
       whether the evidence of the other act is probative of a material issue other than
       character. Third, if the evidence is probative of a material issue other than
       character, the district court must decide whether the probative value of the evidence
       is substantially outweighed by its potential prejudicial effect.

United States v. Jenkins, 345 F.3d 928, 937 (6th Cir. 2003).

       First, Sullivan challenges the district court’s determination that the prior acts occurred. The

government sought to introduce the testimony of four individuals who Sullivan sexually assaulted

or attempted to assault as children, testimony of the Bay Village Police Department, and a

document certifying Sullivan’s prior convictions for sex-related crimes. In his motion, Sullivan

challenged the sufficiency of the evidence for certain offenses committed in October 1982, and an

alleged admission to possession of child pornography made to the Bay Village Police. At the

motion hearing, the district court explained the first step of the 404(b) analysis and asked Sullivan

if he “seriously disput[ed] that these prior offenses occurred.” Sullivan did not dispute the prior

convictions. The court went on to find the prior acts evidence admissible, implicitly deciding that

the acts occurred. See United States v. Sandoval, 460 F. App'x 552, 562 (6th Cir. 2012) (stating

that a prior act finding “need not be express, but rather, may be implicit by virtue of the fact that

the court admitted the evidence”) (quoting United States v. Matthews, 440 F.3d 818, 828 (6th Cir.

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2006)). On appeal, Sullivan argues that the government lacks proof of one victim’s assault. But

because Sullivan never seriously disputed the government’s proffered evidence with regard to this

victim until this appeal, the district court did not clearly err in determining that the prior acts

occurred.

       Second, Sullivan argues that the district court improperly found that his prior acts were

probative of intent. Sullivan does not dispute that his intent materially affects the outcome in this

case, but citing two Sixth Circuit drug cases, he argues that the prior acts were too dissimilar and

remote to be probative. See United States v. Haywood, 280 F.3d 715, 721 (6th Cir. 2002); United

States v. Bell, 516 F.3d 432, 443 (6th Cir. 2008). The district court did not err in finding Sullivan’s

prior acts probative of intent. Sullivan previously sexually abused children, broke into houses to

commit sexual acts against children, and produced child pornography of some of these acts with a

camera. These prior acts evince an intent to view and produce child pornography. Additionally,

as Sullivan conceded at the hearing, Rule 404(b) does not contain a time limit. And even if

Sullivan’s prior acts were not probative of intent, Sullivan does not dispute the district court’s

finding that the acts were also admissible to show motive and absence of mistake.

       Third, Sullivan argues that the district court abused its discretion in finding the prior acts

evidence not unfairly prejudicial. Not so. As discussed above, the proffered evidence of Sullivan’s

previous child molestation was highly probative of Sullivan’s motive and intent in committing the

charged crimes. The prior acts evidence was prejudicial, but not unfairly so. See, e.g., United

States v. LaVictor, 848 F.3d 428, 448 (6th Cir. 2017); Underwood, 859 F.3d at 393–94 (Rule 414

evidence). As such, the district court did not abuse its “very broad” discretion in admitting the

prior acts evidence. United States v. Newsom, 452 F.3d 593, 603 (6th Cir. 2006).




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       C. Motion to withdraw guilty plea

       We review a district court’s denial of a motion to withdraw a guilty plea for abuse of

discretion. United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008). “A district court

abuses its discretion where ‘it relies on clearly erroneous findings of fact, or when it improperly

applies the law or uses an erroneous legal standard.’” Id. (quoting United States v. Spikes, 158

F.3d 913, 927 (6th Cir. 1998)).

       After holding a hearing, the district court denied Sullivan’s motion to withdraw his guilty

plea. Sullivan first argues that he filed his motion to withdraw on the same day that the district

court accepted his plea. He asserts that because his motion is dated July 5, the prison mailbox rule

applies to permit his withdrawal “for any reason or no reason.” Fed. R. Crim. P. 11(d)(1). But

even accepting that Sullivan mailed his motion on July 5, he submitted it two days after the district

court approved and filed the plea agreement on July 3. As a result, the “any reason” standard does

not come into play.

       Sullivan next disputes the district court’s conclusion that no “fair and just reason” existed

to withdraw the plea. See Fed. R. Crim. P. 11(d)(2)(B). Withdrawal “is not an absolute right but

is a matter within the broad discretion of the district court.” United States v. Kirkland, 578 F.2d

170, 172 (6th Cir. 1978) (per curiam); see also United States v. Spencer, 836 F.2d 236, 238 (6th

Cir. 1987). To prevail, the defendant must show “a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). A district court consults several factors to make this

determination:

       (1) the amount of time that elapsed between the plea and the motion to withdraw it;
       (2) the presence (or absence) of a valid reason for the failure to move for withdrawal
       earlier in the proceedings; (3) whether the defendant has asserted or maintained his
       innocence; (4) the circumstances underlying the entry of the guilty plea; (5) the
       defendant's nature and background; (6) the degree to which the defendant has had


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Case No. 17-4251, United States v. Sullivan


        prior experience with the criminal justice system; and (7) potential prejudice to the
        government if the motion to withdraw is granted.

Bashara, 27 F.3d at 1181.

        The district court did not abuse its discretion in denying Sullivan’s motion. It considered

each of the Bashara factors and concluded that every one of them weighed against withdrawal.

On appeal, Sullivan largely ignores the district court’s Bashara factor analysis, instead arguing

that his plea was not knowing, voluntary, and intelligent because of circumstances surrounding the

plea.   Despite Sullivan’s current assertions otherwise, circumstances surrounding the plea

demonstrate that Sullivan knowingly and voluntarily entered it. For example, during the plea

colloquy, Sullivan stated under oath that he was satisfied with his attorney, understood the plea

agreement and potential sentence, voluntarily entered into the agreement, and had not been

pressured to plead guilty. He again affirmed as much when he signed the plea agreement itself.

Furthermore, as the district court pointed out in its written opinion, Sullivan waited over two

months to pen his withdrawal letter, has never squarely argued his innocence, is well-versed in the

criminal justice system, and would prejudice the government by revoking his plea. See United

States v. Goddard, 638 F.3d 490, 493–94 (6th Cir. 2011) (“[W]ithdrawal of guilty pleas is designed

‘to allow a hastily entered plea made with unsure heart and confused mind to be undone, not to

allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain

a withdrawal if he believes that he made a bad choice in pleading guilty.’”) (quoting United States

v. Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991)).

        Sullivan also argues that the district court’s bias and the absence of a factual basis for the

charges taint his plea. These arguments are unconvincing. Sullivan cites two of the district court’s

statements from the motion hearing for the bias proposition.           But Sullivan’s citations are

misleading and part of a broader, balanced consideration of the issues. As to Sullivan’s lack of

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Case No. 17-4251, United States v. Sullivan


factual basis claim, it relies on a legal argument unrecognized by this court—that digital files are

not covered by 18 U.S.C. § 2252A(a)(5)(B). See, e.g., United States v. Gray, 641 F. App’x 462,

467–68 (6th Cir. 2016) (treating digital files as “material” sufficient to violate § 2252A(a)(5)(B)).

        Accordingly, the district court did not abuse its discretion in denying Sullivan’s motion to

withdraw his guilty plea.

        D. Sentencing

        We review sentencing decisions for abuse of discretion. Gall v. United States, 552 U.S.

38, 51 (2007). First, we ensure that the district court committed no 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—including an explanation

for any deviation from the Guidelines range.” Id. If the decision is procedurally sound, we

consider the substantive reasonableness of the sentence under an abuse of discretion standard. Id.

A defendant’s claim “that a sentence is substantively unreasonable is a claim that a sentence is too

long.” United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). “The point is not that the

district court failed to consider a factor or considered an inappropriate factor; that’s the job of

procedural unreasonableness.” Id. Rather, a substantive unreasonableness claim is “a complaint

that the court placed too much weight on some of the § 3553(a) factors and too little on others in

sentencing the individual.” Id. “[I]f the sentence is outside the Guidelines range, the court may

not apply a presumption of unreasonableness . . . [and] must give due deference to the district

court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall,

552 U.S. at 51. The fact that we “might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.” Id.


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       Sullivan’s arguments about his sentence do not distinguish between procedure and

substance. He first challenges the sufficiency of the district court’s statement of reasons for his

sentence. Review of the sentencing transcript confirms that the district judge considered Sullivan’s

history of reoffending whenever given the opportunity. Based on Sullivan’s history, the court

explained that it believed him likely to reoffend despite his age and reasoned that the interests of

society mandated an upward variance. Sullivan also makes the bare assertion that the district court

disproportionately weighed the seriousness of his offense and his criminal history. This argument

“boils down to an assertion that the district court should have balanced the § 3553(a) factors

differently,” and is beyond the scope of our review. United States v. Sexton, 512 F.3d 326, 332

(6th Cir. 2008). Because the district court considered all the relevant sentencing factors and

concluded that it could not trust Sullivan “back [in] society after 168 months,” its twenty-year

sentence is not substantively unreasonable. The court therefore did not abuse its discretion.

                                                III.

       We AFFIRM.




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