                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                File Name: 13a0123p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                                X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 12-5372
           v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellant. -
 ROBERT T. JOHNSON, JR.,
                                                N
                   Appeal from the United States District Court
                for the Western District of Kentucky at Louisville.
              No. 3:09-cr-00042—John G. Heyburn II, District Judge.
                            Argued: November 29, 2012
                          Decided and Filed: May 3, 2013
             Before: MARTIN, SILER, and DONALD, Circuit Judges.

                                _________________

                                     COUNSEL
ARGUED: Frank W. Heft, Jr., OFFICE OF THE FEDERAL DEFENDER, Louisville,
Kentucky, for Appellant. Terry M. Cushing, UNITED STATES ATTORNEY’S
OFFICE, Louisville, Kentucky, for Appellee. ON BRIEF: Frank W. Heft, Jr., OFFICE
OF THE FEDERAL DEFENDER, Louisville, Kentucky, for Appellant. Monica
Wheatley, UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for
Appellee.
       SILER, J., delivered the opinion of the court, in which, MARTIN, J., joined, and
DONALD, J., joined in the result. DONALD, J. (pp. 6–8), delivered a separate opinion,
concurring in the judgment.




                                          1
No. 12-5372        United States v. Johnson                                     Page 2


                                _________________

                                     OPINION
                                _________________

       SILER, Circuit Judge. In 2009, Appellant Robert T. Johnson Jr. pled guilty to
charges of possessing and transmitting child pornography. He appeals, arguing that the
district court resentenced him vindictively. For the following reasons, we affirm.

                                I. BACKGROUND

       In 2001, Johnson began communicating online with an individual he believed to
be a 14-year-old girl. In reality, that person was an FBI agent posing as an underage
female. Over a two-month period, Johnson sent the “girl” multiple images of child
pornography and arranged a meeting for the two to engage in sexual activity. Upon his
arrival at the designated meeting place, federal authorities arrested Johnson. He
subsequently pled guilty to charges of transmitting child pornography and using a
facility in interstate commerce to attempt to persuade a minor to engage in sexual
activity. Johnson was sentenced to 63 months in prison followed by two years of
supervised release.

       Shortly after completing his prison term and period of supervised
release, Johnson began communicating online with another individual he believed to be
a 13-year-old girl. Once again, the individual turned out to be an undercover agent.
Johnson sent the agent numerous pornographic images featuring children. Execution of
a federal search warrant for Johnson’s home resulted in the seizure of Johnson’s
computer, which contained some 500 images of child pornography. Based on that
evidence, Johnson was indicted for transporting child pornography in interstate
commerce by computer, 18 U.S.C. § 2252A(a)(1); using a communication facility to
transfer obscene material to a minor under the age of sixteen, 18 U.S.C. § 1470; and
possession of child pornography, 18 U.S.C. § 2252A(a)(5). He pled guilty to each of the
charged offenses. Because he had a prior conviction for transporting child pornography,
No. 12-5372        United States v. Johnson                                       Page 3


he faced statutory sentences of 15 to 40 years on count one, up to 10 years on count two,
and 10 to 20 years on count three.

       The presentence report (“PSR”) assigned Johnson a criminal history category of
III and a total offense level of 41, and recommended that he be sentenced to a prison
term of 360 months to life. At sentencing, the district court imposed the statutory
maximum sentence of 120 months for transferring obscene material to a minor less than
16 years of age and 240 months for a second conviction involving possession of child
pornography. In determining the punishment for transporting child pornography in
interstate commerce, however, the court sentenced Johnson to 320 months in prison,
40 months below the Guidelines range identified in the PSR. It directed that the three
sentences be served concurrently.

       Johnson appealed to this court, challenging the substantive reasonableness of his
prison term. In reviewing Johnson’s sentence, we noted that one component of
substantive reasonableness is addressing “any variance from the Guidelines range.”
United States v. Johnson, 446 F. App’x 798, 800 (6th Cir. 2012) (unpublished opinion)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). The PSR recommended that
Johnson’s offense level of 36 be increased five levels pursuant to USSG § 2G2.2(b)(5)
for engaging “in a pattern of activity involving the sexual abuse or exploitation of a
minor.” If the five-level increase were applicable, Johnson would have been assigned
an offense level of 41 and a Guidelines sentence of 360 months to life in prison. If the
increase were inapplicable, Johnson would have faced a Guidelines sentence of only
235 to 293 months. Johnson objected to the five-level increase, arguing that he had not
engaged in a pattern of activity contemplated by § 2G2.2(b)(5). Rather than making an
explicit ruling upon the applicability of the five-level increase, however, the court
compromised and assigned an offense level of 38. Based on the assigned offense level,
it was unclear whether the selected sentence was the result of a downward variance from
a level-41 sentencing range or an upward variance from a level-36 range. Because of
this ambiguity, we remanded the matter to the district court for resentencing.
No. 12-5372        United States v. Johnson                                       Page 4


       On remand, the district court applied the five-level increase, pursuant to USSG
§ 2G2.2(b)(5). Johnson was resentenced to 360 months imprisonment–40 months more
than originally imposed. He appeals that sentence as being vindictive and substantively
unreasonable.

                                    II. ANALYSIS

       Generally, we review constitutional challenges to sentences de novo. See United
States v. Rodgers, 278 F.3d 599, 602 (6th Cir. 2002). Because Johnson failed to raise
vindictiveness at his resentencing hearing, however, plain error review applies. See
United States v. Hart, 635 F.3d 850, 858 (6th Cir. 2011).

       While a trial court is free to impose a higher sentence upon remand, a sentence
based on vindictiveness violates a defendant’s due process rights. Alabama v. Smith,
490 U.S. 794, 798-99 (1989). To ensure that the higher sentence is properly motivated,
a rebuttable presumption of vindictiveness applies when, as here, a sentence after
remand is higher than that originally imposed. Id. We must ask whether it is more likely
than not that the judge who imposed the higher sentence was motivated by
vindictiveness. See id. at 801-02. Here, it is apparent from the record that the district
judge relied on our remand order and objective information regarding Johnson’s conduct
in fashioning Johnson’s sentence.

       The district court, in compliance with our remand order, reexamined its decision
with respect to the five-level enhancement. As an initial matter, the court determined
that the five-level enhancement applied because Johnson’s two child pornography
convictions constituted a pattern for purposes of USSG § 2G2.2(b)(5). It described the
other factors that necessitated application of the enhancement, namely, the seriousness
of Johnson’s conduct and the strong likelihood of recidivism. Because no factors under
18 U.S.C. § 3553 justified a downward departure or variance from the Guidelines range,
it felt compelled to sentence Johnson to 360 months imprisonment. While the possibility
of vindictiveness is not to be taken lightly, in this case the presumption has been
overcome. See Texas v. McCullough, 475 U.S. 134, 141-42 (1986). As a result, the
No. 12-5372        United States v. Johnson                                      Page 5


district court did not plainly err in sentencing Johnson to 360 months imprisonment upon
remand.

       Finally, Johnson argues that, because his sentence was the result of
vindictiveness, it was substantively unreasonable. He also contends that it is arbitrary
and greater than necessary to accomplish the purposes of § 3553(a)(2). We apply a
presumption of reasonableness to sentences within the Guidelines range. See Rita v.
United States, 551 U.S. 338, 347 (2007). Johnson has failed to identify any basis for
rebutting that presumption.

       AFFIRMED.
No. 12-5372         United States v. Johnson                                      Page 6


                 _____________________________________________

                      CONCURRENCE IN THE JUDGMENT
                 _____________________________________________

          BERNICE B. DONALD, Circuit Judge, concurring in the judgment. I concur
in the majority’s decision to affirm the district court’s imposition of a higher sentence
on remand. However, because I disagree with the majority’s decision to apply the plain
error standard of review, I write separately.

          Plain error review is reserved for situations in which the appellant did not
preserve an issue for appeal by raising the claim below. See e.g., United States v.
Mayberry, 540 F.3d 506, 512 (6th Cir. 2008). Although the parties dispute whether the
issue was preserved, the majority opinion, without any analysis, states that “[b]ecause
Johnson failed to raise vindictiveness at his resentencing hearing, however, plain error
review applies.” I do not agree that Johnson failed to preserve the issue presented for
appeal.

          During the resentencing hearing, Johnson’s counsel sought a fifteen year
sentence on the grounds that the sentencing enhancement under U.S.S.G. § 2G2.2(b)(5)
does not apply and that the 18 U.S.C. § 3553 factors indicated a downward departure.
When the court did not accept these arguments, counsel said “[w]ell, we would certainly
ask you not to impose 40 months more than you did the first time he was in front of you
. . . because originally you sentenced him to 320 months.” The court responded by
considering how the sentencing enhancement changed the Guidelines calculation.
Again, counsel addressed the disparity between the two sentences, noting that nothing
had changed and that the judge previously stated that 320 months was a “long sentence.”
Soon after, counsel said, “I just want to be sure our objections are noted for the record
on the enhancement and also,” but the remaining comment was cut off by questions
concerning the enhancement. After a brief discussion on the enhancement, the court
asked, “Any other objections other than what has already been stated?” and counsel
responded, “No.” In my view, counsel clearly preserved Johnson’s claim that the court
unreasonably imposed a higher sentence on remand.
No. 12-5372         United States v. Johnson                                       Page 7


       I see no reason why we would require the word “vindictiveness” in the present
context, as the majority opinion implies. I believe the majority errs concerning the
difference between the claim itself and the legal presumptions this court uses to review
such claims. When district courts resentence defendants on remand, there is such a high
risk of improper motivation that the Supreme Court has imposed a presumption of
vindictiveness to situations where the same judge is asked to “do[] over what it thought
it had already done correctly” and chooses a higher sentence than it did the first time.
Alabama v. Smith, 490 U.S. 794, 798-802 (1989) (internal quotations omitted). The
claim Johnson makes, then, is that the district court improperly imposed a higher
sentence on remand; “vindictiveness” is the legal presumption we use to review the
claim. We do not require defendants to mention our presumptions in other contexts in
order to preserve a claim. For example, if a habeas petitioner argues that trial counsel
did not call an alibi witness, we do not require the defendant to mention the presumption
of attorney effectiveness to preserve the right to appeal. Likewise, if a criminal
defendant argues at sentencing that the district court should impose a different sentence,
we do not require the defendant to mention the presumption of reasonableness for within
Guidelines sentences.

       We have also warned that “[t]he preservation of constitutional objections should
not rest on magic words.” United States v. Humphrey, 287 F.3d 422, 445 (6th Cir. 2002)
overruled on other grounds in United States v. Leachman, 309 F.3d 377, 381-83 (6th
Cir. 2002). In Humphrey, we found that counsel preserved an Apprendi issue without
uttering the word “Apprendi” merely by objecting to the drug quantity calculation and
the standard of evidence used. Id. at 445. We have come to similar conclusions in other
situations. E.g., United States v. Strayhorn, 250 F.3d 462, 467 (6th Cir. 2001), overruled
on other grounds in Leachman, 309 F.3d at 381-83 (“Although [the defendant] did not
utter the words ‘due process' at [the sentencing hearing], he made it well known that he
disputed the district court's factual finding with respect to drug quantity.”). Likewise,
in the present case, Johnson’s counsel made it well known that Johnson objected to
receiving a higher sentence on remand, whether or not counsel uttered the magic word
“vindictiveness.”
No. 12-5372         United States v. Johnson                                        Page 8


        To be clear, I do not suggest that a defendant may preserve an issue with no
specificity whatsoever. When an objection is too generic to apprise the district court of
its substance such that the court has no opportunity to correct the purported error, the
issue has not been preserved. United States v. Simmons, 587 F.3d 348, 358 (6th Cir.
2009). In Simmons, for example, when the district court asked if there were any
objections, counsel responded “Your Honor, I object just for the record for the
procedural, substantive aspects.” Id. at 355. This was too general to alert the court of
the defendant’s claims that the judge failed to consider whether drug treatment would
be available or that the court failed to address the defendant’s pre-sentencing arguments
that disparate treatment between powder and crack cocaine warranted a downward
departure. Id. at 355-58. The objection in Simmons was far more generic than the one
here and even with that level of generality, one judge dissented that it was sufficient to
preserve the issue because it brought the “procedural issues” to the court’s attention. Id.
at 368 (Clay, J., dissenting).

        The Supreme Court has also indicated that the context and “sequence of events”
in which a party raises or fails to raise an objection are relevant to our determination of
whether an issue is preserved for appeal. See Osborne v. Ohio, 495 U.S. 103, 123-25
(1990). Here, the district court was aware of the objection to a longer sentence on
remand and responded with thoughts on what justified the increase, which is exactly
what the court would have done had the objection been more specific. If the purpose of
plain error doctrine is to allow the district court to correct any error, it had sufficient
opportunity to do so.

        I would apply the de novo standard we normally use for constitutional challenges
to sentences. See United States v. Rodgers, 278 F.3d 599, 602 (6th Cir. 2002). Even
under de novo review, however, Johnson’s claim fails because the district court’s
determination that the U.S.S.G. § 2G2.2(b)(5) sentencing enhancement applies was
sufficient to overcome the presumption of vindictiveness. See Alabama v. Smith,
490 U.S. at 799. Therefore, I concur in the judgment.
