                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0827n.06

                                          No. 15-1015                                  FILED
                                                                                 Dec 21, 2015
                                                                             DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff-Appellee,                      )
                                                )
v.                                              )
                                                     ON APPEAL FROM THE UNITED
                                                )
                                                     STATES DISTRICT COURT FOR THE
BRIAN SEVREY,                                   )
                                                     WESTERN DISTRICT OF MICHIGAN
                                                )
       Defendant-Appellant.                     )
                                                )
                                                )



BEFORE:        DAUGHTREY, ROGERS, and WHITE, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. After defendant Brian Sevrey pleaded

guilty to a charge of sexual exploitation of a child, the district judge sentenced him to

300 months in prison, to be followed by a lifetime of supervised release. Sevrey now contends

that the district court erred in denying him a three-level decrease in his adjusted Guidelines

offense level for his acceptance of criminal responsibility. He further asserts that the 300-month

prison sentence is both procedurally and substantively unreasonable. We disagree and affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

       At some time prior to April 3, 2014, the National Center for Missing and Exploited

Children received a report from Google that an internet protocol (IP) address associated with

14 email accounts had been used to upload photographs containing child pornography. The IP

address was registered to the Escape Bar and Grill in Cadillac, Michigan, an establishment
No. 15-1015
U.S. v. Sevrey

located directly below defendant Sevrey’s apartment. Further investigation revealed that, in

February and March 2014, Sevrey used email accounts slammytammy33@gmail.com,

tammyslammy2@gmail.com, tommysmith1580@gmail.com, and tammydorsey11@gmail.com

to post on a Google+ account numerous images and videos that depicted naked, prepubescent

girls masturbating, digitally penetrating themselves, or being touched or penetrated by adult

males.

         Based upon that information, law enforcement officials searched Sevrey’s residence

pursuant to a state warrant and recovered numerous items, including a digital camera. In initial

conversations with the authorities, Sevrey denied having a computer or accessing the internet,

other than to check baseball scores and his email. Later, however, he admitted that he did search

for and post pornographic images and videos of prepubescent girls but, he claimed, only in an

attempt to entice pedophiles to the site so that he could then report them to the police.

         A subsequent forensic examination of the camera found in Sevrey’s apartment led to the

recovery of seven deleted photographs taken on November 9, 2013. Those photographs depicted

“a 2 or 3 year old girl, naked, displaying her pubic area to the camera; spreading her vagina with

her hands; and digitally penetrating herself.” The girl was later identified as the defendant’s

granddaughter, with whom he had been babysitting on the date the photographs were taken.

         The girl’s mother later reported to the United States Probation Office that since

November 9, 2013, the child continued the inappropriate touching, and one evening while

watching television, “touched her vaginal area and stated, ‘Papa do this!’”           Although the

evidence of his guilt of the crime for which he was charged was overwhelming, Sevrey

attempted to put a more innocent spin on his actions. He testified at his change-of-plea hearing

that “[his granddaughter] was going through a phase where she was touching herself and she was


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discovering herself, and [he took additional] pictures to show [his] son and daughter-in-law that

she’s still doing it.” He explained that:

       I was babysitting her that day and [her parents] had neglected to bring some fresh
       clothes and she had accidentally wet herself, so I was washing her clothes. When
       I came back from throwing them in the dryer, she was on the couch touching
       herself, and I kept holding her hand back and she kept on doing it anyway.

In response to a question whether he then went to get his camera, Sevrey further explained that

he already had taken “probably . . . a hundred pictures of [his] granddaughter that day.”

       Despite the explanation Sevrey offered for his actions, law enforcement authorities noted

that “almost all” of the later pornographic images of other young girls that the defendant

uploaded to the internet “were exactly the type of images taken of the 2-year-old female child—

images of young girls naked and/or masturbating/digitally penetrating themselves, taken from an

angle focused [from below] towards the child’s genitals.” Furthermore, despite his claimed

justification for taking the photographs of his granddaughter, Sevrey never explained the need to

take as many as seven such photos nor why he failed to show the photos to the girl’s parents or

express his concerns to them.

       Given the preposterous explanations offered by Sevrey for his actions and his own

recognition that “nobody’s going to believe” his accounts of why he photographed his

granddaughter in pornographic poses or uploaded sexually suggestive pictures of other young

girls to a Google+ account, the defendant entered into a plea agreement with the government.

Pursuant to that agreement, Sevrey admitted his guilt of the charge of sexual exploitation of a

child and waived many of his rights to perfect direct and collateral appeals of his conviction and

sentence.    However, he specifically reserved the right to challenge any sentence that:

(1) exceeded the greater of the Guidelines range or the statutory mandatory minimum;



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(2) incorrectly determined the Guidelines range; (3) exceeded the statutory maximum; or (4) was

“based upon an unconstitutional factor, such as race, religion, national origin or gender.”

       Convinced that the plea was entered knowingly and voluntarily, the district court

accepted Sevrey’s admission of guilt. Then, after the preparation and revision of a presentence

investigation report by the United States Probation Office, the district court held a sentencing

hearing, at the conclusion of which it accepted the Probation Office’s calculation that Sevrey

should be sentenced under criminal history category I, at an offense level of 40, yielding an

advisory Guidelines range of 292-365 months.          However, because the statutory maximum

sentence for the offense of conviction was 30 years, the district court determined that the

effective Guidelines range actually was 292-360 months. Rejecting the defendant’s argument

that he was entitled to a three-level reduction in his offense-level calculation because of his

acceptance of responsibility, the district judge imposed a prison term of 300 months, to be

followed by lifetime supervised release. From those sentencing decisions, Sevrey now appeals.

                                          DISCUSSION

Acceptance of Responsibility

       In the first of his three challenges to the propriety of his 300-month sentence, Sevrey

argues that the district court erred in denying him a three-level, acceptance-of-responsibility

reduction in his Guidelines offense level. According to Sevrey, although it was “difficult for him

to fully admit” the prurient intent behind his actions on November 9, 2013, he nevertheless

pleaded guilty to the charged crime, fully admitting his involvement in the offense.

       Section 3E1.1(a) of the United States Sentencing Guidelines allows for a two-level

decrease in a defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of

responsibility for his offense.”     Furthermore, certain defendants who timely notify the


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prosecution of their intent to plead guilty can, “upon motion of the government,” be granted an

additional one-level decrease in their sentencing ranges. U.S.S.G. § 3E1.1(b). Because “[a]

district court’s finding regarding acceptance of responsibility is a finding of fact,” we review

such a determination “under a clearly erroneous standard.” United States v. Lutz, 154 F.3d 581,

589 (6th Cir. 1998). “The sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility. For this reason, the determination of the sentencing judge is

entitled to great deference on review.” U.S.S.G. § 3E1.1., cmt. n.5; United States v. Angel,

355 F.3d 462, 476 (6th Cir. 2004).

       When seeking a sentence reduction for acceptance of responsibility, the defendant bears

the burden of establishing, by a preponderance of the evidence, that he or she indeed has taken

full responsibility for the crime committed. United States v. Mahaffey, 53 F.3d 128, 134 (6th

Cir. 1995). Moreover, “[a] defendant who enters a guilty plea is not entitled to an adjustment

under [§ 3E1.1] as a matter of right.” U.S.S.G. § 3E1.1, cmt. n.3. Indeed, even “[a]n admission

of regret for the result of criminal actions without a corresponding admission of criminal intent

does not constitute acceptance of responsibility within the context of the Sentencing Guidelines.”

Lutz, 154 F.3d at 589.

       In light of these sentencing principles, we conclude that the district court did not commit

error—clear or otherwise—in denying Sevrey’s request for a sentence reduction based upon his

claimed acceptance of responsibility. True enough, Sevrey did enter a timely guilty plea to the

offense charged; he did admit that he took photographs of his then-two-year-old granddaughter

in pornographic poses; and he did express remorse for the pain he had caused his family. At no

point during the change-of-plea hearing or the sentencing hearing, however, did Sevrey admit to

the prurient, criminal motives underlying his actions. Instead, he steadfastly adhered to his


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incredible explanations that he had posted child pornography on a Google+ account only to

entrap pedophiles who might view the images, and that he had photographed his granddaughter’s

genitalia from a camera angle below the young child only in an effort to alert the girl’s parents to

her actions.

       The district judge was able to view and evaluate Sevrey’s testimony at the two hearings

and clearly disbelieved his explanations of his motives. The hearing testimony showed that

Sevrey never contacted the victim’s parents about the genital touching that allegedly concerned

him and never contacted law enforcement officials about the attempt to catch other pedophiles

viewing the pornographic images of prepubescent girls.              Those facts undermined the

explanations offered by Sevrey to such an extent that the district court was justified in denying

Sevrey’s attempt to reduce his offense level through application of the Guidelines’ acceptance-

of-responsibility provisions.

Procedural Reasonableness of Sentence

       Sevrey also claims that his 300-month prison sentence is procedurally unreasonable

because the district court relied upon a clearly erroneous fact in calculating an appropriate

punishment.      As has been well-established, “[w]e review a district court’s sentencing

determination, under a deferential abuse-of-discretion standard, for reasonableness.” United

States v. Pearce, 531 F.3d 374, 384 (6th Cir. 2008) (citation and internal quotation marks

omitted). That reasonableness review “has both a procedural and a substantive component.”

United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008) (citing Gall v. United States, 552

U.S. 38, 51 (2007)). Procedural errors include “failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately


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explain the chosen sentence—including an explanation for any deviation from the Guidelines

range.” Gall, 552 U.S. at 51.

       However, when a party fails to object to a procedural error in response to the district

court’s invitation for objections, as here, we review the claim for plain error. United States v.

Lumbard, 706 F.3d 716, 720-21 (6th Cir. 2013). Accordingly, to the extent Sevrey argues that

the district court’s reliance on a clearly erroneous fact constitutes a procedural error distinct from

the district court’s denial of his requested acceptance-of-responsibility reduction, we review for

plain error. Under the plain-error standard, Sevrey must show that “(1) there is error; (2) the

error was ‘clear or obvious rather than subject to reasonable dispute’; (3) it affected the

defendant's substantial rights, which in the ordinary case means it affected the outcome of the

district court proceedings; and (4) it seriously affected the fairness, integrity or public reputation

of judicial proceedings.” United States v. Massey, 663 F.3d 852, 856 (6th Cir. 2011) (quoting

United States v. Marcus, 560 U.S. 258, 262 (2010)).

       In this appeal, Sevrey highlights a comment made by the district court when discussing

the propriety of granting a reduction in his offense level for acceptance of responsibility. He

points to the district court’s statement that “the salient issue here was there was not only sexual

exploitation of this child, a hundred and some pictures of this child, but also that of a lot of

others in a collection.” According to Sevrey, that comment reflects the district court’s mistaken

belief that Sevrey took “a hundred and some” lewd photos of his granddaughter, not just the

seven that were discussed by the government and defense counsel at the various hearings in this

matter. Although the district court’s comments could be interpreted as Sevrey suggests, the

district judge never explicitly stated that all “hundred and some pictures of this child” were

pornographic, only that Sevrey took “a hundred and some” photographs of his granddaughter,


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some of which were sexually inappropriate and exploitative. Furthermore, at one point during

the change-of-plea hearing, the district judge asked to see the photos recovered from Sevrey’s

camera. The record on appeal contains no evidence that the district judge was shown more than

the seven pictures that provided the basis for Sevrey’s arrest, or that anything other than those

seven pictures (and the pornographic photos of other young girls that Sevrey uploaded) factored

into the district court’s sentencing decision.

          Moreover, the number of pornographic images recovered from Sevrey’s camera did not

affect the district court’s calculation of the relevant offense level. And, whether Sevrey took

seven inappropriate photographs of his granddaughter or many times that number, the district

court still would have denied the acceptance-of-responsibility reduction based upon Sevrey’s

denial of his true motivation in taking and viewing pornographic images of children.

Substantive Reasonableness of Sentence

          Finally, Sevrey contends that his sentence was substantively unreasonable, both because

it was more severe than necessary and because much shorter sentences have been imposed on

other individuals guilty of more egregious acts of child sexual abuse. However, neither of these

grounds fits within one of the four limited categories of challenges permitted by his appeal

waiver.     In particular, neither of these grounds constitutes a claim that the district court

“incorrectly determined the final Guideline range.” Because the defendant waived his right to

contest his sentence on substantive-reasonableness grounds, Sevrey is precluded from pursuing

this challenge on appeal.

                                          CONCLUSION

          For the reasons set out above, we AFFIRM the judgment of the district court.




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