NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0069n.06 No. 12-5134 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. SEAN J AY WI DMER, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COU RT FOR THE EASTERN DI STRI CT OF TEN NESSEE

Be fore : COOK and WHI TE, Circuit J udg es; SHARP, Dist rict Judge. * COOK, Circui t J u d ge. Sean Widm er pleade d g uilty to one count of knowing ly rec eiving child pornog raphy in violation of 18 U.S.C. § 2252A(a)( 2) and ( b)(1) . The dist rict court imposed

a low-end Guidelines sentenc e of ninety -sev en m o n t hs’ imprisonment, followed by five y ear s of supervised r elea se. On a

ppeal, Widmer challeng es t he proc edura l and substantive re asonable ness of his sentenc e and the specia l conditions imposed on his supervised rele ase. For the following
rea sons, we AF FI RM Widmer’s sentenc e, and V ACATE and REMAND the spec ial conditions of his supervised re lease for f urther pr ocee dings c onsistent with thi s opinion.

The Honora

ble Kevin H. Sharp, United States District J udg e for the Middle District of * Tenne ssee, sitting by

desig nation.No. 12-5134

United States v. W

idmer
I
. On Fe bruar

y 1, 2010, fede ral investigators interviewe d Widm er reg arding child pornog raphy
on his computer. Widm er admitted that he used a file-sha ri n g s o ft war e prog ram to rec eive child pornog raphy via the Interne t. He also provided written consent for ag ents to examine his computer, and ag ents’ later examination id e n ti f ie d s e v e n s ti ll im ag es and 134 videos depicting identifiable child victims, prepube scent children in sexual co n t ac t with adults and other children, and sadistic and masochistic conduct. Be cause the Guidelines cre dit eac h video as seventy -five imag es, Widm er possessed 10,057 imag es.
Widm er stipulated to a base offe nse level of twenty -two in his plea ag ree ment. Probation’s Pr e s e n te n c e I

nv e s ti g a ti o n Re p o r

t ( “ PS R” ) c alculate d the applicable sentenc ing adjustments. Wi d me r obtained reduc tions for rec eipt without the intent to distribute (two l ev el s ) and acc eptanc e of responsibility

(three levels). He also rec eived e nhance ments beca use he posse ssed more tha n 600 imag es (five levels), used a computer to rec eive the pornog raphy (two level s), and the imag es contained p repube scent minors (two levels) and depicted sadistic, masochistic, or violent content (four leve l s ). Widm er’ s offe nse level totaled thirty

. This offe nse level and Widm er’ s criminal history y ielded an a dvisory

Guidelines ra

ng e of 97–121 months’ imprisonment. Additionally , 18 U. S
. C
. § 3 5 8 3 (k) mandated a minimum five-y ear term of supervised rele ase, on which the PSR
rec ommended the court impose the Eastern District of Tennessee’ s standard special conditions of supervised rele ase for sex offe nders. Widm er objected to five: sex-offende r mental-he alth
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treatment, a post-rele ase psy chosexual evaluation, probation-of fice r compli ance sear ches, and restric tions on both hi s association with minors and use of computers.
T o s u p p o rt his challeng e, Widm er arg ued that testing perf

ormed by Dr. Ted Sha w demonstrated that he prese nted no risk to c hildren and had a low likelihood of rec idivism

. ( See R. 27, Def .’s Obj. PSR .) At a later hear ing, howeve r, the court found Shaw’s repor t “hig hly subjective” and order ed additional assessment and testing with Dr. J ames Michae l Adler. (R. 44, Addt’l Testing Hr’g Tr. at 66:18–20, I D #336.) During this additional testing, W idmer admit ted m asturbating to imag es i n his child pornog raphy collection (R. 45, Adler Report at 13, I D #353), and Dr. Adler’ s repor t assessed a

“low-mode rate ” risk of r ecidivism ( id. at 11, I D #351).
Three day s befor e the sentenc ing hear ing, the court issued an order overr uling Widm er’ s PSR objections ( see R. 4 9 , J an . 2 0 , 2012 Orde r, I D #506), concluding that the challeng ed conditions, if imposed at the sentenc ing hear ing, would not impermissibly deleg ate sentenc ing authority to the probation depar tment ( id. at 11–12, I D #516–17). Fur ther, the court found eac h of the PSR ’s rec ommended supervised- rele ase conditions rea sonably rela ted to the crime o f child pornog raphy , but “[i] t rema in[ ed] for the Court to deter mine at sentenc ing whether [ W i d m er’ s] specific offe nse, history , and char acte ristics merit the imposit ion of these post-incar cer ation terms.” ( Id. at 14, I D #519.)
Widm er also filed a “Motion for Be low-Guidelines Sentence Ba sed on § 3553(a) Fa ctors and Sentencing Memorandum” (R. 47), seeking a six ty -month mandatory -minimum sentenc e. At the - 3 -No. 12-5134

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sentenc ing hear ing, afte r listening to t es t i m o n y fr o m Drs. Shaw and Adler, the court imposed a ninety -seve n month, low-end, within-Guidelines sentenc e and five y ear s of supervised rele ase with the standar d specia l conditions.
I I
. A. Reasona

bleness of the Sentence
We revie w a district court’s sentenc ing deter mination for rea sonablene ss under a defe rential abuse- of-discr eti o n s ta

n dard, United States v. Bolds , 511 F.3d 568, 578 (6th Cir. 2007), first ensuring that the district court committed no signific ant proce dural err or such as “tre ating the Guidelines as mandatory , failing to c onsider the § 3553(a) fac tors
. . . or failing to adequately explain the chosen sentenc e.” Gall v. United States , 552 U.S. 38, 51 (2007). I f the sentenc e is proce durally sound, we then consider its substantive rea sonablene ss. United States v. Grossman , 513 F.3d 592, 595 (6th Cir. 2008) (quoting Gall , 552 U.S. at 51).
i. Procedura l Reasonablene ss
Widm er levied two proce dural-r easona blen es s challeng es: First, he argued that the court abused its discretion by misconstruing his varia nce motion as a d o wnward-depa rture motion,
err oneously

employ ing de parture standards to de ny a var iance . Second, he a rg ued that the court’s

u s e o f the phrase “the hear tland” sug g ests it trea ted the Guidelines as mandatory , th er eb y overlooking the § 3553(a ) sentenc ing f actor s. - 4 -No. 12-5134

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idmer
Widm er’ s first argument fails beca use the rec ord demonstrates that the court conducte d separ ate depar

ture and varia

nce analy ses, aff

ording him two chanc es at relief

. The court separ ately outlined the g rounds on which it coul d grant a depar ture or varia

nce ( see R. 55, Sent’g Tr. at 151:2–17 (explaining depar tures), 151:18–152:4 (explaining varia nces) ), explaining, for example, that it “has much more discretion and may take a wide rang e of considerations into acc ount when deter mining whether a downwar d varia nce is appr o p ri at e under

. . . Section 3553(a) .” ( Id. at 151:18–21.) The court clea rly signa led when it moved from depar ture to v ariance analy sis:

“Furthermore , a downwar d varia nce is not war

rante d

. . . .” (

Id. at 152:18 (e m p h asi s added) .) Ultimately , the court independe ntly decide d the depar ture and varia

nce issues: “The Court finds that there is no basis for a downwar d depar ture and that the Section 3553(a) fac tors do not indicate that

a downwar d varia

nce is war rante d in this case .” (

Id. at 155:14–16.) Thoug h Widm er insists that his “Motion for a Be low Guidelines Sentence ” reque sted only a downwar d varia nce, we find no abuse of discretion in the cour t ’s d ecision to analy ze an additional possible g round for shortening Widm er’ s sentence
. Widm er further contends that the court’s use of the phrase “the hear tla n d , ” a conce pt develope d befor e the Guidelines beca me advisory , b et ra y s the court’s improper trea tment of the § 3553(a) fac tors. He posits that the court trea ted the Guidelines as mandatory by first requiring fac ts to remove Widm er’ s case from “the hear tland” of child pornog raphy case s befor e considering the § 35 5 3 (a ) fa ct o rs . Ag ain, the rec ord belies Widm er’ s claim. The court individually assessed the § 3553(a) fac tors and simply found that they did not wa rr an t a downwar d varia nce. ( See id. at - 5 -No. 12-5134

United States v. W

idmer 155:15–16.) The court clea rly understood the Guidelines’ advisory nature
. ( See, e.g. , id. at 149:23 (dec laring that it “tre at[s] the Sentencing Commi ssion Guidelines as advisory only ”).) We g lean no proce dural e rror

from the c ourt’s two brief ref ere nces to “ the hea

rtland.”
ii. Subs tantive Reasona

bleness
“A sentenc e is substantively unrea sonable if the s en t en cing court arbitra rily selec ted the sentenc e, based the sentenc e on impermissible fac tors, failed to consider pertinent § 3553(a) fac tors,
or g ave an unrea sonable amount of weig ht to any pertinent fac tor.” United States v. Cunningham , 669 F.3d 723, 733 (6th Cir. 2012) (citing United States v. Collington , 431 F.3d 805, 808 (6th Cir. 200 6 ))

. Be cause Widm er’ s ninety -seve n month sentenc e falls within the proper ly calc ulated Guidelines rang e of 97–1 2 1 months, we affor d it a presumption of reasonable ness. United St ates v. Simmons , 587 F.3d 348, 365 ( 6th Cir. 2009). “De fenda nt bear s a hea

vy burden in showing that his sentenc e at the low-end of his Guidelines rang e is [subs tantively ] unrea sonable.” Cunningham , 669 F.3d at 733 (citing United States v. Bolds , 5 1 1 F. 3 d 5 68, 581 (6th Cir. 2007)). Her e, presumptive re asonable ness dooms Wi dmer’s substantive- rea sonablene ss challeng es.
Widm er argues that the district court i n appropriately utiliz ed the “mar ket theory ” of child pornog raphy to impose his sentenc e. Be ca u s e h is conduct involved downloading rathe r than exchang ing or purchas ing child pornog raphy , Widm er arg ues that he could not have aff ecte d the child -p o rnog raphy marke t. When courts consider g ener al deter renc e as a sentenc ing fac tor, the inquiry “should be focuse d upon the marke t for such activities” and target the “produc tion, - 6 -No. 12-5134

United States v. W

idmer distribution, rec eipt, or possession of child pornog raphy .” United States v. Robinson , 669 F.3d 767, 777 (6th Cir. 2012). Gene ral deter renc e “is cruc ial in the child pornog raphy context.” United States v. Camiscione , 591 F.3d 823, 834 ( 6th Cir. 2010).
Her e, the district court relied on the marke t theory for only p ar t of its g ener al deter renc e analy sis be fore proper ly considering the sentenc e’s deter rent eff ect. After explaining that “[t] hose who rec eive child pornog raphy form a marke t for the imag es and encour age t h e fu rt her abuse of children depicted i n t h e i m ages,” (R. 55, Sent’g Tr. at 153:3–6), the court employ ed y et another rationale —difficulty of detec tion. “Ge nera l deter renc e is espec ially important in child pornog raphy
case s beca

use child pornog raphy is

. . . difficult to detec t, as the I nterne t allows potential offe nders to perpe trate the offe nse i n the privacy of t heir ho m es . ” ( Id. at 154: 22–25.) The court stated t hat Widm er’ s sentenc e “will send a signa l to wo u l d -b e offe nders that rec eipt of child pornog raphy
ca rr i es signific ant conseque nces.” ( Id. at 155:6–7.) Cf. Camiscione , 591 F.3d at 834 (re versing district court beca

use it “fa iled to consider how its sentenc e provided adequate ‘g ener al deter renc e’ to the population at larg e”)

. The district court clea rly considere d the need for its sentenc e to promote g ener al deter

renc e, and its ana ly sis withst ands Widmer’s cha lleng e.
Widm er next argues that the district court overlooke d the results o f t h e additional, courtmandated testing. Yet the rec ord shows that counsel, the court, and Widm er discussed Dr. Adler’ s additional testing throug hout Wi dmer’s sentenc ing he aring . At the start of D r. Adler ’s testimony , the cour t confirmed it re ceive d his w ritten repor t. (R. 55, Sent’g Tr. at 28:9.) D uring the hea ring , - 7 -No. 12-5134

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idmer
Widm er’ s counsel and the Gover nment ques t i o n ed Dr. Adler at leng th about his finding s. ( Id. at 27–76.) When Widm er addresse d the court, he refer ence d his interac tions with Dr. Adler . ( Id. at 157:12–16.) The court considere d the import of Widm er’ s masturbation to imag es of adolesc ent fema les ( id. at 1 5 4 : 6

– 9 ), later rec ounting that “Dr
. Michae l Adler[] found ample evidenc e that [W idmer] has som e sex ual i ntere st in children and repor ted t h at [ W idmer] had a low to modera te rang e of r isk of rec idivism .” ( Id. at 167:22–25.)
Widm er also overstate s Dr. Ad l er ’s testimony as proof that he lacks a sexual interest in children. Dr. Adler’ s repor t sug g ests that Widm er poses a “low-mode rate rang e of risk” and “most likely does not have a ‘sexual interest’ in children.” ( See R. 45, Adler Report at 11, I D #351.) These statements contra dict Widm er’ s exagg erated interpre tation—that the test absolves him of culpable conduct and any risk of recidivism. Rather than disprov i n g W i d m er’s sexual interest in children, Adler’ s repor

t raises questions about Widm er’ s culpability and motivations. The repor t also found that Widm er’ s “use of child pornog raphy is much more complex than he curr ently acknow ledg es,” and “[w]hen c halleng ed, [he] become s ang ry , ag itated, and repor ts me mory loss.” (

Id. ) The court could dra w upon all of these finding s, and Widmer fails to show abuse of discretion.
Nor did the district court violate Tapia v. United States , 131 S. Ct. 2382 (2011), by imposing

a longe r sentenc e than otherwise appropr iate so Widm er could complete a trea tment prog ram. Tapia instructs that “a court may not impose or lengt h en a p ri s o n sentenc e to enable an offe nder to complete a treatment pr og ram or otherwise to pr omote reha bilitation.” Tapia , 131 S. Ct. at 2393.
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idmer
Her e, the probation officer rec ommended that Widm er submit to sex offe nder an d d rug treatment while imprisoned. The court rec ommended such trea tment to the Bur eau of Prisons afte r finding that Widm er “is in need [of] and will benef it from [t reatment] during his incar cer ation.” (R. 55, Sent’g Tr. at 155:11–13.) Contrary to Tapia , wher e the lower court imposed a fifty -one month sentenc e “so [defendant] is in long enoug h to get ” rec ommended trea tment, 131 S. Ct. at 2385, here the court
mere ly found that Widm er would benef it from trea tment during incar cer ation and rec ommended as much. The court’s reha

bilitati v e co n ce rns here differ marke dly from the imposit ion of trea tment for reha bilitative purposes at issue in Tapia
. Thus, we find that t h e d i s t ri ct court did not violate Tapia ’s prohibition.
Widm er further contends that the court err ed when weig hing the § 3553(a) fac tors. But the court properly considere d these fa ctors, g oing so f ar a s to commend Widm er for hi s work hist ory , f a v o r a b le c h a r a c te ristics, ref

ere nces, and post-reha

bilitative eff

orts. (R. 5 5 , Se n t’ g T r . a

t 1 5 2 :1 8

– 2 2
. ) The court proper ly deter

mined that Widm er’ s risk of rec idivism and his offe nse’s willful and leng thy nature nece ssitated specific deter renc e. ( Id. at 154: 10–19.) I t decide d the sentenc e was nece ssary to “send a signa l to would-be offe nders that rec eipt of child pornog raphy car ries signific ant conseque nces.” (

Id. at 155:6–7.) We discern no err or in the court’s char acte rization of Widmer’s conduct, let alone in its evaluation of the evidenc e to fi n d h i m sexually interested in children. Widm er downloaded imag es of minor children eng ag ing in sexual activity with adult males. ( Id. at 12:6–12.) He admitted to Dr. Adler that he masturbated to the imag es “of the older kids, the

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idmer
adolesc ents.” (

Id. at 30:23–24.) The rec ord ref lects no clea

r err or in the court’s deter mination that Widm er’ s masturbation discre dits his asserted sexual disint ere st in children.
The district court properl y as s es s ed Widm er’ s case , and we find no abuse of discretion in Widm er’ s ninety -seve n month sentence

. B. Spec ial Supervised Relea se Conditions
We revie w specia l condition s imposed during supervised rele ase for abuse of discretion. United States v. Brogdon , 503 F.3d 555, 563 (6th Cir. 2007). Despite the Gover nment’s argument that Widm er failed to object to the terms at sentenc ing, nece ssitatin g p l ai n -e rr or revie w, Widm er proper ly prese rved the issue: “I respe ctfully object to the proce dural and substantive rea sonablene ss of t h e s en t ence and of the t erms—of some of t he terms of supervised rele ase, the ones t hat we’ve objected to.” (R. 55, Sent’g Tr. at 168:20–22.) Widm er’ s objection to the PSR , filed befor e the sentenc ing hear ing, pointed to the same five conditions he now appea ls. (R. 27, Def .’s Obj. PSR at 24–46.) Be cause he previously objec ted to these five conditions, and his attorney objected to the proce dural and substantive rea sonablene ss of these conditions at sentenc ing, abuse-o f- d iscretion applies.
This court’s revie w of specia l conditions involves proce dural and substantive components. To be proce durally rea sonable, the court must first “state in open court
. . . its rationale for mandating specia l c onditions of supervised rele ase.” United States v. Carter , 463 F.3d 526, 528–29 (6th Cir.
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idmer 2006) (citation and internal quotation marks omitted). Special conditions imposed without specific justification are “har

mless err or if the supporting rea sons are evident on the overa ll rec ord, and the subject specia l condition[ s are ] related to the dual major p u r p o s es of probation, namely reha bilitation of the offe nder and enhanc ement of public safe ty .” Brogdon , 503 F.3d at 564 (quoting United States v. Kingsley , 241 F.3d 828, 836 ( 6th Cir. 2001)).
I n Widm er’ s case , the court imposed the s hortest pos sible term of supervised relea se. See 18 U.S.C. § 3583(k). I n its order overr uling Widm er’ s PSR objections, the court repe atedly tied the challeng ed conditions to the crime of child pornog raphy , but postponed examining whether Widm er’ s circ umstances m erited specia l conditions until the sentenc ing hear ing. “The PSR ’s
rec ommended conditions of superv i s ed release are rea sonably rela ted to the crime for which De fe n d an t has been convicted. I t rema ins for the Court to deter mine at sentenc ing whether t h e Def endant’ s specific offe nse, history , and cha ra cter istics merit the imposit ion of these postincar cer ation terms.” ( R. 49, J an. 20, 2012 Or der at 14, I D #519.)
Yet at sentenc ing, the court imposed the challeng ed conditions without explaining or addre ssing Widm er’ s arg um en t that his circ umstances did not justify specia l supervised rele ase conditions. The court mere ly stated, “L ast, the Def endant shall comply with the sex offe nder conditions set forth in Parag raphs 114 throug h 126 of the pre -sentenc e re port.” (R. 55, Sent’gTr. at 164:19–21.) Although we sometimes aff irm specia l conditions of supervised rele ase on a silent
rec o rd , s ee , e. g., United States v. Lantz , 443 F. App’x 135, 144–45 (6th Cir. 2011) (computer
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idmer
restric tions), this case differ s beca use the rea sons for imposing Widm er’ s specia l conditions are not clea r from the overa ll rec ord. The association restric tion, for example, bars Widm er from all contac t with minors—even his own daug hter—a bsent a probation office r’s approva l. But beca use Widm er
never solicited or phy sically harme d a child, the rec ord lacks an obvious rationale for imposing such

a restric tion. After having failed to deliver t h e p romised analy sis of Widm er’ s objections to the specia l conditi o n s of supervised rele ase, omitti ng rationale s supporting specia l conditions of supervised rele ase cannot be harmless. We there fore vacate the challeng ed conditions of supervised rele ase and rema

nd to the district c ourt for a fuller explanation of its reasons for imposing the five specia l conditions of supervised re lease

.
I I I
.
For the fore g oing rea sons, we AFF I RM Wi d me r ’ s s e n te n c e , V A CA TE the specia l conditions of super vised rele ase, a

nd REMAND for

proce eding s consistent with this opi nion.

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