                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 9, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                      No. 06-8122
          v.                                        District of W yoming
 M ICH AEL H UFF,                                  (D.C. No. 06-CR-60-D)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      Defendant-Appellant M ichael Huff pleaded guilty to online enticement of a

child in violation of 18 U.S.C. § 2422(b). The district court sentenced him to 210

months imprisonment and ten years of supervised release. M r. Huff challenges

the reasonableness and constitutionality of his sentence. Exercising jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm the district court’s

sentencing order.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1.
                                I. BACKGROUND

      On M arch 11, 2006, M ichael Huff logged into Yahoo! networks using the

online screen name “knucklestheklown.” M r. Huff encountered

“wranglergirl82009” in a local W yoming chat room and requested a private chat

with her. W ranglergirl82009 claimed to be a 13-year-old girl. In fact, the screen

name belonged to Special Agent Flint W aters of the W yoming Internet Crimes

Against Children Task Force (“ICAC”). During their two-and-a-half hour online

chat, M r. Huff asked wranglergirl82009 if she was really thirteen years old, and

Agent W aters replied in the affirmative. M r. Huff allowed Agent W aters to view

a live image of his face during the chat via a webcam. M r. Huff eventually asked

wranglergirl82009 whether she was sexually experienced and if she would like to

engage in oral sex. Additionally, M r. Huff told wranglergirl82009 that he wanted

to take sexually explicit photographs of her. At the conclusion of their chat,

wranglergirl82009 agreed to meet M r. Huff in approximately twenty minutes at a

local business complex, w hich, unbeknownst to M r. Huff, housed the ICAC

offices.

      True to his w ord, M r. Huff appeared at the prescribed location twenty

minutes later. M r. Huff was arrested by Agent W aters and other ICAC agents,

who recognized him from the w ebcam images. M r. Huff waived his M iranda

rights and made a statement to Agent W aters. He admitted that he chatted online




                                        -2-
with a thirteen-year-old girl and asked to engage in oral sex with her. He also

admitted wanting to take photographs of her genitalia.

      On M arch 20, 2006, M r. Huff was indicted on two counts: online

enticement of a child and attempted child exploitation, in violation of 18 U.S.C. §

2422(b) and 18 U.S.C. § 2251(a), (e) respectively. M r. Huff initially pleaded not

guilty, but later pleaded guilty to online enticement after reaching a plea

agreement with the government. In return, the government agreed to dismiss the

child exploitation count. On August 29, 2006, M r. Huff pleaded guilty and the

district court ordered the U.S. Probation Office to prepare a Presentence

Investigation Report (“PSR”).

      The PSR calculated an advisory sentence using the November 2005 edition

of the U. S. Sentencing Commission Guidelines M anual. Sentences of violations

of 18 U .S.C. § 2422(b) are normally calculated using § 2G1.3, which has a base

offense level of 24. The Probation Office concluded, however, that the cross

reference to § 2G2.1 applied because the crime “involved the offering of a minor

to engage in sexually explicit conduct for the purpose of producing a visual

depiction of such conduct.” R. Vol. V, at 5. Under that guideline, the base

offence level is 32. The base level was increased by four because M r. Huff’s

intended victim had not attained the age of sixteen, U.S.S.G. § 2G2.1(b)(1)(B)

(two-level enhancement), and because a computer w as used in the offense, §

2G2.1(b)(6)(B) (two-level enhancement). The Probation Office then deducted

                                          -3-
three offense levels for acceptance of responsibility under § 3E1.1, yielding a

total offense level of 33. M r. Huff’s criminal history score was reckoned at 18

points, placing him in Criminal History Category VI, and resulting in a sentencing

range of 235 to 293 months.

      In October 2006, M r. Huff filed several objections to the PSR. Among

other objections, M r. Huff: (1) claimed that the cross reference to § 2G2.1 was

inappropriate because it relied on facts not admitted during his guilty plea, in

violation of his Fifth and Sixth Amendment rights; (2) asserted that his criminal

history score was overestimated by counting prior offenses as separate instead of

related, as required by U.S.S.G. § 4A1.2(a); and (3) disagreed with the Probation

Officer’s conclusion that there were no grounds to justify a downward departure.

In particular, M r. Huff asserted that a downward departure was w arranted due to

his poor emotional and physical condition and the fact that none of his prior

crimes were violent or exploitive of children. The Probation Office responded by

amending the PSR to correct some factual details but concluded the advisory

sentence was correct.

      The district court held a sentencing hearing on November 21, 2006. The

court agreed with M r. H uff’s proposed adjustments to his criminal history score.

Adopting M r. Huff’s orally-argued interpretation of § 4A1.2(k), the court held

that M r. Huff’s revocation of probation should only add criminal history points

equal to the highest sentence for which he w as on probation. M oreover, the court

                                          -4-
held that three theft convictions w ere related and should not be counted separately

per § 4A1.2(a). The court thus calculated M r. Huff’s criminal history to place

him in Criminal History Category V, with a Guidelines range of 210–262 months.

       The district court adopted the PSR’s other recommended factual findings

and declined to sentence M r. Huff below the advisory Guidelines range. The

court agreed that M r. Huff was physically disabled and recommended he be sent

to facilities suited to treat him, but it did not find this to be a sufficient reason for

granting either a departure or a variance. The court sentenced M r. Huff to 210

months imprisonment, the low end of the applicable Guidelines range, and further

ordered him to serve a ten-year term of supervised release. The court “strongly

recommend[ed]” that the U.S. Bureau of Prisons place M r. Huff in a facility

equipped to diagnose and treat his disabilities. R. Vol. IV, at 42–43. The district

court answered M r. Huff’s objection to the cross reference to § 2G2.1 by holding

that it could make sentence-enhancing determinations per United States v.

M agallanez, 408 F.3d 672 (10th Cir. 2005).

       Follow ing imposition of his sentence, M r. Huff filed this timely appeal. H e

argues that the district court unreasonably failed to apply the 18 U.S.C. § 3553(a)

sentencing factors and that the cross reference to U.S.S.G. § 2G2.2 violated his

Fifth and Sixth Amendment rights.




                                            -5-
                                  II. D ISC USSIO N

      Following the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), we must review district court sentencing determinations for

“reasonableness.” See United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006).

R eview ing a sentence for reasonableness is a two-step procedure: first, we

determine whether the sentence is procedurally reasonable; if it is, we determine

whether the sentence is substantively reasonable. See United States v. Kristl, 437

F.3d 1050, 1053–55 (10th Cir. 2006). If we conclude that the sentence is

procedurally reasonable, then it is “considered presumptively reasonable from a

substantive perspective.” United States v. M cCullough, 457 F.3d 1150, 1171

(10th Cir. 2006) (citing Kristl, 437 F.3d at 1054–55). In reviewing a sentence for

substantive reasonableness, we ask whether the defendant has demonstrated that

the sentence is unreasonable in light of the sentencing factors identified in 18

U.S.C. § 3553(a). The district court must consider motions to vary a sentence and

“must state reasons for its rejection of a party’s nonfrivolous motion.” United

States v. Sanchez-Juarez 446 F.3d 1109, 1117 (10th Cir. 2006).

      Anticipating what he hoped would be the Supreme Court’s holding in Rita

v. United States, ___ U.S. ____, 127 S.Ct. 2456 (2007), which was pending when

he filed his brief, M r. Huff argues in his reply brief that this Court’s rebuttable

presumption of reasonableness is unconstitutional under Booker. Although this

Court “does not ordinarily review issues raised for the first time in a reply brief,”

                                          -6-
Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000), we note that this argument

did not prevail in Rita, which explicitly upheld the appellate presumption of

reasonableness for properly calculated within-G uidelines sentences. See Rita, 127

S.Ct. at 2462 (citing Kristl, 437 F.3d at 1053–1054, and holding that a court of

appeals may apply a presumption of reasonableness to sentences falling within

properly calculated Guidelines ranges).

      A. Reasonableness of the sentence

      1. Procedural reasonableness

      M r. Huff first objects that the district court failed to grant a departure based

on his physical and mental impairments, but w e perceive no reversible error.

Diminished mental capacity may not be grounds for departure for M r. Huff

because he pleaded guilty to § 2422(b) under chapter 117, title 18 of the U.S.

Code. See U.S.S.G. § 5K2.13 (precluding chapter 117 from departure). Physical

condition is not ordinarily relevant for a departure unless an “extraordinary”

impairment exists. U.S.S.G. § 5H1.4. M oreover, denied departures may not be

reviewed unless the district court incorrectly interpreted the Guidelines as

depriving it of the authority to depart. See United States v. Chavez-Diaz, 444

F.3d 1223, 1228 (10th Cir. 2006). M r. Huff makes no such argument and does

not explain how his impairments could be extraordinary under § 5H1.4. Cf.

United States v. M artinez-Villa, 221 Fed.Appx. 751, 754-55 (10th Cir. 2007)




                                          -7-
(unpublished) (sentence for man with tuberculosis and age infirmities reviewed

under § 3553(a) factors because departure argument not developed on appeal).

      M r. Huff next argues that the district court failed to give genuine

consideration to the possibility of a variance based on the § 3553(a) factors. H e

claims that the district court merely “facially recognized its ability to provide . . .

a variance.” Appellant’s Opening Br. 11. The record contradicts this contention.

The court addressed M r. Huff’s several arguments for a variance and emphasized

that the sentence accorded with its discretionary application of the § 3553(a)

factors. A ddressing M r. Huff’s medical incapacity, the court described his

infirmities and requested several times that the Bureau of Prisons place him in a

facility equipped to treat him. The court stated that “extraordinary physical

impairment may be a reason for downward departure,” but concluded that there

was not, “anything so extraordinary in this instance that would justify a

departure.” R. Vol. IV, at 25. 1

      Furthermore, the district court extensively contemplated § 3553(a)’s

concerns for retribution and deterrence. Stressing the seriousness of M r. Huff’s

crime, the district court stated: “There are little girls being sexually abused in this

      1
        In this Circuit’s nomenclature, a “departure” is a sentence below or above
the advisory Guidelines range based on Chapters Four or Five of the Guidelines
themselves. See United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir.
2007). A “variance” occurs w hen a court uses the § 3553(a) factors to grant a
sentence either above or below the advisory Guidelines range. Id. Although the
district court employed the term “departure,” the context makes clear that it was
speaking of variances as well as departures. See R. Vol. IV, at 25 (refusing to
“invoke its authority separately under 3553(a)”).
                                          -8-
state and around this country . . . every day. And the consequences of those

crimes are profound.” R. Vol. IV, at 33. After recounting M r. Huff’s criminal

history, which included six felonies, the court remarked that the sentence is

“harsh” but that it “cannot be said that the sentence I am imposing on you is an

excessive sentence.” Id. The district court concluded that M r. Huff’s sentence

“is the most reasonable sentence upon consideration of all factors enumerated in

18 United States Code 3553.” Id. at 46. This explanation was legally sufficient.

See Rita, 127 S.Ct. at 2468–69 (holding that the sentencing court’s explanation

need not be extensive, especially where the asserted basis for a variance is not

conceptually complex).

      2. Substantive reasonableness

      In support of his substantive unreasonableness argument, M r. Huff

proposes four grounds for a variance: “his lack of history for violent crimes,

sexual crimes, and/or crimes against children”; “lack of consistency and fairness

in comparison to more heinous conduct related to other offenders against

children”; the “effect of mental disorder on commission of [the] offense”; and his

“injury and impairment.” A ppellant’s O pening Br. 9. W e have carefully

considered each of these arguments in light of the district court’s explanations for

the sentence, and we conclude that they do not rebut the reasonableness of M r.

Huff’s sentence.




                                         -9-
      M r. Huff’s non-violent criminal history does not necessarily remove him

from the heartland of circumstances targeted by the G uidelines. Congress

requires that sentences “protect the public from further crimes of the defendant.”

18 U.S.C. § 3553(a)(2)(C). Past criminality is correlated to the likelihood of

future criminality, and the statute does not exempt nonviolent criminal history. It

is reasonable to take prior nonviolent criminality into account in determining a

proper sentence, even if these prior crimes do not resemble the current offense.

As the sentencing judge indicated, previous convictions have not deterred M r.

Huff from criminal activity. See R. Vol. IV, at 32 (“[Y]our life has been one long

adventure in criminal conduct.”); id. at 32 (“[H]ad you not had this life of

criminal conduct, the sentence that would be imposed upon you now would be

many years less.”).

      M r. Huff argues that a comparison of his sentence to sentences for more

“heinous conduct . . . against children,” suggests that his sentence is unfair and

excessive. But, as M r. Huff recognized in his sentencing memorandum, Congress

and the Sentencing Commission have determined that sexual conduct with a child

is particularly heinous, and have set the sentencing range accordingly. See R.

Vol. II, Doc. 30, at 9–10 (“[I]t is acknowledged that the law s by which M r. Huff’s

conduct are being judged are more substantial to try to hinder and prevent the

production of pornographic materials and protect children . . . .”). It is not

unreasonable for the district court to sentence in accordance with that policy.

                                         -10-
M oreover, M r. Huff fails to express more than blanket generalizations in making

this argument. His citation before the district court to “several individuals . . .

[who] faced much less [sic] sentences” for sex crimes against children, R. Vol.

IV, at 21, failed to take note of the different criminal histories and factual

circumstances that might account for the different sentences.

      M r. Huff’s last two grounds— arguing for leniency based on his physical

and mental impairment— do not show that his sentence is unreasonable. The

sentence reflects a proper concern for the recidivism and rehabilitation factors of

§ 3553(a). M r. Huff’s disabilities cannot prove that “he does not present a

substantial danger to the community.” A ppellant’s O pening Br. 11. After all,

these disabilities did not prevent M r. Huff from soliciting sex from a child, which

requires little physical strength. The sentence— with the district court’s

recommendation for special treatment— furthermore seeks to “provide the

defendant with needed . . . medical care, or other correctional treatment in the

most effective manner.” § 3553(a)(2)(D). The district court therefore committed

no substantive error by declining to grant a variance.

      B. Constitutionality of applying the G uidelines cross-reference

      M r. Huff argues that the district court violated his constitutional rights by

applying the Guidelines cross-reference based upon evidence that he intended to

take sexually explicit photographs of wranglergirl82009. M r. Huff refused to

admit these facts during the change of plea hearing, R. Vol. III, at 29, and he

                                          -11-
argues that the use of judicially-found aggravating conditions is unconstitutional

under Cunningham v. California, 127 S.Ct. 856 (2007).

      Under the remedial decision in Booker, 543 U.S. at 249–50, and the

approach reaffirmed in Rita, 127 S.Ct. at 2465–66, however, it is permissible

under the Sixth A mendment for district courts to sentence w ithin the statutory

range based on judge-found facts, so long as those facts do not legally compel a

sentence higher than what would be justified on the basis of facts found by the

jury or admitted by the defendant. Because the Sentencing Guidelines are no

longer mandatory, as the district court recognized, M r. Huff’s constitutional

argument is unavailing. See United States v. Dalton, 409 F.3d 1247, 1252 (10th

Cir. 2005) (“[judicial] fact-finding is unconstitutional only when it operates to

increase a defendant's sentence mandatorily.”).

                                III. C ON CLU SIO N

      The judgment of the United States District Court for the District of

W yoming is AFFIRM ED.

                                                Entered for the Court,

                                                M ichael W . M cConnell
                                                Circuit Judge




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