United States v. Damion Faulkner, 926 F.3d 266

Damion Faulkner pleaded guilty to 15 federal counts related to child pornography: production and attempted production (Counts 1–2), transportation (Counts 3–13), receipt (Count 14), and possession (Count 15).
Facts: Faulkner photographed and filmed two minor girls (one incident produced nude images; another involved lascivious photos of two girls, distributed to others) and possessed ~3,500 child-pornography files including extremely graphic material.
PSR assigned offense level 44 (reduced to 43 by guideline cap) yielding a Guidelines range of life imprisonment; criminal-history category II.
Faulkner asked the court to group Counts 1 and 2 under U.S.S.G. § 3D1.2(b) so the offenses would be treated as one “composite” harm, which would lower his offense level to 41. The district court refused.
The district court sentenced Faulkner to 570 months (initially 660 months later reduced to 570 months after appeal resolved Double Jeopardy concurrency issue). Faulkner appealed, arguing erroneous grouping denial and that his sentence was procedurally and substantively unreasonable.

Issue	Faulkner's Argument	Government's Argument	Held
Whether Counts 1 (production) and 2 (attempted production) must be grouped under U.S.S.G. § 3D1.2(b)	The completed production and the later attempt were part of one composite harm and should be grouped, lowering offense level	The attempt and the completed production were distinct acts on different days, settings, and victims, producing separate harms and are not groupable	Court affirmed: counts not groupable under § 3D1.2(b) because they involved separate harms and acts (Bivens controls)
Whether the 570‑month sentence is substantively unreasonable	Sentence is excessive; Faulkner urged a lower sentence	District court reasonably varied downward from life, considered aggravating and mitigating factors; deference warranted	Court affirmed: sentence not substantively unreasonable (below Guidelines range and within discretion)
Whether the sentence was procedurally unreasonable due to criminal-history treatment	District court improperly refused to lower criminal-history category despite saying history was "thin"	Criminal history must be computed per Guidelines for range; court may consider "thin" history in § 3553(a) analysis; any calculation error would be harmless given offense level 43	Court affirmed: no procedural error—Guidelines criminal-history computation was correct and any error would be harmless

United States v. Bivens, 811 F.3d 840 (6th Cir. 2016) (separate photographic acts of same minor generally not grouped under § 3D1.2(b))
New York v. Ferber, 458 U.S. 747 (1982) (harm from child-pornography distribution justifies strong governmental interest and severe penalties)
United States v. Bistline, 665 F.3d 758 (6th Cir. 2012) (discussing scope of child-pornography harms and sentencing)
United States v. Bowers, 594 F.3d 522 (6th Cir. 2010) (child pornography market harms and sentencing considerations)
Christian v. Wellington, 739 F.3d 294 (6th Cir. 2014) (Double Jeopardy/merger principles when attempt and completed offense are charged)
United States v. Sims, 708 F.3d 832 (6th Cir. 2013) (elements of § 2251: specific intent and substantial step suffice without victim knowledge)
United States v. Humphrey, 608 F.3d 955 (6th Cir. 2010) (affirming conviction where victim was unaware of surreptitious filming)
United States v. Aleo, 681 F.3d 290 (6th Cir. 2012) (example of vacated substantively unreasonable sentence where court imposed sentence far above Guidelines)
United States v. Morrison, 852 F.3d 488 (6th Cir. 2017) (harmlessness doctrine for sentencing calculation errors)