                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0147n.06

                                           No. 19-3186

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                              Mar 12, 2020
UNITED STATES OF AMERICA,                              )                  DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellee,                             )
                                                       )    ON APPEAL FROM THE UNITED
v.                                                     )    STATES DISTRICT COURT FOR
                                                       )    THE NORTHERN DISTRICT OF
JUSTIN MCKNIGHT,                                       )    OHIO
                                                       )
       Defendant-Appellant.                            )
                                                       )



       BEFORE: GRIFFIN, WHITE, and NALBANDIAN, Circuit Judges.

       PER CURIAM. Justin McKnight appeals his 135-month sentence for child pornography

offenses. As set forth below, we AFFIRM McKnight’s sentence.

       McKnight pleaded guilty to an indictment charging him with receipt and distribution of

visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C.

§ 2252(a)(2), and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

McKnight’s presentence report set forth a base offense level of 22, see USSG § 2G2.2(a)(2), with

the following enhancements: a 2-level increase for material involving a prepubescent minor or a

minor who had not attained the age of 12 years, see USSG § 2G2.2(b)(2); a 4-level increase for

material portraying the sexual abuse or exploitation of an infant or toddler, see USSG

§ 2G2.2(b)(4); a 2-level increase for the use of a computer or an interactive computer service, see

USSG § 2G2.2(b)(6); and a 5-level increase for an offense involving more than 600 images, see

USSG § 2G2.2(b)(7)(D). After a 3-level reduction for acceptance of responsibility, see USSG
No. 19-3186, United States v. McKnight

§ 3E1.1, McKnight’s total offense level became 32, which, along with his criminal history

category of II, corresponded to a guidelines range of 135 to 168 months of imprisonment.

McKnight did not object to the presentence report’s guidelines calculation, which the district court

adopted.   Determining that a within-guidelines sentence was appropriate, the district court

sentenced McKnight to 135 months of imprisonment followed by five years of supervised release.

       In this timely appeal, McKnight argues that the district court failed to conduct a meaningful

analysis of his personal history and characteristics and the nature and circumstances of his offenses

pursuant to 18 U.S.C. § 3553(a). We review criminal sentences for procedural and substantive

reasonableness under a deferential abuse-of-discretion standard. United States v. Battaglia, 624

F.3d 348, 350 (6th Cir. 2010). Although McKnight does not specify the nature of his challenge to

his sentence, he raises a claim of procedural error. See Gall v. United States, 552 U.S. 38, 51

(2007). A sentencing explanation satisfies the requirements of procedural reasonableness if the

sentencing judge “set[s] forth enough to satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.” Rita v. United States, 551 U.S. 338, 356 (2007). When the district court imposes a

within-guidelines sentence, as in this case, “the question is whether ‘[t]he record makes clear that

the sentencing judge listened to each argument,’ ‘considered the supporting evidence,’ was ‘fully

aware’ of the defendant’s circumstances and took ‘them into account’ in sentencing him.” United

States v. Vonner, 516 F.3d 382, 387 (6th Cir. 2008) (en banc) (quoting Rita, 551 U.S. at 358).

Because McKnight failed to object to the adequacy of the district court’s analysis when given the

opportunity to do so at the conclusion of the sentencing hearing, we review for plain error. Id. at

385–86.

       McKnight has not shown any error, let alone plain error, in the district court’s analysis of

the relevant § 3553(a) factors and explanation of the chosen sentence. McKnight contends that

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No. 19-3186, United States v. McKnight

the district court failed to conduct a meaningful evaluation of certain circumstances, including his

insight into his offenses, his expressions of remorse, his deletion of images of child pornography

from his electronic devices, his limited criminal history, the absence of any psychologically based

sex-offender evaluation or testing, his above-average level of education, his substantial family

support, and his successful drug and alcohol treatment. At the outset of the sentencing hearing,

the district court referenced McKnight’s presentence report and his sentencing memorandum,

which addressed these issues. The district court questioned McKnight about his child pornography

offenses and about his successful recovery from his heroin addiction, which the district court

characterized as “pretty impressive.” Before announcing the chosen sentence, the district court

stated:

          I take into consideration everything that you’ve done up until the time of your arrest
          and then everything that you’ve done since your arrest. And some of the things you
          have done since your arrest have been positive. You have a wonderful support
          group of people who are here and wrote letters on your behalf. You’ve seemed to
          have taken complete and full responsibility for your conduct, so I’m going to give
          you credit for all of that.

The district court concluded that a sentence at the bottom of the guidelines range was appropriate.

The record reflects that the district court considered McKnight’s history and characteristics and

the nature and circumstances of his offenses and adequately explained the 135-month sentence.

          McKnight’s brief can be construed as also raising a substantive reasonableness challenge

to his sentence—that the district court placed too much weight on the guidelines. See United States

v. Rayyan, 885 F.3d 436, 442 (6th Cir.) (holding that a claim that a sentence is substantively

unreasonable is “a complaint that the court placed too much weight on some of the § 3553(a)

factors and too little on others in sentencing the individual”), cert. denied, 139 S. Ct. 264 (2018).

We apply a rebuttable presumption of substantive reasonableness to McKnight’s within-guidelines

sentence. See Vonner, 516 F.3d at 389.


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No. 19-3186, United States v. McKnight

       McKnight raises various arguments about USSG § 2G2.2, the sentencing guideline

applicable to child pornography offenses.1 McKnight first argues that the guideline is “not the

product of extended research” by the sentencing commission and is “not based upon hard scientific

examination and conclusions.” We have repeatedly rejected the argument that “§ 2G2.2’s

purported lack of empirical grounding makes it unfit for deference.” United States v. Cunningham,

669 F.3d 723, 733 (6th Cir. 2012) (citing cases); see United States v. Lynde, 926 F.3d 275, 280

(6th Cir.), cert. denied, 140 S. Ct. 326 (2019). McKnight also asserts that there is an “overarching

trend” of district courts imposing sentences below the guidelines range in child pornography cases.

But “the fact that a district court may disagree with a Guideline for policy reasons and may reject

the Guidelines range because of that disagreement does not mean that the court must disagree with

that Guideline or that it must reject the Guidelines range if it disagrees.” United States v. Brooks,

628 F.3d 791, 800 (6th Cir. 2011). McKnight notes that he received a 5-level enhancement because

his offense involved 600 or more images and that video clips are considered to have 75 images,

see USSG § 2G2.2(b)(7)(D) cmt. n.6(B)(ii); however, he fails to raise any specific objection to the

75-images-per-video ratio. McKnight next contends that the 4-level enhancement for material

portraying “sadistic or masochistic conduct or other depictions of violence” under USSG

§ 2G2.2(b)(4)(A) is overly broad. But McKnight received the 4-level enhancement for material

portraying “sexual abuse or exploitation of an infant or toddler” under USSG § 2G2.2(b)(4)(B),

not for material portraying sadistic or masochistic conduct. Finally, McKnight argues that the 2-

level enhancement for use of a computer or an interactive computer service under USSG

§ 2G2.2(b)(6) “has become virtually automatic”, an argument that we have repeatedly rejected.


       1
         The government contends that McKnight waived his arguments related to the applicability
of these enhancements. At most, McKnight argues these points in a cursory fashion. And he did
not file a reply brief to respond to the government’s arguments. But even though he arguably
waived consideration of these claims, they fail under plain error review anyway.
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No. 19-3186, United States v. McKnight

See United States v. Walters, 775 F.3d 778, 786–87 (6th Cir. 2015) (rejecting “arguments that the

computer enhancement should not be used simply because it is applied frequently”). The district

court’s application of USSG § 2G2.2 did not render McKnight’s sentence substantively

unreasonable. See Lynde, 926 F.3d at 279–82.

       The district court considered the guidelines range along with the other relevant § 3553(a)

factors and imposed a sentence at the bottom of the guidelines range. McKnight has not overcome

the presumption that his within-guidelines sentence was substantively reasonable.

       For these reasons, we AFFIRM McKnight’s sentence.




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