                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0633n.06

                                            No. 10-4571

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT                                      FILED
                                                                                      Aug 29, 2011
UNITED STATES OF AMERICA,                                 )                     LEONARD GREEN, Clerk
                                                          )
          Plaintiff-Appellee,                             )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
                 v.                                       )        COURT FOR THE NORTHERN
                                                          )        DISTRICT OF OHIO
STEPHEN ALLAN PRITCHARD,                                  )
                                                          )
          Defendant-Appellant.                            )
                                                          )


BEFORE: COLE, ROGERS, and GRIFFIN, Circuit Judges.

          PER CURIAM.

          Defendant Stephen Pritchard appeals for the second time his sentence of fifty-months’

imprisonment, arguing that it is procedurally and substantively unreasonable. We disagree and

affirm.

                                                 I.

          Pritchard pled guilty to one count of knowingly traveling in interstate commerce for the

purpose of engaging in illicit sexual conduct with another person, in violation of 18 U.S.C. §

2423(b). See United States v. Pritchard, 392 F. App’x 433, 435 (6th Cir. 2010). The district court

imposed a sentence of fifty months’ imprisonment followed by five years of supervised release. Id.

at 444. Pritchard appealed his sentence to this court, arguing that his counsel was constitutionally

ineffective, that there was an evidentiary error at the sentencing hearing, and that his sentence was
No. 10-4571
USA v. Stephen Pritchard


both procedurally and substantively unreasonable. Id. at 434. This court vacated Pritchard’s

sentence on procedural reasonableness grounds and remanded for resentencing. Id. The panel

majority concluded that the district court erroneously ignored a nonfrivolous argument in favor of

a lower sentence when it failed to address Dr. Orlando’s testimony that Pritchard posed “a low risk

of recidivism[.]” Id. at 441, 445 (citations and internal quotation marks omitted). This court also

affirmed the district court’s evidentiary ruling and deferred the ineffective assistance of counsel

claim for collateral review. On remand, the district court held a resentencing hearing and

subsequently imposed the same sentence. Pritchard timely appeals.

                                                II.

       Pritchard now argues that his new sentence is unreasonable. He contends that it is

procedurally unreasonable because, once again, “the District Court failed to address all of [his]

nonfrivolous arguments for a lower sentence when it did not seriously address [his] diagnosed very

low risk of recidivism” and “based its sentencing decision on clearly erroneous facts, to wit, the

incorrect assumption that [he] is a pedophile.” He asserts that it is substantively unreasonable

because the district court placed “an unreasonable amount of weight on the retribution factor [in

setting his] sentence.” Should he prevail, Pritchard also claims that a different judge should be

assigned to conduct the resentencing because the district judge “has repeatedly adhered to an

erroneous view of the facts and factors surrounding [his] sentence, has shown a bias against

offenders of [his] type, has demonstrated distain [sic] for the sentencing guidelines adopted by

Congress, and has indicated its disagreement with the ruling of this Court in [his] re-sentencing


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hearing.” We address each of these arguments in turn.

                                                  A.

        The touchstone of appellate review of a district court’s sentencing decision is reasonableness,

which has both a procedural and a substantive component. Gall v. United States, 552 U.S. 38, 51

(2007); United States v. Grossman, 513 F.3d 592, 595 (6th Cir. 2008). Such challenges are generally

reviewed for an abuse of discretion. Gall, 552 U.S. at 51; United States v. Thompson, 515 F.3d 556,

560 (6th Cir. 2008). However, where, as here, a defendant fails to lodge an objection at the end of

the sentencing hearing in response to a properly worded invitation from the district court in

compliance with United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), we review a defendant’s

challenge to the court’s explanation for the sentence selected only for plain error. United States v.

Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) (en banc). Plain error exists where there is (1) error,

(2) that was obvious or clear, (3) that affected a defendant’s substantial rights, and (4) that affected

the fairness, integrity, or public reputation of the judicial proceedings. Id. at 386; see also United

States v. Wilson, 614 F.3d 219, 223 (6th Cir. 2010).

        Pritchard first argues that “[t]he District Court committed plain error when it . . . . did not

seriously address [his] diagnosed very low risk of recidivism” and thus “gave the appearance, if not

the reality, of doing nothing more than trying to justify the earlier sentence it had previously

imposed.” We disagree. The district court did not fail to consider Pritchard’s argument; it simply

disagreed that Pritchard was at a low risk for reoffending. The court cited parts of Dr. Orlando’s

report that it felt were not “consistent” with the conclusion that Pritchard was unlikely to reoffend.


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It noted Dr. Orlando’s observations that Pritchard: “is self-centered, aloof, and a controlling

individual whose emotional maturity is significantly lower than his average intellectual functioning”;

“is socially naive, cognitively rigid, and has difficulty experiencing empathy for others”; “has a long

history of alcohol abuse”; that “[d]espite his deeply engrained personality problems, he has little

insight into his psychological problems”; and that he “has been obsessed with sexual activity and

pornography, and over the years his unconventional thinking has led to a desire for increasingly

deviant sexual stimuli.” Ultimately, the district court concluded that “I think [Pritchard] does pose

a risk of reoffense because of his to this point unrecognized and untreated sexual problems.” On this

record, we reject the assertion that the district court did not “make any specific mention of the

evidence presented in Dr. Orlando’s testimony regarding [Pritchard’s] likelihood of re-offending”

or “‘listen[] to [the] argument, consider[] the supporting evidence, [and take] defendant’s

circumstances . . . into account in sentencing him,’ with regard to Dr. Orlando’s testimony.” Cf.

Pritchard, 392 F. App’x at 440-41. On resentencing, the district court plainly did listen to

Pritchard’s argument that he was unlikely to reoffend, and it made clear why it reasonably rejected

that argument. The law requires nothing more. See United States v. Gale, 468 F.3d 929, 940 (6th

Cir. 2006). Accordingly, on resentencing, there was no error, let alone plain error.

       Pritchard also argues that his sentence is procedurally unreasonable because the district court

relied on a clearly erroneous fact. Specifically, Pritchard asserts that the district court’s statement

that “I think Orlando’s report does have some indication that [Pritchard] was attracted to

prepubescent minors[,]” was clearly erroneous because Dr. Orlando concluded “that Appellant did


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USA v. Stephen Pritchard


not suffer from pedophilia[.]” (citation and internal quotation marks omitted). This argument is

unpersuasive. There was sufficient evidence in the record for the district court to conclude that

Pritchard was attracted to prepubescent minors – namely, Pritchard’s statement in an internet chat

room that he had a sexual encounter with an eleven-year-old. See Pritchard, 392 F. App’x at 442

(holding that “the district court did not commit a procedural error regarding [Pritchard’s] alleged

statements that he had previously engaged in pedophilic activities.”). The district court’s apparent

misstatement regarding the source of that evidence during Pritchard’s resentencing hearing does not

make the relevant fact clearly erroneous. We therefore reject Pritchard’s claim that his sentence is

procedurally unreasonable for that reason.

                                                  B.

       Next, Pritchard argues that his sentence is substantively unreasonable because the district

court gave an “unreasonable amount of weight to the retributive factor when it imposed its sentence

upon [him].” While a sentence “may be considered substantively unreasonable when the district

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

514 F.3d 508, 520 (6th Cir. 2008), district courts are not required to give each of the 18 U.S.C. §

3553(a) factors equal weight. See, e.g., United States v. Arias-Arrazola, 254 F. App’x 500, 503 (6th

Cir. 2007) (noting that § 3553(a) “says that the factors must all be considered, not that they must be

considered with equal weight”); United States v. Benson, 195 F. App’x 414, 417 (6th Cir. 2006).

Additionally, we afford a rebuttable presumption of substantive reasonableness to a properly

calculated, within-Guidelines sentence. United States v. Polihonki, 543 F.3d 318, 322 (6th Cir.


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2008); United States v. Walls, 546 F.3d 728, 736 (6th Cir. 2008) (citing United States v. Vonner, 516

F.3d 382, 410-11 (6th Cir. 2008) (en banc)). “[W]e cannot reverse a sentence simply because we

determine that a different sentence would be appropriate.” United States v. Higgins, 557 F.3d 381,

398 (6th Cir. 2009).

       Pritchard has failed to rebut the presumption of substantive reasonableness. It is true, as

Pritchard notes, that the district judge opined at the resentencing hearing that “retribution” or “just

punishment” is the “largest purpose for sentencing generally, and it is in this case.” However, this

does not mean that the district court gave this factor unreasonable weight. The district court found

that Pritchard’s offense was “more serious” than a similar offense with a higher Guideline’s

sentencing range. And it considered the nature and circumstances of the instant offense, Pritchard’s

history and characteristics, and the need for the sentence to afford adequate deterrence, protect the

public, and improve Pritchard’s conduct and condition. The district court’s balancing of the §

3553(a) factors in this case did not render Pritchard’s lower-end-of-the-Guideline’s-range sentence

of fifty-months’ imprisonment substantively unreasonable. Cf. generally United States v. Paull, 551

F.3d 516, 529 (6th Cir. 2009) (“[T]his analysis of the considerations the court found most important

– the defendant’s circumstances and the seriousness of the crime – is just the sort of balancing a

sentencing court should be doing.”).

                                                  C.

       Having determined that Pritchard’s sentence is reasonable, we conclude that his claim that

he should be resentenced by a different judge is moot.


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                                              III.

      For these reasons, we affirm the judgment of the district court.




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