                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0210n.06

                                            No. 08-6426                                  FILED
                                                                                     Apr 06, 2010
                           UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff -Appellee,                               )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE EASTERN
               v.                                         )        DISTRICT OF KENTUCKY
                                                          )
DONALD R. MARTIN,                                         )        OPINION
                                                          )
       Defendant-Appellant.                               )
                                                          )



BEFORE: COLE, GILMAN, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Donald R. Martin (“Martin”) was charged with

violating 18 U.S.C. §§ 2251(a) (production of child pornography) and 2252(a)(4)(B) (possession of

child pornography). He pled guilty, and based on a Guideline calculation range of 324-405 months,

received a sentence of 360 months. On appeal, this Court identified an error in the calculation of the

Guideline range, and remanded for resentencing. United States v. Martin (Martin I), 291 F. App’x

765, 772 (6th Cir. 2008). On remand, the Guideline range was recalculated as 235-293 months.

The district court imposed a within-Guideline sentence of 284 months that was nevertheless higher

than the sentence Martin requested. Martin appeals, claiming both procedural and substantive error.

We AFFIRM.
                                                  I.
No. 08-6426
United States v. Martin

       After two juveniles informed their school counselor and the Rockcastle County Sheriff’s

Department that they had been photographed nude, deputies obtained and executed a search warrant

for Martin’s residence. The search yielded disks containing photographs and videos of naked

minors, props used in their production, and child pornography images downloaded from the internet.

Three victims were eventually identified, all of whom provided information to investigators

regarding Martin’s involvement in the production of child pornography.1

                                                II.

       At the resentencing hearing, Martin’s attorney argued, without citation or support, that

Martin I implied that the district court should impose a “sentence somewhere in the middle” of the

corrected Guideline range, and requested a sentence of 260 months. Martin addressed the court

himself, apologized for his crimes, and reported that he had begun working towards obtaining his

GED degree and was on a waiting list for a sex-offender class. The government requested a sentence

“at the top of [the] guideline range.” The district court then addressed the sentencing factors and

Martin’s request for a mid-range sentence, and imposed a sentence of 284 months,2 finding it to be

“sufficient but not greater than necessary to comply with the purposes of Title 18, Section

3553(a)(2).” The district court also “recommend[ed] that the defendant during his term of


       1
        Further exposition of the facts leading to Martin’s conviction can be found in this Court’s
opinion in Martin’s first appeal. Martin I, 291 F. App’x at 766-67.
       2
         Martin was sentenced to 284 months on Count 1 and 120 months on Count 2, to run
concurrently. The district court also imposed concurrent lifetime sentences of supervised release on
each count, a $200 assessment, and required Martin to forfeit property he used in the production of
the illegal photographs and videos pursuant to 18 U.S.C. § 2253.

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No. 08-6426
United States v. Martin

imprisonment participate in the Bureau of Prisons sex offender treatment program . . . and that he

participate in the education program working toward completion of his GED . . . .” The district court

waived the fine requirement because it did not believe that Martin had the ability to pay. Martin

timely appealed.

                                                 III.

       Martin argues that the district court committed both procedural and substantive error. In the

district court, Martin objected to the length of his sentence, but stated that he had no objections to

the sentencing procedures. We therefore review his claim of substantive error for reasonableness

and his claim of procedural error for plain error. United States v. Simmons, 587 F.3d 348, 353 (6th

Cir. 2009). A reasonableness review is the same as a review for abuse of discretion. United States

v. Carter, 510 F.3d 593, 600 (6th Cir. 2007).

A. Procedural Reasonableness

       A resentencing hearing requires just as full a consideration of the 18 U.S.C. § 3553(a) factors

as does an initial sentencing hearing. United States v. Thomas, 498 F.3d 336, 340-41 (6th Cir. 2007).

“[A] sentence may be procedurally unreasonable if the district court did not consider the applicable

Guidelines range or neglected to consider the factors set forth in 18 U.S.C. § 3553(a), and instead

simply chose a sentence that the judge deemed appropriate.” United States v. Vowell, 516 F.3d 503,

510 (6th Cir. 2008). A district court’s consideration of the 18 U.S.C. § 3553(a) factors must “explain

its reasoning to a sufficient degree to allow for meaningful appellate review” and “set forth enough

facts to satisfy this court that it considered the parties’ arguments and had a reasoned basis for


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No. 08-6426
United States v. Martin

exercising its own legal decision-making authority.” Id. at 510. This Court has also held that when

a sentence imposed by a court is within the Guidelines, the explanation for the sentence generally

“need not be lengthy.” United States v. Wilms, 495 F.3d 277, 280 (6th Cir. 2007). As reflected in

the sentencing transcript, the district court expressly considered: “[t]he harm in this particular case,”

see 18 U.S.C. § 3553(a)(1) & (a)(2)(A); that Martin’s crimes were a “very serious offense,” and

therefore an offense that needed a “lengthy sentence in order to deter not just the defendant . . . but

to deter others as well,” see 18 U.S.C. § 3553(a)(1), (a)(2)(A) & (a)(2)(B); that “[s]tatistical

information that is available indicates that individuals that commit these types of crimes . . . tend to

be repeat offenders,” see 18 U.S.C. § 3553(a)(2)(C); that the court hoped that “when the defendant

completes the program that he’s not enrolled in yet, but hopes to enroll in, then he will be able to

avoid future problems when he is released . . . ,” and recommended that Martin “participate in the

Bureau of Prisons sex offender treatment program . . . and that he participate in the education

program working toward completion of his GED,” see 18 U.S.C. § 3553(a)(2)(D); “the need to avoid

unwarranted sentencing disparities,” see 18 U.S.C. § 3553(a)(6); the Guidelines range, see 18 U.S.C.

§ 3553(a)(4); and that a fine would be futile because “this defendant does not have the ability to pay

a fine,” see 18 U.S.C. § 3553(a)(1). Thus, the district court expressly addressed the majority of the

§3553(a) factors, and also stated that it had considered all of the § 3553(a) factors, thereby providing

sufficient analysis to facilitate our review.

        Martin also argues that the district court failed to consider his arguments for a lower sentence.

The extent of Martin’s attorney’s argument regarding what sentence the district court should impose


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United States v. Martin

was that he interpreted this Court’s prior opinion to imply a “sentence somewhere in the middle” of

the Guideline range. He then stated: “A sentence of 260 months would be dead center of the

guidelines, and we would ask the Court to impose that factor [sic].” Martin then addressed the court

on his own behalf. The entirety of his statement was:

                    Your Honor, the first thing I want to do is apologize to the courts on my
           behalf. What I did was wrong and I know it, and do my prison time. In the last
           couple of years, I’ve had time to think about what I have done and I’m very sorry it
           happened and I’ve been doing everything in the prison that I can possibly do, I’ve
           been programming and doing what I need to do and keep myself clean and doing
           everything you’ve asked of me. I’ve got into education for my GED and I signed up
           for the sex education class, and there is a waiting period there, so—but I am on the
           list, and, once again, I apologize.

           Martin’s attorney’s request for a sentence of 260 months was a request without supporting

argument. The district court adequately addressed the request when it stated that it would “not

impose a sentence at the mid-range that has been requested by the defendant . . . .” Further, the

transcript of the resentencing hearing shows that the court did address the points raised by Martin

himself. Specifically, the district court stated:

                   Mr. Martin has expressed regret and remorse for his actions, and the Court
           takes him at his word when he says that he’s sorry and he’s attempting to turn himself
           around and to better himself through GED and through other programs that are offered
           through the Bureau of Prisons, and I’m certainly hopeful that he completes all those
           programs that are offered.

The district court also noted that it was not required to consider Martin’s conduct since his first

sentencing hearing, but would do so anyway, and explained that such conduct was the reason it did

not “impose a sentence above the guideline range and really not at the very top of the guideline range

. . . .”

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United States v. Martin

        Because the district court sufficiently addressed the 18 U.S.C. § 3553(a) factors to allow for

review and responded to Martin’s arguments for a lower sentence, it did not commit procedural error,

plain or otherwise.

B. Substantive Reasonableness

        This Court “afford[s] sentences within the applicable Guidelines range the presumption of

reasonableness.”      Vowell, 516 F.3d at 509.          When reviewing a sentence for substantive

reasonableness, this Court “consider[s] more than simply the length of the sentence”; it also considers

“the factors the district court evaluated in determining its sentence.” Id. at 510. “A sentence may be

substantively unreasonable if the district court ‘select[s] the sentence arbitrarily, bas[es] the sentence

on impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an unreasonable

amount of weight to any pertinent factor.’” Id. (quoting United States v. Smith, 474 F.3d 888, 894

(6th Cir. 2007)). However, this Court “do[es] not require a mechanical recitation of the § 3553(a)

factors,” but rather “an explanation of why the district court chose the sentence that it did.” Id. That

this Court “might reasonably have concluded that a different sentence was appropriate is insufficient

to justify reversal of the district court.” Id. at 511. Further, that a district court “did not give a

defendant the exact sentence he sought is not a cognizable basis to appeal, particularly where the

district court followed the mandate of section 3553(a) in all relevant respects.” United States v.

Jackson, 466 F.3d 537, 540 (6th Cir. 2006).

        Martin claims that his sentence is substantively unreasonable because the district court gave

unreasonable weight to the factor stated at 18 U.S.C. § 3553(a)(6), “the need to avoid unwarranted


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No. 08-6426
United States v. Martin

sentencing disparities among defendants with similar records who have been found guilty of similar

conduct,” and also that the district court misapplied that factor by controlling for disparities among

similar defendants who had come before that court, as opposed to applying a national standard.

        The record does not support these claims. As discussed above, the record demonstrates that

the district court considered a number of the § 3553(a) factors. Further, assuming, arguendo, that the

district court afforded more weight to § 3553(a)(6) than to other factors, as opposed to simply

spending more time discussing that factor, “the Sixth Circuit has never held that a district court must

give equal weight to the factors under § 3553(a).” United States v. Thomas, 337 F. App’x 505, 510

(6th Cir. 2009). In fact, it has expressly rejected this position. Id.; United States v. Webb, 403 F.3d

373, 385 n.9 (6th Cir. 2005) (“[W]e decline to indicate what weight the district courts must give to

the appropriate Guidelines range, or any other § 3553(a) factor . . . .”).

        We also find that the district court did not err in applying the sentencing-disparity factor. The

district court noted that this factor “looks first to national disparities” but “does not prohibit the Court

from looking at other disparities, such as disparities within a particular case involving multiple

defendants or even disparities within the district, the Eastern District of Kentucky or within the Sixth

Circuit, in determining what other individuals are receiving for these offenses.” In United States v.

Presley, 547 F.3d 625, 631 (6th Cir. 2008), this Court explained:

        We have noted that subsection 3553(a)(6) is concerned with national disparities
        among the many defendants with similar criminal backgrounds convicted of similar
        criminal conduct. Because § 3553(a)(6) is not concerned with disparities between one
        individual’s sentence and another individual’s sentence, despite the fact that the two
        are co-defendants, the district court is not required to consider that type of disparity


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United States v. Martin

       under § 3553(a)(6). A district judge, however, may exercise his or her discretion and
       determine a defendant’s sentence in light of a co-defendant’s sentence.

(internal citation, quotation marks, and brackets omitted) (emphasis in original); see also United

States v. Brewer, 332 F. App’x 296, 307 (6th Cir. 2009) (district court may consider local disparities);

cf. United States v. Conatser, 514 F.3d 508, 521 (6th Cir. 2008) (noting § 3553(a)(6)’s concern with

national disparities and that “[d]isparties between the sentences of coconspirators can exist for valid

reasons”). Thus, the district court’s consideration of sentencing disparities other than on a national

basis was not improper.3

       Martin’s arguments fail to overcome the presumption of reasonableness to which the district

court’s within-Guidelines sentence is entitled.

       We AFFIRM the judgment of the district court.




       3
           Martin does not argue that his sentence is disparate at a national level.

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