United States v. David KeithUnited States v. David Keith
Since the district court’s ruling on the good faith exception sufficed to justify its denial of Fox’s motion to supрress, Fox’s failure to appeal that aspect of the court’s decision means the denial of the motion still stands. See Elite Sportswear Prods., Inc. v. N.Y. Life Ins. Co., 270 Fed.Appx. 153, 154 (3d Cir.2008) (“[W]e ... will affirm because these unappealed aspects of the District Court’s decision represent an adequate and independent ground for [thе district court’s judgment].”).
Fox additionally tries to argue that the search warrant did not authorize the search of his car because it failed to particularly describe the vehicle. This argument, however, is also waived because Fox failed to object to the R & R’s analysis that the search of his car was proper. See United States v. Miller, 227 Fed.Appx. 446, 452 (6th Cir. March 28, 2007) (citing Thomas v. Arn, 474 U.S. 140, 142, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)).
III. CONCLUSION
For these reasons, we AFFIRM the district court’s denial of Fox’s motion to suppress.
COLE, Circuit Judge.
Defendant-Appellant David Tobe Keith appeals his sentence of 188 months incarceration imposed by the United States District Court for the Western District of Tennessee. Keith pled guilty to traveling with intent to engage in illicit sexual contact with a minor, knowingly using a means of interstate commerce to entice or coerce a minor to engage in a sexual act, shipping child pornography, and possessing child pornography. Keith contends that his sentence is procedurally unreasonable because the district court failed to consider sufficiently his argument that the Sentencing Guidelines for child pornography are not based on empirical research and, as a result, should be discounted. For the following reasons, we AFFIRM the district court’s sentencing determination.
I. BACKGROUND
A. Factual Background
1. Indictment No. 06-20287: Traveling to engage in sex with a minor
From April to July 2006, Keith, a thirty-four-year-old resident of Muskogee, Oklahoma, communicated over the Internet with an FBI Special Agent posing as a thirteen-year-old girl from Memphis, Tennessee. Through emails and computer “chats,” Keith discussed a desire to meet the purported thirteen-year-old in person for sex; he also sent her digital images and a digital movie file of sexually explicit content involving children—images depicting sexual acts he wanted to try with her. In mid-July, Keith arranged tо travel to Memphis for a rendezvous with the purported thirteen-year-old. Once there, however, he was arrested by the FBI. A search of Keith’s vehicle revealed two six-packs of alcohol, a box of condoms, and two pornographic magazines—one entitled “barely legal.”
2. Information No. 07-20089: Possession of child pornography
In addition, the National Center for Missing and Exploited Children received a tip on January 4, 2006, that Keith had uploaded sexually explicit photographs of a minor female disrobed and urinating. The Oklahoma Stаte Bureau of Investigation (OSBI) then assisted with an investigation into Keith’s distribution and possession of child pornography. On April 20, 2006, OSBI Special Agents conducted an uncontested search of Keith’s computer, revealing pornographic photographs of juvenile girls.
Keith’s computer was then seized and a complete forensic examination conducted. The examination revealed 175 photo files of sexually explicit images of children, including prepubescent children; twelve video files of children engaged in explicit sexual conduct; and four video files of young people engaging in sexually explicit conduct. Since each photo file is considered to be one image and each video file is considered to have seventy-five images, Keith’s computer was found to contain a tоtal of 1,075 images. See
B. Procedural Background
A federal grand jury returned a five-count indictment against Keith on July 25, 2006, in Case No. 06-20287. Count one charged Keith with traveling to engage in illicit sexual contact with a minor in violation of
On February 9, 2007, a two-count bill of information was filed against Keith in Case No. 07-20089. Count one сharged Keith with possession of child pornography in violation of
Keith pled guilty to all five counts of the indictment and both counts of the informаtion on May 29, 2007, without a plea agreement.
A Presentence Investigation Report (PSR) was subsequently prepared, using the 2006 edition of the Guidelines. The PSR recommended grouping Keith’s charges for traveling to engage in illicit sexual conduct with a minor and using a means of interstate commerce to entice or coerce a minor to engage in a sexual act (Group 1); and Keith’s charges for knowingly transmitting child pornography and knowingly possessing child pornography (Group 2).
Keith’s base offense level for Group 1 was calculated at twenty-four. See
Keith’s base offеnse level for Group 2 was calculated at twenty-two. See
The PSR further recоmmended a combined adjusted offense level for Groups 1 and 2 of thirty-eight. See
Since Keith previously had pled guilty to knowingly pоssessing child pornography, he was placed in Criminal History Category II. Together, the total offense level and Criminal History Category yielded an advisory Guidelines range of 188 to 235 months imprisonment. Because the minimum of the Guidelines range exceeded the statutory maximum for count one of the information—possession of child pornography—the PSR recommended a sentence of the statutory maximum of 120 months for that count.
The district court held a sentencing hearing on October 15, 2007, during which it discussed the relevant
Keith timely appealed his sentence.
II. ANALYSIS
We review a district court’s sentence for reasonableness.2 United States v. Moon, 513 F.3d 527, 538 (6th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 45-47, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Rita v. United States, 551 U.S. 338, 341, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). In doing so, we determine if a district court’s sentence has achieved the goal of imposing a “sentence that is sufficient, but no greater than necessary to comport with the purposes of
Keith argues that his sentence is procedurally unreasonable because the district court fаiled to address his argument that the child-pornography Sentencing Guidelines are not based on empirical research. According to Keith, the district court should have “afforded little weight” to the Guideline for offenses involving sexual exploitation of a minor,
In order for a sentence to be procedurally reasonable, “[w]hen a defendant raises a particular [nonfrivolous] argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant’s argument and that the judge explained the basis for rejecting it.” United States v. Lalonde, 509 F.3d 750, 770 (6th Cir.2007) (quotation marks omitted). Yet, “[d]istrict courts may exercise discretion in determining how much of an explanation of the sentence is required
Keith’s particular argument is a nonfrivolous one, confirmed by the Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). In that case, which was decided shortly after Keith’s sentencing hearing, the Court held that “it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder [cocaine] disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case.” Id. at 110, 128 S.Ct. 558. As the Seventh Circuit explained in a parallel case, the reasoning of Keith’s substantive argument proceeds as follows:
[Kimbrough] allows district courts to disagree on policy grounds with sentencing guidelines that exhibit methodological flaws; the same methodologicаl flaws that characterize the crack guidelines—lack of empirical support—also undermine the child-pornography guidelines; therefore, district courts may sentence child-pornography offenders below the guidelines range based on disagreement with the policy embodied in the guidelines.
United States v. Huffstatler, 571 F.3d 620, 623 (7th Cir.2009) (citing Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines 27-32 (July 3, 2008), http://mow.fd.org/3%20July%202008%20Edit.pdf).
Some district courts have accepted this argument. E.g., United States v. Grober, 595 F.Supp.2d 382, 394 (D.N.J.2008) (“§ 2G2.2 leads to a sentence that is too severe in a downloading case”); United States v. Baird, 580 F.Supp.2d 889, 895 (D.Neb.2008) (“Because the Guidelines [for child exploitation crimes] dо not reflect the Commission’s unique institutional strengths, the court affords them less deference than it would to empirically-grounded guidelines.”); United States v. Shipley, 560 F.Supp.2d 739, 744 (S.D.Iowa 2008) (same).
Before the district court, Keith articulated his substantive argument as follows:
Your Honor, the guidelines, Your Honor, have been under continuous assault I think evеn as early as late last week or the week before last when Gall and Kimbrough were arguing at the U.S. Supreme Court.
I think there’s some serious concern about district courts listening to the Department of Justice’s mantra of the guidelines. In many cases in the guidelines, there hasn’t been a lot of thought that has gone into them.
And that’s why they are under assault as gravely as they are. The sentencing commission themselves are having problems with things like the crack cocaine disparity, powder disparity, and things like that....
What I am saying is there is this adherence to the guidelines like they are the Holy Grail of sentencing, and they are not. They are not at all. They are not even close....
And we are asking the Court to impose a sentence less than the guidelines.
(Sentencing Tr. 25-27.) The district court specifically responded: “So you are right. Courts are nоt necessarily becoming, I guess, rubber stamps for the guidelines.” (Id. at 27.)
III. CONCLUSION
For the reasons discussed above, we AFFIRM the district court’s sentence.