                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0656n.06

                                           No. 09-2007
                                                                                       FILED
                          UNITED STATES COURT OF APPEALS                            Oct 25, 2010
                               FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE WESTERN
                                       )                 DISTRICT OF MICHIGAN
JERRY DEAN BYARS,                      )
                                       )
      Defendant-Appellant.             )                        OPINION
_______________________________________)


Before: BOGGS, SILER, and MOORE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Jerry Dean Byars

appeals his sentence of ninety-seven months of imprisonment following his plea of guilty to one

count of receiving images of minors engaged in sexually explicit conduct. Byars argues that his

sentence was procedurally unreasonable because the district court failed to consider and respond to

his arguments in favor of a variance. For the reasons stated below, we AFFIRM Byars’s sentence.

                                      I. BACKGROUND

       On September 23, 2008, Byars was indicted on one count of receiving images of minors

engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) and one count of

possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Byars subsequently

entered into a plea agreement under which he agreed to plead guilty to the first count. The

government, in return, agreed to dismiss the second count, to refrain from opposing any reduction
No. 09-2007
United States v. Byars


in Byars’s Guidelines offense level pursuant to § 3E1.1(a) of the U.S. Sentencing Guidelines

(“U.S.S.G.”), and to move for an additional reduction pursuant to § 3E1.1(b) should the court grant

the § 3E1.1(a) reduction. There was no agreement, however, as to the final Guidelines sentencing

range.

         A Presentence Investigation Report (“PSR”) determined that Byars’s offense level was thirty.

The PSR further noted that Byars had a prior state conviction in 2000 for “Disorderly Person-

Obscene Conduct” that stemmed from an incident in which he allegedly exposed himself to a nine-

year-old girl. PSR at ¶ 68. The PSR assigned Byars a criminal history category of I, which resulted

in a Guidelines range of 97 to 121 months of imprisonment.

         Byars’s attorney filed a sentencing memorandum requesting a variance.               In that

memorandum, Byars’s attorney drew attention to Byars’s past community service, which purportedly

included activities such as delivering Christmas baskets to needy families and even rescuing an

elderly woman from a burning building. Several letters were attached that further attested to Byars’s

service. The memorandum also focused upon Byars’s failing health and his age. Finally, in the

memorandum, Byars’s attorney criticized the Guidelines as a whole and the manner in which they

treat child-pornography offenses. In particular, he argued that the relevant provisions had no

empirical basis and failed to distinguish between “real predators” and those who merely viewed child

pornography. Doc. 38 (Def.’s Sent. Mem. at 6). In support of this argument, Byars’s attorney

attached an ABA Journal article and noted other cases in which district judges had granted variances

for similar reasons.


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United States v. Byars


           The government opposed the variance and responded by emphasizing Byars’s prior

conviction, his use of an adolescent “persona” while searching for pornography online, and the fact

that Byars continued collecting child pornography even after police seized his computer in 2005.

The government also noted that, according to the PSR, while out on bond, Byars allegedly tried to

choke another individual in a half-way house and allegedly violated the terms of his release by

“seeking out” individuals who appeared to be minors and “engaging [them] in conversation.” PSR

at ¶ 14.

           The district court held a sentencing hearing on July 21, 2009. The district judge began by

noting that he had “taken some time to read the various letters . . . attached to the sentencing

[memorandum] which bespeak Mr. Byars’ connections in his community.” Dist. Ct. Doc. 45 (Sent.

Hr’g Tr. (7/21/2009) at 4). Byars’s attorney proceeded to argue for a variance, and in doing so he

tried to address some of the conduct to which the government had pointed in its memorandum while

also emphasizing, among other things, Byars’s community service. Byars’s attorney also observed

that “people who’ve robbed banks . . . don’t get this kind of sentence,” id. at 7, which prompted the

following dialogue with the court:

           The Court: “[Y]ou’re quarelling essentially with [the] sentenc[ing] guidelines and
           with the Congress and the statute, aren’t you?”

           [Byars’s attorney]: “I am. I am, Your Honor, and I think our memo is fairly clear
           about that, and we seek a variance because of that.”

           The Court: “But is there not . . . a troubling conviction in the year 2000?”




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Id. Byars’s attorney acknowledged that there was such a conviction and proceeded to downplay its

significance. Byars’s attorney again noted Byars’s community service, age, and poor health, and

argued that Byars was not a threat to the community.

       The court then gave Byars an opportunity to speak. During that time, Byars remarked that

“time’s running out for me. I have about three years left before this body disintegrates, and I would

like to contribute a little bit more to society before it does.” Id. at 12. The court replied by noting

that Byars was sixty-six years old and then stated that “[w]ell, I don’t know quite how to say this to

you, Mr. Byars, but you’re not that old.” Id. The court proceeded to ask Byars a series of questions,

focusing particularly upon Byars’s past conviction and the fact that Byars continued his conduct even

after police seized his computer.

       The district court then imposed a sentence of ninety-seven months of imprisonment, the

bottom of the Guidelines sentencing range. In doing so, it noted that although Byars had a criminal

history category of only I, he nonetheless had an obscene-conduct conviction “that bears a similarity

to this behavior that is troubling to this Court.” Id. at 18. The court was also troubled by the fact

that Byars continued collecting child pornography even after his computer was seized in 2005. The

court further remarked that Byars committed a “serious offense” that “require[d] the promotion of

respect for law,” id., and that “a just punishment require[d] that some kind of an adequate deterrence

be meted out in this matter to protect the public,” id. at 18-19. Finally, the court stated that it

“believe[d] that the defendant[ was] in need of not only medical, but correctional treatment in this

matter.” Id. at 19. In addition to the prison sentence, the court also recommended that Byars “be


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evaluated for the plethora of medical needs that he has” and that he receive sexual-offender and

mental-health treatment. Id. Byars now appeals.

                                          II. ANALYSIS

A. Standard of Review

       Normally, “[w]e review the district court’s sentence under an abuse-of-discretion standard.”

United States v. Barahona-Montenegro, 565 F.3d 980, 983 (6th Cir. 2009). The government,

however, argues that in this case, we should review the district court’s sentence only for plain error.

Because we would uphold Byars’s sentence under either standard of review, we decline to resolve

this issue, and assume that abuse-of-discretion review is the appropriate standard.

B. Procedural Reasonableness

       On appeal, Byars argues that his sentence is procedurally unreasonable. In determining

whether a sentence is procedurally reasonable,

       [w]e must ensure that the district court (1) properly calculated the applicable advisory
       Guidelines range; (2) considered the § 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 chosen sentence, including any rejection of the parties’
       arguments for an outside-Guidelines sentence and any decision to deviate from the
       advisory Guidelines range.

United States v. Petrus, 588 F.3d 347, 351-52 (6th Cir. 2009). Byars focuses primarily upon the

second and third prongs of this analysis, arguing that the district court failed to consider Byars’s

arguments in favor of a variance and failed to explain adequately its bases for rejecting those

arguments.



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        As the Supreme Court explained in Rita v. United States, 551 U.S. 338 (2007), “[t]he

sentencing judge should set forth enough to satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.”

Rita, 551 U.S. at 356. A district court has some discretion in deciding how much explanation to

provide.    Id.   Nonetheless, Rita stated that “[w]here the defendant or prosecutor presents

nonfrivolous reasons for imposing a different sentence . . . the judge will normally . . . explain why

he has rejected those arguments.” Id. at 357. This court has also emphasized that “[w]here a

defendant raises a particular argument in seeking a lower sentence, the record must reflect both that

the district judge considered the defendant’s argument and that the judge explained the basis for

rejecting it.” United States v. Recla, 560 F.3d 539, 547 (6th Cir. 2009) (internal quotation marks

omitted). When a defendant raises a “conceptually simple” argument, however, a district court is

permitted to provide less explanation than might otherwise be necessary. Rita, 551 U.S. at 359.

        Byars first argues that the district court did not adequately explain why Byars’s old age and

poor health did not warrant a variance. The record, however, does not support this claim. As for

Byars’s claim that he was old, the district court simply disagreed and told Byars that he was “not that

old.” Doc. 45 (Sent. Hr’g Tr. (7/21/09) at 12). Furthermore, it is clear from the record that the

district court considered Byars’s poor health, cited Byars’s need for medical treatment as one of its

rationales for the sentence it chose, and recommended that Byars receive a medical evaluation once

in custody. When a district court’s sentence is crafted in such a way that it explicitly accommodates

factors to which the defendant has drawn attention, it is difficult to claim that the district court failed


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to respond to those factors. See United States v. Liou, 491 F.3d 334, 340 (6th Cir. 2007) (holding

that district court adequately responded to the defendant’s emphasis on his family circumstances

when the district court gave the defendant sixty days to self-report in order to accommodate those

circumstances).

       Byars further argues that the district court erred in not responding to his categorical challenge

to the treatment by the Guidelines of child-pornography defendants. During the sentencing hearing,

however, the court confirmed that Byars was “quarreling essentially with [the] sentencing

guidelines,” and then replied by noting Byars’s “troubling” 2000 conviction for obscene conduct.

Doc. 45 (Sent. Hr’g Tr. (7/21/09) at 7). Byars argues that the district court simply “changed the

subject,” Reply Br. at 6, but this is incorrect. Byars essentially argued that it was unjust to treat a

mere “voyeur” of child pornography in such a harsh manner. Doc. 38 (Def.’s Sent. Mem. at 6). As

the government correctly observes, the district judge, by emphasizing Byars’s previous conviction,

indicated that Byars was not merely a viewer of child pornography, and therefore the district judge

did not believe a variance to be appropriate. The district court could have stated its reasoning more

explicitly, but its failure to do so does not necessitate reversal in light of the court’s specific

reference to Byars’s previous conduct-based conviction and also to his repeated receipt of child

pornography even after the seizure of his computer by law-enforcement officials.

       Finally, Byars argues that the district court did not give adequate attention to his past

community service. We agree that, ideally, the district judge should have offered a more thorough

explanation of its reasoning for finding Byars’s community service uncompelling. Not only was


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United States v. Byars


Byars’s community service commendable, but also his rescue of a woman from a burning building

appeared heroic. Nonetheless, the district judge stated that it had read the letters attached to Byars’s

sentencing memorandum and acknowledged that those letters “bespeak Mr. Byars’ connections in

his community.” Doc. 45 (Sent. Hr’g Tr. ( 7/21/09) at 4). This indicates that the district judge

considered Byars’s past good works. Although our precedents would normally require more

explanation for the district court’s denial of a variance, we agree with the government that Byars’s

arguments with respect to his community service were “conceptually simple,” Rita, 551 U.S. at 356,

and therefore did not necessitate a more elaborate explanation. The analysis remained quite simple:

either the district court found that Byars’s positive deeds outweighed the other negative factors in

his record or it did not. Indeed, Byars’s past community service is quite similar to the defendant’s

decorated military service in Rita, which the Court also deemed to be “conceptually simple.” 551

U.S. at 358-59. Given that the district court expressly acknowledged reading letters referencing

Byars’s community service and also emphasized both Byars’s prior conviction and his repeated

possession of child pornography, it is clear from the record that the district court simply concluded

that Byars’s community service could not overcome his prior misconduct.                   Under such

circumstances, we do not think the district judge was required to speak “more extensively.” Rita,

551 U.S. at 359.

        Therefore, we conclude that the district court did not commit reversible procedural error. We

reiterate once more, however, that the “better practice” is for the district court to address explicitly

all non-frivolous arguments. Petrus, 588 F.3d at 353. Doing so will prevent unnecessary litigation.


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United States v. Byars


                                   III. CONCLUSION

       For the reasons stated above, we AFFIRM Byars’s sentence.




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