NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0316n.06
No. 10-4436
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T
UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. MARK R. SC HI ML EY,
Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE NORTHE RN DI STRI CT OF OHI O

BEF ORE: KEI TH, MARTI N, and B OGGS, Circuit J udg es.

PER CURI AM. I n 2008, S ch i m l ey was char g ed with rec eiving and distributing visual depictions of minors eng ag ed in sexually expli cit conduct in violation of 18 U.S.C. § 2252(a) (2), and possessing child pornog rap h y i n violation of 18 U.S.C. § 2252A(a )(5) (B ). Schimley moved to suppress the evidenc e ag ainst him and for an evidentiar y hear ing under Franks v. De l aware , 438 U.S. 154 (1978). Schimley alleg ed that the aff idavi t s u p p orting a war

rant to sear ch his home contained mat er ially false and unreliable information. The district court denied the motions, concluding that any false statements in the aff idavit w ere not ma de rec klessly or intentionally , and that such statements wer e not materia l to a finding of probable cause
. The court denied Schimley ’s subsequent motion for re consideration. I n 2010, pursuant to a conditional plea ag ree ment, Schimley pled g uilty to the two char g es. The district court deter

mined that Schimley ’s base offe nse level was twenty -two. The court added two levels bec ause the pornog raphic materia l involved minors under the ag e of twelve, f ive levels beca use Schimley distributed the pornog raphy for profit, four levels beca use the materia l portray edNo. 10-4436 - 2 - sadistic or masochistic c onduct, two l evels because the crimes wer e commit ted us ing a computer, and five levels based on the number of imag es. The court subtracte d three levels for acc eptanc e of responsibility , resulting in a total offe nse level of thirty -seve n. Ba sed on this total offe nse level and

a criminal history cate g ory of I , the district court deter mined that Schimley ’s advisory sentenc ing
g uidelines rang e was sevente en y ear s and s i x m o n ths to twenty y ear s of imprisonment for the

rec eiving and distributing char g e and ten y ear s of im p ri s onment for the possession char g e. The district court sentenc ed Schimley to concur rent terms of sevente en y ear s and six months’ imprisonment and ten y ear s’ imprisonment. On appea l, Schimley arg ues that the district court err ed by deny ing his reque st for a Franks h ear ing and t hat hi s sentenc e was both proce durally and subst antively unrea sonable. “We review the district court’s denial of a Franks hear ing under the same standard as for the denial of a motion
to suppress: t he dis trict court’s factua l finding s are revie wed for cl ear err or and its conclusions of law are revie wed de novo.” United States v. Gr a h a m , 275 F.3d 490, 505 (6th Cir. 2001). A defe ndant is entitled to a Franks hear ing “if he makes a substantial preliminary showing that a false
statement knowing ly and intentionally , or with rec kless disreg ard for the truth, was included by the aff iant in the war

rant affi d av i t , an d the alleg edly false statement is nece ssary to the finding of probable cause .” Id. (alter ations, citation, and interna l quotation marks omitted). Special Age n t J o s ep h Russ provided an aff idavit in support of the sear ch war rant. The af fi davit set forth the following fac ts. On Fe bruar y 13, 2007, Trooper Robert Erdely , using an in te r n e t- c o nn e c te d c o mp uter, launche d a file-sha ring prog ram and conducte d a key word sear ch using a specific term known t o be the name of a ch i l d-pornog raphy video. Erdely downloaded a m ovie file depicting child pornog raphy from a user later identified as Schimley

. The downloaded file had the speci fi c n am e that Erdely used in his key word sear ch. Erdely used the “SHA-1 hash value,” which is a unique signa ture or fing erpr int for a file, to verify that the child-pornog raphy video he had downloaded w as the same file being share d by Schimley

. Schimley asser

ted, and the g overnme nt conce ded, that there wer e two false statements in the aff idavit: (1) Erdely did not perf orm a key

word s ea rc h u s i n g the name of the known childNo. 10-4436 - 3 -
pornog raphy movie file; and (2) the file that Erdely downloaded from Schimley ’s computer did not bear the same name as the known child-pornog raphy movie fil e. I n its response to Schimley ’s motion for a Franks hear ing, the g overnme n t ex p l ai n ed the false statements as follows. Erdely

m ai n t ai n s a computerized text file with the names and SHA-1 hash values of child pornog raphy imag es rec overe d from other investiga tions. He co n ducts a key word sear ch with the file-sha ring
prog ram using a term commonly associate d with child pornog raphy

. When Erdely downloads a file with the same SHA-1 hash value as a file stored in his text file, the file is automatically assig ned the

name used in the text file. Russ misint erpr eted Erdely ’s repor t and stated in the aff

idavit that Erdely had conducte d a sear ch using a particula r file name and downloaded a file of the same name from Schimley

. I n fac t, Erdely had conducte d a sear ch using a g ener al term and the file-sha ring prog ram

rena med the file tha t he downloaded from Schimley beca use the SHA-1 ha sh value of Schimley ’s file matched the value of a known child-pornog raphy video in the text file. The g overnme nt further noted that the child-por

nog raphy movie file t hat Erde ly

downloaded f

rom Schimley

was found on Schimley ’s computer , albeit under a diffe rent na

me than the name re fer ence d in Russ’s affidavit. The district court proper ly denied Schimley ’s reque st for a Franks hear ing. The district court did not make cl ea rl y er roneous fac tual finding s, and we ag ree that Schimley failed to make a substantial preliminary showing that Russ knowing ly or rec klessly included false statements in the

war rant aff idavit. See id

. The false statements wer e not nece ssary to establish p ro b ab l e ca use b ec ause the affidavit otherwise established t hat Erdely downloaded a fil e from Schimley , t h at t h e file contained child pornog raphy , and that Erdely used the SHA-1 hash values to verify that the file he downloade d was the same file found on Schimley ’s computer

. Schimley next arg

ues that his sentenc e is pr ocedur ally and substantively unrea sonable. He

asser ts that the sentenc e is proce durally unrea sonable beca use the district court failed to consider all of the sentenc ing fac tors under 18 U.S.C. § 3553(a) and failed to adequa tely explain its decision to reje ct Schimley ’s arg uments for a below-g uidelines sentenc e. Schimley arg ues that his sentenc e is substantively unrea sonable because : (1) the district court put undue empha s i s o n the nature of hi s offe nses and his history

and cha rac teristics; (2) the se ntence was g rea ter than ne cessa ry to complyNo. 10-4436 - 4 - wi th the sentenc ing purposes set forth in section 3553(a) ; and (3) sever al of the offe nse-leve l enhanc ements er

roneously incre ased his sente ncing rang e. “A district co urt’s sentenc ing deter mination is revie wed under a defe rential abuse- ofdiscretion standard for rea sonablene ss, which has both a proce dural and a substantive component.” United States v. O’Ge orgia , 569 F.3d 281, 287 (6th Cir. 2009) (citation and internal quotation marks omitted). To deter

mine whether a sentenc e is proce durally rea sonable, this court must “ensur e that the district court committed no signific ant proce dural err or, such as failing to calc ulate (o r improperl y ca l cu lating) the Guidelines rang e, trea ting the Guidelines as mandatory , failing to consider the § 3553(a) fac tors, sel ecting a sentenc e based on clea rly err oneous fac ts, or failing to adequately explain the chosen sentenc e.” Gall v. United States , 552 U.S. 38, 51 (2007). “A sentenc e may be substantively unrea sonable if the district court selec ts the s entenc e arbitra rily , bases the
sentenc e on impermissible fac tors, fails t o co n s ider pertinent § 3553(a) fac tors or g ives an

unrea sonable amount of weig ht to any pertinent fac tor.” United States v. Vowell , 516 F.3d 503, 510 (6th Cir. 2008) (alter ations, citation, and internal quotation marks omitted). We apply a rebuttable presumptio n o f rea sonablene ss to a withi n-g uidelines sentenc e. See United States v. Vonner , 516 F.3d 382, 389 ( 6th Cir. 2008) (en ba nc). Schimley ’s sentenc e is proce durally rea sonable. The district court cor rec tly calc ulated the
g uidelines rang e and rec og nized the advisory nature of the g uidelines. Be fore imposing its sentenc e, the court discussed sever al pertinent sentenc ing fac tors under section 3553(a)

. The dist ri ct co u rt

n o t ed t h e signific ant num ber of imag es and movie files i nvolved i n the crimes. The court further noted the fac t that the circ umstances tended to contra dict Schimley ’s claim that he was not interested in viewing the pornog raphy himself, but downloaded the materia l only to sell to another individual. The court considere d the ty pes of sentenc es that wer e available , and rec og nized the need to impose

a punishment that would protec t potential child victims and to emphasize to society the signific ance of child pornog raphy offe nses. The district court also discussed Schimley ’s lack of criminal history , his substance abuse problems, his abusive childhood, his education, his job skills, and his conver sion
to Buddhism. Given the district court’s extensive discussion of the pertinent sentenc ing fac tors andNo. 10-4436 - 5 - its relianc e on the sentenc ing g uidelines rang e, the district court set forth a sufficie nt basis for i mposing its chosen sentenc e and for reje cting Schimley ’s arg uments for a below-g uidelines
sentenc e. See United States v. Duane , 533 F.3d 441, 451-52 (6th Cir. 2008). The district court was not require d to expli citly consider eac h of the sect i o n 3 553(a) fac tors, see id. at 452, nor was it require d to delve into the history o f th e c h il d

- p o r n o g r a p h y g uidelines to deter

mine their applicability

. See United States v. Brooks , 628 F.3d 791, 800 (6th Cir. 2011), cert. denied , 131 S. Ct. 3077 (2011). Schimley ’s s ent en ce i s also substantively rea sonable. Although the district court eng ag ed in a leng thy discussion of the nature of Schimley ’s crimes and h i s h i s t o ry and char acte ristics, the

rec ord does not support Schimley ’s asser tion that the court g ave an unrea sonable amount of weig ht to the se fac tors in f

ormulating its sente nce. Fur ther, the district court’s a

pplication of the offe nselevel enhance ments and it s decision t o ad h er e to the advisory sentenc ing guide lines rang e did not result in a sentenc e that was g rea ter than nece ssary to comply with the sentenc ing g oals set forth in section 3553(a ). We affir m the district court’s judg ment.