                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0364n.06

                                           No. 09-5177
                                                                                     FILED
                             UNITED STATES COURT OF APPEALS                       Jun 11, 2010
                                  FOR THE SIXTH CIRCUIT                     LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE WESTERN
v.                                                       )        DISTRICT OF KENTUCKY
                                                         )
JAMES TANNER,                                            )                          OPINION
                                                         )
       Defendant-Appellant.                              )




BEFORE:        BATCHELDER, Chief Judge; MOORE and COLE, Circuit Judges.

       COLE, Circuit Judge. Defendant-Appellant James Tanner appeals his 210-month sentence

on child-pornography charges as procedurally and substantively unreasonable. Based on the

following analysis, we AFFIRM.

                                       I. BACKGROUND

       Law enforcement officials discovered that Tanner had been trading child pornography over

the internet and possessed 435 images and 67 videos of child pornography on a computer hard-drive

and disks found at his home. On October 8, 2008, Tanner pleaded guilty, without a plea agreement,

to one count of distribution of child pornography under 18 U.S.C. § 2252(a)(1), one count of receipt

of child pornography under 18 U.S.C. § 2252(a)(2), and one count of possession of child

pornography under 18 U.S.C. § 2252(a)(4)(B). He also did not contest a related forfeiture charge.

A U.S. Probation Officer prepared a Presentence Investigation Report (“PSR”) that calculated
No. 09-5177
United States v. Tanner

Tanner’s offense level at 37 with a Criminal History Category of I, which corresponded to a range

of 210 to 262 months imprisonment under the U.S. Sentencing Guidelines (the “Guidelines”).

Because the distribution and receipt charges were subject to a statutory maximum term of twenty

years’ imprisonment (and the possession charge was subject to a similar ten-year maximum), see 18

U.S.C. § 2252(b)(1)-(2), the PSR determined the Guidelines range for Tanner was 210 to 240

months’ imprisonment. Neither Tanner nor the Government objected to the Guidelines calculation.1

       The district court held a sentencing hearing on February 2, 2009. Neither Tanner nor the

Government presented any witnesses at the hearing, but Tanner did submit a psychological report

prepared on his behalf and a number of letters from supportive family members. The Government

recommended a sentence at the low end of the applicable Guidelines range. Tanner raised a number

of arguments for a sentence below the Guidelines range. Speaking on his own behalf, Tanner

apologized for his actions and stated that he felt the person he had hurt the most was his disabled,

twenty-eight year-old daughter.

       In response to Tanner’s arguments, the district court noted the advisory nature of the

Guidelines, and stated that it had considered the sentencing factors listed in 18 U.S.C. § 3553(a).

The court then sentenced Tanner at the bottom of the recommended Guidelines range, imposing a

term of 210 months imprisonment on the first two counts and 120 months imprisonment on the third


       1
        On appeal, the Government argues that the range of 210 to 240 months was incorrect
because each of the first two counts could have been punished by a twenty-year sentence, to be
served consecutively, and the third count could have been punished with an additional ten-year
sentence, resulting in a maximum term of fifty years’ imprisonment. (Gov’t Br. 5.) However,
the Government did not raise this argument below, nor does the Government contest Tanner’s
sentence on appeal, so it is not relevant to the issues before us.

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count, to be served concurrently. The court also sentenced Tanner to a life-term of supervised

release and assessed Tanner $300 in penalties. At the close of the hearing, the district court asked

for any objections, and neither Tanner nor the Government objected.

        Tanner now appeals his 210-month sentence as procedurally and substantively unreasonable.

                                            II. ANALYSIS

A. Standard of Review

        We review the reasonableness of a sentence imposed by a district court for abuse of

discretion. United States v. Rosenbaum, 585 F.3d 259, 266 (6th Cir. 2009) (citing Gall v. United

States, 552 U.S. 38, 40-41 (2007)).

        A district court abuses its discretion if it imposes a sentence that is either
        procedurally or substantively unreasonable. A sentencing court commits procedural
        error by 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, failing to entertain and address
        all non-frivolous arguments by the defendant in mitigation of his sentence, or failing
        to explain adequately the chosen sentence.

Id. (citation omitted). However, because the district court gave Tanner the opportunity to object to

the sentence after it was imposed and he did not object, we review his procedural objections to his

sentence for plain error. Id. at 266-67. “To show plain error, a defendant must show (1) error (2)

that was obvious or clear, (3) that affected [the] defendant’s substantial rights and (4) that affected

the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Wallace,

597 F.3d 794, 802 (6th Cir. 2010). “[A] sentence is substantively unreasonable if it is selected

arbitrarily, if it is based on impermissible factors, if it fails to consider a relevant sentencing factor,

or if it gives an unreasonable amount of weight to any pertinent factor.” Rosenbaum, 585 F.3d at

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267. Finally, where, as here, the defendant received a sentence within the properly calculated

Guidelines range, we apply a presumption of reasonableness to the sentence. United States v. Walls,

546 F.3d 728, 736 (6th Cir. 2008).

B. Procedural Reasonableness

        In reviewing a sentence for procedural reasonableness, we “focus[] on the factors listed in

§ 3553(a), one of which is the Sentencing Guidelines themselves.” United States. v. Warman, 578

F.3d 320, 350 (6th Cir. 2009) (internal quotation marks omitted). Further,

        we must ensure that the district court: (1) properly calculated the applicable advisory
        Guidelines range; (2) considered the other § 3553(a) factors as well as the parties’
        arguments for a sentence outside the Guidelines range; and (3) adequately articulated
        its reasoning for imposing the particular sentence chosen, including any rejection of
        the parties’ arguments for an outside-Guidelines sentence and any decision to deviate
        from the advisory Guidelines range.

Untied States v. Bolds, 511 F. 3d 568, 581 (6th Cir. 2007). “[W]hile a district court need not engage

in a ‘ritualistic incantation’ of the § 3553(a) factors, its reasoning must be ‘sufficiently detailed to

reflect the considerations listed in § 3553(a)’ and to allow for meaningful appellate review.” United

States v. Mayberry, 540 F.3d 506, 518 (6th Cir. 2008) (quoting United States v. Moon, 513 F.3d 527,

539 (6th Cir. 2008)).

        Tanner presents several arguments for why his 210-month sentence is procedurally

unreasonable. First, he contends that the district court failed to consider properly the arguments he

raised in his pre-sentencing memorandum and at the sentencing hearing. Next, he presents a number

of arguments based on § 3553(a). He alleges that the district court failed to consider adequately his

personal history and characteristics pursuant to § 3553(a)(1), the seriousness of his offense and the


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United States v. Tanner

deterrent effect of his sentence under § 3553(a)(2), and whether the sentence avoided unwarranted

disparities between sentences imposed upon defendants with similar records found guilty of similar

conduct pursuant to § 3553(a)(6). None of these arguments are persuasive.

        Tanner’s first contention fails because the district court did respond to his sentencing

arguments. At the hearing, Tanner argued that a below-Guidelines sentence would provide just

punishment because he still likely would receive a lengthy sentence of imprisonment and a life-term

of supervised release with significant restrictions. Next, Tanner argued that he presented a low risk

of recidivism based on the psychological report he submitted to the district court. Third, he argued

that the Guidelines range applicable to Tanner was itself too harsh, even though it was the properly

calculated Guidelines range. Finally, he argued that his personal history and characteristics merited

a below-Guidelines sentence, noting that his father had abandoned his family when Tanner was five

years old, that Tanner had been sexually abused as a child, that he was a decorated combat veteran

who suffered from post-traumatic stress disorder related to his military service, that he had struggled

with alcohol and substance abuse, and that he suffered from a number of serious medical conditions.

Similarly, Tanner’s pre-sentencing memorandum focused on his personal history and characteristics,

the psychological report’s conclusions that he presented a low risk of recidivism, and his contention

that the Guidelines ranges for child-pornography offenses were too harsh and not based on sound

evidence.

        The district court adequately addressed all of these arguments. The court acknowledged that

“[c]ertainly the [psychological] report . . . contains some favorable material . . . regarding some risks

of recidivism,” but questioned the veracity of some of Tanner’s statements upon which the report

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United States v. Tanner

was based. (District Court Record Entry (“R.E.”) 52, at 21.) Specifically, the court noted that the

report included statements from Tanner that he was not attracted to children and that he possessed

and traded child pornography in an effort to meet women. The court found that these statements

were at odds with an online profile Tanner created, introduced by the Government, where he

indicated that he had a sexual interest in young children and in actually engaging in sexual acts with

them. The court noted that the online profile stated that Tanner was

       looking for ‘young girls in [the Kentucky/Indiana] area to chat with and maybe
       more.’ We don’t have evidence that he has abused any children physically, but
       certainly his own self-constructed profile does not rule out that kind of behavior.
       And that, dovetailing with the [psychological] report . . . gives the court some pause
       to wonder whether or not, if given the opportunity, that would have been part of the
       picture . . . . [I]t certainly can’t be denied that there was at least some expressed
       interest in that sort of thing. It’s of concern, not only for the children that are
       portrayed but the risk factors for the future.

(Id. at 22.) For the district court, these discrepancies called into question the report’s conclusions

that he presented a low risk of recidivism. “In this report he seems to say he’s not attracted to

children and yet his own web page that he wrote himself indicates quite clearly the contrary . . . .”

(Id. at 24.) The district court determined that Tanner’s online profile undermined the psychological

report’s conclusions about Tanner’s risk of recidivism and indicated that Tanner actually may pose

a risk not only of committing additional child-pornography offenses, but of committing direct sexual

crimes against minors.

       Further, the court noted that the risk of recidivism was only one of a number of factors it

would consider, including “the seriousness of the offense, just punishment, deterrence, not only to

the defendant but to others, [and the need] to protect the public, including children.” (Id. at 23.).


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The court emphasized the seriousness of Tanner’s offense, remarking that it was “such a terrible

crime,” (id. at 22), and that while Tanner acknowledged that his actions had victimized his family

members, the children depicted in the images he possessed were unacknowledged victims of those

crimes.

          The court also addressed and rejected Tanner’s argument that the applicable Guidelines range

was too harsh. The court noted that the Guidelines were advisory but also stated that the

recommended range was to be considered in fashioning Tanner’s sentence and that it was “rather

rigorous . . . for a reason.” (Id. at 23.) The court noted that the lengthy sentences recommended by

the Guidelines for child-pornography crimes was based on the particular vulnerability of the victims.

“Those who are victimized by this type of behavior are unable to protect themselves. They’re not

old enough. And so the law seeks to protect them with rigorous sanction for violations.” (Id.) The

court remarked that it had reviewed some of the images found in Tanner’s possession and that “it’s

clear that these children are being victimized in a terrible way. They will carry that with them for

a long time, if not forever, in their own lives.” (Id.)

          Tanner’s § 3553(a)-based procedural unreasonableness arguments are similarly unavailing.

First, Tanner argues that the court failed to take into account his personal history and characteristics

as required by § 3553(a)(1), including his cooperation with law enforcement officials following his

arrest, his role in providing care to his mentally disabled daughter, the fact that he had been sexually

abused as a child, and his status as a fifty-eight year old military veteran in poor health with a limited

criminal record. Tanner argues that the court erred by not making “specific reference” to these

characteristics. (Tanner Br. 17.) However, the court was not required to mention all of the personal

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United States v. Tanner

characteristics emphasized by Tanner nor discuss them at length, particularly because his sentence

fell within the applicable Guidelines range. See Rita v. United States, 551 U.S.338, 356-59 (2007).

Further, in addition to discussing the nature and circumstances of Tanner’s crimes, the court

specifically noted Tanner’s history of substance abuse and that he suffered from post-traumatic stress

disorder. The court also discussed in some detail Tanner’s online profile and how it related to his

crimes, his potential for recidivism, and the statements he made to the psychologist. In sum, the

court’s discussion at the sentencing hearing was sufficient to satisfy the requirements of §

3553(a)(1).

       Tanner next argues that the district court paid only lip-service to the factors included in §

3553(a)(2), which requires sentencing courts to consider whether the sentence imposed “reflect[s]

the seriousness of the offense,” “promote[s] respect for the law,” “provide[s] just punishment for the

offense,” “affords adequate deterrence to criminal conduct,” “protect[s] the public from further

crimes of the defendant,” and “provide[s] the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the most effective manner.” 18 U.S.C. §

3553(a)(2)(A)-(D). However, as we have noted, the district court specifically discussed the

seriousness of Tanner’s offenses and how the applicable Guidelines range was calibrated to address

the helplessness of children and deter people from such conduct. Therefore, the court adequately

addressed the § 3553(a)(2) factors.

       Finally, Tanner argues that his sentence is procedurally unreasonable because the district

court did not consider how his sentence avoided unwarranted disparities between sentences imposed

on defendants with similar records convicted of crimes based on similar conduct, pursuant to §

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United States v. Tanner

3553(a)(6). While the court noted that it had “considered . . . the 3553(a) factors” and concluded that

“the sentence imposed is sufficient but not greater than necessary to comply with the 3553(a)

factors,” it did not mention sentencing disparities in particular. (R.E. 52, at 24-25.) However,

Tanner’s sentence “was not procedurally unreasonable, despite the fact the district court did not

explicitly discuss § 3553(a)(6).” United States v. Simmons, 501 F.3d 620, 625 (6th Cir. 2007). First,

a sentencing court does not need to mention specifically each of the § 3553(a) factors it considers.

Id.; see also Mayberry, 540 F.3d at 518 (“A judge is not required . . . to expressly state each of [the

§ 3553(a)] factors at sentencing, so long as his or her opinion reflects a consideration of these

factors.”). Second, Tanner did not raise a specific disparity argument in his pre-sentencing

memorandum or at the sentencing hearing. “The district judge is only under a more rigorous duty

to make explicit its consideration of the factors when a defendant makes a particular argument and

when a factor is particularly relevant[.]” Simmons, 501 F.3d at 625 (citations omitted). Finally,

Tanner has presented no evidence that his sentence is disproportionately long when compared at the

national level to defendants with similar records convicted of crimes based on similar conduct.

Though a sentencing court has discretion to consider other types of disparities in fashioning a

sentence, like disparities between co-defendants, § 3553(a)(6) requires only that it consider

disparities on the national level because national uniformity among sentences given to similarly

situated defendants is the goal of that subsection. See United States v. Presley, 547 F.3d 625, 631

(6th Cir. 2008) (citing Simmons, 501 F.3d at 623-24).

       Based upon the foregoing analysis, we conclude that the district court did not commit plain

error in conducting Tanner’s sentencing hearing and imposing a sentence of imprisonment of 210

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months. Therefore, Tanner’s sentence is procedurally reasonable.

C. Substantive Reasonableness

        Tanner also claims that his sentence is substantively unreasonable. He argues that his

sentence should not be entitled to a presumption of reasonableness and that the district court

incorrectly weighed the various § 3553(a) factors. Specifically, he contends that the district court

gave too much weight to the Guidelines range and deterrence, and too little weight to Tanner’s

personal characteristics and avoiding sentencing disparities. We are not persuaded.

        Tanner first argues that because the Government recommended a sentence at the low end of

the Guidelines range and the district court imposed a sentence at the bottom of that range, the district

court’s within-Guidelines sentence is not entitled to a presumption of reasonableness. Further, based

on the same reasoning, he argues that only a sentence that fell between the statutory minimum of 60

months imprisonment and the 210-month sentence he received should be considered substantively

reasonable. These arguments fail. While it is true that we need not treat a within-Guidelines

sentence as presumptively reasonable, Gall v. United States, 552 U.S. 38, 51 (2007) (“[T]he

appellate court may, but is not required to, apply a presumption of reasonableness.”), it is permissible

to do so and “[i]n this circuit, we have chosen to apply a rebuttable appellate presumption of

reasonableness to a sentence that falls within a properly calculated guidelines range,” Walls, 546

F.3d at 736 (citing United States v. Vonner, 516 F.3d 382, 389-90 (6th Cir. 2008) (en banc)).

Moreover, that the Government and the sentencing court agreed that a sentence at the low end of the

Guidelines was appropriate in no way militates against applying such a presumption nor does it

permit the district court or this Court to shift the applicable Guidelines range. Thus, we apply a

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United States v. Tanner

rebuttable presumption of reasonableness to Tanner’s sentence.

       Tanner has failed to rebut this presumption. Tanner’s first § 3553(a) argument is that the

district court gave too much weight to the applicable Guidelines range, which the district court was

required to consider under § 3553(a)(4). Because the Guidelines are now advisory, once the district

court has calculated the appropriate Guidelines range, as it did here, it “throws this ingredient into

the section 3553(a) mix,” United States v. McBride, 434 F.3d 470, 476 (6th Cir. 2006), because it

is “now just one of the numerous factors that a district court must consider when sentencing a

defendant,” id. at 475. Here, the district court specifically noted that “[c]ertainly the guidelines are

advisory.” (R.E. 52, at 23.) It also acknowledged that the Guidelines range was just one of many

factors to consider in sentencing Tanner, and indeed, it was just one of several factors that the court

discussed. See United States v. Kavo, 230 F. App’x 554, 558 (6th Cir. 2007) (rejecting argument

that the district court gave too much weight to the Guidelines range because it was “refuted” by the

court’s “express acknowledgment” that the Guidelines are advisory and only one of the § 3553(a)

factors it must consider). Further, the court did not simply defer to the Guidelines range as Tanner

suggests, it explained why the long prison sentences included in the Guidelines range were

appropriate for Tanner’s offenses. Based on this, we conclude that the district court did not rely too

heavily on the Guidelines range. See United States v. Duane, 533 F.3d 441, 453 (6th Cir. 2008)

(“Neither the district court’s correct observation that it was ‘obliged to consider’ the recommended

Guidelines range nor the fact that it actually sentenced [the defendant] within this range alone

suggest that it gave this factor disproportionate weight.”).



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       Tanner next argues that the district court placed too much weight on deterrence and

punishment and too little weight on aspects of his personal history and characteristics that he

contends justify a shorter sentence. Tanner identifies a number of personal characteristics that the

district court could have relied upon to justify a lower sentence: his age, minimal criminal record,

poor health, military service, history of being sexually abused as a child, and the remorse he

expressed in court. See United States v. Davis, 537 F.3d 611, 617 (6th Cir. 2008) (noting that

sentencing courts have a “freer hand” to consider a defendant’s age in their sentencing calculus now

that the Guidelines are advisory); United States v. Gray, 453 F.3d 1323, 1325 (11th Cir. 2006)

(holding that a below-Guidelines sentence based on the defendant’s age, minimal prior criminal

record, and medical condition was not unreasonable). However, it was not an abuse of discretion

for the court to impose a within-Guidelines sentence despite the presence of these characteristics.

See Duane, 533 F.3d at 453 (finding that the district court did not err in not responding to

defendant’s argument that he was entitled to a below-Guidelines sentence because he was fifty-

seven-years old and had zero criminal history points). The district court was not required to mention

each of the personal characteristics raised by Tanner, especially since it explicitly considered other

factors that fall under § 3553(a)(1), including the specific nature of the images that Tanner possessed

and traded, the online profile he constructed, and the inconsistencies between his online profile and

the statements he gave to the psychologist. It also was not required to give each of the § 3553(a)

factors equal weight. United States v. Thomas, 337 F. App’x 505, 510 (6th Cir. 2009). Moreover,

“‘[t]he fact that [we] might reasonably have concluded that a different sentence was appropriate is



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No. 09-5177
United States v. Tanner

insufficient to justify reversal of the district court.’” Walls, 546 F.3d at 736 (quoting Gall, 552 U.S.

at 51).

          Finally, Tanner again raises the argument that his sentence does not avoid unwarranted

sentencing disparities—this time as a substantive-reasonableness argument.              It is similarly

unpersuasive. Tanner focuses his argument on several cases where defendants were sentenced in

the Western District of Kentucky for child-pornography convictions and had personal characteristics

similar to him but were given below-Guidelines sentences by the district court. In United States v.

Beach, 275 F. App’x 529 (6th Cir. 2008), United States v. Kirchof, 505 F.3d 409 (6th Cir. 2007), and

United States v. Cherry, 487 F.3d 366 (6th Cir. 2007), this Court determined that the below-

Guidelines sentences imposed by the district court were substantively reasonable. In contrast, in

United States v. Borho, 485 F.3d 904 (6th Cir. 2007), another case cited by Tanner, this Court

determined that the below-Guidelines sentence imposed by the district court was substantively

unreasonable. Tanner also notes two similar cases that arose from outside the Western District of

Kentucky, United States v. Grossman, 513 F.3d 592 (6th Cir. 2008), where this Court found the

below-Guidelines sentence was reasonable, and United States v. Fink, 502 F.3d 585 (6th Cir. 2007),

where this Court determined that the below-Guidelines sentence was substantively unreasonable.

          This collection of cases demonstrates only that it may have been substantively reasonable for

the district court to have given Tanner a below-Guidelines sentence. None of the cases support the

proposition that the court abused its discretion in giving Tanner a within-Guidelines sentence.

Moreover, Tanner misapprehends the focus of § 3553(a)(6), which is designed to avoid national



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United States v. Tanner

disparities in sentences.

       Subsection 3553(a)(6) is concerned with national disparities among the many
       defendants with similar criminal backgrounds convicted of similar criminal conduct.
       It is not concerned with disparities between one individual’s sentence and another
       individual’s sentence . . . . Instead § 3553(a)(6) is there to ensure nationally uniform
       sentences among like offenders so as to leave room to depart downward for those
       defendants who are truly deserving of leniency.

Simmons, 501 F.3d at 623-24 (citations omitted). “A single example is about the weakest sort of

proof of national practice that can be imagined. If great weight was given to such singular examples,

then the prosecution and defense would be encouraged to find random examples to support a higher

or lower sentence.” Id. at 626 (brackets, internal quotation marks, and citation omitted). While it

would have been permissible for the district court to consider sentencing disparities other than at the

national level, United States v. Martin, No. 08-6246, 2010 WL 1324890, at *4 (6th Cir. April 6,

2010), it was not an abuse of discretion for it not to do so in this case because § 3553(a)(6) does not

require it to do so and Tanner did not raise any disparity arguments before the district court. We

have recognized that “this court’s review of substantive reasonableness starts with the sentencing

estimate provided by the Sentencing Commission, not the sentences received by other individual

defendants.” United States v. Kirchoff, 505 F.3d 409, 416 (6th Cir. 2007) (internal quotation marks

omitted). As we have said,

       [The defendant’s] argument that he is entitled to a below-Guidelines sentence
       because a defendant with similar characteristics received a downward departure in
       [another case] . . . is without merit—the fact that a judge in an unrelated case found
       a specific individual deserving of a downward departure does not mean that the judge
       in this case plainly erred by sentencing [the defendant] within the Guidelines after
       considering the nature of his crime and his personal characteristics.



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United States v. Lapsins, 570 F.3d 758, 774 (6th Cir. 2009).

       Based upon this analysis, we conclude that the district court did not abuse its discretion in

imposing a 210-month sentence of imprisonment on Tanner and that therefore his sentence is not

substantively unreasonable.

                                      III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s sentence.




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