               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0606n.06

                                       Case No. 17-6283

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                              Dec 03, 2018
UNITED STATES OF AMERICA,                            )                    DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )      ON APPEAL FROM THE UNITED
                                                     )      STATES DISTRICT COURT FOR
v.                                                   )      THE EASTERN DISTRICT OF
                                                     )      TENNESSEE
MITCHELL ERVIN WILSON,                               )
                                                     )
       Defendant-Appellant.                          )


       BEFORE: BATCHELDER, COOK, and KETHLEDGE, Circuit Judges.

       COOK, Circuit Judge. Defendant Mitchell Wilson pleaded guilty to possessing child

pornography. He appeals his eighteen-month, below-Guidelines sentence. Because the district

court did not abuse its sentencing discretion, we AFFIRM.

                                                I.

       Wilson maintained a file-sharing program on his computer that allowed him to download

and share child pornography files. Police searched his computer and found thousands of child

pornography images and videos, including depictions of intercourse between adult males and

children as young as two. A grand jury charged him with possession of child pornography, in

violation of 18 U.S.C. § 2252(a)(4)(B), and he pleaded guilty.

       The probation officer calculated an advisory Guidelines range of seventy-eight to ninety-

seven months in the presentence report. Neither party objected to the report, but Wilson did move
Case No. 17-6283, United States v. Wilson


for a downward variance, which the government countered. The district court considered the

factors set forth in 18 U.S.C. § 3553(a) and imposed an eighteen-month sentence with ten years of

supervised release.

                                                   II.

        We review sentencing decisions for abuse of discretion. Gall v. United States, 552 U.S.

38, 51 (2007). We first ensure that the district court committed no procedural error. Id. Here,

however, Wilson does not dispute the procedural reasonableness of his sentence, admitting that

the district court “followed a well thought out procedure.” Thus, we review only for substantive

reasonableness. See United States v. Walls, 546 F.3d 728, 736 (6th Cir. 2008).

        “[A] sentence may be substantively unreasonable if the district court chooses the sentence

arbitrarily, grounds the sentence on impermissible factors, or unreasonably weighs a pertinent

factor.” United States v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011). In essence, a defendant’s

claim “that a sentence is substantively unreasonable is a claim that a sentence is too long.” United

States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). In making this assessment, we view the

sentence “in light of the totality of the circumstances, giving ‘due deference’ to the sentencing

judge.” United States v. Houston, 529 F.3d 743, 755 (6th Cir. 2008) (citing Gall, 552 U.S. at 51–

52). The fact that we “might reasonably have concluded that a different sentence was appropriate

is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51.

        Wilson’s arguments fail to persuade us that his below-Guidelines sentence is substantively

unreasonable. At the sentencing hearing, the district court considered the § 3553(a) factors in

detail and heard arguments from both parties. As the court saw it, several factors weighed in

Wilson’s favor and pointed to “a lower sentence” that departed downward from the Guidelines

range by sixty months.


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Case No. 17-6283, United States v. Wilson


       Yet Wilson argues that the district court erred by imposing a term of incarceration rather

than just probation. In support, he points to several cases in which child pornography offenders

received only nominal or probationary sentences, but importantly, he fails to identify record

evidence suggesting the district court gave inappropriate weight to the relevant sentencing factors.

       In the two Sixth Circuit cases that Wilson cites, United States v. Stall, 581 F.3d 276 (6th

Cir. 2009), and United States v. Prisel, 316 F. App’x 377 (6th Cir. 2008), we did uphold nominal

sentences, but our review was limited to plain error and “prosecutorial neglect” infected the

proceedings. See United States v. Bistline, 665 F.3d 758, 768 (6th Cir. 2012) (describing Stall as

“more a cautionary tale about prosecutorial neglect, than . . . a precedent important to our decision

here”). In both cases, the government failed to cite authority sufficient to support prison time. See

Stall, 581 F.3d at 280; Prisel, 316 F. App’x at 385. In Stall particularly, the government left

unchallenged the psychological evidence defendant presented and “at sentencing put forward

almost no evidence for why a sentence within the Guidelines was warranted.” 581 F.3d at 278–

79.

       By contrast, the government here relied on several cases to counter Wilson’s motion for a

variance to probation.     It also advocated for a within-Guidelines sentence reflecting the

“seriousness of the crime” and the need for “just punishment,” two factors the court mentioned

when it imposed the sentence.

       The non-Sixth Circuit cases Wilson cites exemplify that defendants in far different

circumstances may warrant shorter sentences. See, e.g., United States v. Polito, 215 F. App’x 354

(5th Cir. 2007) (upholding probationary sentence for college freshman defendant already in

treatment for mental illness); United States v. E.L., 188 F. Supp. 3d 152 (E.D.N.Y. 2016)




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Case No. 17-6283, United States v. Wilson


(sentencing defendant with psychiatric problems to probation). Of course, beyond their factual

distinctions, these cases do not bind this court.

       Moreover, had the district court sentenced Wilson to probation, our cases would suggest

reversible error as an abuse of discretion. For example, in United States v. Bistline, we held a one-

day sentence substantively unreasonable in circumstances similar to Wilson’s because the sentence

did not reflect the seriousness of the child pornography offense and did not meet the retributive

goal of providing just punishment. 720 F.3d 631, 634 (6th Cir. 2013). We cautioned against

“plac[ing] excessive weight on the few factors that favor a lesser sentence, while minimizing or

disregarding altogether the serious factors that favor a more severe one.” Id.; see also United

States v. Camiscione, 591 F.3d 823, 833–36 (6th Cir. 2010) (holding one-day sentence

substantively unreasonable); United States v. Robinson, 778 F.3d 515, 519–22 (6th Cir. 2015)

(same); United States v. Christman, 607 F.3d 1110, 1117–23 (6th Cir. 2010) (holding five-day

sentence substantively unreasonable).

                                                    III.

       Wilson fails to show that the district court chose his sentence arbitrarily, grounded it on

impermissible factors, or unreasonably weighed a pertinent factor. See Brooks, 628 F.3d at 796.

We therefore AFFIRM his sentence as substantively reasonable.




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