                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0379n.06

                                          No. 10-6498                                   FILED
                                                                                    Apr 06, 2012
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                         LEONARD GREEN, Clerk



UNITED STATES OF AMERICA,                       )
                                                )
        Plaintiff-Appellee,                     )
                                                )    ON APPEAL FROM THE UNITED
v.                                              )    STATES DISTRICT COURT FOR THE
                                                )    WESTERN DISTRICT OF TENNESSEE
STEPHEN LYNN HAMMONDS,                          )
                                                )
        Defendant-Appellant.                    )


Before: CLAY and GIBBONS, Circuit Judges, and KORMAN, District Judge.*

        JULIA SMITH GIBBONS, Circuit Judge. After being caught in an undercover FBI

investigation, defendant-appellant Stephen Hammonds pled guilty to several child-pornography-

related offenses and to a charge of enticement of a minor. The district court sentenced Hammonds

to a lifetime term of imprisonment, which was the sentence recommended under the United States

Sentencing Guidelines. On appeal, Hammonds challenges the procedural and substantive

reasonableness of his sentence. For the reasons that follow, we affirm the sentence imposed by the

district court.

                                                I.

        This case arises out of an investigation conducted by the FBI’s Memphis Crimes Against

Children Task Force into complaints that sexually explicit images of minors were being posted to



        *
      The Honorable Edward R. Korman, United States District Judge for the Eastern District of
New York, sitting by designation.
No. 10-6498
United States v. Hammonds


the website “Mbuzzy.com.” In June 2009, after creating a profile on the website in which she posed

as a thirteen-year-old female, Task Force Officer Melissa Mahan’s undercover online persona

received a request to be added as a friend from an Mbuzzy.com user with the screen name

“Tnxdtrucker.” Tnxdtrucker also sent a message to Mahan’s undercover profile that stated, “hi I just

love young girls and your so sexy n hot in that bikini. id love to see more pics of you [sic].” Later,

Tnxdtrucker sent another message to Mahan’s undercover persona, asserting, “I love sex with young

girls and if I can get one a young boy.” When Mahan reviewed the profile of Tnxdtrucker, she

discovered that he had posted a nonsexual image of a young girl sitting on a table. He stated that the

girl in the image was his ex-stepdaughter and added further that he had touched her inappropriately.

       From October through December 2009, FBI Agent Steven Lies, using a pair of undercover

personas, also communicated with Tnxdtrucker on Mbuzzy.com and via the Yahoo Instant

Messenger Service. Lies posed as both a 49-year-old man with the screen name “rivercityman55”

and as rivercityman55’s 10-year-old daughter.          In communications with the persona of

rivercityman55’s 10-year-old daughter, Tnxdtrucker told her that he could not wait to see her, kiss

her, and touch her, and he sent pictures of things that he wanted her to wear. Tnxdtrucker was more

graphic when communicating with rivercityman55. Tnxdtrucker told this purported 49-year-old

father that he started inappropriately touching his ex-stepdaughter when she was eleven years old

and had sexual intercourse with her when she was fourteen. He also expressed in explicit terms his

desire to meet rivercityman55’s daughter and have oral sex and sexual intercourse with her.

Tnxdtrucker and rivercityman55 agreed to meet at a motel in Jackson, Tennessee for this purpose.


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United States v. Hammonds


Also, in November 2009, Txndtrucker sent rivercityman55 several images of minors engaged in

sexually explicit behavior, including some images that Txndtrucker claimed were of his ex-

stepdaughter. He further revealed that he had other similar images on his phone and at his home.

       Investigation revealed that Hammonds controlled the Mbuzzy.com profile using the screen

name “Tnxdtrucker,” and on December 14, 2009, federal law enforcement officers executed a search

warrant at Hammonds’s residence in Jackson, where they discovered approximately fifty computer

image files depicting minors engaging in sexually explicit conduct. Hammonds, who was present

during the search, was interviewed by Agent Lies and admitted to using the screen name of

“Tnxdtrucker,” engaging in electronic communications with “rivercityman55,” and sending sexually

explicit images of minors.

       Hammonds was indicted and charged with interstate transportation of visual depictions of

a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(1) (Count 1),

receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) (Counts 2 and 3), use of a facility

and means of interstate commerce to persuade, entice, or coerce a minor to engage in sexual activity

in violation of 18 U.S.C. § 2422(b) (Count 4), possession of child pornography in violation of 18

U.S.C. § 2252(a)(4)(B) (Count 5), and a forfeiture count pursuant to 18 U.S.C. § 2253 (Count 6).

On May 21, 2010, Hammonds pled guilty to Counts 1 through 5 and agreed to the forfeiture under

Count 6.

       Following the guilty plea, a presentence investigation report (“PSR”) was prepared. It

indicated that Hammonds’s adjusted offense level was 42 for the child pornography counts (Counts


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United States v. Hammonds


1, 2, 3, and 5) and that his adjusted offense level was 38 for the enticement count (Count 4).

Although Hammonds was convicted in 1998 of statutory rape and incest, based on a number of

sexual encounters between Hammonds and his ex-stepdaughter when she was between the ages of

thirteen and fifteen, this conviction did not result in any criminal history points for the purposes of

the PSR, but it did result in the application of additional enhancements to his offense level for the

child pornography counts. Hammonds’s total offense level was 46, and his lack of criminal history

points placed him in a criminal history category of I. This score resulted in a recommended sentence

of life imprisonment.

       Hammonds filed a sealed position paper regarding the PSR in which he argued that a

concurrent sentence of 240 months imprisonment for each count of conviction followed by a lifetime

term of supervised release would be sufficient but not greater than necessary to satisfy the factors

provided under Section 3553(a). See 18 U.S.C. § 3553(a). Hammonds emphasized the fact that he

admitted to his crimes, accepted responsibility, and entered a timely guilty plea. Hammonds also

noted that after FBI agents discovered several photographs of a minor female named “Chelsea

Marie” on his laptop, they were able to trace the photographs to their source—a website owned by

James Frazee. This investigation eventually led to Frazee’s arrest and conviction on a charge of

sexual exploitation of children. Hammonds cooperated with the Frazee investigation in a minor

way—explaining how he acquired the images—and implied that the district court should factor this

cooperation favorably into his sentencing.




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United States v. Hammonds


       Hammonds also argued in his position paper that although his 1998 felony conviction for

incest and statutory rape did not give him any criminal history points, it resulted in a 10-level

enhancement to his offense level under U.S.S.G §§ 2G2.2(b)(5) and 4B1.5(b)(1). He argued that the

purpose of these enhancements was to punish and deter recidivists. Hammonds then pointed to the

results of an evaluation performed by a psychologist, Dr. John Hutson, in which Dr. Hutson

concluded that Hammonds posed a only medium-low to moderate risk for recidivism, to argue that

a lesser sentence would be sufficient. In his report Dr. Hutson also noted that there are “legitimate

questions involving [the] efficacy” of the techniques he used for assessing recidivism in sexual

offenders when they are applied to pornography offenses as opposed to sexual contact offenses, but

that he used these techniques because “there are no currently valid assessments involving

pornography convictions.”

       At the sentencing hearing, defense counsel addressed the arguments made in the position

paper. He argued that it was odd that Hammonds potentially would be punished more severely under

the Guidelines for the child pornography charges than for the enticement charge, which he asserted

was the more egregious behavior. Defense counsel also reemphasized that Dr. Hutson found

Hammonds posed no greater risk of recidivism than a first-time offender. Therefore, he argued, the

offense level enhancements resulting from Hammonds’s prior incest conviction were not necessary

under the circumstances, especially considering that Hammonds would be over sixty years old upon

his release from prison if the court granted the requested sentence of 240 months’ imprisonment and

would still be subject to a term of lifetime supervision.


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United States v. Hammonds


       In response, the government noted that Hammonds was diagnosed with pedophilia, which

it asserted was a condition that could not be cured. The government also argued that Hammonds,

after being convicted and serving time for incest and statutory rape of his minor ex-stepdaughter,

bragged about sexually exploiting his ex-stepdaughter to Agent Lies’s undercover persona and

sought out another minor to exploit. The government took the position that a sentence that followed

the Guidelines recommendation—life imprisonment—was appropriate.

       After hearing from Hammonds, the district court indicated that one of its primary concerns

was “whether or not there [was] a likelihood that [Hammonds] will recidivate.” The court found that

Hammonds, despite his professed intent to cease engaging in the conduct for which he was

convicted, would continue to pose a risk to children. After expressing disgust at the comments

attributed to Hammonds in the PSR, the court went on to state: “because of your actually having

acted out this conduct with a child, I believe that you are particularly dangerous, and I believe that

we’re beyond the phase of trying to rehabilitate, you simply have to be separated [from] society and

the vulnerable children who might be at risk.” The court acknowledged that it had to consider the

mental health issues involved in this case, and stated that “[i]f this were a first occurrence, . . . I

might say that there is no track record on which to base anything, but you know the best predictor

of future behavior is past behavior. In your case it’s not good, not good.” The district court

ultimately concluded that a sentence within the Guidelines was appropriate and sentenced

Hammonds to a term of life imprisonment.

                                                  II.


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United States v. Hammonds


       On appeal, Hammonds argues that his sentence of life imprisonment was greater than

necessary to comply with the sentencing factors set forth in 18 U.S.C. § 3553(a). He asserts that his

sentence was both procedurally and substantively unreasonable. “Post-Booker, we review a district

court’s sentencing determination under a deferential abuse-of-discretion standard, for

reasonableness.” United States v. Presley, 547 F.3d 625, 629 (6th Cir. 2008) (internal quotations

omitted). We review the district court’s sentencing determination for both procedural and

substantive reasonableness. See Gall v. United States, 552 U.S. 38, 51 (2007). A district court

commits reversible procedural error, for instance, by “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.” Id.

       Review of the substantive reasonableness of a sentence takes into account the totality of the

circumstances. Id. A sentence may be substantively unreasonable, for example, if the district court

selects it arbitrarily, bases it on impermissible factors, fails to consider pertinent Section 3553(a)

factors, or gives an unreasonable amount of weight to any pertinent factor. United States v. Webb,

403 F.3d 373, 385 (6th Cir. 2005). When a sentence falls within the Guidelines range, a rebuttable

presumption of reasonableness applies. United States v. Vonner, 516 F.3d 382, 389–90 (6th Cir.

2008) (en banc). “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.” Gall, 552 U.S. at

51.


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United States v. Hammonds




                                                A.

       Hammonds challenges the procedural reasonableness of his sentence by arguing that the

enhancements under the child pornography provision of the Sentencing Guidelines, U.S.S.G. §

2G2.2, are inherently flawed and that their application in his case led to a sentence that was much

greater than necessary. In support of his claim, he points to United States v. Dorvee, in which the

Second Circuit asserted that the child pornography Guidelines provisions are “fundamentally

different” from most other provisions because it was not formulated through an empirical approach

based on past sentencing practices like most other Sentencing Guidelines but, at the direction of

Congress, was amended several times by the Sentencing Commission, which recommended harsher

penalties each time. 616 F.3d 174, 184 (2d Cir. 2010). The Dorvee court cautioned that “unless

applied with great care, [U.S.S.G. § 2G2.2] can lead to unreasonable sentences that are inconsistent

with what § 3553 requires.” Id.; see also United States v. Tutty, 612 F.3d 128, 132 (2d Cir. 2010)

(noting the additional concern raised in Dorvee that many of the child pornography enhancements

under the Guidelines apply in virtually every case).

       Likewise, this court recognized in United States v. McNerney, 636 F.3d 772, 777 (6th Cir.

2011), that “[d]espite Congress’ significant purpose in prohibiting the dissemination of child

pornography, some courts and commentators have questioned the wisdom of the

congressionally-directed Child Pornography Sentencing Guideline because they were the product

of Congressional mandate rather than the Commission’s preferred systematic, empirical approach.”


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United States v. Hammonds


See also United States v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011) (stating that several district

courts have rejected sentencing ranges produced by § 2G2.2 after concluding that the provision “is

based solely on legislative enactments designed to increase the length of sentences rather than being

based on empirical data”).

        But while this court has acknowledged the unusual source and history of § 2G2.2, it has also

held that “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.” Id. (emphasis in

original). A district court is not required to consider an argument that because a guideline was

promulgated without adequate deliberation, it should not be applied in any case, since such a

requirement would improperly shift the focus “from the defendant’s conduct to the ‘legislative’

history of the guidelines.” Id. (quoting United States v. Aquilar-Huerta, 576 F.3d 365, 368 (7th Cir.

2009)); see also McNerney, 636 F.3d at 778 (noting that “it is unquestionably Congress’

constitutional prerogative to issue sentencing directives” and that Congress has the power to fix

sentences for federal crimes).

        While a district court is permitted to deviate from a Guidelines range based on a policy

disagreement, it is not required to do so. United States v. Janosko, 355 F. App’x 892, 895 (6th Cir.

2009). It follows that a district court is also not required to deviate from the Guidelines range when

it agrees with the Guidelines provision. See id. (stating that if a district court does not disagree with

the Guidelines and adjust a sentence accordingly, the appellate court “will not second-guess their


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No. 10-6498
United States v. Hammonds


decisions under a more lenient standard simply because the particular Guideline is not

empirically-based”) (quoting United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir.

2009)).

          Here, after considering the circumstances of the case and the application of § 2G2.2, the

district court specifically concluded that “I believe that the guidelines in this case get it right, I

believe that the guideline does offer an appropriate recommended sentence.” The district court was

not required to credit Hammonds’s policy-based argument that his sentence—in which he was

punished more severely for the child pornography offenses than the enticement offense—indicates

that something is “gravely askew” with the child pornography Guidelines provision. It was not an

abuse of discretion for the district court to choose to follow the recommended sentence under the

Sentencing Guidelines. The district court properly calculated the Guidelines range, did not treat the

Guidelines as mandatory, reviewed the pertinent Section 3553(a) factors—including the seriousness

of the crime, the need for deterrence to protect the public, and Hammond’s mental health needs, did

not rely on any clearly erroneous facts in selecting the sentence, and adequately explained the

sentence chosen, which was within the Guidelines range. Accordingly, the imposed sentence was

procedurally reasonable. See Gall, 552 U.S. at 51.

                                                 B.

          Hammonds also challenges the substantive reasonableness of his sentence. He argues that

the district court gave an unreasonable amount of weight to his criminal history and the seriousness

of his offense. Hammonds further asserts that the district court failed to give the proper weight to


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United States v. Hammonds


the mitigating factors in his case, including the fact that the PSR assigned him no criminal history

points, the fact that Dr. Hutson’s evaluation concluded that Hammonds only posed a medium-low

to moderate risk of recidivism, and the fact that Hammonds would be approximately sixty years old

upon release if the court granted his requested twenty-year sentence.

       The record belies Hammonds’s characterization of his sentence. First, Hammonds’s sentence

is within the Guidelines and is thus presumed to be reasonable on appeal. United States v. Paull, 551

F.3d 516, 529 (6th Cir. 2009). Also, the district court stated that it believed Hammonds was sincere

when he said he did not intend to engage in this conduct again, but it also concluded that he may not

be able to fully control his impulses, that Hammonds had not shown himself to be a person who is

going to abide by the law, that he posed a risk to children, and that he was particularly dangerous

since he had already acted on his impulses and engaged in sexual conduct with a child in the past.

It was not unreasonable for the district court to decide to give little weight to Dr. Hutson’s opinion

that Hammonds posed only a medium-low to moderate risk of recidivism, especially considering that

Dr. Hutson acknowledged that there were legitimate questions about the efficacy of the assessment

techniques he used.

       Hammonds also cites a number of cases in which the defendants were convicted of child

pornography or enticement offenses but received lighter sentences than life imprisonment, to argue

that he too should have received a shorter sentence. See United States v. Dubrowolski, 406 F. App’x

11 (6th Cir. 2010); United States v. Creary, 382 F. App’x 850 (11th Cir. 2010); United States v.

Weller, 330 F. App’x 506 (6th Cir. 2009). This argument, however, misses the point. The issue is


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United States v. Hammonds


not whether some other, lesser sentence for Hammonds would have been reasonable; rather, it is

whether the within-the-Guidelines sentence that Hammonds actually received was reasonable. The

same reasoning applies to Hammond’s reliance on United States v. Martin, 390 F. App’x 533, 538

(6th Cir. 2010), in which this court affirmed a downward variance based in part on the mitigating

factor of the defendant’s age, to argue that a shorter sentence was warranted. The issue is not

whether Hammonds could have potentially received a variance based on the mitigating factors listed

above, but rather, it is whether the sentence he actually received was reasonable.

       The district court clearly considered Hammonds’s position paper, considered the pertinent

§ 3553(a) sentencing factors, and arrived at a decision to adopt a sentence within the Guidelines.

Contrary to Hammonds’s assertions, the district court did consider the mitigating factors in the case,

but found, appropriately and within its discretion, that concerns about the seriousness of the crime

and the need to protect the public were paramount. Hammonds has not shown that the district court

gave these factors disproportionate weight. See United States v. Duane, 533 F.3d 441, 453 (6th Cir.

2008) (upholding a within-Guidelines sentence as substantively reasonable over an objection that

the court gave the Guidelines calculation disproportionate weight where “the district court clearly

considered the § 3553(a) factors that it found most pertinent—namely the seriousness of the crime,

the need for deterrence, and the Guidelines range”). The fact that Hammonds would have preferred

that the court had performed this balancing differently is insufficient to show that his sentence was

substantively unreasonable. See United States v. Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007)

(“The mere fact that [the defendant] desired a more lenient sentence, without more, is insufficient


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United States v. Hammonds


to justify our disturbing the reasoned judgment of the district court.”). Hammonds has failed to

overcome the presumption of reasonableness afforded to his within-the-Guidelines sentence, and his

sentence was substantively reasonable.

                                                III.

       For the reasons provided above, Hammonds has failed to establish that his sentence was

procedurally or substantively unreasonable, and we affirm the sentence imposed by the district court.




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