                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a1018n.06

                                           No. 12-4433

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                            )                           FILED
                                                     )                    Dec 05, 2013
       Plaintiff-Appellee,                           )                DEBORAH S. HUNT, Clerk
                                                     )
v.                                                   )
                                                     )
RONALD L. WHITMORE,                                  )       ON APPEAL FROM THE
                                                     )       UNITED STATES DISTRICT
       Defendant-Appellant.                          )       COURT FOR THE NORTHERN
                                                     )       DISTRICT OF OHIO




       BEFORE: BOGGS and ROGERS, Circuit Judges; STEEH, District Judge.*


       PER CURIAM. Ronald L. Whitmore appeals his 300-month sentence for possession and

production of child pornography. As set forth below, we affirm Whitmore’s sentence.

       Pursuant to a plea agreement, Whitmore pleaded guilty to possession of child pornography

in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 1) and production of child pornography in

violation of 18 U.S.C. § 2251(a) (Count 2). The district court calculated Whitmore’s guidelines

range as 235 to 293 months based on a total offense level of 38 and a criminal history category of I.

After considering the sentencing factors under 18 U.S.C. § 3553(a), the district court varied upward

from that range and sentenced Whitmore to 300 months of imprisonment.




       *
       The Honorable George C. Steeh III, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 12-4433
United States v. Whitmore

       On appeal, Whitmore contends that his sentence was procedurally unreasonable because the

district court varied upward from the guidelines range and ignored his nonfrivolous arguments for

lenity. We review a sentence for procedural reasonableness under an abuse-of-discretion standard.

United States v. Stafford, 721 F.3d 380, 400 (6th Cir. 2013). We must “ensure that the district court

committed no 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 an explanation for any deviation from the Guidelines range.” Gall v. United

States, 552 U.S. 38, 51 (2007).

       Whitmore asserts that the district court varied upward from the guidelines range despite the

negotiated plea agreement. The plea agreement, however, stated: “The parties have no agreement

about the sentencing range to be used or sentence to be imposed in this case, other than to stipulate

to the computation of the advisory Sentencing Guidelines offense level.” Plea Agreement 5

(emphasis added). The parties agreed on an offense level of 40, not including an adjustment for

acceptance of responsibility, for Count 2. The district court used that offense level, less two levels

for acceptance of responsibility, to calculate the advisory guidelines range. Nothing in the plea

agreement prevented the district court from varying from that range.

       The record belies Whitmore’s claim that the district court ignored his request for lenity based

on his physical and mental health. At sentencing, the district court acknowledged Whitmore’s

physical condition, including blindness in one eye, lung disease, and a self-diagnosed stroke, and

his lack of any past mental-health treatment or substance abuse. The district court noted that defense

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United States v. Whitmore

counsel had identified Whitmore’s age and physical condition as possible grounds for departure.

The district court stated, before imposing the sentence, that it would consider Whitmore’s health

problems and, after imposing the sentence, that it ultimately chose not to impose the statutory

maximum sentence because of Whitmore’s age and health issues.

       Whitmore’s brief could be construed as challenging the substantive reasonableness of his

sentence. “The essence of a substantive-reasonableness claim is whether the length of the sentence

is ‘greater than necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United

States v. Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010). We review a sentence for

substantive reasonableness under an abuse-of-discretion standard, “tak[ing] into account the totality

of the circumstances, including the extent of any variance from the Guidelines range.” Gall, 552

U.S. at 51. We “may consider the extent of the deviation, but must give due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id.

       The district court imposed a 300-month sentence, justifying the slight upward variance from

the guidelines range based on the “heinous” nature and circumstances of the offense: Whitmore

repeatedly engaged in sexually explicit conduct with a four-year-old girl who was in his care,

custody, and control, videotaped that conduct, and made a “ridiculous” attempt to minimize the

severity of the offense by claiming that the girl initiated the conduct. Sentencing Tr. 28-29. The

district court factored in evidence discovered in this case indicating the sexual abuse of a male

toddler, and 1992 allegations, reportedly substantiated by Stark County Children Services, of the

sexual abuse of two male children. The district court also noted that the victims of child

pornography suffer long-term effects – “the violation of innocence in perpetuity” – and that child

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United States v. Whitmore

pornography “degrades us as a civilized human race.” Id. at 29. We can discern no abuse of

discretion in the 300-month sentence, including the seven-month upward variance.

       Accordingly, we affirm Whitmore’s sentence as procedurally and substantively reasonable.




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