               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 12a0420n.06

                                          No. 11-5630                                  FILED

                          UNITED STATES COURT OF APPEALS
                                                                                   Apr 16, 2012
                               FOR THE SIXTH CIRCUIT                         LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                               )        ON APPEAL FROM THE
                                                        )        UNITED STATES DISTRICT
       Plaintiff-Appellee,                              )        COURT FOR THE WESTERN
v.                                                      )        DISTRICT OF TENNESSEE
                                                        )
DALLEN ELWOOD MAUCK, JR.                                )                          OPINION
                                                        )
       Defendant-Appellant.                             )
                                                        )



BEFORE: COOK, McKEAGUE, ROTH, Circuit Judges.*

       McKeague, Circuit Judge. Defendant-Appellant Dallen Elwood Mauck (“Mauck”) appeals

his sentence of 235 months’ imprisonment for transportation of child pornography in violation of

18 U.S.C. § 2252(a).     On appeal, Mauck challenges the district court’s application of an

enhancement under the United States Sentencing Guidelines and its use of a prior conviction under

Virginia law to increase his mandatory minimum sentence. Mauck also argues that the district

court’s sentence was substantively unreasonable. We affirm.

                                      I. BACKGROUND

       In June 2009, members of the FBI’s Memphis Crimes Against Children Task Force began

investigating the social networking site Mbuzzy.com (“Mbuzzy”) after receiving complaints




       *
        The Honorable Jane R. Roth, Circuit Judge for the Third Circuit of the United States Court
of Appeals, sitting by designation.
No. 11-5630
United States v. Mauck

regarding sexually explicit images of children. Investigators used undercover personas—including

“lacey13,” the persona of a 13 year-old girl, and “badmother46,” the persona of a 46 year-old woman

with a ten year-old daughter—to contact suspects, including Mauck, through Mbuzzy. During the

following six months, investigators exchanged numerous messages with Mauck under the guise of

their Mbuzzy personas. In some of these messages, Mauck sent the undercover investigators

sexually explicit images of pre-pubescent children through Mbuzzy and via email. In others, Mauck

asked the investigators to send him similar photographs; he specifically requested naked pictures of

“lacey13.” Mauck also posted approximately nine sexually explicit images of children on his

Mbuzzy profile page.

       Investigators eventually ascertained Mauck’s identity and home address. They discovered

that he had a prior conviction for possession of child pornography under Virginia law in 2004. On

April 20, 2010, a federal grand jury sitting in the Western District of Tennessee returned a one-count

indictment against Mauck for possession of child pornography, in violation of 18 U.S.C. §

2252(a)(1)-(2). During the following three days, investigators arrested Mauck and searched Mauck’s

motel room, seizing a number of items containing sexually explicit images of children. Mauck pled

guilty to the charge in the indictment.

       The Probation Office prepared a Presentence Investigation Report (“PSR”) using the 2010

Edition of the United States Sentencing Guidelines (“USSG” or “the Guidelines”). The Probation

Office assigned Mauck a base offense level of 22, with a number of adjustments that brought

Mauck’s total offense level up 37. Mauck challenged the application of a five-level enhancement

under § 2G2.2(b)(3)(B) because “[t]he offense involved . . . distribution for the receipt, or

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expectation of receipt, of a thing of value, but not for pecuniary gain.” The Probation Office also

reported that due to Mauck’s prior conviction in Virginia, his mandatory minimum sentence should

be raised from 5 years of imprisonment to 15 years.

        In his response to the PSR and at his sentencing hearing, Mauck objected to both the

application of § 2G2.2(b)(3)(B) and to the use of his Virginia conviction to increase his mandatory

minimum sentence. The district court overruled both objections and assessed a total offense level

of 37 with a criminal history category of II, resulting in a Guidelines imprisonment range of 235 to

296 months. Because the statutory maximum sentence under 18 U.S.C. § 2252(a) is 20 years’

imprisonment, the upper end of Mauck’s Guidelines range was restricted to 240 months. After

reviewing the § 3553(a) factors, the district court sentenced Mauck to 235 months’ imprisonment

followed by 15 years of supervised release. This timely appeal followed.

                                            II. ANALYSIS

A.      “Thing of Value” Enhancement

        Mauck first asserts that the district court improperly applied the five-level enhancement under

USSG § 2G2.2(b)(3)(B) to his offense. This Court reviews legal conclusions regarding application

of the Guidelines de novo and factual findings in applying the Guidelines for clear error. E.g.,

United States v. Jackson, 635 F.3d 205 (6th Cir. 2011).

        Section § 2G2.2(b)(3)(B) of the Guidelines provides for a five-level enhancement “[i]f the

offense involved . . . [d]istribution for the receipt, or expectation of receipt, of a thing of value, but

not for pecuniary gain . . . .” The district court found two bases for applying this enhancement. First,

the court cited portions of the PSR describing messages sent between Mauck and undercover agents

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United States v. Mauck

posting on Mbuzzy, during which Mauck sent out sexually explicit images of pre-pubescent females

to other Mbuzzy users and also requested such images from those users. From this, the court found

that when Mauck sent out the images, he expected to receive other images back. Such images, the

district court held, are a “thing of value” within the meaning of the Guidelines provision. Second,

the court found that sending out the images provided Mauck an “entree into a whole world of

friendship and support” from people who share his interest in child pornography, and that this

socialization was itself a “thing of value” to Mauck.

       The district court did not clearly err in finding that Mauck expected to receive images in

return for the sexually explicit images he sent to the undercover investigators and other Mbuzzy

users. Paragraph 6 of the PSR states that over a period of approximately seven months, undercover

investigators engaged in online communications with Mauck that “included conversations regarding

the exchange of pictures of young children.” The same paragraph specifies that during these

conversations, Mauck “sent a message requesting to see pictures of ‘lacey13,’” the persona of a

thirteen-year-old girl used by undercover investigators. Paragraph 18 states: “Mauck also thought

he forwarded some of the underage images, and he stated that sometimes the women to whom he

forwarded the images would send some back in response.” Mauck did not object to any of these

facts, the district court properly adopted them at the sentencing hearing, and they are more than

sufficient to support the court’s finding that Mauck expected to receive images in return for the

images he sent.

       The Guidelines’ definition of “thing of value” is very broad, extending to “anything of

valuable consideration,” and this Circuit holds that the expectation of receipt of sexually explicit

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United States v. Mauck

pictures is a “thing of value” for the purposes of § 2G2.2(b)(3)(B). See, e.g., United States v.

Battaglia, 624 F.3d 348, 351 (6th Cir. 2010) (“That five-level enhancement applies to trading or

attempted trading of child pornography—i.e., it applies where a defendant distributes child

pornography because he or she has received child pornography or expects to receive child

pornography in return.”). Because the expectation of receipt of images alone suffices for application

of the enhancement, we affirm the district court on this ground.

B.     Mandatory Minimum

       Mauck next argues that the district court erred in enhancing his sentence based on his prior

Virginia conviction. Section 2252(b) mandates a mandatory minimum fifteen-year sentence for

persons convicted under § 2252(a) who also have a prior conviction for possessing child

pornography under state or federal law. The district court treated Mauck’s prior Virginia conviction

for possessing child pornography as a predicate offense for the purposes of § 2252(b). On appeal,

Mauck has raised serious questions as to whether his 2004 conviction under Va. Code Ann. §

18.2-374.1:1(A) qualifies as such a predicate offense. But we find that any error was harmless.

       “To establish harmless error such that this Court lets stand a defendant’s sentence in spite

of errors at trial or sentencing below, the government must prove that none of the defendant’s

substantial rights has been affected by the error.” United States v. Johnson, 467 F.3d 559, 564 (6th

Cir. 2006) (internal quotations omitted). “To carry this burden, the government must demonstrate

to this Court with certainty that the error at sentencing did not cause the defendant to receive a more

severe sentence.” Id. (internal quotation omitted). Thus, remand is required unless the error “did not



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United States v. Mauck

cause the defendant to receive a more severe sentence.” United States v. Lanesky, 494 F.3d 558, 561

(6th Cir. 2007) (internal quotation omitted).

       The Guidelines consider prior criminal conduct to be “directly relevant” to sentencing. See

U.S.S.G. § 4A (comment). Thus, even where a prior conviction did not result in imprisonment, and

is not addressed by a particular enhancement, the Guidelines instruct courts to add one point to a

defendant’s criminal history. See U.S.S.G. § 4A 1.1(c). Mauck received one point for the prior

conviction of misdemeanor possession of child pornography in question, and he also received one

point for a prior domestic violence conviction. With two criminal history points, Mauck fell under

criminal history category II. See U.S.S.G. § 5A; 18 U.S.C. § 3553(a)(4)(A). So the Guidelines

placed Mauck at an offense level of 37 and a criminal history category II, positioning him in the

recommended Guidelines range of 235-240 months’ imprisonment. By contrast, the application of

the prior-conviction enhancement set the mandatory minimum at fifteen years, or 180 months’

imprisonment. See 18 U.S.C. § 2252(b)(1). The sentence that Mauck received of 235 months would

have been at the lower end of the Guidelines range regardless of whether the district court applied

the sentencing enhancement of § 2252(b)(1).

       The district court was consummately transparent about its reasons for sentencing Mauck to

235 months. After engaging in a lengthy discussion with defense counsel, government counsel, and

the probation officer about the various objections to the presentence report, the court summarized

its preference for applying a within-Guidelines sentence. First, the court stated that, although it

acknowledged the Guidelines are advisory, the court thought they “work in this situation about as

well as they ever work.” Further, the court stated “I’m a big believer in guideline sentencing, even

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United States v. Mauck

though I think each case has to stand on its own merits. The guidelines also promote uniformity in

this case.” Specifically, with regard to criminal history, the court stated that the Guidelines

“recognize the absence of history relatively and they don’t, again, capture the nature of the criminal

history which includes this prior conviction for possession of child pornography.” These statements

indicate that the court was inclined to rely on the Guidelines as opposed to the mandatory minimum.

       The court went on to explain why the low end of the Guidelines supplied the appropriate

sentence:

       I think I ought to recognize Mr. Mauck’s post-arrest conduct while he’s been
       incarcerated. I think I also ought to recognize his acceptance and cooperation. The
       way to do that is within the guidelines but the low end of the guidelines which is 235
       months. That is above the statutory minimum but I think appropriately so.

Tr. at 107 (emphasis added). This further supports the conclusion that the court’s reasoning was not

influenced by the § 2252(b) prior-conviction enhancement.

       Based on the court’s express decision to focus on the Guidelines and not the mandatory

minimum, which would have resulted in a sentence 55 months shorter than the one Mauck received,

it is highly unlikely that a different finding with regard to the mandatory minimum would have

affected Mauck’s sentence.      Earlier in its colloquy, the court gave reasons why Mauck’s

circumstances warranted a fairly long sentence. These reasons included the seriousness of the crime,

the effect on Mauck’s son, Mauck’s struggles with alcoholism and need for treatment, and Mauck’s

need for treatment for addiction to child pornography. Based on these observations, the court

indicated that the Guidelines “take account of the seriousness of the offense.”




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       This Court’s case United States v. Allen, 444 F. App’x 867 (6th Cir. 2011), provides a helpful

analogy for this case. There, one of the defendants argued that he was eligible for the safety-valve

exception to a mandatory minimum drug sentence. Id. at 870. But the sentencing judge had stated

“my inclination is that the statutory minimum is close to where it ought to be. Not because I would

have any desire to go below the statutory minimum if I had the opportunity. I wouldn’t.” Id.

(emphasis in original). The Sixth Circuit concluded that, because the district court would not have

gone below the statutory minimum regardless of whether the defendant was eligible for the safety-

valve provision, any error was “clearly harmless.” Id.

       Similarly, because the trial court expressed on the record that it was not inclined to go below

the Guidelines range, any error with regard to the mandatory minimum is harmless. Therefore, we

conclude that regardless of whether the trial court erred in deciding the § 2252(b) prior-conviction

enhancement applied in the first place, any such error was harmless.

C.     Substantive Reasonableness

       We review the substantive reasonableness of a defendant’s sentence for abuse of discretion.

United States v. Houston, 529 F.3d 743, 755 (6th Cir. 2008). “The touchstone for our review is

whether the length of the sentence is reasonable in light of the § 3553(a) factors.” United States v.

Tate, 516 F.3d 459, 469 (6th Cir. 2008). Examples of substantive unreasonableness include

“selecting the sentence arbitrarily, basing the sentence on impermissible factors, failing to consider

pertinent § 3553(a) factors, or giving an unreasonable amount of weight to any pertinent factor.”

United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005).



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       The district court sentenced Mauck to 235 months’ imprisonment, the low end of the

Guidelines range, followed by 15 years of supervised release. Mauck argues that the district court’s

sentence was unreasonable because the court placed too much weight on his criminal history and the

seriousness of the offense. But to the contrary, the court engaged in a more complete consideration

of all relevant factors than Mauck suggests. When addressing the § 3553(a) factors, the court noted

that Mauck had a history of possessing and distributing child pornography, but that he was, with one

exception, not historically a producer.   The sentencing judge went on to say that the Guidelines

appropriately addressed the seriousness of Mauck’s crime. The record shows the court briefly

addressed the contents of the images, which featured infants and prepubescent children, as well as

a young female child “being penetrated and crying and being held down.” The court stressed that

Mauck was not being sentenced at this time for producing sexually explicit images of his own son,

but acknowledged that act was relevant conduct. The court then addressed potential mitigating

factors, including Mauck’s problems with alcohol and homelessness, as well as his good conduct

while in custody. Finally, the court found a “strong need for deterrence on this record . . . general

deterrence” and “a need to protect the public from Mr. Mauck.”

       In short, the district court’s analysis was balanced and showed no abuse of discretion. For

these reasons, we reject Mauck’s substantive reasonableness challenge.

                                       III. CONCLUSION

       Accordingly, we affirm the district court’s sentence.




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