                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0248n.06

                                       Case No. 14-5169

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                FILED
                                                                            Apr 07, 2015
UNITED STATES OF AMERICA,                          )                   DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,                         )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE EASTERN DISTRICT OF
DAVID ALLEN CAMPBELL,                              )      KENTUCKY
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )

                                         OPINION

       BEFORE: GUY, COOK, and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge.          David Campbell pleaded guilty to producing child

pornography and received thirty years in prison. He challenges the procedural reasonableness of

his sentence. Finding no error, we affirm.

       We need not linger on Campbell’s undisputed—and undisputedly despicable—conduct.

In 2013, he sexually abused his four-year-old stepdaughter, videotaped the abuse, and distributed

the videos for others to watch. Since 1988, he did the same to his biological daughter—

beginning when she was six years old. R. 48 at 4–6; see R. 40 at 2. The FBI discovered what

Campbell had done, and a grand jury indicted him on multiple counts relating to his conduct.
Case No. 14-5169, United States v. Campbell


Campbell pleaded guilty to one count: producing child pornography (of his four-year-old

stepdaughter) in violation of 18 U.S.C. § 2251(a). He awaited his sentence.

       Because of the many applicable sentencing enhancements (like the young age of the

victim), Campbell’s guidelines range was 360 months to life. R. 62 (Sentencing Tr.) at 5–6, 8.

But the statute caps the sentence at a maximum of 360 months, § 2251(e), which is what the

district court gave Campbell. In doing so, the court denied Campbell’s request for a downward,

below-guidelines variance. Before making its decision, the court heard devastating testimony

from the victim’s mother and grandmother about how the girl would spend the rest of her life in

and out of the doctor’s office trying to endure the memory of being sexually abused by someone

she trusted—someone she called “daddy.” Id. at 9–14. It heard from each side—from the

defense, that Campbell himself was abused as a child and was an alcoholic; and from the

government, that this was “perhaps the most aggravated . . . offense conduct” it had ever seen.

R. 62 at 25. And the court heard from Campbell himself, who testified that although he’s “really

sorry” about what he did, he is “a victim too.” R. 62 at 28–29. The court then concluded:

“[B]eing honest about the 3553(a) factors”—“not acting on emotion” but “looking at every one

of the[]” factors—a 360-month sentence was eminently reasonable. R. 62 at 31–33.

       Campbell argues on appeal that the district court applied a procedurally unreasonable

sentence for three specific reasons. None has merit.

       (1) Categorical Denial of a Variance. Campbell first argues that the court categorically

denied a downward variance by refusing to apply the § 3553(a) factors. As support, Campbell

cites the court’s comment that if other courts “keep on varying and keep on being lenient, our

society’s going to go to hell.” R. 62 at 34. And he cites the court’s comment that if another




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court varied downward in a similar case, that court would be elevating certain factors over others

and would be “clearly not thinking about the children.” R. 62 at 31.

         These passionate remarks are isolated compared to the court’s dispassionate

consideration of the § 3553(a) factors. The record of the hour-long sentencing hearing clearly

shows us that the district court struggled with whether to apply a downward variance, thoroughly

examined the § 3553(a) factors, and only then, after careful deliberation, denied the downward

variance. R. 62 at 16–34; accord United States v. Schupp, 488 F. App’x 170, 172 (8th Cir.

2012).    The court stressed, for example, that it does not “deliver[] the hammer at every

opportunity” but instead “empathize[s] with people’s personal situations” and “tr[ies] to help

people out.” R. 62 at 17. The court “struggl[ed] with how, under 3553[a], [it had] grounds to

vary” and wanted to know “how to [vary] under the 3553(a) factors.” Id. at 19, 21 (emphasis

added). And most importantly, it twice went through § 3553(a), factor by factor, and found that

the factors on the whole cut heavily in favor of a higher sentence—higher even than 360 months.

Id. at 19–21, 31–33. All of this was plenty to show us that the court did not—and will not—

categorically deny a downward variance; it did—and will—consider the factors.

         (2) Failure to Consider Certain Factors. That conclusion all but resolves Campbell’s

next challenge: that the court failed to consider Campbell’s “history and characteristics,”

§ 3553(a)(1), one of the specific sentencing factors. The opposite is true.

         District courts must only “consider the § 3553(a) factors” and explain such consideration

“to a sufficient degree to allow for meaningful appellate review.” United States v. Zobel,

696 F.3d 558, 566 (6th Cir. 2012); see United States v. Baugh, No. 13-5982, 2015 WL 1219600,

at *3–*4 (6th Cir. Mar. 18, 2015). The court here did that and more. It expressed that it

“underst[oo]d everything [defense counsel was] saying” about Campbell’s history and



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characteristics. R. 62 at 20. It acknowledged that Campbell could be “a loving man, someone

who cares about people, [and] someone who was a productive member of society.” Id. at 21.

And it even expressed “empathy for anyone that goes through what” Campbell went through. Id.

at 30. After this deliberate consideration, it found that the other § 3553(a) factors outweighed

Campbell’s history and characteristics, see, e.g., id. at 32—a perfectly reasonable decision.

Campbell’s counsel below agreed that the court “sufficiently cover[ed] the 3553(a) factors” and

did not need “to cover [any] in more detail.” Id. at 37. A wise choice by counsel, for the district

court did cover the factors—including Campbell’s history and characteristics—in sufficient

detail for us to review, Zobel, 696 F.3d at 566 . . . and for us to affirm.

        (3) Sentencing Disparity. Campbell’s final (and weakest) argument is that the district

court committed procedural error by creating an “unwarranted sentence disparit[y],”

§ 3553(a)(6), compared to the defendant in Richards (who received sixteen years for the same

crime, 659 F.3d 527, 530 (6th Cir. 2011)). But his argument fails on Richards’ own terms: “It is

the essence of discretion that it may properly be exercised in different ways and likewise appear

differently to different eyes.”     Id. at 551 (citation omitted).       Discretion, put differently,

necessarily means that different district courts will sentence different defendants to different

sentences, even for similar conduct. See United States v. Vonner, 516 F.3d 382, 392 (6th Cir.

2008) (en banc). A correct calculation of the guidelines solves this disparity, Gall v. United

States, 552 U.S. 38, 54 (2007), and no one argues that the court didn’t correctly calculate the

guidelines.   The court, moreover, expressly considered the need to avoid “an unwarranted

sentencing disparity” going the other way—a disparity between Campbell and “defendants who

[c]ourts every day, for this conduct, sentence to life.” R. 62 at 20. We find no error.




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Case No. 14-5169, United States v. Campbell


       Having rejected Campbell’s arguments, we hold that the district court applied a

reasonable sentence. We accordingly affirm.




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