                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0317n.06


                            UNITED STATES COURT OF APPEALS
                                                                                                   FILED
                                                                                            Apr 24, 2014
                                FOR THE SIXTH CIRCUIT
                                                                                       DEBORAH S. HUNT, Clerk
                                               No. 13-5606

UNITED STATES OF AMERICA,                                   )
                                                            )
       Plaintiff-Appellee,                                  )       ON APPEAL FROM THE
                                                            )       UNITED STATES DISTRICT
v.                                                          )       COURT FOR THE EASTERN
                                                            )       DISTRICT OF KENTUCKY
BRIAN DOUGLAS SMITH,                                        )
                                                            )
       Defendant-Appellant.                                 )

                                                 OPINION

Before:          MOORE and COLE, Circuit Judges; DRAIN, District Judge.1

       GERSHWIN A. DRAIN, District Judge. In this appeal, Defendant Brian Douglas Smith

appeals the 151-month custodial sentence and 20-year term of supervised release with special

conditions imposed after he pled guilty to Distribution of Child Pornography. For the reasons that

follow, we AFFIRM.

                                           I. BACKGROUND

       In November of 2012, Smith entered into a plea agreement for Distribution of Child

Pornography under FED. R. CRIM. P. 11. The presentence report provided a guidelines range of

151 to 188-months of imprisonment and 5-years to life for supervised release.




             1
               The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of
     Michigan, sitting by designation.

                                                      -1-
       Prior to sentencing, Smith requested a downward departure based on his mental condition,

including depression, stemming from childhood sexual abuse, as well as due to numerous physical

ailments, including hypoglycemia, diabetes, arthritis, degenerative disc disease and the need for

double knee replacement surgery.       Smith relies on numerous prescription drugs for mood

disturbance and pain management. A Bureau of Prisons (“BOP”) psychologist who evaluated

Smith’s competency found that he was emotionally distressed, complained of chronic pain, made

demands for psychotropic medication and told the psychologist that he wanted “treatment to address

issues related to his childhood.” The psychologist recommended psychotherapy and participation

in a sex offender treatment program “to determine the level and degree of Mr. Smith’s sexual

interest in children and whether a diagnosis of Pedophilia is warranted.”

       On March 21, 2013, the district court conducted sentencing proceedings. The district judge

first determined that the guidelines range had been properly calculated in the presentence report.

Neither the government nor Smith objected to the guideline calculations.            Given Smith’s

cooperation, the government recommended a sentence at the low end of the guidelines range,

specifically requesting a sentence of 151-months in custody and 15-years of supervised release.

Smith reiterated his request for a downward departure.

       The court denied Smith’s motion for a downward departure. Smith’s request was made

pursuant to U.S.S.G. § 5H1.3, which relates to mental and emotional conditions, and § 5H1.4, which

relates to physical issues. The district court judge recognized that Smith struggles from mental and

emotional challenges, but concluded that such conditions are not unusual in these types of cases and

Smith’s case is not severe enough to warrant departure. Next, the district court opined that when

considering physical conditions warranting departure under § 5H1.4, the court requires “some kind



                                                -2-
of very unusual situation that distinguishes this case from other defendants.” The district judge

agreed that Smith struggles with numerous physical ailments but found his condition could be

adequately addressed by the BOP system.

        The district court then conducted a thorough analysis of the sentencing factors and their

application to Smith’s crime and circumstances.           The district judge first considered the

recommended sentence. The court noted that there is a stiff penalty in these types of cases because

of the public policy recognition that the resulting damage to the community and victims is

substantial. The district judge acknowledged that there were a number of victim impact letters

provided in this case and that the Guidelines included a reduction for Smith’s acceptance of

responsibility. The court further noted that the supervised release recommendation is different in

this case, as it covers the wide span of 5 years to life. However, the court recognized such

supervision can be beneficial for a significant period of time because of the accountability that a

probation officer can provide.

        Next, the court considered the seriousness of the crime. The court emphasized the

continuing victimization that results from putting pictures on the Internet. The district court opined

that:

                [O]ne of the ways that we can promote respect for the law, particularly for
        individuals that have to make that decision to reflect the law, sometimes in the confines of
        their home in the privacy of their home with nobody else around is to impose substantial
        sentences, and also to deter future conduct, people need to understand consequence of
        engaging in this particular behavior.

Consequently, the district court noted that it must consider the need to protect the public from future

crimes, and that the sentence imposed will provide Smith an opportunity to receive treatment for his

mental conditions. While the district court recognized that Smith is committed to living differently,



                                                 -3-
it further emphasized that punishment is about more than remorse and Smith still owes society a debt

for his actions.

        The district court also discussed the nature and circumstances of Smith’s offense, particularly

the substantial number of videos and images involved. The court noted that Smith’s history and

characteristics were mitigating factors to consider, however it stated:

                 I don’t hold you accountable for things that happened when you were a young
        child...[b]ut I have to hold you accountable for the way you responded to that and the
        decisions you made as an adult. And you’re coming a little bit late to trying to finally deal
        with that and address that and I think you’re beginning to do that, and I’m going to give you
        some credit for that.

        The district court ultimately concluded that a significant period of incarceration and

supervised release were necessary. The court sentenced Smith to 151-months in custody, during

which time it required him to participate in mental and emotional health counseling and/or available

substance and sex offender treatment programs. Following Smith’s imprisonment, the district court

ordered 20-years of supervised release, with the caveat that after 10 years a hearing will be held to

determine whether or not the restrictions need to continue. The court emphasized that Smith’s case

and circumstances warranted a sentence at the bottom of the recommended guidelines.

        Additionally, the district court ordered several special conditions to Smith’s supervised

release including his participation in mental health and substance abuse programs and periodic drug

and alcohol testing, random searches of his person or possessions at the discretion of his probation

officer, reporting all use of prescription medications and providing access to his financial

information, participation in a program for treatment of mental health sexual disorders, and

limitations on his contact with minors, possession of pornography, electronic equipment, and on

renting a post-office box or storage facility. Neither party had any objections to the sentence.



                                                 -4-
                                          II. DISCUSSION

                                                   A.

        We review sentences for procedural and substantive reasonableness. United States v.

Collington, 461 F.3d 805, 807-08 (6th Cir. 2006). A sentence is procedurally unreasonable if the

court committed serious 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.” Gall v. United

States, 552 U.S. 38, 51, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007). A sentence is substantively

unreasonable if the district court “selects the sentence arbitrarily, bases the sentence on

impermissible factors, fails to consider pertinent § 3553(a) factors, or gives an unreasonable amount

of weight to any pertinent factor.” United States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008).

                                                   B.

        Smith argues that the district court erred by imposing a 151-month custodial sentence. This

Court reviews Smith’s claims of procedural unreasonableness for plain error because he failed to

raise any objections to the sentence at his hearing after the district court invited him to do so. United

States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008). A finding of plain error requires that the

moving party show “(1) an error, (2) that was obvious or clear, (3) that affected his substantial

rights, and (4) that affected the fairness, integrity, or public reputation of his judicial proceedings.”

United States v. Inman, 666 F.3d 1001, 1003-04 (6th Cir. 2012) (citing United States v. Gunter, 620

F.3d 642, 645 (6th Cir. 2010)). “A sentencing error affects a defendant’s substantial rights when

there is a reasonable probability that, but for the error, [he] would have received a more favorable

sentence.” United States v. Wilson, 614 F.3d 219, 223 (6th Cir. 2010). However, the “mere failure

                                                  -5-
[of the lower court] to fully explain the extent of its consideration of sentencing factors” is not

enough to constitute plain error. United States v. Houston, 529 F.3d 743, 751 (6th Cir. 2008)

(emphasis in original).

       We find that no error occurred in the instant matter because the district court “considered the

parties’ arguments” and provided “a reasoned basis” for Smith’s custodial sentence. United States

v. Klups, 514 F.3d 532, 537 (6th Cir. 2008). Smith argues that the district court committed error by

failing to address his arguments that a downward variance2 would be appropriate given Smith’s

acceptance of responsibility, timely plea agreement, outstanding emotional and physical issues, and

the sexual abuse he experienced as a child. However, the record demonstrates that the district court

recognized that Smith’s mental and physical conditions were “clearly present,” but “not to an

unusual degree in these kinds of cases” and not “to the extent that departure would be warranted.”

Contrary to Smith’s arguments, the district court properly considered the § 3553(a) factors. While

the district court could have addressed Smith’s physical and mental conditions more extensively,

we conclude that the district court was aware of them, was cognizant of their role in a § 3553(a)

analysis, and incorporated them into the sentencing decision. Although the district court rejected

Smith’s request for a downward departure or a Guidelines variance, it did find that Smith’s history

and characteristics warranted a sentence at the lower end of the recommended Guidelines range.

       With respect to the substantive reasonableness of the sentence, Smith bears the burden of

showing that the district court abused its discretion. See United States v. Woodard, 638 F.3d 506,

510 (6th Cir. 2011). Because Smith’s sentence is within the Guidelines range, this Court presumes

that the sentence is reasonable. Vonner, 516 F.3d at 389; see also United States v. Cunningham, 669


             2
               Defense counsel did not file a written motion for a section 3553(a) variance, but argued
     during sentencing that the court should grant a variance.

                                                      -6-
F.3d 723, 733 (6th Cir. 2012) (“Defendant bears a heavy burden in showing that his sentence at the

low-end of his Guidelines range is unreasonable.”). When reviewing sentences for substantive

reasonableness, the appropriate inquiry is not whether the district court “could” have awarded a

lower sentence, but “must” it have done so. United States v. Smith, 516 F.3d 473, 476, 478 (6th Cir.

2008).

         Smith argues that his sentence is substantively unreasonable for three primary reasons:

(1) the district court improperly lengthened his sentence so that he could obtain rehabilitative

treatment in prison, (2) the court failed to give adequate weight to positive sentencing factors, and

(3) the court gave too much weight to the advisory guidelines range. First, Smith’s argument that

the district court based the length of his sentence on the completion of a rehabilitative treatment

program lacks support in the record. While the district court alluded to Smith’s mental health and

stated that he would benefit from rehabilitative treatment, such statements are not enough to

conclude that the court improperly lengthened the sentence to enable completion of a treatment

program. See United States v. Tolbert, 668 F.3d 798, 803 (6th Cir. 2012); see also Tapia v. United

States, 131 S. Ct. 2382, 2393 (2011).

         Second, the district court gave adequate weight to Smith’s positive sentencing factors. The

fact that Smith was sentenced at the bottom of the Guidelines range suggests that the district court

sufficiently considered the positive factors of Smith’s cooperation with the police and timely plea

agreement. It is beyond the scope of an appellate court’s review to simply balance the § 3553(a)

factors differently than the lower court. United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008).

While the positive factors might support a lower sentence, “they do not compel one, and that is all

we have license to consider.” United States v. Overmyer, 663 F.3d 862, 864 (6th Cir. 2011).



                                                 -7-
        Finally, the district court did not place too much weight on the advisory guidelines range.

“The applicable Guidelines range represents the starting point for [a] substantive-reasonableness

review because it is one of the § 3553(a) factors and because the Guidelines purport to take into

consideration most, if not all, of the other § 3553(a) factors.” United States v. Peppel, 707 F.3d 627,

635 (6th Cir. 2013) (citing United States v. Haj-Hamed, 549 F.3d 1020, 1025 (6th Cir. 2008)). The

fact that a district court may depart from the Guidelines because of policy reasons does not mean

that they must. See United States v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011).

        Smith heavily relies on a comment made by the district court judge concerning the “fairness”

of the Guidelines. However, not only does an appellate court “not presume to read the mind of a

sentencing judge, on a search for impropriety,” but the district court used the term during his

discussion of the need to avoid unwarranted sentencing disparities, and his recognition that it is well-

settled that a sentence within the Guidelines furthers the goal of reducing disparities. United States

v. Guthrie, 557 F.3d 243, 256 (6th Cir. 2009). “[O]ne of the fundamental purposes of the Guidelines

is to help maintain national uniformity in sentences, and considering that most sentences are within

the Guidelines, the Guidelines themselves represent the best indication of national sentencing

practices.” United State v. Houston, 529 F.3d 743, 752 (6th Cir. 2008). The district court did not

presume the Guidelines were reasonable. Instead, after thoroughly reviewing Smith’s history and

the circumstances of his crime, the court determined that a 151-month term of imprisonment was

“sufficient, but not greater than necessary” to comply with the statutory sentencing purposes. In

light of the totality of the circumstances, the district court did not abuse its discretion in imposing

a 151-month custodial sentence.




                                                  -8-
                                                  C.

        Smith also argues that the conditions of his supervised release constitute plain error. Under

18 U.S.C. § 3583(d), a district court may impose special conditions of supervised release so long

as they are “reasonably related to the dual goals of probation, the rehabilitation of the defendant and

the protection of the public.” United States v. Brogdon, 503 F.3d 555, 563 (6th Cir. 2007). To

satisfy the requirement of procedural reasonableness, a district court must state its rationale for

mandating special conditions of supervised release. United States v. Dotson, 715 F.3d 576, 583-84

(6th Cir. 2013). “[W]hen imposing a condition of supervised release, a district court’s consideration

of the § 3553(a) factors sufficient to justify a term of incarceration as procedurally reasonable can

also demonstrate that the imposition of special conditions is procedurally reasonable.” United States

v. Zobel, 696 F.3d 558, 572 (6th Cir. 2012).

        As with custodial sentences, if the district court asks the defendant whether or not he has any

objections to the terms or length of the special conditions applied to his supervised release and he

says “no,” the appellate court may review the procedural reasonableness of the special conditions

only for plain error. Zobel, 696 F.3d at 572-73. However, even if a defendant preserves an error

by objecting to a condition, an error simply based on a lower court’s inadequate explanation of the

condition would be harmless “if the supporting reasons are evident on the overall record, and the

subject special condition is related to the dual major purposes of probation, namely rehabilitation

of the offender and enhancement of public safety.” Brogdon, 503 F.3d at 564 (citing United States

v. Kingsley, 241 F.3d 828, 836 (6th Cir. 2001)). Additionally, United States v. Doyle, 711 F.3d 729,

734 (6th Cir. 2013), established that a district court’s failure to explain its reasons for imposing

special conditions is harmless “if the record clearly shows why the district court imposed the

conditions that it did.”

                                                 -9-
       In Doyle, the district court committed a procedural error when it failed to explain its

reasoning for imposing four special conditions of supervised release. Doyle, 711 F.3d at 734. Doyle

was charged with failing to register as a sex offender. Id. at 731. This Court determined that

forbidding Doyle from “possessing any pornography or calling a sexually-oriented phone number

or service [did] not reasonably relate to the offense for which he was sentenced.” Id. We also found

that such a condition could not be upheld without an explanation from the lower court as to why it

imposed the restriction. Id. However, Doyle recognized that in a situation where the special

conditions of supervised release or probation “are reasonably related to the twin goals of probation:

rehabilitation of the defendant and the protection of the public,” and the record, as a whole, shows

the appropriateness of the special conditions, then a district court’s failure to explain its reasoning

for applying the special condition amounts to only harmless error, making remand unnecessary. Id.

at 734-35 (citing United States v. Bortels, 962 F.2d 558, 560 (6th Cir. 1992)). In United States v.

Berridge, 74 F.3d 113, 119 (6th Cir. 1996), the defendant pled guilty to making false statements on

a loan application while working for a bank. Id. at 114. The district court imposed, without stating

a reason on the record, a special condition of supervised release that prevented him from any future

work in the banking industry. Id. We held that remand was unnecessary even though the district

court failed to state its reasoning because the error was harmless. The reason for imposing the

employment restriction was clear from the record and met both goals of probation. Id. at 119.

       Moreover, a sentencing error does not affect substantial rights unless a reasonable probability

exists that the defendant would have received a more favorable sentence in absence of the error.

United States v. Wilson, 614 F.3d 219, 223 (6th Cir. 2010). In the instant case, Smith cannot show

that any error affected his substantial rights. Instead, the district court either provided an adequate



                                                 -10-
explanation of its reasoning for the special conditions on the record, or the lack of an explanation

constitutes harmless error under Doyle rendering remand unnecessary.

                                                  1.

       Several of the special conditions that Smith argues the district court failed to explain are

adequately supported on the record contrary to his contentions. First, as to the restriction of Smith’s

contact with minors, the district court stated that its primary reasoning behind this condition was

“the content of the images, [and] the significant number of images that were involved in this

particular case.” Although there is no evidence that Smith had any inappropriate contact with

minors before his arrest, the district judge opined that his “concern is that when someone is

struggling with [child pornography] and receives [a] restriction...than there’s a greater concern [for

inappropriate contact] and that grows in terms of possible contact that could occur in terms of a

minor.”

       The district court’s concern about Smith being around children following his release is

appropriate. The psychologist who evaluated Smith for trial recommended that Smith attend a sex

offender treatment program to determine “whether a diagnosis of Pedophilia is warranted.” One of

the permissible reasons for establishing special conditions under § 3583(d) is to “protect the public.”

Although Smith has not yet been diagnosed with pedophilia, the district court properly relied on the

psychologist’s concern over Smith’s past behavior to determine that such a condition is necessary.

Smith’s probation officer may later alter the constraints of this restriction if appropriate.

       Smith relies on United States v. Widmer, 511 F. App’x 506 (6th Cir. 2013), and Doyle, supra,

however his reliance is unfounded. In Widmer, the defendant pled guilty to knowingly receiving

child pornography, but never solicited or physically harmed any children. Id. at 508. We concluded

that there was no obvious rationale for imposing a restriction barring Widmer from having contact

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with minors, particularly when the limitation kept him from his own daughter. Id. at 513. Applying

the abuse-of-discretion standard of review, we concluded that “a fuller explanation” of the court’s

special restriction reasoning was needed because “the record lacks an obvious rationale for imposing

the restriction.” Id. at 512-13.

       However, there are several significant distinctions between Widmer and the instant case.

Most notably, Smith has pled guilty to a more serious and pervasive crime - distributing child

pornography, the restriction will not bar contact with his child, and the district court provided an

explanation to support its reasoning. Smith’s reliance on Doyle is also unfounded, as the Doyle

court emphasized that the special restriction requiring the defendant to refrain from contact with

minors was inappropriate because it barred him from having contact with his four children. Doyle,

711 F.3d at 735. Smith’s child will be over the age of 18 at the time of his release and this condition

will not interfere with his contact with her.

       Second, the district court explained that the restriction from pornography and sexually-

stimulating performances was based on the fact that Smith admitted to viewing pornography for the

last 20 years and the vast amount of pornography, particularly child pornography, that was involved

in this case. Although Smith argues this restriction is over-broad and would prevent him from

certain activities (i.e., visiting the corner store where Playboy and condoms are sold), he assumes

the probation officer will interpret the restriction in this narrow manner, and fails to appreciate the

Court’s ability to clarify its restriction. See 18 U.S.C. § 3583(e)(2). Furthermore, in Doyle, the

court recognized that forbidding an individual from possessing pornography or calling a phone-sex

number might aid in the rehabilitation of an individual who pled guilty to the distribution of child

pornography. Doyle, 711 F.3d at 734. Assisting in the rehabilitation of the offender is a permissible

reason for the district court to impose a special condition. Plain error occurs only in exceptional

                                                 -12-
circumstances that lead directly to a miscarriage of justice. Vonner, 516 F.3d at 386; see also United

States v. Krimsky, 230 F.3d 855, 858 (6th Cir. 2000). Smith fails to demonstrate plain error

regarding the pornography restriction.

       The district court also placed restrictions on Smith’s ability to use a post office box or

storage facility without the approval of his probation officer. Smith argues this restriction is

unwarranted because he was never found with any hard copies of child pornography. However, the

district court stated that experience has taught that while his current acquisition of child pornography

is predominantly through the Internet, once his access is restricted, Smith could seek alternative

means to serve his addiction (i.e. receiving child pornography through the mail). As such, the

district court adequately explained its rationale for the imposition of its restriction.

       The district court placed limitations on Smith’s access to cameras, computers, and the

internet, and subjected him to random searches of his computer system and storage devices. The

district court recognized that Smith is “computer savvy” and that he viewed and distributed child

pornography via the Internet. Moreover, the court permitted Smith’s probation officer to expand

Smith’s access to computers and the internet over time, but there initially needed to be a secure

monitoring system in place. Smith maintains that the search element of the aforementioned

restriction is unnecessary because there is already a search and seizure special condition in place

under his supervised release, permitting his probation officer to search any device based on

reasonable suspicion that Smith has violated one of his conditions of release.

       Smith argues his situation is analogous to the facts in Inman, wherein we concluded remand

was required because the district judge failed to explain the special condition prohibiting the

defendant from possessing any electronic devices capable of creating videos or pictures for the

remainder of his life. Inman, 666 F.3d at 1005-07. Unlike the facts in Inman, the district court

                                                 -13-
explained that the search restrictions were needed because of the seriousness of Smith’s crime,

including distributing a significant amount of child pornography over the Internet. Likewise,

although there is no evidence that Smith ever used camera equipment to produce child pornography,

similar to the reasoning for the restriction placed on Smith’s rental of a postal box, the district court

identified its legitimate concern that Smith would seek other avenues to obtain child pornography

when he could no longer access his computer or the Internet. The court reasonably lessened the

impact of the restrictions by stressing that Smith’s probation officer would have the flexibility to

approve Smith’s use of cell phones and computers, ensuring that the technological restriction would

not prevent “legitimate professional pursuits or other activities that would contribute to [Smith’s]

rehabilitation.” United States v. Phillips, 370 F.App’x 610, 621 (6th Cir. 2010).

        The district court also gave Smith’s probation officer access to his financial information.

The court explained the financial restriction as “a means to allow the U.S. Probation Office to

monitor purchases of electronic and peripheral devices, as well as any Internet services either

subscribed to or accessed to by the defendant,” in an effort to ensure that Smith is not purchasing

any restricted materials. This restriction acts to deter Smith from violating his supervised release

conditions, “protect[s] the public from additional crisis of the same nature, and ensure[s] that

rehabilitation proceeds without hindrance.” United States v. Fredrick, No. 9-53-GFVT, 2013 WL

1993294, *3 (E.D. Ky. May 13, 2013). While we have vacated a sentence with a similar restriction,

the basis for our decision was that the district court had not explained why the intrusive condition

was necessary. See Inman, 666 F.3d at 1106. Unlike the situation in Inman, the district court

provided a specific reason for the restriction - to ensure that Smith was not violating his release

restrictions by attempting to impermissibly subscribe to or access pornography. As such, Smith fails

to establish plain error in permitting access to his financial information.

                                                  -14-
                                                  2.

       Turning to the remaining restrictions, while we agree the district court should have more

clearly articulated its reasons, the ultimate fairness and integrity of the proceedings were not

compromised. The district court ordered Smith to participate in mental health and substance abuse

treatment, submit to periodic drug and alcohol testing, and to inform the court about his prescription

medications without stating its reasons on the record. However, the aforementioned conditions are

directly related to protecting the public and assisting the rehabilitation process. Additionally,

evidence to support the restrictions is clearly found in the record. Doyle, 711 F.3d at 734. The

district court noted that protecting the public required “counseling” and dealing “with any substance

abuse issues.” Smith’s history of substance abuse is evident from the record, including his medical

history of extensive reliance on numerous prescription drugs. Furthermore, Smith was unable to

confirm he was not addicted to his pain medications. Additionally, the psychologist who assessed

Smith, recommended psychotherapy and sex offender treatment to determine whether or not Smith’s

interest in children established a diagnosis of pedophilia.

       Lastly, mental health treatment bears a direct relation to Smith’s offense - distributing child

pornography. Brogdon 503 F.3d at 564. The district court stated that the required treatment is part

of “a number of conditions that relate [to] the nature of this crime.” As such, any error resulting

from the failure to articulate the reasoning behind these restrictions was harmless.

                                       III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment of sentence.




                                                -15-
