UNITED STATES of America, Plaintiff--Appellee, v. Jerry MIKOWSKI, Defendant-Appellant.
No. 08-1791.
United States Court of Appeals, Sixth Circuit.
June 3, 2009.
Before: SUTTON and GRIFFIN, Circuit Judges; LIOI, District Judge.*
* The Honorable Sara Lioi, United States District Judge for the Northern District of Ohio, sitting by designation.
Defendant Jerry Mikowski (“Mikowski“) pled guilty to one count of distributing child pornography. The district judge imposed a sentence of 192 months--which represented a downward variance of 48 months from the guideline range--followed by a lifetime of supervised release. Mikowski seeks a remand for resentencing, arguing that his sentence was both procedurally and substantively unreasonable under the Due Process Clause of the Fifth Amendment. For the reasons that follow, we AFFIRM the sentence.
I.
On March 29, 2007, agents executed a search warrant at which time they seized a lаptop belonging to Mikowski. (PSR ¶ 15.) A forensic examination of the laptop revealed 2,065 images and 41 movies containing child pornography; at least 38 of the images depicted children who were bound, and some contained images of prepubescent children engaging in sex acts. (PSR ¶ 16; Transcript of Plea Hearing 28-29.)
Mikowski was charged with one count of distribution аnd one count of possession of images of minors engaging in sexually explicit content. (R. 6-9.) Pursuant to a plea agreement, the United States dismissed the possession count and Mikowski pled guilty to distribution. (R. 10-15.) The pre-sentence report indicated a guideline sentencing range of 2401 months, followed by five years to life of supervised release; it recommended 240 months’ imрrisonment and supervised release for life. (PSR ¶¶ 77, 80.) Mikowski filed a motion
for a downward variance, which included as an attachment a forensic psychological profile evaluation by Dr. Steven R. Miller, Ph.D. (See, e.g., Transcript of Sentencing Hearing 13 (hereinafter “Tr.“).)
At the sentencing hearing, defense counsel and the district judge entered into the following exchange:
Mr. Kаrfonta: . . . [T]here is simply no evidence of any grooming2 or acting out or talking about acting out of any nature in this case.
The Court: And I appreciate that is the state of the record, but there is also his--come back at me if you disagree--isn‘t there clear evidence that left unapprehended that that‘s where Mr. Mikowski was headed?
Mr. Karfonta: Well, there is substаntial feeling that that‘s what that means, but I come to my profession like Ms. Woods comes to hers, and I‘m a huge believer in second chances, and I just--I‘m not seeing it in this case.
(Tr. 25.) Shortly thereafter, defense counsel stated that there were “[n]o indications of any acting out by Mr. Mikowski, no indications he was headed in that direction, other than the fact that he was viewing thesе images, and if you take that as a generality, then you would have to conclude that.” (Tr. 26.)
Mikowski then addressed the court on his own behalf (Tr. 27-28), after which the district judge proceeded to sentencing. The district judge noted that he must “impose a sentence sufficient but not greater than necessary to comply with the pur-
The district judge noted that Mikowski had a long history of alcohol abuse that led to a string of underage possession convictions and one conviction for impaired driving. (Tr. 30-31.) That being said, the district judge also found that Mikowski “did reasonably well in school,” had “engaged in significant employment pursuits” since his arrest, and had complied with the terms of his bond release. (Tr. 31.) The district judge then went on to say:
I‘m also--I was also very impressed, as I‘ve indicated briefly before, very impressed with Dr. Miller‘s report. It seemed--it‘s one of the most thorough and balanced reports that I have seen in my time on--my short time on the federal bench, but also my much longer period of time on the state bench.
. . . This report has some very troubling aspects to it, but it clearly also shows that Mr. Mikowski has a significant chance that once released from prison that he will not engage in this activity before [sic]. My interpretation of the report is that, however, is that Mr. Mikowski was well on his way to much more significant criminal activity left unapprehended. And Mr. Mikowski impresses me as being an individual who is contrite now, and to the extent that his apprehension prevented him from what I think he was going to be, based on my review of the report, and I think this is clearly a potential conclusion, and the conclusion that I draw from the report, is that left unapprehended, Mr. Mikowski was going to harm somebody. But that‘s not the circumstance that we have in front of us here today, fortunately for Mr. Mikowski, otherwise, while my sentence is going to be a significant one here, he would be facing much more time under those circumstances.
(Tr. 31-32.)
The district judge noted that Mikowski had more than 5,000 images of child pornography on his computer3 (Tr. 32), which was the largest number of images he had sеen (Tr. 27). Of those images, the district judge found, at least thirty-eight depicted bondage. (Tr. 33.) He also found that Mikowski‘s “looking for toddlers reference is one that is extremely difficult for this Court, and it‘s a significant aggravating factor.” (Tr. 32.) The district judge stated that child pornography is considered an extremely serious offense that creates a “victimization” of and “continuing harm [to] these young children,” and that the sentence needed to serve the interests of “general deterrence of others who would contemplate engaging in the trading of pornographic materials of this nature involving children.” (Tr. 33-34.)
In light of these facts, the district judge concluded that the mandatory minimum sentence of five years was “wholly inappropriate.” (Tr. 35.) However, the district judge found it “extremely important” that Mikowski did not molest any children or engage in grooming activity, and accordingly he granted in part Mikowski‘s motion for a downward variance.4 (Tr. 32, 35-36.)
Upon pronouncement of the sentence, the district judge asked if there were “[a]ny legal оbjections to the sentence imposed,” to which defense counsel replied: “Yes, as stated.” (Tr. 38-39.) This appeal followed.
II.
Under the post-Booker advisory guidelines scheme, we review a defendant‘s sentence for reasonableness. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). This includes review for both procedural and substantive reasonableness. Id. at 597. Mikowski argues that his sentence is both procedurally and substantively unrеasonable.
A.
For any sentence, whether within or outside of the guideline range, an appellate court must first determine whether the district court committed a “significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
Mikowski argues that his sentence was procedurally unreasonable because the district court substantially based his sentence upon a clearly erroneous finding of fact--namely, that if “left unapprehended, Mr. Mikowski was going to harm somebody.” (Tr. 32.) In order to preserve a claim of procedural error for appellate review, a defendant must object to the alleged procedural error at the sentencing hearing. United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc). Where a defendant is given an opportunity to object but fails to do so, the procedural reasonableness of his sentence is reviewed for plain error. Id. at 386. Otherwise, it is reviewed for abuse of discretion. Gall, 128 S.Ct. at 597.
Mikowski urges that his counsel objected to the allegedly clearly erroneous statement, whereas the government argues that he did not. We need not address this issue because regardless of the standard of review, the record is clear that the district judge did not “select[] a sentence based on” the statement. Id. at 597. Indeed, upon acknowledging his view “that left unapprehended, Mr. Mikowski was going to harm somebody,” the district judge immеdiately added: “But that‘s not the circumstance that we have in front of us here today, fortunately for Mr. Mikowski, otherwise . . . he would be facing much more time . . . .” (Tr. 32.) This explanation indicates that the district judge disavowed any reliance upon his aforesaid statement in selecting Mikowski‘s sentence.
As if that were not enough, the district judge later noted that he found it “extremely important” that “there was no grooming [and] there was no victimization of young children beyond the use of the pictures,” and accordingly he granted a downward variance. (Tr. 35.) The district judge also conceded that the “thorough and balanced” and “very impress[ive]” Miller Report “clearly . . . shows that Mr. Mikowski has a significant chance that once released from prison that hе will not engage in this activity [as] before.” (Tr.
In short, the record shows that the district judge did not select Mikowski‘s sentence, even in part, based upon clearly erroneous findings of fact. Therefore, Mikowski‘s sentence was procedurally reasonable.
B.
Once a reviewing court has determined that a district court committed no significant procedural error, it then must consider whether the sentence was substantively reasonable. Gall, 128 S.Ct. at 597. “A sentence is substantively unreasonable if the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent
der an abuse of discretion standard. Gall, 128 S.Ct. at 594, 597.
This case is somewhat unusual in that Mikowski challenges a downward variance as substantively unreasonable because, in his view, it was not large enough. Thus, “this court must determine whether the considerations based upon
Mikowski argues generally that the district judge “failed to identify the characteristics peculiar to this Defendant that justified this sentence.”6 (Brief of Appellant at 23.) A review of the record shows that Mikowski is wrong. As detailed in Section I, supra, the district judge thoroughly considered the totality of the facts in the case--including all the mitigating facts that Mikowski rehashes in his briefing to this Court--and crafted a sentence, below the guideline range, that he believed appropriately took into account the
Mikowski suggests that his sentence should be overturned because another defendant, in United States v. Grossman, 513 F.3d 592 (6th Cir. 2008), received a shorter sentence for conduct allegedly more egregious than his own. This argument is unavailing. First, the need to avoid sentencing disparities under
with records and conduct similar to his own, the
In any event, Grossman does not present such an unwarranted disparity. In that case, the defendant received a 66-month prison term followed by 10 yеars of supervised release for possession of child pornography, which represented a downward departure from the guideline range of 120 months’ imprisonment, followed by 10 years of supervised release. Grossman, 513 F.3d at 594-95. There is no indication that the defendant in Grossman had a “similar record[]” or was “found guilty of similar conduct[]” to Mikowski with respect to other facts in this case. See
Finally, analogizing the child pornography guidelines to the crack-cocaine guidelines at issue in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), Mikowski argues that the child pornography guidelines are based predominantly on statutory mandatory minima and not empirical support or national experience, and, therefore, they generally “fail[] to satisfy the purposes of
Despite Kimbrough, the crack guidelines, to which [defendant] so energetically analogizes those for child exploitation, remain valid. And judges are not required to disagree with the crack guidelines; a within-guidelines sentence may be reasonable. The child-exploitation guidelines are no different: while district courts perhaps have the freedom to sentence below the child-pornography guidelines based on disagreement with the guidelines, they are certainly not required to do so.
United States v. Huffstatler, 561 F.3d 694, 697-98 (7th Cir. 2009) (citations omitted; emphases in original); see also Kirchhof, 505 F.3d at 414 (rejecting facial challenge to reasonableness of recommended guideline range for child pornography cases). We therefore decline Mikowski‘s invitation to de facto invalidate an entire section of the Sentencing Guidelines.
Mikowski has offered no evidence suggesting that his below-guidelines sentence was arbitrary or based upon impermissible factors, or that the district judge failed to consider pertinent
For the foregoing reasons, we AFFIRM the sentence of the district court.