RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0087p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANDREW ALLEN MEEK,

Defendant-Appellant.

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No. 21-3588

Appeal from the United States District Court for the Northern District of Ohio at Youngstown.

No. 4:20-cr-00269-1—Sara E. Lioi, District Judge.

Decided and Filed: April 26, 2022

Before: GUY, THAPAR, and READLER, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Travis A. Rossman, ROSSMAN LAW, PLLC, Barbourville, Kentucky, for 

Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for 

Appellee.

_________________

OPINION

_________________

CHAD A. READLER, Circuit Judge. Andrew Meek appeals his 87-month sentence for 

two child pornography offenses. He says that the district court erred by withholding a two-level 

reduction in his offense level under U.S.S.G. § 2G2.2(b)(1), and by imposing a $5,000 special 

assessment for each count of conviction. We disagree and affirm Meek’s sentence.

>
No. 21-3588 United States v. Meek Page 2

I.

Meek was fired from his job when “pictures of young girls in underwear, and clothed” 

were discovered on his work computer. Losing his job, however, became the least of Meek’s 

concerns. Upon receiving a tip from Meek’s former co-worker, FBI agents verified that Meek’s 

email contained clothed and partially clothed images of girls ages five to fourteen. Agents also 

found eight images and two videos of child pornography on Meek’s other electronic devices. 

Meek admitted to viewing child pornography for nearly a decade. And he also confessed to 

downloading child pornography from peer-to-peer file sharing networks such as LimeWire, 

adding that he may have inadvertently shared and traded it too.

A federal grand jury indicted Meek for receiving and distributing child pornography in 

violation of 18 U.S.C. § 2252(a)(2) and possessing child pornography in violation of 18 U.S.C. 

§ 2252A(a)(5)(B). Meek pleaded guilty. At sentencing, he asserted that he should receive a 

two-level reduction in his offense level pursuant to U.S.S.G. § 2G2.2(b)(1) because his conduct 

was limited to receiving or soliciting child pornography. The district court disagreed and settled 

on a Guidelines range of 97 to 121 months’ imprisonment. From there, the court varied 

downwards, sentencing Meek to 87 months’ imprisonment. It also ordered Meek to pay two 

mandatory $5,000 special assessments (one for each count of conviction) pursuant to the Justice 

for Victims of Trafficking Act, 18 U.S.C. § 3014.

II.

Meek challenges his sentence on two grounds. One, that the district court should have 

applied the § 2G2.2(b)(1) reduction. And two, that the district court erred by not considering his 

ability to pay before imposing the $10,000 in special assessments. 

Section 2G2.2(b)(1) Reduction. To qualify for § 2G2.2(b)(1)’s two-level reduction, a 

defendant must make three showings, each by a preponderance of the evidence. United States v. 

Shepard, 661 F. App’x 348, 351 (6th Cir. 2016). First, he must have a base offense level of 22. 

U.S.S.G. § 2G2.2(b)(1)(A). Second, his conduct must have been limited to “receipt or 

solicitation of material involving the sexual exploitation of a minor.” Id. § 2G2.2(b)(1)(B). 

And third, he must not have “intend[ed] to traffic in, or distribute, such material.” 
No. 21-3588 United States v. Meek Page 3

Id. § 2G2.2(b)(1)(C). Although the district court’s ultimate Guidelines calculation is a legal 

question we review de novo, we review the underlying factual findings for clear error. United 

States v. Hodge, 805 F.3d 675, 678 (6th Cir. 2015). That latter manner of review is highly 

deferential to the district court; we will reverse only if on the entire evidence we have “the 

definite and firm conviction that a mistake has been committed.” United States v. Fleischer, 

971 F.3d 559, 567 (6th Cir. 2020) (internal quotation marks omitted).

We see no error in the district court’s denial of the § 2G2.2(b)(1) reduction. While Meek 

has a base offense level of 22, he fails to meet the second benchmark necessary for a 

§ 2G2.2(b)(1) reduction. Three admissions from Meek permitted the district court to conclude 

that Meek’s conduct was not limited to the “receipt or solicitation of material involving the 

sexual exploitation of a minor.” During an interview with investigators, Meek admitted to using 

LimeWire at one point to download child pornography during the ten-year period charged in the 

indictment, an indication that Meek had the opportunity to distribute child pornography through 

LimeWire. That admission alone customarily is sufficient to support the denial of a 

§ 2G2.2(b)(1) reduction. See Shepard, 661 F. App’x at 354; United States v. Conner, 

521 F. App’x 493, 500 (6th Cir. 2013); United States v. Bolton, 669 F.3d 780, 782–83 (6th 

Cir. 2012) (per curiam); United States v. Pizzino, 419 F. App’x 579, 582 (6th Cir. 2011); United 

States v. Darway, 255 F. App’x 68, 71–72 (6th Cir. 2007). Likewise, at his sentencing hearing, 

Meek denied intending to distribute child pornography and claimed he had “made every attempt” 

to “actively shut off” LimeWire’s “automatic sharing” to be “sure that [he] was not . . . sharing 

it,” a tacit admission that sharing was possible at some point when he used LimeWire. And 

Meek told investigators that he may have inadvertently shared or traded child pornography, a 

hint that Meek may have made that pornography accessible to others. From this record, we have 

no “definite and firm conviction” that the district court erred in determining that Meek’s conduct 

was more extensive than the mere “receipt or solicitation” of child pornography. Fleischer, 

971 F.3d at 567; U.S.S.G. § 2G2.2(b)(1).

Meek opposes this result on two grounds. Acknowledging that he used LimeWire to 

download child pornography, Meek nonetheless contends that the government failed to introduce 

specific evidence that he shared that illicit material. Meek’s admissions alone, however, 
No. 21-3588 United States v. Meek Page 4

permitted the district court to reject the reduction in offense level. Meek next argues that the 

district court “implicitly recognized” that he did not distribute child pornography when it 

sustained his objection to a distribution enhancement under § 2G2.2(b)(3)(F). True, it is 

“somewhat unusual” for a district court to withhold a § 2G2.2(b)(1) reduction while also 

declining to impose a § 2G2.2(b)(3) distribution enhancement. See Shepard, 661 F. App’x 

at 351. Yet a defendant “is not necessarily entitled” to the former just because he did not 

receive the latter. Id. at 353–54 (citing Hodge, 805 F.3d at 684; United States v. Fore, 507 

F.3d 412, 415–16 (6th Cir. 2007)). The two provisions cover separate conduct, meaning denying 

one does not require imposing the other. For today’s purposes, application of § 2G2.2(b)(1) 

turns on whether Meek’s conduct was limited to mere receipt or solicitation of child pornography 

as opposed to, say, distribution or production. And the application of § 2G2.2(b)(3)(F), on the 

other hand, turns on whether he “knowingly engaged in distribution.” See also United States v. 

Abbring, 788 F.3d 565, 567–68 (6th Cir. 2015). In other words, it is conceivable that a 

defendant could unknowingly distribute child pornography, making him ineligible for both a 

§ 2G2.2(b)(1) reduction and a § 2G2.2(b)(3)(F) enhancement. See Hodge, 805 F.3d at 684; 

U.S.S.G. § 2G2.2 cmt. n.2. That was the district court’s conclusion here. We agree.

JVTA Special Assessment. Meek also claims that the district court erred in imposing a 

$10,000 special assessment under 18 U.S.C. § 3014. As Meek did not challenge that assessment 

before the district court, we review for plain error. See United States v. Wandahsega, 

924 F.3d 868, 889 (6th Cir. 2019) (quoting United States v. Vonner, 516 F.3d 382, 385 (6th 

Cir. 2008) (en banc)); see also Fed. R. Crim. P. 52(b). Doing so requires Meek to demonstrate 

(1) an error that was (2) “obvious or clear,” (3) detrimental to his “substantial rights,” and 

(4) “affected the fairness, integrity, or public reputation of the judicial proceedings.” Vonner, 

516 F.3d at 386 (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).

Meek’s convictions arose under title 18, chapter 110 of the United States Code. See 

18 U.S.C. §§ 2252(a)(2), 2252A(a)(5)(B). Section 3014 in turn requires district courts to impose 

a $5,000 special assessment “on any non-indigent person . . . convicted of an offense” under 

chapter 110. For a non-indigent defendant guilty of a qualifying offense, the assessment is 
No. 21-3588 United States v. Meek Page 5

mandatory. United States v. Shepherd, 922 F.3d 753, 757 (6th Cir. 2019). But the assessment 

may not be levied against an indigent defendant. Id.

So how does a district court go about determining indigency? By considering both 

(1) whether the defendant currently is impoverished and (2) whether the defendant has “the 

means to provide for himself so that he will not always be impoverished[.]” Id. at 758. With 

predicting the future an imperfect science, district courts should weigh several factors in deciding 

whether a defendant “will not always be impoverished.” Id. They include: whether the 

defendant has court-appointed counsel; the defendant’s educational and vocational training and 

the associated earnings potential, including the ability to earn income while incarcerated; the 

defendant’s expected age at release; the defendant’s potential years of employability after 

release; and the length of time post-release that the defendant will have to pay the special 

assessment. See id. at 759–60; Wandahsega, 924 F.3d at 889. A district court need not make an 

“explicit finding” of non-indigency before imposing the assessment. Shepherd, 922 F.3d at 760. 

It is enough that the “judge listened to each argument, considered the supporting evidence, was 

fully aware of the defendant’s circumstances, and took them into account in sentencing him.” Id.

(cleaned up).

Application of these factors confirms that the district court properly imposed the § 3014 

special assessment. At sentencing, the district court explained that it had reviewed Meek’s 

financial situation as detailed in the presentence investigation report. That information suggested 

that, at least in the short term, Meek would be challenged to pay the special assessments. He was 

unemployed (due to his incarceration), had court-appointed counsel, no monthly income, a very 

modest checking account, and personal liabilities including a $7,000 vehicular loan, $5,000 in 

personal loans, and approximately $50,000 in student loan debt. But we must also consider 

Meek’s long-term ability to support himself. See Shepherd, 922 F.3d at 758. On that score, 

Meek is a college graduate who has worked in a number of fields, including as a certified armed 

security guard and ordained minister, earning more than $2,000 per month before his arrest. As 

the district court put it, Meek “is a hard worker” who “has been employed all of his adult life.” 

With this strong track record, we expect that Meek will resume these efforts upon his projected 

release in July 2026, when he will be 54. See Find An Inmate, Bureau of Prisons, 
No. 21-3588 United States v. Meek Page 6

https://www.bop.gov/mobile/find_inmate/byname.jsp#inmate_results (last accessed 

Apr. 25, 2022) (search “Andrew Meek”). And because he was in good health when sentenced 

and has no dependents, it is a fair assumption that Meek could pay the § 3014 assessment within 

the 20-year statutory window, in part, through income earned while he is incarcerated. See 

United States v. King, 466 F. App’x 484, 489–90 (6th Cir. 2012). Under any standard of review, 

Meek fits comfortably within the realm of defendants whom we have deemed to be not indigent. 

See United States v. Olmstead, No. 21-1051, 2021 WL 5014358, at *3 (6th Cir. Oct. 28, 2021) 

(collecting cases).

Meek makes much of the district court’s decision to waive a separate fine because Meek 

was unable to pay it. Doing so, however, “does not change our analysis.” See Shepherd, 

922 F.3d at 759 n.1. If anything, the district court’s decision to waive a separate fine is 

consistent with a current inability to pay and leaves Meek better positioned to pay the § 3014 

assessments. The district court could have waived the fine precisely because it levied the § 3014 

assessments. We are thus satisfied that the district court “was fully aware of [Meek’s] 

circumstances and took them into account in sentencing him.” Id. at 760 (cleaned up).

Invoking United States v. Fowler, 956 F.3d 431, 438 (6th Cir. 2020), Meek lastly 

contends that the district court committed plain error because it made no specific findings about 

his indigency. But both Shepherd (on de novo review) and Wandahsega (on plain error review)

rejected the argument that a district court must specifically find the defendant not indigent before 

imposing the § 3014 special assessment. Shepherd, 922 F.3d at 760; Wandahsega, 924 F.3d 

at 888. Rather, we held that § 3014 “requires no such finding” when, as here, the record shows 

that the district court considered the relevant facts and arguments. Shepherd, 922 F.3d at 760; 

see also Wandahsega, 924 F.3d at 888.

After Shepherd and Wandahsega, we decided Fowler, the case Meek emphasizes. 

Fowler, to its credit, began by acknowledging that Shepherd and Wandahsega “constitute 

binding case law.” 956 F.3d at 439. From there, however, the opinion veered off on a course at 

odds with those earlier cases. For example, Fowler instructed that a district court must “ensure 

that the defendant is not indigent” even when the defendant does not challenge the § 3014 special 

assessment, id., a conclusion that fails to honor “binding case law” holding that because the 
No. 21-3588 United States v. Meek Page 7

§ 3014 special assessment “is akin to a fine,” a defendant seeking to avoid the special assessment 

bears the burden of proving his indigence, see Wandahsega, 924 F.3d at 889 (citing U.S.S.G. 

§ 5E1.2). Likewise, Fowler found plain error in the fact that the district court there “fail[ed] to 

make any findings on indigency or Fowler’s ability to pay,” 956 F.3d at 438, despite 

Wandahsega’s instruction that factual findings as to non-indigence are unnecessary “where it can 

be inferred that the district court considered the defendant’s ability to pay and other factors 

required by law,” 924 F.3d at 888 (citation omitted). On these points, Fowler is not binding in 

our Circuit. Our familiar practice in instances where “a later decision of this court conflicts with 

one of our prior published decisions” is to leave our Court “bound by the holding of the earlier 

case,” Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001), a conclusion we have 

previously acknowledged is true as to the conflicts created by Fowler, see United States v. 

Goodin, 815 F. App’x 860, 870 n.3 (6th Cir. 2020) (noting that “to the extent Fowler requires the 

district court to make specific findings on the record as to the facts surrounding a defendant’s 

indigency, it is at odds with our decisions in Shepherd and Wandahsega” and “those earlier 

opinions are binding”). One panel of this Court, in other words, cannot overrule another, let 

alone two others. See United States v. McKinnie, 24 F.4th 583, 589 (6th Cir. 2022).

Setting aside Fowler’s command that the district court make specific findings on 

indigency, at most Fowler holds that a “district court plainly err[s] . . . by failing to address 

[a defendant’s] finances and ability to pay before imposing the assessment.” See 956 F.3d 

at 440. But courts must apply that language harmoniously with Wandahsega’s pronouncement 

that “where it can be inferred that the district court considered the defendant’s ability to pay and 

other factors required by law,” the district court may impose the special assessment even in the 

absence of factual findings regarding non-indigence. 924 F.3d at 888 (citation omitted); see also 

Shepherd, 922 F.3d at 760. And courts must similarly apply Wandahsega’s holding that the 

burden of raising and establishing indigency falls squarely in the defendant’s lap. See 924 F.3d 

at 889–90.

Read against the backdrop of Shepherd and Wandahsega, we conclude that Fowler’s 

“failing to address” language refers to a case where the district court “completely” failed to 

consider the defendant’s ability to pay. 956 F.3d at 438. Indeed, Fowler distinguished itself 
No. 21-3588 United States v. Meek Page 8

from both Shepherd and Wandahsega on the facts, noting that neither case had resolved whether 

a district court plainly errs by “fail[ing] completely” to consider the defendant’s financial 

circumstances. Id. at 439. Fowler arose in a unique setting, where the district court “did not 

entertain arguments, consider evidence, or say anything to indicate that it took the defendant’s 

circumstances into account” before imposing the assessment. Id. at 440. Nor was there any 

mention in Fowler that the district court had reviewed the relevant financial information from the 

defendant’s presentence report. See id. at 439–40.

As a practical matter, one would expect that cases like Fowler are few and far between. 

A presentence report, after all, must include “the defendant’s financial condition.” Fed. R. Crim. 

P. 32(d)(2)(A)(ii). And district courts customarily review the presentence report and frequently 

adopt the report’s factual findings. That practice seemingly underlies our decisions in Shepherd

and Wandahsega, which inferred that the district court had considered the presentence report’s 

factual account of the defendant’s finances. See Shepherd, 922 F.3d at 759–60; Wandahsega, 

924 F.3d at 889. In the ordinary case, then, we ask, as we did in Shepherd and Wandahsega,

whether the district court has “done its duty” by familiarizing itself with the defendant’s financial 

circumstances and “[taking] them into account.” See Shepherd, 922 F.3d at 760; see also 

Wandahsega, 924 F.3d at 888. Here, the district court stated on the record that it had reviewed 

the presentence report’s description of Meek’s financial situation and adopted those facts in the 

statement of reasons attached to the judgment. We are satisfied that the district court was well 

aware of Meek’s financial circumstances, and that its imposition of the special assessment is in 

line with both Shepherd and Wandahsega.

All said, we see no plain error by the district court.

* * * * *

We affirm.