F ile Nam e: 13a0322n.06

NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION No. 11-6263 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. P HILL IP JAMES CLINGM AN, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ) O N AP P EAL F ROM THE UNITED STAT ES DIS TRICT C OURT F OR TH E W ES TE R N DISTRICT OF TENNESS EE

O P I N I O N

BEFORE: BOGG S, McK EAGU E, Circuit Judges, and CARR, D istrict Judge. * CARR, District Judge. Def endant- Appellant, Phill ip J ame s Cl in gma n , a p p e a ls h is April 13, 2011, jury -trial conviction for transporting child pornog raphy in violation of 18 U.S.C. § 2252(a) (1). He also appea ls his sentenc e of 240 months’ impri s o n m ent and one condition of his supervised rele ase. For the rea sons set forth below, we AFFI RM defe ndant’s conviction and sentenc e, but ref rain fr om decidingthe proprie ty of his condition of supervised r elea se.

The Honor able James G. Carr , Senior United States District J udg e for the Northe rn * District of Ohio, sitting by desig nation. 1I. F ACTUAL AND P ROCEDURAL BACK GR OUND

This case arises from an investiga tion into child pornog raphy o n a file-sha ring website, Radar.ne t. I n 2008, the FB I rec eived information indicating the California-ba sed website was being used to store a

nd distribute child pornog raphy

. The we bsite require d new use rs to provide a persona l e mail addre ss and phone number . I t also require d new users to choose a scre en name and password. The website allowed users to upload pictures from computers or cellular phones. To upload an imag e, a user would email it to a unique, unaltera ble email addre ss provided by the website. On l y a p er s o n with this email addre ss and a user’ s password c ould post pictures to the user’ s acc ount. Users could post a comment or title with eac h uploaded imag e, which the website automatically time-stamped. After a user uploaded an imag e, the user could share it with others by g iving them a “join code” linked to the acc ount. The website kept rec ords showing the time, date, and interne t protocol addre ss associated w ith each use r log -in. FB I Special Ag ent Stephen L i es , t h e case ag ent for the investigation, deter mined that a website user pag e reg ist er ed u n d er the scre en name “xcon28” contained imag es of child pornog raphy

. The x con28 user maintained about nineteen pag es of content with sever al imag es of child pornog raphy

on eac h pag e on the we bsite. Ag ent L ies deter

mined the x con28 userna me was associate d wit h the email addre ss p h il lip c lingman@ y ahoo.com. A website repr esentative told Ag ent L ies the user identi f ie d a s xc o n 2 8 had given 6155061353@mms.my cric ket.com as his mobile email addr ess, and (615) 506-1353 as his cell phone number. Phone rec ords established the phone number belong ed to defe ndant. I n an

2email sent from the phillipclingman@y ahoo.com acc ount, the sender identified himself as “xcon28

from Radar.” The sender offe red to share pictures direc tly with the rec ipient. Def endant, a former convict, wa s twenty -eig ht y ear s old when the xcon28 user a ccount wa s cre ated. I nterne t protocol addresses showed the us er x con28 had logg ed in re peate dly from several I P addresse s. One of these I P addre sses corr esponded w ith a char itable org anization, Gree nhouse Ministries (Gre enhouse) , and another corr esponded with the Tenne ssee Tec hnology Center (TTC),

an aff iliate of the Tenne ssee univer s it y s y s te m. Def

endant volunteere d in 2008 at Gre enhouse, wher e he had computer and internet acc ess. He studied at TTC from J anuar y 2007 to J anuar

y 2008. There , he had c omputer and inter net ac cess in a la

boratory course . A repr esentative from the T en n essee Boa rd of Correc tions testified about defe ndant’s

m u l t i p l e crimi nal convictions. After one such conviction, he was incar cer ated from J anuar y 30, 2008, throug h Marc h 25, 2008. Whil e in custody , defe ndant had no acc ess to computers or phones with internet acc ess. During that time, the x con28 acc ount was inactive. The only exception was one

unsucce ssful login attempt from an I P address be longingto a company in the United King dom. Def endant’ s TTC classmate, Kevin Prather, testified th at a TTC teac her, Bur t Pelsue, approa ched him wi t h co n ce rns that there may be pornog raphy on TTC computers. Pelsue told Prather he feare d he would lose his job if anyone found out about the pornogra phy

. Prather knew

sever al people looked at pornography on TTC computers. Pelsue asked Prat h er t o remove the pornog raphy from one computer. Pelsue co mmitt ed suicide six months afte r the FB I arr ested defe ndant. Def endant admitted to Ag ent L ies he used computers at Gre en h o use and TTC. Def endant confirme d he had owned the cellular phone associated with (615) 506-1353, but had s o l d it a few 3months b ef o re his arr est to a friend named Cly de Craun. Def endant admitted having the email addre ss phillipclingman@y ahoo.com. De fe n d an t stated he did not own a computer. He acknow ledg ed using his cellular phone to send sexual imag es of adults, but denied ever transmitting pornog raphic pictures of children. Def endant admitted past visits to the website. He also confirme d he owne d the xcon28 user ac count. Craun testified that defe ndant took a picture of him using the cellular phone that Craun boug ht from defe ndant. The text “MDMNF I L I ” appea red under the picture. The same text appea red under a n imag e on xcon28’s website pa g e. Craun acknow ledg ed purcha sing the cellular phone from defe ndant. Craun rec eived a new phone number when he transfe rre d the phone to his name. He had the phone for about three months befor e giving it to the FBI in Aug ust, 2008. Craun denie d accessing the website or Yahoo! email service s. He told Ag ent L ies that, beca use he is illiterate , he did not use the internet. The phone’s web browser history , howeve r, showed someone had, at some time, a cce ssed both the website and Yahoo! email from the phone

. Craun testified that he and defe ndant wer e toge ther on J uly 2, 2008, from lunchtime to 5:00 p.m. On that day , someone uploade d an imag e conta ining child pornog raphy to x con28’s we bsite

acc ount from a Gr eenhouse computer. Whil e at TTC , defe ndant had a dispute with another student, Eric Nar vaez. Def endant believed Narva ez put nails under his tires bec ause de fenda nt had obtained a

position t hat Nar

vaez wanted

. Na rvaez testified that he saw defe ndant looking at pornog raphy on TTC computers. Def endant had an alterc ation on J anuar y 30, 2008, and TTC suspen d ed h i m . Def endant never returne d. 4Nar vae z t est ified he left TTC befor e September, 2007. Def ense counsel objected to his testimony beca

use it encompa ssed a time period outside that ref ere nced in the indictment. The trial court allowed Nar

vaez’s testimony as “re l ev an t conduct,” but told the jury the testimony did not direc tly prove de fenda

nt’s guilt or innocence

. During cross-e x amination, defe nse counsel asked Ag ent L i es whether the cellular phone obtained from Craun contained any imag es of child pornog raphy

. Ag ent L ies stated that, althoug h not appar ent from the imag e itself, one imag e on the phone contained child pornog raphy

. Ag ent L ies stated he knew it contained child pornog raphy beca use he “re cog nize[ d] it as a known imag e.” The purported imag e on the c ellular phone was not par t of the basis for

the cha rg es ag ainst defe ndant. Def ense counsel objected and moved for a mistrial, stating the g overnme nt had not disclosed the imag e during discovery

. Ag ent L ies t es t i fi ed he did not rec all defe nse counsel asking him whether the phone contained child pornog raphy

. Def ense counsel called defe ndant’s I T specia list, who, d efe nse counsel stated, was prese nt when he had asked Ag ent L ies whether the phone contained child pornog raphy

. The I T specia list did not rec all defe nse counsel having asked whether the phone contained pornog raphy of any kind. The trial court denied defe ndant’s mot ion for a mistria l

. T h e judge conclude d that further cross-e x amination suffice d to protec t defe ndant’s rig h t s . After jury instructions and delibera

tions, the jury

convicted de fenda

nt as cha rg ed. Be fore sentenci ng , defe nse counsel arg ued that the sentenc ing g uidelines reg arding child pornog raphy had develope d irrationally o v er t ime. He reque sted a downwar d varia nce on policy g rounds. The tria l court re jected the argument: The defense has arg ued that the guidelines for child pornog raphy are unrea sonably harsh a nd that . . . the g uidelines [for] actually inflicting phy sical sexual injury to a child are l o wer than these, than these g uidelines that deal with child pornog raphy

. 5And I think those are issues for the policy -make rs, for the cong ress, those are

arguments th at should best be presented to those who craft the g uidelines and who take that information to rec ommend chang e. I ’m not insensitive to those things

. . . and I d o not fault anyone for making them, but I think those are policy matters that g o to . . . entities other than the c ourt. I n imposing the 240-month sentenc e, with five y ear s’ supervised rele ase to follow, the trial court order ed, as a specia l condition of supervised rele ase, that defe ndant not “use any kind of online service without pre-a

pproval fr om the probation off ice.” Def endant br ings this appe al. II. DISCUSS ION A. Lies’s Testim ony Def endant first arg

ues the trial court abused its discretion by denying his motion for a mistrial

on the basis that th e go v er n m ent did not disclose the pornog raphic imag e on the cellular phone befor e trial. We disag ree . This court revie ws a trial court’s ruling on di s co v er y matters for an abuse of discretion. United States v. W

arshak , 631 F.3d 266, 296 (6th Cir. 2010); United States v. Jordan , 544 F.3d 656, 667 (6th Cir. 2008). We also revie w denial o f a m o t i o n fo r mistrial for an abuse of discretion. United States v. Lev

y , 904 F.2d 1026, 1030 ( 6th Cir. 1990). As an initial matter, the trial court reje cted defe nse counsel’s asser tion that the g overnme nt deliberately misled defe nse counsel. I ts doing so was well founded: Ag ent L ies and defe ndant’s I T technicia n both tes t i fi ed they did not rec all defe nse counsel asking whether the cellular phone contained child pornog raphy

. As the trial court found, Ag ent L ies testimony , as corr oborate d by the I T consultant, supported the conclusion that the g overnme nt did not mislead defe nse counsel. The

6court had an adequa te basis for resolving the “diffe rent rec ollections” about the conver sation in the g overnme nt’s favor

. There was no evidenc e of g overnme ntal intentional misconduct. We there fore reje ct defe ndant’s contention to the contra ry . See United States v. Maples , 60 F.3d 244, 247 (6th Cir. 1995) (obser

ving that whether the g overnme nt intentionally withheld discovery materia l is a fac tual question resolved by

the trial cour

t). Under Fe dera l Rule of Criminal Procedure 16(a) (1)( E): Upon a defe ndant’s reque st, the g overnme nt must permit the defe ndant to inspect and to copy or photogr aph books, paper s, documents, data, photogr aphs, tang ible objects, buildings or place s, or copies or portions of any of these items, if the item is within the g overnme nt’s possession, custody , or control a nd: (i) the item is materia l to prepar ing the defe nse; (ii) the g overnme nt intends to use the item in its case -in-chie f at trial; or (iii) the item was obtaine d from or be longs to the de fenda nt. The Adam Walsh Child Protection and S afe ty Act precludes a defe ndant from obtaining a copy of child pornog raphy in pr epar ation for tria l, and the statute e x plicitly controls over

Rule 16. 18 U.S.C. § 3509(m)(2) (A). I nstead, the g overnme nt must make materia l that is o t h er wise discovera ble u n d er Rule 16 “re asonably available to the defe ndant” by g iving him “ample opportunity ” to inspect it befor e trial. 18 U.S.C. §§ 3509(m)(2) (A) a nd (B ). Def endant reque sted all evidenc e discovera ble under Rule 16. The g overnme nt made its evidenc e, including the cellular phone obtained from Craun, available to d e f e n s e counsel befor e trial. Howeve r, the g overnme nt did not inform defe nse counsel the phone contained an i m age o f child pornog raphy

.

7Def endant first arg

ues the rig ht to inspect evidenc e under Rule 16 nece ssarily includes a rig ht to notice that the g overnme nt may seek to prove a particula r imag e contains child pornog raphy

. We reje ct this assertion. Rule 16(a) (1)( E)(ii) did no t o b l i gat e the g overnme nt to disclose the imag e found on the cellular phone. The fac ts show the g overnme nt did not intend to use the imag e in its case -in-chie f, and defe ndant has failed to provide any evidenc e or argument to the contra ry . Although Ag ent L ies in fac t testified reg arding the imag e in the g overnme nt’s case -in-chie f, it d o es not appea r the g overnme nt intended to prese nt, or even anticipated, this t es t i mony . Def ense counsel, not the g overnme nt, raised the issue of possible child pornog raphy on the phone. The g overnme nt mere ly intended, at most, to use the imag e to rebut defe ndant’s position at trial. Def

endant soug ht to show the g overnme nt lacke d proof he persona lly possessed pornog raphy 1 in a medium other than the website. As the g overnme nt notes, it provided defe n d an t wi t h the opportunity to inspect the cellular phone, and he did not do so. I f defe nse counsel intended to argue at trial that the phone did not contain child po rnogra phy , it was incumbent on defe nse counsel to

ensure that was true by taking advanta g e of t h e opportunity to examine the phone. Even if the g overnme nt intended to reb u t d efendant’s position with the imag e, this does not ref ute the g overnme nt’s position t h at i t d i d not intend to rely on the imag e in establishing its case -in-chie f. Thus, Rule 16(a) (1)( E)(ii) did not re quire disclosure of the imag e. Although the result may

be diffe rent ha d the g overnme nt intentionally decide d to inject 1 testimony reg ardingthe imag e into cross-e x amination as par t of its case- in-chief

to circumve nt Rule 16, this was not the case here . I n other wor ds, the imag e on the c ellular phone amounted to true re buttal evidence , rathe r than e vidence direc tly supporting the g overnme nt’s case -in-chie f. This is supported by

the fa ct that the imag e did not serve as a ba sis for the g overnme nt’s char g e ag ainst defe ndant. 8L ikewise, Rule 16(a) (1)( E)(iii) did not require disclosure beca use the g overnme nt obtained the imag e by confiscating the cellular phone afte r defe ndant sold it to Craun. Def endant, there fore , did not own or possess the phone at the time the g overnmen t o b t ai n ed it. To establish a Rule 16 violatio n , t here fore , defe ndant must show the imag e was materia l to prepa ring his defe nse under Rule 16(a) (1)( E)(i). To obtain disclosure of a document under Rule 16(a) (1)( E)(i), th e d efe ndant must make a prima facie showing of its materia lity

. United States v. Phillip , 948 F.2d 241, 250 (6th Cir. 1991). Although this court has not authoritatively define d materia lity under Rule 16, it has established “that information which does not counter the g overnme n t ’s case or bolster a defe nse is not materia l ‘mere ly beca use the g overnme nt may

be able to use it to rebut a defe nse position.’” United States

v. Lykins , 428 F. App’x 621, 624 (6th Cir. 2011) ( per curiam ) (quoting United States v. Steve ns , 985 F.2d 1175, 1180 (2d Cir. 1993)). “ Rather, ther e must be an indication that pre- trial disclosure [ of the contested do cu m en t] would have enable d the defe ndant to ‘alter the quantum of proof in his favor ,’ not mere ly that a defe ndant would have been dissuaded from proff ering easily impeacha

ble evidenc e.” Id. (quoting Steve ns , 985 F.2d at 1180); see also United States v . Caro , 597 F.3d 608, 621 (4th Cir. 2010) (“ For the def endant to show mate riality under this rule, ‘[t] here must be some indication that the pretria l disclosure of the dispu t ed ev i d ence would have enable d the defe ndant signific antly to a lter the quantum of proof in his favor .’”) (quoting United States v. Ross , 511 F.2d 757, 763 (5th Cir. 1975) )); but see United States v. Marshall , 132 F.3d 63, 67-70 (D.C. Cir. 1998) (inculpatory

evidenc e may

be discove rable under Rule 16( a)( 1)(E) (i)). Def endant’ s Rule 16(a) (1)( E)(i) materia lity argument fails for two rea sons. First, Rule 16(a) (1)( E)(i) mere ly require s the g overnme nt to disclose information that “alter [s] the quantum of 9proof in [t he defe ndant’s] favor .” Lykins , 428 F. Ap p ’x at 624. The imag e found on the cellular

phone could not alter the quantum of proof in de fenda nt’s favor

. Rather, the imag e tended to a lter the proof in the g overnme nt’s favor by showing defe ndant used other means, b es i d es the website

acc ount alone, to store, a

nd potentially

transmit, child pornog raphy

. Second, “information

. . . is not materia l ‘mere ly beca use the g overnme nt may be able to use it to rebut a defe nse position.’” Lykins , 428 F. App’x at 624-625. Def endant attempted to undermine the g overnme nt’s case by taking the position, during his opening statement, that he never possessed child pornog raphy in any medium other than the website. There fore , he argued, it was less likely the child pornography contained on the website belong ed to him. Had defe ndant known about the imag e, his c ounsel would probably not have e licited testimony about imag es on the phone. Howeve r, the fac t that disclosure of the imag e would have resulted in the “for mulation of a more eff

ective defe nse strateg y ” is insufficient to rende r the undisclosed imag e materia l. Id. at 6 2 5 ; United States v. Dobbins, 482 F. App’ x 35, 42 (6th Cir. 2012). I n Lykins , 428 F. App’x at 624, the defe ndant was char g ed with being a felon in possession of a firea rm. The defe ndant testified that he had not possessed a firea rm since his felony convictions. Id

. at 623. The g overnme nt then questioned the defe ndant about a photogr aph of him holding a rifle other than the one he was char g ed with posses s i n g. Id

. Def ense counsel objected, arg uing the g overnme nt had not di sclosed the photograph unde r the c ourt’s Rule 16 discover y order

. Id. The defe ndant admitted he possessed the rifle in the photogr aph afte r he was convicted of a felony

. Id

. On appe al, a pa

nel of this court c oncluded: As the g overnme nt corr ectly not es , t h e photogr aph at issue depicting a firea rm differ ent from the one defe ndant was c harg ed with possessing , was not esse ntial to the g overnme nt’s case and would not have assisted d efendant in ref uting the 10g overnme nt’s case . The photogr aph was unfavor able to defe ndant b ec ause it

contra dicted his testimony that h e h ad not held or hunted with a g un. Although a chanc e to rec onsider his plan to testify would cer tainly have been benef

i ci al to defe ndant, a Rule 16 violation cannot be sustained based mere ly on an argument that disclosure would have resulted in rec onsideration of defe ndant’s decision to te stify or for mulation of a more e ffe ctive def ense strateg y . Lykins , 428 F. App’ x at 624-625 (inter nal citation omitted). Her e, as in Lykins , the indictment did not include the cellular -phone imag e. Thus, proof of that imag e was not essential to the g overnme nt’s cas e- i n -c h ief. Rather, the g overnme nt soug ht to prove that defe ndant t ransport ed s ev eral imag es containing child pornog raphy by posting them to the website. A dditionally , prese nting the imag e would not have assisted defe ndant in ref uting the g overnme nt’s case . To be sure, the imag e contra dicted defe ndant’s position that the g overnme nt had

no proof that he possessed ch i l d p ornog raphy in any medium besides the website. The mere possibili ty that the defe ndant could have formulated a more eff ective defe nse, had he been awa re of the ce llular phone imag e, is not a basis for finding a Rule 16 violation. Def endant argues that, had the g overnme nt notified him that the cellular telephone contained alleg ed child pornog raphy , he could have more eff ectively cross-e x amined Ag ent L ies. He claims that, if he had reta ined an expert to analy ze the photogr aph, the expert might have deter mined it was not child pornog raphy

. I n which case , he contends he could have rebutted Ag ent L ies’ testimony to the contra ry . This, he ar g ues, re nders the imag e mater ial to his defense

. Even assuming an ex pert would have conclude d the imag e was not child pornog raphy , impeachme nt evidenc e reg arding an imag e not included in the g overnme nt’s case -in-chie f, and that tended to incriminate defe ndant, would not have altere d the overa ll quantum of proof in defe ndant’s favor

. More likely , defe nse counsel would not have questioned Ag ent L ies about the imag e, there by

11avoiding b ri n gi n g it to the jury ’s attention. There fore , the imag e was not materia l to prepa ring a defe nse, and did not implicate Rule 16. Def endant also argues disclosure of the imag e would have aff ecte d his decision to pr ocee d to trial. Howeve r, t his argument mere ly restate s his previous arg ument about what he might have done with fore knowledg e of the imag e. Essentially , defe ndant arg ues that, had he known Ag ent L ies would contra dict has claim about not having ch ild pornog raphy elsewhe re, he would have done something differ ent; namely , pled g uilty

. Ag ain , t h e i m age was not materia l mere ly beca use the g overnme nt might have used it to rebut defe ndant’s position at t ri al

. Fa ilure to know this would

occur in a dvance , there fore , does not r ender the imag e materia l. C.f. United States v. Presser , 844 F.2d 1275, 1285 ( 6th Cir. 1988) (Rule 16 does not re quire pre -trial disclosure of Brady materia l). Even assuming a violation of Rule 16, defe ndant’s failure to reque st less sever e, alterna tive

reme d i es we ak en s his argument that a mistrial was require d. Rule 16 states, if “a party fails to compl y with this rule, the court may . . . prohibit that party from introducing the undisclo s ed evidenc e[ ] or . . . enter any other order that is just u n der the circ umstances.” Fe d. R. Crim. P. 16(d)( 2). A court does not, there fore , nece ssarily abuse its discretion by ref using to decla

re a mistrial when the g overnme nt fails t o turn o v er ev i d ence under the rule. United St ates v. C lark , 385 F.3d 609, 621 (6th Cir. 2004). A trial court should impose “the least sever e reme dy available to cure prejudice ” when fac ed with a potential Rule 16 violation. Maples , 60 F.3d at 247; see also United States v. Dennison , 891 F.2d 255, 259 (10th Cir. 1989); United States v. Bentley , 875 F.2d 1114, 1118 (5th Cir. 1989). L ess

sever e remedies were available to cure the allege d prejudice in this case . For example, defe ndant could have reque sted a conti n u ance to reta in an expert to examine the imag e. Even absent that 12reque st (or even had the court overr uled such reque st, had it been made) , defe ndant failed to ask for an appr opriate limiting or c urative instruc tion. Def endant also arg

ues the g overnm en t violated Fe dera l Rule of Criminal Procedur e 1 6 (a) (1)( G) by failing to provide notice that Ag ent L ies would offe r expert testimony

. T h i s ru l e provides, in per

tinent part: At t h e defe ndant’s reque st, the g overnme nt must g ive to the defe ndant a writ t en summary of any [ex pert] testimony that the g overnme nt intends to use . . . during its case -in-chie f at trial. As discussed supra , defe ndant has failed to show the g overnme nt intended to use Ag ent L ies

as an expert witness in its case -in-chie f to interpre t the imag e. Only during cross-e x amination, when defe nse counsel questioned Ag ent L ies about the disputed imag e, did he express his opinion. Be cause defe ndant failed to show the g overnme nt intended this result, it did not have to pr ovide a summary of Ag ent L ies’ testimony

. 2 A new trial is not justified as a reme dy for discovery violations unless the err or aff ecte d the defe ndant’s “substantial rig hts.” Clark , 385 F. 3 d at 6 2 0-621. I f the err or did not aff ect the defe ndant’s substantial rig hts, the err or is harmless and must be disreg arde d. Fe d. R. Crim. P. 52(a)

. As fully discussed infra , the g overnme nt pres e nte d s tr o n g evidenc e demonstrating defe ndant posted many imag es of child pornog raphy to the website. Def endant admitted he acc essed the website and owned the x con28 user acc ount. Def endant used his persona l email addre ss and phone number to set up the acc ount, there by establishing a firm link betwee n the pictures on the secur e site and his persona l, and likely private, means of el ec t ro n i c comm unication. Def endant had internet

I n any event, it does not appe ar that the prosec utor anticipate d Ag ent L ies’s testimony

. 2 A par ty has no oblig ation to produce something it does not know a bout. 13acc ess at both Gre enhouse and TTC at times when imag es wer e posted to the x con28 acc ount from

those locati o n s . P o s tings cease d when defenda nt was incarce rate d. When considere d ag ainst the strong evidenc e of his g uilt, defe ndant has failed to demonstrate the outcome of the trial would have been differ ent absent testimony reg arding the image. W e t h erefore reje ct defe ndant’s Rule 16 arguments. B. Narvaez ’s Testim ony Def endant next argues the trial court abused its discretion in allowing Nar vaez to testify that defe ndant viewe d pornog raphy on TTC computers. We disag ree . This court revie ws a trial court’s evidentiar y ruling s for an abuse of discretion. United States

v. W hite , 492 F.3d 380, 398 (6th Cir. 2007). “A district court abuses its discretion when it relies on clea rly err o n eo u s fi n d ings of fac t, when it improperly applies the law, or when it employ s an

err oneous leg al standard.” Uni ted States v. Cline , 362 F.3d 343, 348 (6th Cir. 2004) (citations omitted). Howeve r, reversa l is o n l y war rante d “whe re the district court’s errone ous admission of evidenc e aff

ects a substantial rig ht of the party .” W hite , 492 F.3d at 3 9 8 (citing Fe d. R. Evid. 103(a) ). This court has “consistently rec og nized the broad scope of allowable impeachme nt evidenc e and, more importantly perha ps, the signific ant discretion left to the trial court in this are a.” United States v. Markarian , 967 F.2d 1098, 1103 (6th Cir. 1992). A defe ndant’s introduction of evidenc e may rende r his prior acts rele vant for impeachme nt purposes, “thus making admissible what may not have been admissible otherwise” under Fe d. R. Evid. 404(b). See United States v. Jack son , 95 F.3d 1153 (6 th Cir. 1996) (unpublis hed table opinion); United St ates v. Segines , 17 F.3d 847, 856 (6th Cir. 1994) (admitting there tofore inadmissible evidenc e afte r defe nse broac hed topic on 14cross-e x amination). Thus, the gover nment may elicit rebuttal testim ony when a defe ndant m akes

swee ping de nials of ac tivity rele vant to the ca se. Markarian , 967 F.2d at 1103. Thoug h defe ndant did not testify himself, the testimony of his witnesses raised the infere nce that the defe ndant was not likely to have any thing to do with child pornog raphy

. This, in turn, would have sug g ested that someone else was responsible for the imag es on the x con28 user acc ount. The g overnme nt proper ly prese nted Nar vaez’s testimony to rebut this position. I n Markarian , 967 F.2d at 1103, the defe ndant, rathe r than another witness, made a g ener al denial of drug dealing

. Howeve r, this distinction does not chang e the inquiry

. To hold otherwise would allow a defe ndant to insulate his position by calling witnesses to prese nt that position, rathe r than prese nting his own testimony

. Cf. United States v. Newsom , 452 F.3d 593, 601 (6th Cir. 2006) (finding cross- e xa mi n a tion questions to be proper if desig ned to elici t testimony with “any tendenc y ” to make the defe ndant’s witness more or le ss cre dible.). Additionally , the trial cour t properly limit ed the sc ope of N arva ez’s testimony : Now while the testimony that was elicited is – is appropr iate for rele vant conduct, it is not probative of – direc tly of the issues char g ed in the indictment beca use he was not there at the time during the indictment. So just keep that in mind. Be cause we presume that jurors follow their instructions, United States v. Harve y , 653 F.3d 388, 396 (6th Cir. 2011), and the g overnme nt offe red Nar vaez’s testimony for the leg itimate purpose of rebutting defe ndant’s witnesses’ testimony , the trial court did not abuse its discretion in admitting the testimony

.

15C. Suf fi ciency of the Evidence Def endant argues the g overnme nt prese nted insufficient evidenc e for a rational jury to find beyond a re asonable doubt that he committed the cha rg ed cr ime. We disag ree . “A defe ndant claiming insufficienc y of the evidenc e bear s a very heavy burden.” W hite , 492 F.3d at 3 9 3 (i nterna l quotation marks omitted). This court revie ws sufficie ncy of the evidenc e claims to deter

mine whether “any rational trier of fac t could find the elements of the crime beyond

a rea sonable doubt.” Id

. This cour t re v i ew s the “evide nce in the light most favor able to the prosec ution,

. . . g iving the g overnme nt the benef it of all infere nces that could rea sonably be drawn from the testimony .” Id

. “[C] ircumstantial evidenc e alone can sustain a g uilty verdic t and

. . . [such] evidenc e need not remove ever y rea sonable hy

pothesis except that of g uilt.” United States v. Stone , 748 F.2d 361, 362 (6th Cir. 1984). The court must resolve all conflicts in testimony in favor of the verdic t. United States v. Amos , 423 F. App’ x 541, 548 (6th Cir. 2011). Under 18 U.S.C. § 2252(a) (1), the g ov er n m en t must prove: “(1) the defe ndant knowing ly transporte d or shipped, (2) in interstate or fore ign commerc e, (3) any visual depiction involving the use of a mi nor enga g ing in sexually expli cit conduct.” United St a t es v. Chambers , 441 F.3d 438, 449 (6th Cir. 2006). Def

endant solely argues that the evidenc e was insufficient to support the jury ’s finding that he, rather than a nother pe rson, posted the imag es to the xcon28 website ac count. The g overnme nt presente d strong circ umstantial evidence linking defe ndant to the x con28

user acc ount. Ag ent L ies confir med def endant ha d a prior c onviction, and was twe nty -eig ht y ear s old when the x con28 acc ount was cre ated. The g overnme nt proved the x con28 acc ount was set up with the email addre ss phillipclingman@y ahoo.com. Def endant adm i tted he owned this email addre ss. Def

endant also admitted he previously owned the cellular phone linked t o the acc ount. 16Def

endant’ s email addre ss rec eived e mails from the we bsite, and def endant a cknowledg ed he had visited the website. The g ov er n ment also prese nted sufficie nt evidenc e establishing defe ndant uploaded the imag es t o the x con28 account. I mag es were uploaded from both TTC and G re en h o u s e computers during times when defe ndant had internet acc ess from those org anizations. After d efe ndant left TTC, uploading from that location cea sed. L ikewise, logins to the acc ount stopped, and imag es did not appea r on the acc ount while defe ndant was incar cer ated. Finally , an i m age on the x con28

acc ount contained the same distinctive lettering , “MDMNF I L I ,” found on an imag e in the phone that defe ndant previously owned. This evidenc e provided a sufficie nt basis for the jury to conclude that defe ndant was r esponsible for postingthe imag es to the xcon28 user ac count. Def endant p re s ented rebuttal evidenc e showing he may not have uploaded imag es to the website on cer

tain dates. Specifica lly , one imag e was uploaded on Dec ember 21, 2007, a TTC student holiday , and students g ener ally did not have computer acc ess on holiday s. Another imag e

was uploaded on J uly 2, 2008. Craun testified he spent that afte rnoon with defe ndant and defe ndant did not acc ess a computer duringat that t ime. Finally , there was an unsucce ssful login attempt to the x con28 acc ount during defe ndant’s incar cer ation, showing another person at least attempted to

acc ess the x con28 acc ount. Howeve r, this court may conclude t h e jury discounted defe ndant’s rebuttal testimony and cre dited the testimony that favor ed the g overnme nt. Amos , 423 F. App’x at 548. When con s i d er ed in light of the strong evidenc e supporting defe ndant’s conviction, this evidenc e does not fatally

undermine the jury ’s ver dict.

17D. Sentencing

Def endant additionally argue s t he trial court abused its discretion in denying defe ndant’s reque st for a downwar d varia nce. We disag ree . The g overnme nt conce des the trial court did not foll o w t h e p ro cedur e require d to compel plain-er ror revie w. See United States v. Bostic , 371 F.3d 865, 872 (6th Cir. 2004). Thus, this court revie ws defe ndant’s proce dural challeng e to the sentenc e for an abuse of discretion. United States v. Torres-Palos , 407 F. App’ x 934, 936 (6th Cir. 2011). Gene rally , this court presumes the district court knew and followed the law as to the advisory nature of the Guide lines. United States v. Hook er , 456 F. App’x 549, 557 (6th Cir. 2012); United States v. Gale , 468 F.3d 929, 941 ( 6th Cir. 2006). The trial c ourt nee d not state on the re cord that the S entenc ing Guidelines are advisory

. Uni t ed S t a t es v. Bailey , 488 F.3d 363, 366-367 (6th Cir. 2007). “To rebut this presumption, the defe ndant must marshal evidenc e that the district court treated the Guidelines as mandatory .” Hooke r , 456 F. App’x at 557 (interna l quotation marks omitted). Def ense counsel argued at leng th that the § 3553 fac tors favor ed a downwar d varia nce or a minimum s entence. Be fore sentenc ing, the trial court discussed the sentenc ing g uideline

ca lculations, which, as the court stated, “re ally boil[ ] down to the 3553 fac tors.” The court considere d defe ndant’s past convictions , his abusive childhood, and noted the g uidelines

reco m m en d ed a sentenc e in the highe st possible cate g ory . The court also discussed defe ndant’s crime, stating that actions like defe ndant’s cre ate a marke t for child pornography and fuel its production. This, in turn, leads to the victimization of children, which often l eads to a li fetime of mental debili tation. The court discussed t he n eed to protec t the communi ty , the need to impose a 18sentenc e that promotes uniformity , and the need to impose a sentenc e proper ly tailored to punish

defe ndant for his crime. The trial court twice mentioned, in discussing the prese ntence investigation repor t and def endant’ s offe nse leve l, that the g uidelines are advisory

. The trial c ourt then addr essed de fense counsel’s policy arguments: The defense has arg ued that the guidelines for child pornog raphy are unrea sonably harsh and that they -- the g uidelines [for] actua lly inflicting phy sical sexual injury to a child are lower than these, than these g uidelines that deal with child pornog raphy

. And I think those are issues for the policy -make rs, for the cong ress, those are arguments that should best be presented to those who craft the gu idelines and who take that infor

mation to recommend c hang e. I ’m not insensitive to those things but I do think that -- and I do not fault anyone for making them, but Ithink those are policy matters that g o to -- to entities other than the cour t. The c ourt conc luded: And this afte rnoon considering all of those fac tors, and notwithstanding y our ear nest plea to the court, the court finds that the statutory max in this case , which is one-third below the minimum g uideline rang e, is an appropr iate sentenc e. And the court would impose that 240 month sentence. Def endant has failed to demonstrate t h e t ri al court considere d the sentenc ing g uidelines mandatory

. Rather, rea d in context, the trial court’s statement mere ly shows it reje cted defe ndant’s policy -base d arguments as a rea son to vary from the g uidelines. The trial court stated, despi te defe ndant’s arg ument , i t considere d 240 months’ imprisonment an “appropriate s entenc e,” which shows it found the sentenc e suitable based on the particula r fac ts of this case . Fina l l y , while generally discussing the case , the trial court twice stated that the guidelines are advisory

. T ak en toge ther, the tria l court’s c omments do not show it considered the guidelines mandatory

.

19E. Pr obation Con dition

Def endant finally argues that the trial court err ed in imposing, as a condition of his supervised rele ase, that he ref rain from acc ess i ng internet-c apable device s. Howeve r, we ref rain from dec iding this issue at this time because it is premature. See United States v. Evers , 669 F.3d 645, 662 (6th Cir. 2012) (noting that an appea l w as premature “in light of the 235-month sentenc e that [t he defe ndant] has y et to serve [and] the leewa y aff orded the probation depar tment in tailoring ” the spec ial conditions). For the fore g oing r easons, we AF F IRM the judg ement of c onviction and sentenc e, but ref rain fr om passing judg ment on the condition of super vised rele ase.

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