              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 12a1216n.06

                                        No. 11-1879

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                     FILED

UNITED STATES OF AMERICA,
                                                                                Nov 26, 2012
                                                                           LEONARD GREEN, Clerk
       Plaintiff-Appellee,

              v.                                                On Appeal from the United
                                                                States District Court for the
RYAN JOHN WALDSCHMIDT,                                          Western District of Michigan

       Defendant-Appellant.


                                                          /

       Before:        GUY, DAUGHTREY, and STRANCH, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.            Defendant Ryan Waldschmidt appeals his

below-Guidelines sentence imposed following a plea of guilty to one count of distributing

child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2256(8)(A). Arguing

that a greater downward variance was warranted, defendant challenges the reasonableness

of the 180-month term of imprisonment. For the reasons that follow, we find no abuse of

discretion and affirm.

                                              I.1




       1
        The undisputed facts are drawn from the unobjected-to presentence report and defendant’s
admissions during the change-of-plea hearing.
No. 11-1879                                                                                2

       On June 30, 2009, an undercover FBI special agent investigating the trafficking of

child pornography signed onto a peer-to-peer file sharing application called Gigatribe, made

contact with someone using the screen name “Waldo0889,” and received the following

greeting:

       Welcome to my collection! I will only share if you share! That’s how it
       usually works. If you have no files shared, you will be moved to the
       “Unsharing” Group. If you have decent amount but not enough as me, then
       you would be placed in “Moderate Sharing” group. If you have about the
       same or more, you will be placed in “Extreme Sharing” Group. I will accept
       Videos as well. Must be good quality videos.

The agent, who was physically located in Miami, Florida, accessed the shared folders and

downloaded files that contained child pornography. The agent determined that Waldo0889

was Ryan John Waldschimdt of Kalamazoo, Michigan. On September 4, 2009, the agent

again made contact with Waldo0889, was met by the same greeting as before, and—although

the number of files he could access was more limited—downloaded additional files

containing child pornography. Finally, on January 25, 2010, the agent made contact with

Waldo0889 for a third time and received a slightly different greeting. This time, however,

no shared folders were available. The agent believed that sharing privileges had been

revoked, as promised, because no files had been uploaded by the agent during the earlier

sessions. Approximately 250 images were downloaded from defendant’s shared folders.

       Defendant was not present when the search warrant was executed at his residence, but

agreed to be interviewed later that day. During the interview, defendant admitted that he set

up the Gigatribe account using the screen name Waldo0889 for the purpose of collecting and

trading child pornography. He used key words such as “pedophile,” “hussy,” “hussyfan,”
No. 11-1879                                                                                     3

and age ranges such as “13-17” and “13yo” to search for users to invite into his private

network. If a user accepted his invitation, or “friend request,” he could chat, share files, and

find out about other traders. A forensic examination of defendant’s computer revealed 2,353

images of child pornography, including 217 known victims. There were also 441 video files,

many of which were in excess of five minutes in duration. The files contained many images

of prepubescent minors and infants.

       Waldschmidt was charged in a two-count indictment with distribution of child

pornography, including but not limited to one or more of ten specific images, and possession

of child pornography, including but not limited to one or more of a dozen other images.

Pursuant to a written agreement, defendant pleaded guilty to count 1 and the government

agreed to dismiss count 2. There was no agreement as to sentence, however. At the plea

hearing, defendant confirmed that he used the computer to distribute child pornography to

the agent through interstate commerce; that he shared files with images of child pornography

with those who would share their files of child pornography with him in order to build up his

collection; and that the ten files that were the subject of count 1 were, in fact, images of child

pornography. The plea was accepted, and a presentence report prepared.

       The offense of conviction carries a statutory penalty of not less than 5 and not more

than 20 years of imprisonment, and, with no prior criminal history and a total offense level

of 37, the Guidelines sentencing range was 210 to 240 months of imprisonment.2 The

offense level was determined under United States Sentencing Guidelines Manual (USSG)

       2
      The Guidelines range would have been 210 to 262 months, but it was “capped” by the statutory
maximum sentence of 20 years (or 240 months).
No. 11-1879                                                                                  4

§ 2G2.2, starting with a base offense level of 22 and adding: two levels for material

involving prepubescent minors less than 12 years of age (USSG § 2G2.2(b)(2)); five levels

for offenses involving distribution for the receipt of something of value (USSG §

2G2.2(b)(3)(B)); four levels for material that portrayed sadistic or masochistic conduct or

other depictions of violence (USSG § 2G2.2(b)(4)); two levels for possession that resulted

from the use of a computer (USSG § 2G2.2(b)(6)); and five levels for offenses involving 600

or more images (USSG § 2G2.2(b)(7)(D)). The adjusted offense level of 40 was then

reduced by three levels for acceptance of responsibility (USSG § 3E1.1(a) and (b)).

Defendant did not object to the application of any of these specific offense characteristics,

or challenge the calculation of the advisory Guidelines range, but moved for a downward

variance for reasons articulated in the motion and during the sentencing hearing.

       At sentencing, the district judge indicated that he had reviewed the presentence report,

the two sealed psychological evaluations of defendant, and the arguments made concerning

the motion for a downward variance. Aside from Waldschmidt’s own brief statement to the

court, and the plea for leniency from defendant’s mother and sister, defense counsel argued

for a downward variance for reasons that included: defendant’s history and characteristics

(youth, no prior criminal history, and sexual abuse by his father); defendant’s cooperation

with the government in an unrelated prosecution for murder (willing but not asked to testify

to a jail-house conversation he overheard); and the indiscriminate structure of and other

policy disagreements with the child-pornography Guidelines (harshness due to the wide

application of aggravating factors and lack of distinctions between offenders). The district
No. 11-1879                                                                                  5

judge expressly recognized his discretion to vary from the Guidelines, indicated that he had

“considered all of defendant’s arguments in support of his request for a lower sentence,” and

explicitly rejected the arguments based on policy disagreements with the Guidelines.

Addressing the relevant § 3553(a) sentencing factors, the district judge granted a downward

variance based only on the finding that a sentence at the low-end of the Guidelines range

would be excessive in light of the cooperation Waldschmidt was willing to provide in the

unrelated prosecution and the rehabilitative steps that it represented. 18 U.S.C. § 3553(a).

Varying below the low-end of the Guidelines range of 210 months, defendant was sentenced

to a 180-month term of imprisonment to be followed by a 25-year term of supervised release.

Arguing for a greater downward variance, defendant filed this timely appeal.

                                              II.

       “District courts have broad discretion to impose sentences within the statutory range.”

United States v. Overmyer, 663 F.3d 862, 863 (6th Cir. 2011) (citing United States v. Booker,

543 U.S. 220, 233 (2005)).       That being the case, appellate courts “must review all

sentences—whether inside, just outside, or significantly outside the Guidelines range—

under a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41

(2007).

       A district court abuses its discretion if it commits significant 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
No. 11-1879                                                                                  6

an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51; see

United States v. Bolds, 511 F.3d 568, 579-80 (6th Cir. 2007). A sentencing explanation is

adequate of it allows for meaningful appellate review. Gall, 552 U.S. at 50; see United

States v. Brooks, 628 F.3d 791, 796 (6th Cir.), cert. denied, 131 S. Ct. 3077 (2011). A

sentence may be substantively unreasonable when, taking into account the totality of the

circumstances, the district court “selects a sentence arbitrarily, bases the sentence on

impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable

amount of weight to any pertinent factor.” United States. v. Conatser, 514 F.3d 508, 520 (6th

Cir. 2008) (citing United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005)).

A.     “Particularly Disturbing” Images

       The district judge commented, in the context of addressing the nature and

circumstances of the offense, that although defendant’s was not the most extensive collection

he had ever seen, some of the material was “particularly disturbing,” especially material

described in paragraph 14 of the presentence report, and was “extremely graphic, extremely

degrading to the children involved in the photographs.” Later, after recognizing that

defendant was not a “hands-on” offender and that defendant had not initially comprehended

the seriousness of the situation, the district judge reiterated that some of the images were

“particularly disturbing.” Waldschmidt contends that the district judge erred by giving undue

weight to the “particularly disturbing” nature of five of the images that were the subject of
No. 11-1879                                                                                           7

the offense of conviction. This presents a challenge to the substantive reasonableness of the

sentence.3

        Not Representative. Alleging that the government tends to select the most egregious

of the images recovered to include in the charges, defense counsel asserts that the five images

described in paragraph 14 of the PSR were not necessarily representative of the more than

2000 images and more than 400 videos found on defendant’s computer. Actually, at the

change-of-plea hearing, defendant agreed that the ten images that were the subject of the

distribution charge were representative of the 250 images that were downloaded from

defendant’s shared files by the undercover agent. Nor is there any basis to conclude

otherwise on this record.

        Repugnant and Disgusting. Defendant seems to argue that undue weight was given

to the nature of the images because all child pornography is repugnant, so the fact that the

images here are disturbing is “not necessarily a remarkable fact.” However, the district judge

found that the images here were “extremely graphic,” “extremely degrading,” and

“particularly disturbing.” Defendant also contends that it was error to consider this because

the nature of these images was already counted in the increased offense level based on the

age of the children and that the images portrayed sadistic or masochistic conduct. Although

a district court may under certain circumstances vary upward based on a fact already

addressed by the Guidelines, United States v. Nixon, 664 F.3d 624, 626 (6th Cir. 2011), that


       3
          If defendant were challenging the procedural reasonableness of the sentence on this basis, our
review would be for plain error because no objection was made at sentencing concerning the
representativeness or disturbing nature of these images. See United States v. Simmons, 587 F.3d 348, 355
(6th Cir. 2009).
No. 11-1879                                                                                  8

is not what occurred here. The district judge did not enhance the Guidelines sentence; but

considered the nature of the images in deciding not to grant a greater downward variance

from the Guidelines.

       Downloading vs. Sharing. Finally, defendant argues that it was error to consider the

content of those images because as a “sharer” rather than a “downloader,” defendant did not

control what images he received. However, defendant did not claim ignorance of the content

of the files he received.    Indeed, although defendant objects to the district judge’s

characterization of his postings as “aggressive,” it is clear that he created the file-sharing

account, sought out like-minded people wanting to download child pornography, and

required a reciprocal sharing of child pornography for them to maintain sharing “privileges.”

Waldschmidt’s status as a “sharer” of child pornography does not support a claim of lesser

culpability, and it was not an abuse of discretion to consider the content of the images in

evaluating the seriousness of the offense.

B.     Re-Victimization

       Defendant argues that it was improper for the district judge to find, in weighing the

nature and circumstances of the offense, that the downloading or sharing of child

pornography already on the internet contributed to the re-victimization of the children in

those images. In a variation on the reasons to disregard the Guidelines, defendant contends

that an offender who has had no actual contact with the child, did not make or finance the

making of the images, and was not the first to upload it to the internet, has created no

additional harm to the child by then copying, downloading, or sharing the images with others
No. 11-1879                                                                                    9

irrespective of the fact that it results in new offenders viewing the images. Defendant argued

at sentencing that his conduct was less harmful because he had no contact with the children

and merely downloaded and shared the images with others.

       The district judge rejected this argument and expressed agreement instead with the

Third Circuit’s discussion—including that the downloading of child pornography re-

victimizes the children in the images—in United States v. Goff, 501 F.3d 250, 258-60 (3d

Cir. 2007) (holding that substantial downward variance was substantively unreasonable).

The court in Goff found that the nature and seriousness of the offense of possession of child

pornography was improperly discounted based on the lack of “hands-on” sexual contact and

the suggestion that downloading for personal viewing was a victimless crime. Id. at 259

(“Consumers such as Goff who ‘merely’ or ‘passively’ receive or possess child pornography

directly contribute to this continuing victimization.”). Also, the fact that the offender did not

commit a more serious crime by molesting a child, did not mean his offense was dramatically

different from other child pornography cases so as to warrant a substantial downward

variance. Id. at 260.

       We have no difficulty concluding that the district court did not abuse its discretion in

evaluating the seriousness of the offense by finding that the further distribution of child

pornography by defendant involved re-victimization of the children in those images, or by

rejecting the claim that the sharing and redistribution of child pornography already in

circulation did not result in additional harm. See United States v. Bistline, 665 F.3d 758, 766

(6th Cir. 2012) (recognizing continuing harm from defendant’s knowing possession of child
No. 11-1879                                                                                    10

pornography), petition for cert. filed, 80 U.S.L.W. 3711 (U.S. May 24, 2012) (No. 11-1431).

Nor was it substantively unreasonable to decline to grant a downward variance on this basis.




C.     Policy Disagreements with the Guidelines

       Defendant argues that the child pornography Guidelines should be disregarded

because Congress interfered with and promulgated amendments to the Guidelines without

scientific or empirical basis, relying on the often-cited paper written by Troy Stabenow, an

assistant public defender, entitled Deconstructing the Myth of Careful Study: A Primer on

the Flawed Progression of Child Pornography Guidelines. See also United States v. Grober,

624 F.3d 592, 603 (3d Cir. 2010); United States v. Dorvee, 616 F.3d 174, 184-86 (2d Cir.

2010). Confronted with similar arguments, however, this court has squarely held that “a

district court cannot reasonably reject § 2G2.2—or any other guidelines provision—merely

on the ground that Congress exercised, rather than delegated, its power to set the policies

reflected therein.” Bistline, 665 F.3d at 762; see also United States v. McNerney, 636 F.3d

772, 778 (6th Cir. 2011). Further, this court has also specifically rejected the claim that “§

2G2.2’s purported lack of empirical grounding makes it unfit for deference.” United States

v. Cunningham, 669 F.3d 723, 733 (6th Cir.), cert. denied, __ S. Ct. __, 2012 WL

3191361(Oct. 1, 2012).       Indeed, “a district court is entitled to rely on the § 2G2.2

enhancements unless it has a reasonable policy basis for not doing so.” Id.

       It is also well-established that a district court has the authority to categorically reject

a Guidelines range based on policy disagreements with the Guidelines, although a decision
No. 11-1879                                                                                 11

to do so must be subjected to close scrutiny. See United States v. Herrera-Zuniga, 571 F.3d

568, 584-85 (6th Cir. 2009). This case is not an appeal from such a departure or variance,

however; but an appeal from the decision not to vary downward. We have recognized

that—even in the context of the controversy over § 2G2.2—“the fact that a district court may

disagree with a Guideline for policy reasons and may reject the Guidelines range because of

that disagreement does not mean that the court must disagree with that Guideline or that it

must reject the Guidelines range if it disagrees.” United States v. Brooks, 628 F.3d 791, 800

(6th Cir.), cert. denied, 131 S. Ct. 3077 (2011); see also Grober, 624 F.3d at 609

(emphasizing that a district court that does not have a policy disagreement with § 2G2.2 need

not vary on that basis).

       Here, Waldschmidt argued in various ways, and through reliance on United States v.

Diaz, 720 F. Supp. 2d 1039, 1041-42 (E.D. Wis. 2010) (collecting cases), that the history,

structure, and effect of the child pornography Guidelines resulted in indiscriminate and

unduly harsh sentences and should not be given deference by the district court. Defense

counsel reiterated at sentencing the argument that the Guidelines result in unduly harsh

sentences because most of the enhancements apply to most offenders (i.e. the use of a

computer, children less than 12 years of age, penetration and therefore sadistic or masochistic

images, more than 600 images) and urged the district court to vary downward to moderate

the severity of the punishment. The district judge unquestionably recognized his authority

to disregard or vary downward based on disagreement with the Guidelines, rejected

defendant’s categorical objections to these enhancements, and considered the relevant §
No. 11-1879                                                                                                 12

3553(a) factors and whether application of the enhancements in defendant’s case resulted in

an unduly harsh sentence. Indeed, the district judge concluded that a sentence at the bottom

of the Guidelines range would be excessive in light of defendant’s willingness to cooperate

with the government in the unrelated case.4

        While a within-Guidelines sentence is afforded a rebuttable presumption of

reasonableness, a defendant’s burden to demonstrate that a below-Guidelines sentence was

substantively unreasonable is even more demanding. United States v. Curry, 536 F.3d 571,

573 (6th Cir. 2008). This burden has not been met in this case. See Gall, 552 U.S. at 51

(“The fact that the appellate court might reasonably have concluded that a different sentence

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

        AFFIRMED.




        4
         Defendant argues that policy disagreements with USSG § 2G2.2 have created disparities in federal
sentencing of child pornography cases. To the extent that this argument is one of procedural
unreasonableness, our review is for plain error since it was not raised in the district court or objected to in
response to the Bostic question. As the district judge recognized, one of the § 3553(a) factors to be
considered is “the need to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). That some courts have departed
or varied downward in cases of downloading or possession of child pornography was not lost on the district
court. Nor is there any question that the district judge did not see defendant’s conduct as simple
downloading. Defendant does not explain how granting an even greater downward variance based on a
conviction for distributing child pornography would reduce unwarranted disparities. Defendant has not
demonstrated procedural or substantive error on this basis.
