                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0491n.06

                                           No. 19-4265

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                 Aug 20, 2020
                                                                             DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )       ON APPEAL FROM THE
                                                     )       THE UNITED STATES DISTRICT
v.                                                   )       COURT FOR THE NORTHERN
                                                     )       DISTRICT OF OHIO
                                                     )
CODY DAVID SWINNERTON,                               )       OPINION
                                                     )
       Defendant-Appellant.                          )
                                                     )


BEFORE: NORRIS, NALBANDIAN, and READLER, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. Defendant Cody Swinnerton appeals the sentence of

420 months of incarceration that he received in the wake of a guilty plea to nine counts involving

sexual offenses against minors. On appeal he argues that his sentence was both procedurally and

substantively unreasonable because the court failed to give balanced consideration to all of the

sentencing factors included in 18 U.S.C. § 3553(a), among them his strong family ties, his

relatively young age at the time he committed the offenses, and his own history of juvenile sexual

abuse. Defendant also contends that the district court relied upon erroneous and unproven facts

when passing sentence.

       While thirty-five years is a lengthy sentence, it falls within the advisory guidelines range.

In fact, the court granted his motion for a downward variance, albeit not to the extent requested.

Accordingly, we affirm the judgment.
                                                                      United States v. Swinnerton
                                                                                     No. 19-4265


                                                I.

       On July 16, 2019, the government filed a superseding indictment charging defendant with

nine counts of sexual offenses directed against children: seven counts of sexual exploitation of

children, 18 U.S.C. §§ 2251(a), 2251(c)(1)(A); one count of receiving visual depictions of minors

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

pornography, 18 U.S.C. § 2252A(a)(5)(B). Defendant elected to plead guilty to all counts without

the benefit of a plea agreement. (Page ID 598-602.)

       The criminal conduct that gave rise to this prosecution is not in dispute. At defendant’s

change of plea hearing the government provided the court with a broad outline of what it intended

to prove if the matter went to trial. (Page ID 580-90.) The presentence report dated December 17,

2019, to which defendant lodged no objections, contains a more detailed description of the conduct

underlying each of the charged counts. (PSR ¶¶ 5-16.)

       The prosecution had its genesis in 2018 when the Ohio Internet Crimes Against Children

Task Force received eight tips from the National Center for Missing and Exploited Children that

led investigators to defendant, a twenty-four year-old man living in Berea, Ohio. Initial review of

the material contained in the tips revealed approximately 120 files that minors had shared with

defendant via Instagram. These files, which were created by the minors (all of whom were

pubescent boys) at defendant’s behest, depicted them exposing their genitals and masturbating.

(PSR ¶ 6.)

       On January 25, 2019, authorities executed a search warrant for defendant’s residence: his

parents’ house. Defendant’s computers were removed from the home and a subsequent review of

their contents revealed 345 images and 295 videos depicting child pornography. These files dated



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                                                                                       No. 19-4265


as far back as 2012, when defendant was eighteen. (PSR ¶ 8.) Further investigation revealed that

defendant had engaged in oral sex with two of his victims, both of whom were thirteen at the time.

       When the search of his parents’ home occurred, defendant was in Australia pursuing

another adolescent boy whose family had welcomed him into their home. The victim’s parents

later told investigators that defendant began acting noticeably different during the last two weeks

of his stay in Australia, which coincided with the search of his parents’ house. In fact, defendant

failed to take a scheduled flight back to the United States. When he returned two weeks later, he

was arrested.

       While the details of defendant’s criminal behavior can be found in the above-referenced

pages of the change of plea hearing and presentence report, it took two basic forms. Those victims

whom he got to know—and with whom he had sexual relations—were groomed with care.

Defendant would ingratiate himself to the boys and their families through a mutual interest in

sports. (Defendant made much of his connection with the Cleveland Cavaliers.) He was so adept

that he was invited to stay in his victim’s home by the parents. While there he would surreptitiously

take pictures of the boys naked or masturbating. He also filmed himself performing oral sex with

at least one of the boys while they were sleeping.

       His other victims were ensnared online. Posing as a teenage girl, defendant would urge his

victims to send pictures of themselves naked. Then, he (posing as she) would demand more—such

as a video of the boy masturbating—by threatening to send the pictures he already had to a wider

audience. A sample of the sheer panic these threats could produce is found in the presentence

report, which includes an Instagram chat between defendant and a victim. (PSR ¶ 15.)

       Defendant had no prior criminal history. However, the presentence report, which defendant

accepted, noted that his total offense level of 43 carries a guideline range of life, capped by a

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                                                                                      No. 19-4265


statutory maximum sentence of 3,000 months. The district court declined to grant defendant’s

motion for a downward departure although it did grant a variance and sentenced him to 420 months

of incarceration.

                                                II.

       We apply the following approach when reviewing sentences imposed under the advisory

guidelines:

       Regardless of whether the sentence imposed is inside or outside the Guidelines
       range, the appellate court must review the sentence under an abuse-of-discretion
       standard. It must first ensure that the district court committed no significant
       procedural error, such as 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. Assuming that the district court’s sentencing
       decision is procedurally sound, the appellate court should then consider the
       substantive reasonableness of the sentence imposed under an abuse-of-discretion
       standard. When conducting this review, the court will, of course, take into account
       the totality of the circumstances, including the extent of any variance from the
       Guidelines range. If the sentence is within the Guidelines range, the appellate court
       may, but is not required to, apply a presumption of reasonableness. But if the
       sentence is outside the Guidelines range, the court may not apply a presumption of
       unreasonableness. It may consider the extent of the deviation, but must give due
       deference to the district court's decision that the § 3553(a) factors, on a whole,
       justify the extent of the variance. 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 v. United States, 552 U.S. 38, 51 (2007) (citation omitted); see also United States v.

Rayyan, 885 F.3d 436, 440 (6th Cir. 2018).

Procedural Reasonableness

       Defendant’s primary contention with respect to procedural reasonableness is that the

district court’s conclusion about the danger of future recidivism is based upon an “erroneous fact.”

During the sentencing hearing, defendant apologized for his actions: “What I did is, was and


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                                                                                       No. 19-4265


always will be inexcusable and flat-out wrong of me.” (Page ID 492.) This statement led the district

court to pose the following question:

       So why didn’t you stop? At any time. Pick a time. Pick between victims 2 and 3 or
       3 and 6, or perhaps even before victim 7.
              You knew your home had been searched, yet you still used that camera [in
       Australia], and I’m told it was in the bag in the bathroom where that boy would
       shower and do things that you knew about. And this is after you knew, had real
       good reason to believe that the United States was on to you, because a search
       warrant had been executed at your home.
              So tell me, if you knew it was wrong, why didn’t you stop, especially after
       you knew you were caught?
(Page ID 492-93.)

       Shortly after this exchange, the district court imposed its sentence. In part, the court

acknowledged that the propensity for the defendant to re-offend even after knowing that defendant

had been unmasked contributed to its thinking:

               And I’ve heard many things. From you, less than I would have hoped.
       Certainly words that speak to what you’ve done, but none that help me understand
       why you did it. And, quite frankly, I’m not at all persuaded that you won’t do it
       again, because you already did. You repeated this act over and over and over again.
       And you even did it after you knew your home had been searched.
(Page ID 503.)

       After passing sentence, the district court asked counsel to raise objections. The government

voiced none. Defense counsel stated first that he had “an obligation to preserve these objections,”

before arguing that the court had failed to fully consider the § 3553(a) factors, which resulted in a

sentence “greater than necessary to comply with the purposes and principles of sentencing.” (Page

ID 524.) Defendant had urged the court to impose a fifteen-year sentence.

       The court offered this supplemental reasoning in response:

       [A] 15-year sentence doesn’t begin to be respectfully responsive to the laws that
       Mr. Swinnerton broke, to the harm perpetuated [sic] on victims, even though he

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                                                                                        No. 19-4265


       tells me that he suffered from similar crimes himself, even though I know from the
       text messaging captured between him and his victims that . . . [h]e knew precisely
       what worried them and how to prey on them.
               ....
               Also, it’s necessary to protect society. I’m not sure. My hope is that by the
       conclusion of this sentence, Mr. Swinnerton’s cunningness, his sophistication, his
       willingness to groom and deceive will be something of the past. Today there is no
       way I think that would be a likelihood if I were to have limited his sentence to only
       one term of 15 years.
               ....
               I believe he went to Australia for that same purpose. And then he stayed
       there, knowing at some point he had to leave, to go somewhere. And after all, the
       United States knew where he was. There was already a request for assistance sent
       to Australia.
              So that he continued past exposure, past having been caught, tells me that a
       15-year term is a good start, but certainly not responsive to his request.
(Page ID 524-26.)

       Defendant argues that the district court wrongly relied upon its assumption that defendant

knew that his home had been searched and nevertheless committed another sex crime. In support

of this position he notes that the search of his home occurred on January 25, 2019. Yet Count 9 of

the superseding indictment alleges the criminal behavior in Australia occurred sometime between

January 24 and January 31, 2019. (Page ID 195.) Defense counsel points out that the government

presented evidence only that defendant was stopped at the Sydney airport on February 17, 2019.

Specifically, the government made the following argument at sentencing concerning whether

defendant knew of the search of his home:

              But what we do know is on the day he had a plane ticket to come home, he
       never showed up at the airport. And then he asked the family that he’s staying with,
       “Can I stay longer? I’d like to extend my stay.”
                  And after that happens, after the search warrant occurs here . . . he records
       . . . the victim named in Count Number 9 by sliding his camera or placing his camera


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                                                                                      No. 19-4265


       under the bathroom door to record [the victim] engaged in masturbatory activity
       before he showers . . . .
               But he knew that. The defendant knew that, and he recorded him engaged
       in that behavior on a camera even after law enforcement authorities back here
       searched his home and seized his devices.
               ....
               The other thing that I note in the [sentencing] memorandum is an interview
       with the parents of the victim that he was staying with in Australia. And they said
       that after he asked to remain in Australia for an extra period of time, they noticed
       that the week before he left, he became very nauseous, very anxious, and that he
       had thrown up.
              When you put all of those things together . . . it sure seems that Cody
       Swinnerton was fully aware of the fact that now he had nowhere else to go, he was
       headed back to Cleveland, Ohio, where he was going to faces charges related to the
       images on his devices.
(Page ID 482-84.)

       The government directs us to United States v. Cunningham, 669 F.3d 723, 730 (6th Cir.

2012) (citing United States v. Wilson, 614 F.3d 219, 225 n.3 (6th Cir. 2010) (a sentencing judge

relies upon clearly erroneous facts when she gives importance to inaccurate information)). Here,

the record supported the court’s use of the contested information. In addition to the considerations

cited by the district court, the government adds that defendant’s phone and other devices held over

8,000 images that had been deleted just two days before he was detained at the Sydney airport.

(Page ID 483.) He also had changed his name on Instagram and left himself a note that read, “Take

pics off phone and off the microSD card.” (Page ID 484.) Given these factors, which defendant

does not dispute, the government argues that the district court properly relied upon the assumption

that defendant knew about the search of his home but continued his criminal behavior despite that

knowledge.




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                                                                                       No. 19-4265


       Defendant also takes issue with the government’s contention during the sentencing hearing

that the district court did not have the entire spectrum of defendant’s victims before it:

       [W]hat we have here today in front of this court is very likely not the universe of
       victims of Cody Swinnerton. I would remind the court that the material that we had
       was limited by what was on his most recent phone that was synced to his laptop,
       and what was in the cyber tips that was [sic] submitted by Instagram in . . . 2018 to
       Ohio ICAC. We don’t have the universe of his devices. We can’t get into some of
       his devices due to Apple encryption, or what phones he may have had before he
       had the current iPhone that he took with him.
               What we do know is there were 345 unique images and 295 unique videos
       on the laptop, but there were almost 1,500 images and almost 500 videos of what
       we call sexually exploitive material. Which means either we are unable to say with
       complete accuracy whether or not the person is a minor, so when we’re not sure,
       we err on the side of caution.
(Page ID 484-85.) Defendant argues that the government concedes that the existence of more

victims is speculative and did not meet the requirements to initiate a prosecution. The district

court therefore should not have considered it during sentencing. However, while the government

made this argument, the district court gave no indication that it factored into its sentencing

calculation in any significant way.

       Finally, defendant argues that the district court wrongly considered the government’s

argument questioning his own history of sexual abuse, which occurred when defendant was in the

sixth grade, despite its being included in a competency report cited in its sentencing memorandum,

(Page ID 286), but called into question by counsel at the actual hearing. (Page ID 486) (“For myself

as a prosecutor who has dedicated my career to prosecuting people who harm children, every

defendant now, every defendant says that they were sexually abused as a child.”).

       The government responds to this point by noting that the district court did not, in fact, rely

on this argument. The court merely observed, “I wish you could have helped me to understand

how you could have perpetuated over and over again the crimes that were so full of hurt and a lack


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                                                                                          No. 19-4265


of concern, especially when on one hand you tell me you know what your victims feel.” (Page ID

502.)

        In our view, the sentence meets the requirements of procedural reasonableness. First, the

parties agree that the guidelines were properly calculated. Second, the court did not rely upon any

clearly erroneous facts. Third, the district court adequately explained the sentence and, when asked

to do so, provided additional clarification. In short, the district court did not abuse its discretion in

sentencing.

Substantive Reasonableness

        As mentioned earlier, a substantive unreasonableness occurs when a sentence is arbitrarily

selected or when the court either fails to consider factors listed in § 3553(a) or gives undue weight

to certain factors. Cunningham, 669 F.3d at 733.

        Defendant argues that the district court failed to give enough weight to several

considerations: his relative youth when committing the offenses (between eighteen and twenty-

five); his own history of sexual abuse in sixth grade; and his unwavering family support. Finally,

he contends that the sheer length of his sentence is greater than necessary to comply with the

factors listed in § 3553(a)(2): the seriousness of the offense; the protection of the public;

deterrence; and effective rehabilitation.

        The government points out that defendant benefitted from a downward variance. Moreover,

the sentencing transcript reflects that the district court considered his mental health, family

circumstances, and age. While the court may not have assigned them the weight that defendant

would have preferred, it undeniably considered them and offered reasons for imposing the sentence

that it did.



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                                                                                    No. 19-4265


       Again, we detect no abuse of discretion with respect to the weight assigned to the various

sentencing factors. In the end, defendant benefitted from a downward variance which effectively

undermines his argument.

                                              III.

       The judgment is affirmed.




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