                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0591n.06
                             Filed: August 15, 2007

                                             No. 06-5801

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                       )
                                                )
                Plaintiff-Appellant,            )
                                                )
v.                                              )               ON APPEAL FROM THE UNITED
                                                )               STATES DISTRICT COURT FOR
MICHAEL BLACK,                                  )               THE WESTERN DISTRICT OF
                                                )               KENTUCKY
                Defendant-Appellee.             )
                                                )

                Before: CLAY and SUTTON, Circuit Judges; and GREER, District Judge.*

                GREER, District Judge.        Defendant, Michael Black, appeals his conviction and

sentence. Black was convicted of various offenses related to receipt, possession, distribution and

transportation of child pornography and of attempted use of a minor to produce child pornography.

Black was sentenced to a term of imprisonment of 360 months and a life term of supervised release.

For the reasons set forth below, we AFFIRM defendant’s conviction and sentence.

                                           BACKGROUND

                In January, 2004, Chief Daniel Haueter (Haueter) of the New Waterford Police

Department became involved in an investigation of computer related child exploitation offenses. On

January 24, 2004, Haueter assumed the persona of a 15 year old girl with the screen name of

“Tinagreeneyes2000" and entered an on-line chat room called “I like older men best.” He created

        *
          The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 06-5801
United States v. Black


a profile for that screen name of a 15 year old, blonde, unmarried female student. Haueter was

contacted quickly after entering the on-line chat room by a user with the screen name of

“dads_here2003," later identified as Michael Black (Black).

               Haueter and Black engaged in on-line chats using their respective screen names from

January 24, 2004, until January 30, 2004. The “dads_here2003" profile identified Black with his

name, residence (Kentucky), age and showed his picture. During the course of these chats, Black

revealed that he had recently met another 15 year old girl, Steen (short for Christine), in Illinois and

had sex with her at a Best Western motel. Black sent Haueter two pictures of Steen. Black used his

webcam to display images of children engaged in sex acts and sent a picture of his erect penis. Black

engaged in sexually explicit talk in these chats and suggested a meeting with “Tina” for shopping and

maybe sex if “Tina” desired.

               As part of the investigation, Haueter engaged a cleaning lady employed by the Village

of Waterford to pose as “Tina” to make and receive telephone calls to and from Black. A meeting

was arranged and, on January 30, 2004, Black traveled from Taylorsville, Kentucky, to New

Waterford, Ohio, to have sex with “Tina” and to photograph the activity. Black was provided with

a fictitious address on Taylor Avenue in New Waterford. Police began surveillance of Black when

he arrived in New Waterford and followed him to Taylor Avenue. There they stopped Black’s vehicle

and arrested him.

               Black consented to the search of his automobile and police seized, among other things,

a digital camera, an external USB hard drive containing numerous images of child pornography, a lap


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United States v. Black


top computer, a box of condoms and a Teddy bear (fitting the description of a bear Black had

promised to bring “Tina” as a gift). Black was transported to the sheriff’s office in Lisbon, Ohio,

where he was placed in a conference room.

                 Although Black had been orally advised of his constitutional rights at the scene of his

arrest, Haueter repeated the advice and obtained a signed waiver of rights. Black indicated that he

wished to speak with the officers and was interviewed by Haueter and Detective Allan Young

(Young). While retrieving his wallet from a bag containing his personal belongings, Black activated

a digital recorder. Black told Haueter that he had a prepaid legal card in his wallet, which Black

asked if he could have. He removed the card from his wallet, looked at it, and put it either in his

pocket or placed it on a chair. Black did not ask to call a lawyer or speak to a lawyer until he finished

his statement.

                 Haueter and Young interviewed Black for about one hour and thirty minutes. Black

admitted he visited the chat room “I like older men best,” he used the screen name “dads_here2003"

and he chatted with “Tinagreeneyes.” He admitted asking “Tina” if she liked older guys and if she

had had sex with an older guy.

                 On January 31, 2004, Haueter called Black’s residence and advised Black’s then wife

of his arrest. Later that day, Black called his wife and told her to disassemble the hard drive of his

home computer and to hide it outside their house. Black’s wife attempted to comply with Black’s

request but was unsure how to do so and left for work with the computer partially disassembled.

While she was at work, the computer was seized by Kentucky State Police (KSP) officers who


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United States v. Black


executed a search warrant. Haueter had contacted KSP for assistance in obtaining the warrant. The

KSP also seized a webcam and a second computer. Forensic examination of one computer revealed

images of child pornography. Black’s wife later told KSP Detective David Brennan of Black’s

instructions to her concerning the computer.

               After Black’s arrest, Haueter was able to learn the identity of Steen and to obtain

records from the Best Western motel in Greenville, Illinois confirming that Black was registered there

during the time frame he had indicated. Steen testified at Black’s trial. She met Black, using the

screen name “dads_here” in the “I like older men” chat room. In January, 2004, when she was about

15 years old, she agreed to meet Black in her hometown. He picked her up in his car, told her his

name was Michael and drove her to the Best Western motel in the nearby town of Greenville, Illinois.

She refused Black’s request for nude photographs but did have sexual intercourse with him.

       Black testified at trial that he sold his computers to James Christiansen who later brought them

back to Black for the installation of different hard drives. Black claimed he did not know there was

child pornography on his computers and denied ever sending child pornography over the computer.

Although Black admitted to the use of the screen name “dads_here2003," he blamed Christiansen for

most of the chat text with “Tina.” He also denied having sex with Steen.

               Prior to trial, Black filed motions to suppress the evidence seized from his home and

car and to suppress his recorded statement. The district judge referred the motions to a magistrate

judge who recommended that the motions be denied. The district judge adopted the magistrate

judge’s recommendation. Black was convicted by a jury and sentenced to 360 months imprisonment.


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United States v. Black


On appeal, Black challenges both his conviction and sentence.

                                           DISCUSSION

       I.      Admission of Black’s Statement

               Black challenges the admission at trial of his statement made to Haueter and Young

on January 30, 2004, the day of his arrest. More specifically, Black argues that his request to obtain

his prepaid legal card from his wallet constituted a request for an attorney, after which officers could

not continue to interrogate him.

               The magistrate judge issued a thorough and well reasoned opinion on this issue which

was adopted by the district judge. Having had the benefit of oral argument and having reviewed the

parties’ briefs and the applicable law, we find Black’s argument to be without merit for the reasons

stated in the magistrate judge’s Findings of Fact, Conclusions of Law and Recommendation dated

August 22, 2005. JA 48-96.

       II.     Admission of Evidence From the Search of Black’s Residence Pursuant to the
               Kentucky Search Warrant.

               Black also challenges the admission at trial of certain items seized from his home on

the grounds that the affidavit in support of the search warrant did not establish probable cause to

search. Once again, we find Black’s argument to be without merit for the reasons stated by the

magistrate judge in his Findings of Fact, Conclusions of Law and Recommendation filed on August

22, 2005. JA 48-96.




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         III.   Admission of Laptop Computer and External Hard Drive.

                A.       Chain of Custody.

                         Black challenges the admission of the contents of the laptop computer and

external hard drive seized from his automobile on January 30, 2004, because, he argues, “[t]he

evidence was clearly tainted and inadmissible because a [sic]of patent breach in the chain of custody.”

(Appellant’s Brief at 33). Black’s argument on this issue lacks merit as well.

                “Absent a clear showing of abuse of discretion, challenges to the chain of custody go

to the weight of evidence, not its admissibility.” United States v. Levy, 904 F.2d 1026, 1030 (6th Cir.

1990). Where no evidence exists to indicate that tampering with an exhibit occurred, the court

presumes public officers have properly discharged their duties. United States v. Allen, 106 F.3d 695,

700 (6th Cir.), cert. denied, 520 U.S. 1281 (1997). “Merely raising the possibility of tampering is not

insufficient to render evidence inadmissible.” United States v. Kelly, 14 F.3d 1169, 1175 (7th Cir.

1994).

                Here the government presented testimony about the seizure, inventory and custody of

the laptop computer and external hard drive. The defendant raised no question about the integrity of

the evidence and defendant’s counsel candidly admitted to the district court that he did not have “a

reasonable good faith belief” that law enforcement had tampered with the evidence. The district

court permitted defense counsel to cross examine the witnesses about the chain of custody. No abuse

of discretion has been shown.




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United States v. Black


                B.       Need for Search Warrant to Access Content of Laptop and External
                         Hard Drive

                         We need not address this issue on the merits because we have no jurisdiction

to hear appeals of suppression issues raised for the first time on appeal. United States v. Critton, 43

F.3d 1089, 1093-94 (6th Cir. 1995). A review of the defendant’s motion to suppress filed in the

district court reveals no mention of this issue. By his failure to raise this suppression issue pre-trial

in the district court, the defendant has waived the issue. United States v. Crismon, 905 F.2d 966, 969

(6th Cir. 1990). Because the defendant has waived this issue, we are not required to consider the

issue even under the plain error standard, and we decline to do so.

        IV.     Defendant’s Sentence

                A.       Judicial Fact Finding

                         In calculating the advisory guidelines range for imprisonment, the district court

applied the five level enhancement of USSG § 2G2.2(b)(6)1 because the offense involved 600 or

more images of child pornography. The government introduced at sentencing two computer disks

containing 1908 still images and 11 video files containing child pornography seized from Black’s

computer. Black argues that the increased offense level violates his Sixth Amendment rights because

the number of images involved was never submitted to a jury and proved beyond a reasonable doubt

but rather was decided by the judge. Black’s argument is unpersuasive.

                United States v. Booker, 543 U.S. 220 (2005) “did not eliminate judicial factfinding.”


        1
         The 2003 edition of the Guidelines Manual was used in this case. This section has been
renumbered in the current edition of the Guidelines Manual as § 2G2.2(b)(7)(D).

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United States v. Black


United States v. Coffee, 434 F.3d 887, 898 (6th Cir.), cert. denied, 126 S. Ct. 2313 (2006). “It is clear

under the law of this Circuit that a district court may make its own factual findings regarding relevant

sentencing factors, and consider those factors in determining a defendant’s sentence.” United States

v. Gardiner, 463 F.3d 445, 461 (6th Cir. 2006). “[W]hen a trial judge exercises his discretion to

select a specific sentence within a defined range, the defendant has no right to a jury determination

of the facts that the judge deems relevant.” Booker, 543 U.S. at 233. Simply put, Booker does not

bar the district court from fact finding (i.e., determining the number of images) using a preponderance

of the evidence standard provided that the sentencing guidelines are used as advisory and not

mandatory. Post-Booker, a district court may enhance a defendant’s sentence “based upon facts not

found by the jury, provided they do not consider themselves required to do so.” United States v.

Davis, 397 F.3d 340, 352 (6th Cir. 2005) (Cook, J., concurring); see also United States v. Kosinski,

480 F.3d 769, 776 (6th Cir. 2007).

               In the instant case, the record clearly indicates that the district judge properly

considered the sentencing guidelines as advisory and found the necessary facts to apply the

enhancement. Therefore, we find that the district court properly applied the enhancement.

       B.      The Defendant’s Eighth Amendment Challenge

               The defendant argues that his 30 year sentence is unconstitutionally disproportionate

to the crime for which he has been convicted and constitutes cruel and unusual punishment under the

Eighth Amendment. This Court reviews de novo a constitutional challenge to a district court’s

sentence. United States v. Marks, 209 F.3d 577, 583 (6th Cir. 2000).


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               In interpreting the Eighth Amendment, “[t]he Supreme Court has articulated a ‘narrow

proportionality principle’ whereby it held that only ‘extreme sentences that are grossly

disproportionate to the crime are prohibited.’” United States v. Flowal, 163 F.3d 956, 963 (6th Cir.

1998) (quoting Harmelin v. Michigan, 501 U.S. 957, 995-97 (1991)). In Harmelin, the Supreme

Court upheld Michigan’s penalty of life imprisonment without parole for possession of more than 650

grams of cocaine. The Supreme Court reaffirmed this holding in Ewing v. California, 538 U.S. 11,

28 (2003) (rejecting argument that “sentence of 25 years to life is unconstitutionally disproportionate

to [an] offense of shoplifting three golf clubs” (internal quotation marks and citation omitted)).

               This Court has adopted the “narrow proportionality principle” set forth in Harmelin,

and recognized that “only an extreme disparity between crime and sentence offends the Eighth

Amendment.” Marks, 209 F.3d at 583 (citing United States v. Hopper, 941 F.2d 419, 422 (6th Cir.

1991)). In Marks, a case where defendants were involved in nine armed bank robberies, this court

upheld a 2,242 month sentence. Id. This Court has made clear that “strict proportionality between

a crime and its punishment is not required.” Id. (citing Harmelin, 501 U.S. at 959-60). Supreme

Court precedents support this view. Indeed, in Deal v. United States, the United States Supreme

Court upheld a 105 year sentence for six armed robberies finding that 18 U.S.C. § 924(c) requires

enhanced consecutive sentencing. 508 U.S. 129, 132-33 (1993). Black cites no case in support of

his argument. In view of the overwhelming Supreme Court precedent, we find that Black’s sentence

is not cruel or unusual.




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                                      CONCLUSION

              For the foregoing reasons, we AFFIRM defendant’s convictions and sentence.




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