                NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                           File Name: 07a0753n.06
                           Filed: October 23, 2007
                                 No. 06-3414

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA ,
      Plaintiff, Appellee
                                                      On Appeal from the United States District
                                                      Court for the Southern District of Ohio
            v.
DANNY E. BURKE ,
     Defendant, Appellant

______________________________/


    BEFORE: BOGGS, Chief Circuit Judge, KENNEDY, Circuit Judge, and
JORDAN, District Judge.*

       KENNEDY, Circuit Judge. Defendant Danny E. Burke appeals his sentence of twenty-four

months of imprisonment and three years of supervised release for possession of child pornography.

He argues that the district judge (1) engaged in impermissible judicial fact-finding in violation of

his Sixth Amendment rights, (2) erred in finding specific offense characteristics that supported

enhancements under the Sentencing Guidelines, (3) improperly imposed a sex offender registration

requirement as a condition of his supervised release, and (4) erred in denying his motion to suppress.

Because we find that the district court did not err and the sentence imposed is reasonable, we

AFFIRM.

                                         BACKGROUND




       *
       The Honorable R. Leon Jordan, Senior United States District Judge for the Eastern District
of Tennessee, sitting by designation.
       Defendant Danny E. Burke pleaded guilty to possession of child pornography on April 26,

2005. A written plea agreement was accepted by the court and a Statement of Facts was read into

the record at the plea hearing. Burke acknowledged that this statement was accurate. J.A. at 122-26.

        The Statement of Facts reflects that on January 9, 2004, federal agents searched Burke’s

residence under the authority of a search warrant issued on probable cause that Burke possessed child

pornography in the home. Burke returned to his residence while the agents were conducting the

search and agreed to be interviewed. When shown two child pornographic images that had been

used in the search warrant affidavit, Burke acknowledged seeing the images on his computer. Burke

stated that he started collecting child pornography with peer-to-peer software in February 2003. He

also admitted that he possessed pornographic movie files in which the sexual penetration of children

is plainly visible. Burke’s computers were seized and sent to a forensic facility where they were

examined by an expert. The analysis revealed 314 images of minors engaged in sexually explicit

conduct, including minors under the age of twelve. J.A. at 124-25.

       On December 15, 2004, Burke was charged with three counts of transportation and

possession of child pornography. On April 26, 2005, Burke pleaded guilty to Count 2, Possession

of Child Pornography in violation of 8 U.S.C. § 2252(a)(4)(b) and § 2252(b)(2). The remaining

charges were dismissed under the written plea agreement.

       The United States Probation Officer conducted a presentence investigation and submitted a

Presentence Report (“PSR”) to the court. To avoid ex post facto issues, the PSR applied the 2003

Edition of the Sentencing Guidelines Manual to calculate a total offense level of 24 and a criminal

history category of I. The PSR recommended a guideline imprisonment range of 51 to 63 months.

J.A. at 141-45. The PSR included enhancements to the base offense level for the following specific


                                                 2
offense characteristics: images involving a prepubescent minor or minor under the age of twelve, the

use of a computer to commit the offense, images portraying sadistic or masochistic conduct, and

images more than 300 but less than 600 in number.

         During a sentencing hearing on February 9, 2006, Burke objected to the inclusion of each of

the specific offense characteristics, except for his use of a computer in the offense. After considering

the evidence, the district court made findings consistent with the PSR. The district court considered

the sentencing factors in 18 U.S.C. § 3553(a) and ultimately sentenced Burke to twenty-four months

of imprisonment and three years of supervised release. As a condition of his supervised release, the

district court required Burke to register as a sex offender. This timely appeal followed.

                                             ANALYSIS

         When considering sentencing decisions, we review the district court's factual findings for

clear error while reviewing the district court's conclusions of law de novo. United States v.

Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005). We review the district court's application of the

United States Sentencing Guidelines de novo. United States v. Gibson, 409 F.3d 325, 338 (6th Cir.

2005).

                                                   I.

         Burke argues that the district court erred in determining his Sentencing Guidelines

calculation. First, he argues that under United States v. Booker, 543 U.S. 220 (2005), the district

court violated his Sixth Amendment rights by basing his Sentencing Guidelines calculation on judge-

found facts instead of his own admissions or findings by a jury beyond a reasonable doubt. Second,

Burke objects to the district court’s findings of fact substantiating enhancements for the specific

offense characteristics of: (1) images involving minors under the age of twelve engaged in sexually


                                                   3
explicit conduct, (2) images exceeding 300 but not more than 600 in number, and (3) images

portraying sadistic or masochistic conduct or other depictions of violence. We will address each of

his arguments in turn.

A. Judicial Fact Finding

       Burke’s argument that the district court engaged in impermissible judicial fact finding in

violation of Booker is without merit. As an initial matter, Booker “did not eliminate judicial

factfinding.” United States v. Coffee, 434 F.3d 887, 898 (6th Cir. 2006). Rather, “[i]t is clear under

the law of this Circuit that a district court may make its own factual findings regarding relevant

sentencing factors, and consider those factors in determining a defendant's sentence.” United States

v. Gardiner, 463 F.3d 445, 461 (6th Cir. 2006). “[W]hen a trial judge exercises his discretion to

select a specific sentence within a defined range, the defendant has no right to a jury determination

of the facts that the judge deems relevant.” Booker, 543 U.S. at 233. In sum, so long as the

sentencing guidelines are treated as advisory and not mandatory, Booker does not bar the district

court from fact finding using a preponderance of the evidence standard for sentencing calculations.

United States v. Mickens, 453 F.3d 668, 673 (6th Cir. 2006).

       Here, the record clearly indicates that the district court properly considered the Guidelines

advisory. The significant variance in Burke’s actual sentence below the recommended sentencing

guideline range further indicates that the district court did not consider itself bound by the

Guidelines.

       Burke argues that “any fact (other than a prior conviction), which is necessary to support a

sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt,” Booker,


                                                  4
543 U.S. at 244. While this a true statement of the law, the statutory maximum for possession of

child pornography is ten years of imprisonment and three years of supervised release. 18 U.S.C. §

2252(b)(2). Burke was sentenced to only two years of imprisonment and three years of supervised

release. Because the judge-found facts did not increase Burke’s sentence beyond “the maximum

authorized by the facts established by a plea of guilty,” Booker, 543 U.S. at 244, i.e., possession of

child pornography, they did not need to be proven beyond a reasonable doubt. Accordingly, we find

no Booker violation.

B. Specific Offense Characteristics

       In calculating the advisory guidelines range for sentencing, the district court added

enhancements based on its determination of the number and nature of prohibited images found in

Burke’s possession. First, the district court applied the two level enhancement of USSG §

2G2.4(b)(1)1 because the offense involved images of minors under the age of twelve. Second, the

district court added the four level enhancement of USSG § 2G2.4(b)(5)2 because the offense

involved between 300 and 600 images of child pornography. Third, the district court increased the

offense level by four under USSG § 2G2.4(b)(4)3 because the offense involved material portraying

sadistic or masochistic acts or other depictions of violence.

       The district court properly calculated Burke’s guidelines range as the facts necessary to

support each of the enhancements were either admitted by Burke or found by a preponderance of the


       1
         Because the instant offense occurred on January 9, 2004, the 2003 Guidelines Manual was
use d in this case. This section has been renumbered in the current edition of the Guidelines Manual
as § 2G2.2(b)(2).
       2
           Renumbered in current Guidelines Manual as § 2G2.2(b)(7)(C).
       3
           Renumbered in current Guidelines Manual as § 2G2.2(b)(4).

                                                  5
evidence by the district court. By affirming the accuracy of the Statement of Facts read into the

record at the plea hearing, Burke admitted that he had possessed images involving minors under the

age of twelve engaged in sexually explicit conduct, J.A. at 125-26; he had possessed at least 314

images of minors engaged in sexually explicit conduct, id. at 125-26; and he had possessed child

pornographic movie files in which sexual penetration was plainly visible. Id. at 124-25. At the

sentencing hearing, Burke again affirmed the accuracy of the Statement of Facts, id. at 63, and

further acknowledged that four of the images depicted adult males or animals penetrating minors

under the age of twelve. Id. at 66-67. The PSR prepared by the Probation Officer also reflected

these facts. Moreover, the Probation Officer testified at the sentencing hearing that the four images

depicting sexual penetration of children by adult males or animals were sadistic or masochistic in

her professional opinion. Id. at 69.

       In his argument against application of the sentencing enhancement for sadistic or masochistic

images, Burke does not deny that the images depict the sexual penetration of children; rather, he

argues that the images could have been altered by adding adults or animals that were not present at

the time the photos were taken. We fail to see, however, why alteration of the images in this way

would lead to a finding that they do not in fact portray sadistic or masochistic conduct or other

depictions of violence. Burke does not argue that the children depicted in the images were digitally

created, which would implicate the Supreme Court’s decision in Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002). Nor does he argue that the images of the children are not sexually explicit.

Instead, Burke argues that the district court cannot properly enhance his sentence under USSG §

2G2.4(b)(4) unless it finds by a preponderance of the evidence that the sadistic or masochistic




                                                 6
conduct depicted in the image actually occurred, i.e., by finding that the photo has not been altered.

We find no such requirement in the Guidelines.

         Even if such a requirement existed, Burke’s defense expert merely testified at the sentencing

hearing that photos generally could be altered by photo editing programs like Adobe Photoshop. J.A.

at 71-72. He did not give an opinion as to whether the specific images at issue had been altered nor

did he testify that he had even viewed them.              Mere speculation is insufficient to create a

preponderance of the evidence.

         Because the facts necessary to support application of each of the enhancements were admitted

by Burke and substantiated in the PSR, we find that the district court did not clearly err in calculating

Burke’s Sentencing Guidelines range.

                                                    II.

         Burke also objects to the district court’s imposition of sex offender registration as a condition

of his supervised release based on arguments of due process and application of Ohio state law. We

review imposition of a supervised release condition for abuse of discretion. United States v. Carter,

463 F.3d 526, 528 (6th Cir. 2006).

         First, Burke argues that he was denied due process because the registration requirement was

imposed without notice or an opportunity to be heard. We find this argument to be wholly without

merit.   While neither the plea agreement nor the PSR mention a sex offender registration

requirement, Burke did receive adequate notice that such a condition would be imposed as part of

his sentence. At the time Burke committed the offense, and throughout his sentencing, 18 U.S.C.

§ 3583 required any person convicted of a sex offense as described in 18 U.S.C. § 4042(c)(4) to

register as a sex offender as a mandatory condition of supervised release. 18 U.S.C. § 3583


                                                    7
(amended 1997). During this time, 18 U.S.C. § 2252(a)(4)(B) was listed as a qualifying sex offense

under § 4042(c)(4). 18 U.S.C. § 4042(c)(4)(C) (prior to July 27, 2006 amendment). Therefore,

Burke was on notice that registration as a sex offender could be imposed as part of his sentencing.

Burke also received a hearing on the issue. At the sentencing hearing, the district court listened to

Burke’s argument that he should not have to register as a sex offender because the requirement is

discretionary under Ohio law for those convicted of mere possession of child pornography. The

district court was not persuaded and adopted the recommendation of the government. Because

Burke received both notice and an opportunity to be heard on the imposition of a sex offender

registration requirement, we find that he was afforded all the process he was due on this sentencing

issue.

         Second, Burke argues that Ohio state law should govern whether he should be required to

register. As Burke was convicted under a federal statute for a federal crime, we fail to see how this

argument follows. Even if this argument were convincing, imposition of a sex offender registration

requirement would still be within the court’s discretion. Burke pleaded guilty to the sex offense of

possession of child pornography. Under the 2003 Sentencing Guidelines Manual, registration as a

sex offender was a mandatory condition of supervised release for such an offense. U.S. Sentencing

Guidelines Manual § 5D1.3(a)(7)(2003). Therefore, we find that the district court did not abuse its

discretion by ordering Burke to register as a sex offender as a condition of his supervised release.

                                                  III.

         Finally, Burke challenges the district court’s denial of his motion to suppress. He argues that

the information contained in the affidavit in support of the issuance of the warrant for search of his

residence was stale. Burke, however, is barred from raising this argument against his conviction on


                                                   8
appeal because his guilty plea was not conditional. United States v. Pickett, 941 F.2d 411, 416-17

(6th Cir. 1991). Furthermore, Burke also admitted by accepting the Statement of Facts that the

search warrant he now questions was issued based on a showing of probable cause to believe that

he possessed child pornography. Thus, we find that Burke’s challenge of the denial of his motion

to suppress is barred.

                                               IV.

       For the foregoing reasons, the district court’s imposed sentence is AFFIRMED.




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