UNITED STATES OF AMERICA v. DANIEL B. FLEISCHER
No. 19-3719
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
August 20, 2020
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0270p.06
Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:18-cr-00209-1—Christopher A. Boyko, District Judge.
Decided and Filed: August 20, 2020
Before: BATCHELDER, BUSH, and LARSEN, Circuit Judges.
COUNSEL
ON BRIEF: Lawrence J. Whitney, BURDON & MERLITTI, Akron, Ohio, for Appellant. Carol M. Skutnik, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
JOHN K. BUSH, Circuit Judge. On April 8, 2019, Daniel B. Fleischer pleaded guilty to one count of sexual exploitation of a minor (Minor Victim #1), in violation of
Fleischer now appeals the procedural and substantive reasonableness of his sentence. Specifically, Fleischer argues the district court committed error in (1) applying to his sentence both a multiple count adjustment under
I.
A. Fleischer’s Viewing and Distributing Child Pornography on Kik Messenger
In December 2017, the police department of Lockport, New York, first contacted the Federal Bureau of Investigation Child Exploitation Task Force regarding an individual, who turned out to be Fleischer, and who had used the Kik Messenger App (“Kik“)1 to receive, trade, and distribute child pornography. (R. 28: Sealed Presentence Investigation Report (“PSR“), PageID 103; R. 32 Sealed U.S. Sent. Mem., PageID 144). This information was provided by an informant who allowed law enforcement to search his phone and assume his online identity. Using this online alias, investigators were able to enter the subject’s various Kik “groups,” through which they eventually discovered that one of the groups disseminated child pornography images, pictures, and videos. One group user, with the username “aust0220df” and display name “DF,” was particularly active, distributing numerous lascivious videos of female minors. (R. 28: Sealed PSR, PageID 103). This user was eventually confirmed to be Fleischer.
Based on this evidence, the FBI obtained and executed a search warrant for Fleischer’s home on March 28, 2018. The search found numerous devices inside the residence, which included several of Fleischer’s cellphones. As to one phone, a Samsung Galaxy S8, he admitted to downloading the Kik app and using the username “aust0220df.” (Id.). Fleischer also admitted that while on Kik, he had viewed hundreds of child pornography images and videos from “megalinks,” the content of which contained mostly prepubescent girls under the age of 16. As to the latter admission, Fleischer informed agents that he always deleted the explicit content after viewing it on his phone.
B. Homemade Images of Child Pornography on Fleischer’s Thumb Drives
Following the search of his residence, Fleischer agreed to participate in a polygraph examination with FBI Special Agent Lance Fragomeli. This examination, however, did not take place because of a discovery made during Fleischer’s pre-examination
Upon being confronted with these findings, Fleischer confessed that he had taken several photos of a neighborhood girl, who frequented his home in 2011; however, he claimed he could not recall the girl’s name. The agents then presented Fleischer with a list of names of girls obtained from his wife, and asked him if he recognized any of the names as belonging to the girl from the homemade images. Fleischer identified the girl as “Alissa“—an identification that was later revealed to be false. (Id., PageID 150). The polygraph interview was terminated without a polygraph examination.
C. Additional Admissions from Fleischer
After the first interview, Fleischer confessed to agents that he had begun viewing child pornography between 2001 and 2003, and viewed the content “every other day or so.” (Id.; R. 28: Sealed PSR, PageID 103). He also admitted that he had used Kik for approximately ten years, and during the last couple years, had shared images and/or videos of child pornography in various Kik groups dedicated to child pornography.
Agents then questioned Fleischer about the photos he took of “Alissa” in 2011. Fleischer claimed that he had taken “two for sure” that exposed her genital area; he also believed that he had used his Samsung Galaxy Nexus cellphone to take the photos, which he then transferred to his external drive. (R. 32: Sealed U.S. Sent. Mem., PageID 148). In addition, Fleischer described “Alissa” at the time of the photos as around his stepdaughter’s age, meaning she was between ten and twelve years old. However, Fleischer denied ever touching “Alissa” or taking any additional photos of her. (Id.).
Last, when asked by agents whether he photographed the other victim named in the indictment, “Minor Victim #1“, Fleischer replied: “not that I can remember” and “not that I know of.” He further denied having ever touched Minor Victim #1. (Id.).
D. Revelations of the Police Investigation Related to Minor Victim #1
It turned out that the homemade child pornography images on Fleischer’s devices were of him touching Minor Victim #1, not a girl named “Alissa.” Minor Victim #1 identified herself in the images where Fleischer was pulling down her underwear. She informed law enforcement that she had been coerced into performing manual stimulation, as well as oral sex, on Fleischer. She explained that the abuse had occurred on numerous occasions, when she was between the ages of nine and eleven years old and living in Austintown, Ohio. Minor Victim #1 also revealed that Fleischer had paid her in cash after some of the incidents and threatened to take away her cellphone if she refused to participate. He had also showed her adult pornography so she would understand the positions in which he asked her to pose.
Ultimately, the forensic analysis of Fleischer’s iPhone discovered over 700 images and 15 videos of child pornography. The iPhone also revealed evidence that Fleischer communicated with young girls on social media with the intent to sexually exploit them. The evidence included a section in his “Notes” folder on his phone in which he stored several prefabricated chat messages to send to potential victims.2
Investigators also found a number of sexually explicit chats on Fleischer’s phone with users who identified themselves as underage girls. One particular chat between Fleischer and a girl, “Instagram User 1,”3 who identified herself as fourteen years old, involved Fleischer sending photos of his penis to her. (R. 28: Sealed PSR, PageID 104; R. 32; U.S. Sent. Mem., PageID 150-51). Another chat, this time between Fleischer and a girl, “Instagram User 2,” who identified herself as seventeen years old, also involved Fleischer sending photos of his genitals and informing her that he likes “young.” (R. 32: U.S. Sent. Mem., PageID 151). In a third chat with “Instagram User 3,” Fleischer made a number of revelations, including that he liked young girls and had a large collection of videos and pictures. He also sent the following comment to “Instagram User 4“: “Love her boobs I can’t touch her but love smelling her used underwear (smiling emoji) if that’s ok wife doesn’t know it though.” (R. 28: Sealed PSR, PageID 104; R. 32: U.S. Sent. Mem., PageID 151). And, in a fourth chat, Fleischer told “Instagram User 5” that he loved smelling “her” used underwear, and asked if he/she knew of any chat rooms that “young girls hang on.” (R. 28: Sealed PSR, PageID 104; R. 32: U.S. Sent. Mem., PageID 151).
F. Further Information on Minor Victim #2
Finally, forensic analysts located digital images of another female minor, Minor Victim #2, on Fleischer’s iPhone. These images included clothed photos of Minor Victim #2, as well as photos depicting her engaged in sexual intercourse with Fleischer. Fleischer also had stored a photo of the driver’s license of Minor Victim #2, which established that she was a minor.
During her interview with agents, Minor Victim #2 stated that she had met Fleischer in 2013, when she was sixteen years old. She also reported that during her interactions with Fleischer, he had occasionally given her alcohol and photographed or recorded her as they engaged in sexual acts. In addition, Minor Victim #2 revealed that she had sent Fleischer nude images of herself, and he had sent her images of his penis. However, thinking that Fleischer had deleted the images she had sent him, Minor Victim #2 was very angry upon learning that Fleischer had shown the images to others.
G. Fleischer’s Plea Agreement and the Presentence Report
On April 26, 2018, a federal grand jury returned an indictment charging Fleischer with the following: one count of sexual exploitation of a minor involving Minor Victim #1, in violation of
On April 8, 2019, Fleischer pleaded guilty to counts one and two of the superseding indictment, pursuant to a plea agreement with the Government under
RELEVANT CONDUCT: Also found on FLEISCHER’S iPhone were digital images taken by FLEISCHER between the months of August and December of 2013, of him engaged in sexual intercourse with Minor Victim #2, then 16 years old.
(R. 25: Plea Agreement, PageID 73).
In addition, the parties agreed to recommend that the district court impose a sentence within the stipulated Guidelines range, which they subsequently requested at sentencing. However, whereas the Government argued for the maximum prison term in the stipulated Guidelines range, Fleischer argued for the low end of that range.
Ultimately, the presentence report (“PSR“) differed from the plea agreement by including a Guidelines calculation for Minor Victim #2 (although Fleischer had not pleaded guilty to the count related to Minor Victim #2), thus resulting in an adjusted offense level of 34. Pursuant to
Nonetheless, the parties acknowledged in the plea agreement “that other U.S.S.G. enhancements could apply to the Defendant’s offense conduct, including:
H. The District Court’s Final Sentence for Fleischer
Fleischer filed several objections to the PSR. First, he challenged the creation of a “pseudo count 1A” for Minor Victim #2, given that he had not pleaded guilty for the offense conduct involving Minor Victim #2 that was originally covered by Count Four in the superseding indictment.4 In particular, he argued that the enhanced sentencing based on his conduct with relation to Minor Victim #2 represented “double counting” as to the counts to which he had pleaded guilty. Second, Fleischer challenged the district court’s use of that “pseudo count” in adding another level to the multiple count adjustment, which, he argued, made it inconsistent with the plea agreement. Last, he challenged the court’s application of the pattern-of-activity enhancement as representing double counting to the calculation for Minor Victim #1 in Count One.5 Although the Government disagreed with Fleischer’s arguments in its sentencing memorandum, it recommended a sentence that would be consistent with the parties’ calculations in the plea agreement—a position it reiterated at sentencing.
On July 24, 2019, the district court adopted the PSR’s Guideline calculations, thereby rejecting the parties’ sentencing calculations in the plea agreement. Accordingly, the court sentenced Fleischer to an aggregate within-Guidelines sentence of 447 months. This sentence represented a 327-month sentence for Count One, which would run consecutively to a 120-month sentence on Count Two. Fleischer preserved his objections following the imposition of the sentence, and timely filed a notice of appeal.
II.
In appealing the procedural and substantive reasonableness of his sentence, Fleischer advances several arguments. First, he argues that the trial court erred “by increasing his sentence over and above the Plea Agreement by almost one-third because the [G]uidelines [already] account for serious factors [based on] the specific characteristic enhancements.” (Appellant Br. at 8). Second, and relatedly, he argues that the trial court ordered a substantively unreasonable sentence “by placing too much emphasis on serious factors.” (Id.). Third, Fleischer argues that the district court erred in enhancing his “[G]uidelines sentence via a course of conduct specific characteristics (
A. Standard of Review
To determine whether a defendant’s sentence is reasonable, this court uses an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007) (“Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard.“); United States v. Jeross, 521 F.3d 562, 569 (6th Cir. 2008).
“Review for reasonableness has both procedural and substantive components.” Jeross, 521 F.3d at 569 (citing United States v. Carter, 510 F.3d 593, 600 (6th Cir.2007)). We “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
“Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall, 552 U.S. at 51. “Substantive reasonableness focuses on whether a ‘sentence is too long (if a defendant appeals) or too short (if the government appeals).‘” United States v. Parrish, 915 F.3d 1043, 1047 (6th Cir.), cert. denied, 140 S. Ct. 44, 205 L. Ed. 2d 150 (2019) (quoting United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018)). “Because the Sentencing Guidelines are now advisory, a district court is permitted to vary from those [G]uidelines in order to impose a sentence which fits the mandate of section 3553(a).” United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006). Therefore, this court “afford[s] due deference” to the sentencing court’s sentence if “it is justified in light of the relevant 3553(a) factors.” United States v. Herrera-Zuniga, 571 F.3d 568, 591 (6th Cir. 1990). We apply a rebuttable presumption of substantive reasonableness to a within-Guidelines sentence. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc).
B. Procedural Reasonableness
1. The District Court’s Adoption of a Pseudo Count for Minor Victim #2
The district court calculated Fleischer’s final offense level to a total of 42. This calculation was permissible. As the parties acknowledge, Fleischer’s conduct in relation to Minor Victim #2 could properly be used as a pseudo count despite the fact that Fleischer had not pleaded guilty to this count. The pseudo count, in turn, resulted in an additional level to Fleischer’s
On appeal, Fleischer neither challenges the accuracy of the court’s pseudo-count calculation for Minor Victim #2, nor challenges the legal validity of the court’s application of the pattern-of-activity enhancement under
In the plea agreement, the parties acknowledged that the parties’ sentencing recommendations were not binding on the district court, and “the [district court] alone [would] decide the advisory [G]uideline range under the Sentencing Guidelines . . . and what sentence to impose.” (R. 25: Plea Agreement, PageID 68). During the plea colloquy, Fleischer confirmed to the court his understanding that the parties’ recommendations were not binding, and he even acknowledged that the court had discretion to decide whether to go above or below the sentencing range the parties recommended.
Furthermore, Fleischer fails to show that the district court committed any “significant procedural error” by adopting the PSR’s Guidelines calculations as opposed to the recommendations of the parties. As the court explained, Fleischer’s commission of Count One—the sexual exploitation of Minor Victim #1—resulted in an adjusted offense level of 40. The court then relied on calculations from the PSR related to Fleischer’s remaining two counts and the multiple-count adjustment.
After explaining these calculations, the district court adopted the PSR’s use of pseudo-count 1A to calculate the Guidelines range for the offense conduct originally covered by Count Four in the superseding indictment. The counting of pseudo-count 1A was not improper. While we recognize that the Government had agreed to dismiss Count Four as part of a package resolution in Fleischer’s plea agreement, the factual basis for Fleischer’s guilty plea did include an admission that his iPhone contained digital images that he took between August and December of 2012, which depicted Fleischer engaged in sexual intercourse with Minor Victim #2. At the time, Minor Victim #2 was sixteen years old.
“In cases involving the exploitation of multiple minors, the Guidelines instruct the district court to determine the defendant’s offense level by applying Chapter Three, Part D (Multiple Counts) ‘as if the exploitation of each minor had been contained in a separate count of conviction.‘” United States v. Schock, 862 F.3d 563, 567 (6th Cir. 2017) (quoting
As we recognized in Schock, “[t]he Guidelines provide two definitions of ‘relevant conduct.‘” Id. First, under
Application note 7 to
On appeal, Fleischer does not advance the argument that his offense conduct involving Minor Victim #2 cannot constitute “relevant conduct” for his count of conviction for Minor Victim #1, as defined in
2. The District Court’s Application of the Pattern-of-Activity Enhancement in U.S.S.G. § 2G2.2(b)(5)
Fleischer also challenges the district court’s application of the pattern-of-activity enhancement under
Section
Here, the explicit acts performed by Fleischer, as reported by Minor Victim #1 and Minor Victim #2, leave no question that the district court properly applied the pattern-of-activity enhancement under
3. The District Court’s Use of a Pseudo-Count Guidelines Calculation Pursuant to U.S.S.G. § 2G2.1(d)(1) and Its Application of the U.S.S.G. § 2G2.2(b)(5) Enhancement for Pattern of Activity
Finally, Fleischer argues that the district court’s application of an increased multiple-count adjustment, which includes Minor Victim #2, in combination with the pattern-of-activity enhancement, resulted in impermissible double counting. As with our evaluation of Fleischer’s other arguments, we find this argument to be similarly misplaced.
“In reviewing the district court‘s calculation of the Guidelines, we . . . review the district court’s factual findings for clear error and its legal conclusions de novo.” Bolds, 511 F.3d at 579. Furthermore, our “standard of review of a district court’s application of provisions of the Sentencing Guidelines to the facts should be treated deferentially and should not be disturbed unless clearly erroneous.” United States v. Simmerman, 850 F.3d 829, 832 (6th Cir. 2017).
Impermissible double counting will “render[] a sentence procedurally unreasonable.” United States v. Battaglia, 624 F. 3d 348, 351 (6th Cir. 2010) (quoting United States v. Flack, 392 F. App’x 467, 470 (6th Cir. 2010)). It “occurs when precisely the same aspect of the defendant’s conduct factors into his sentence in two separate ways.” United States v. Moon, 513 F.3d 527, 542 (6th Cir. 2008) (internal quotation marks omitted). However, double counting does not occur “where a defendant is penalized for ‘distinct aspects of the defendant’s conduct.‘” Id. (quoting United States v. Eversole, 487 F.3d 1024, 1030 (6th Cir.2007)).
Also, “not all instances of double counting are impermissible.” United States v. Farrow, 198 F.3d 179, 194 (6th Cir. 1999). For example, “we recognize that the Sentencing Guidelines expressly mandate double counting under some circumstances through the cumulative application of sentencing adjustments.” Id. In addition, double counting is permissible “where it appears that Congress or the Sentencing Commission intended to attach multiple penalties to the same conduct.” Id.; cf. United States v. Johnson, 22 F.3d 106, 108 (6th Cir.1994) (finding that Congress intended to impose multiple punishments for the same conduct under
Here, our analysis of whether impermissible double counting occurred begins with the two provisions of the Guidelines applied by the district court in determining Fleischer’s final sentence: the pattern-of-activity enhancement found in
First, as explained supra, under
We next turn to
Given the number and breadth of the various Guideline provisions, it is inevitable that, on occasion, they will overlap in their scope. And, in fact, the authors of the Guidelines provided a framework for resolving such overlap in Application Note 4(B) (“Cumulative Application of Multiple Adjustments from Multiple Guidelines“) of
Notwithstanding the inevitability of a Guidelines-overlap situation, we apparently are the first court of appeals to consider a double-counting challenge based upon the district court’s application of
Here, the Guidelines separately punish defendants who sexually exploit multiple victims, and child pornography offenders who have a history of more than one instance of sexually abusing or exploiting a child. These enhancements are therefore not premised on the “same type of harm.” Id. We find this analogous to the situation in Peck and determine the district court’s application of both Guidelines enhancements was appropriate and did not constitute impermissible double counting.
Therefore, Fleischer fails to show that his sentence is procedurally unreasonable.
C. Substantive Reasonableness
Although Fleischer concedes that the district court properly considered the
When evaluating the substantive reasonableness of a sentence, we consider “the district court’s rationale for concluding that the sentence imposed is sufficient, but not greater than necessary to comply with the purposes of sentencing set forth in
Our review of the sentencing transcript here confirms two pertinent conclusions: (1) the district court gave a thorough and methodical rationale for its review and considered the various sentencing factors; and (2) the court advanced a thoughtful explanation for why the parties’ nonbinding sentencing recommendations, as set forth in the plea agreement, were insufficient in this case.
As the transcript shows, the court thoroughly considered the
In its general discussion of retribution and the need for a sentence that would improve offender conduct, the court emphasized
The court also noted the utilitarian aim of imposing a sentence to protect the public, particularly given Fleischer’s secret sexual attraction to children as young as age six, his sexual abuse of children between the ages of nine and eleven, and the fact that he maintained an ongoing sexual relationship with a sixteen-year-old female. Relatedly, when addressing Fleischer’s criminal history, the court indicated that it was unusual for a defendant to have such an extensive criminal history in the context of a child pornography case.
Further, the court went on to consider Fleischer’s arguments in opposition to the sentencing enhancements and Guidelines calculations. However, here, the court reminded the parties that those calculations are merely a starting point—“not the end point and don’t mandate a sentence less than the maximum.” (R. 42: Sent. Trans., PageID 278). The court then referenced the need for the sentence to provide just punishment, given the court’s conclusion that the thousands of images Fleischer possessed, the victims in those images, and the other victims of Fleischer’s sexual abuse, confirmed the danger he poses to children and their families.
Therefore, based on the court’s consideration of all of the factors set forth under
With this in mind, Fleischer’s assertion that the court inappropriately emphasized the seriousness of his offenses, is of no avail. As mandated by the Guidelines themselves, and our court’s precedent, a sentence “within a properly calculated Guidelines range . . . is entitled to a presumption of reasonableness on review,” United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008), and a district court “commits no error by focusing on an aspect of an offense under the advisory [G]uidelines and also in applying the 3553(a) factors,” United States v. Baines, 651 F. App’x 411, 414 (6th Cir. 2016). Because Fleischer’s argument here “boils down to an assertion that the district court should have balanced the 3553(a) factors differently, it is ‘simply beyond the scope of our appellate review, which looks to whether the sentence is reasonable, as opposed to whether in the first instances we would have imposed the same sentence.‘” Sexton, 512 F.3d at 332 (quoting United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006)).
Moreover, “[n]ot all [Section 3553(a) factors] are important in every sentencing;
To be sure, Fleischer’s sentence is lengthy and does exceed the parties’ agreed-upon sentencing recommendations under the plea agreement. However, in imposing this sentence, the district court properly considered the aggravating factors and facts underlying this case in light of the
III.
In light of the above, we AFFIRM Fleischer’s sentence as both procedurally and substantively reasonable.