NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0246n.06 No. 09-6028 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. MATTHEW STEWAR D, Def endant- Appellant. ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI ST RI CT COURT FOR THE WES TERN DI STRI CT OF KENTUCKY

Be fore : SUTTON and STRANCH, Circuit J udg es; WEL L S, District J udg e. * JANE B. STRANCH , Circuit J udg e. Matthew Steward challeng es the substantive

rea sonabl en ess of the 70-month prison sentenc e the district court imposed afte r Steward pleade d g uilty to rec eiving and possessing child pornog raphy t h at had been transporte d by computer in inters ta te c o mm e r c e , in v io la

tion of 18 U.S.C. §§ 2252A(a )(2) (A), 2252A(a )(5) (B ), and 2252A(b)( 1) & (2). Steward fac ed a five-y ear mandatory minimum sentenc e on the rec eiving char g e, 18 U.S.C. § 2252A(b)( 1), and his a dvisory g uideline rang e was 97 to 121 months. T he district c ourt g rante d

a downwar d varia

nce to 70 months, but Steward contends the district court should have imposed the statutory minimum sentenc e of 6 0 m o n t h s. Concluding that the 70-month sentenc e was substantively

rea sonable, we AF F IRM

.

The Honora

ble L esley Wells, United States District J udg e for the Norther n District of Ohio, * sitti ng by desig nation. 1I. F ACTS

I n M a r c h 2 0 0 5 , a s p e c ia l a g e nt with I mmigra tion and Custom Enforc ement’s (“I CE’s”) Cy b e r Crime Unit in Texas discovere d child p o rn o gra p h y o n a file sharing network that he trac ed to a computer located at the Steward residenc e in Kentucky

. After furt h er i n v es t iga tion, I CE ag ents lear ned that Matthew S tewar d, then 19 y ear s old, lived at t he residence with his pare nts. On M ay 20, 200 5 , I CE ag ents executed a sear ch war rant at the residenc e. Steward admitted that he downloaded child pornog raphy throug h a file-sha ring prog ram, but the ag ents did not arr est him that day

. The ag ents seized two computers and compac t discs. Subsequent fore nsic analy sis reve aled 67 imag es and 22 videos of child pornog raphy on the hard drive of one of the co m p u t er s and an additional 12 imag es and 7 videos of child pornog raphy on compac t dis cs. At least one video depicted t h e b o n d age an d rape of a fema le child under 10 y ear s of age

. Another video more than thirty minutes in leng th showed a prete en fema le eng ag ing in various sexual acts with an adult male. The gove rnment l aunche d the criminal prosec ution with the fil ing of a criminal complaint

on October 18, 2005. During the detention hear ing on October 20, the mag istrate judge lear ned that Steward obtained a sec ond computer put tog ether with used parts a fter ag ents executed the sear ch

war rant in May 2005. The mag istrate judge order ed I CE to conduct fore nsic analy sis on the second computer. I CE found that Steward had downloaded an additional 82 imag es of child pornog raphy

. The Second Superse d in g I n d ic tment char g ed Steward with one count eac h of distribution and

re ce i p t of child pornog raphy and two counts of poss ession of child pornog raphy

. The indi ct m en t also containe d a count f

or cr iminal forfe iture. I n a plea ag ree ment, Steward a g ree d to plead g uilty to the rec eiving and possession counts in exchang e for

the g overnme nt’s dismiss al of the two r emaining counts. The g overnme nt ag ree d

2to rec ommend a three -leve l reduc tion for acc eptanc e of responsibility and a sentenc e at the low end

of the advisory g uidel i n e rang e. The g overnme nt also ag ree d to allow Steward to argue for a sentenc e below the advisory g uideline ra

ng e. 1 St e war d fac ed a statutory mandatory minimum sentenc e of 60 months on the re c e iv in g c o u n t. Wit h a total offe nse level of 30, and a criminal history cate g ory of I , the advisory g uideline rang e was 97 to 121 months. The district court considere d the prese ntence repor t, the advisory g uideline rang e , th e parties’ leng thy sentenc ing memoranda , two psy cholog ical evalua tions of Steward, numerous letters written to the court by family members and friends on Steward’ s behalf , the testimony of Steward’ s mother, Steward’ s allocution, and the arguments of the attorney s. Steward expressed remorse and asked for another chanc e. His attorney as ked for the minimum sentenc e of 60 months, contending that a highe r sentenc e would be too punitive to me et the g oals of sentenc ing under 18 U.S.C. § 3553(a)

. The g overnme nt reque sted a sentenc e of 97 months, noting that if the g overnme nt had not dismiss ed the distribution count and Steward had been convicted of it, his g uideline rang e would have been much hig her w ith a sentenc e potentially twice a s long. The district court grante d a downwar d varia nce and imposed a term of 70 months of imprisonment on eac h count, to run concurre n t l y , and 10 y ear s of supervised rele ase with specia l

The parties ag ree d at t he guilty plea hearing that Steward w ould waive his rig ht to appea l 1 the conviction, but not the sentenc e. They modified the plea ag ree men t , and the district court advised Steward acc ording ly

. At sentenc ing, howeve r, defe nse counsel err oneously stated that Steward waived his rig ht to appea l the sentenc e, and Steward executed a waiver to that eff ect at the court’s r equest. The g overnme nt ag ree s with Steward on appea l that he did not waive the rig ht to appea l the sentenc e. Consequently , the waive r issue is moot and we do not conside r it.

3conditions. The court did not require pay ment of a fine or restituti o n , but the court did impose a specia l assessment of $200. II. ST ANDAR D OF REVIEW “The touchstone of appellate revie w of a dist ri ct co u rt’s sentenc ing decision is

rea sonablene ss, a conce pt that has both a proce dural and a substantive component.” United States

v. Gunter , 620 F.3d 642, 645 (6th Cir. 2010) (citing Gall v. United States , 552 U.S. 38, 51 (2007))

. Be cause Steward contends only that the district court’s sentenc e was substantively unrea sonable, we revie w for an ab u s e o f discretion. Id. I n selec ting a sentenc e, a district court must consider the fac tors listed in 18 U.S.C. § 3553(a) and choose a sentenc e “suff icient, but not g reater than nece ssary to comply with” t hose fa ctors. Id. at 647. A s entenc e will be deemed subst antively unrea sonable if the district court selec ts the sentenc e arbitra rily , bases the sentenc e on impermissible fac tors, fails to consider pertinent § 3553(a) fac tors, or g ives an unrea sonable amount of weig ht to any pertinent fac tor. Id. Whil e we apply a presumption of reasonable ness to a sentence within the guideline rang e,

we do not apply a presumption of unrea sonablene ss to a sentenc e outside the g uideline rang e. United States v. Henry , 545 F.3d 367, 384-85 (6th Cir. 2008). Rather, we take into a ccount the totality of the circ umstances, including the extent of any varia nce from the g uideline rang e, and we g ive “due defe renc e to the district court’s decision that the § 3553(a) fac tors, on the whole, justify the extent of the varia

nce[]” from the g uideline rang e. Id. Our rea sonable conclusion that a differ ent sentenc e is appropria te is not alone suffic ient to justi fy reve rsal. Id.

4III. DISCUSS ION

Steward contends that his 70-month prison sentenc e was g reater than nece ssary to satisfy the sentenc ing considerat i ons of § 3553(a)

. He challeng es comments the district court made at sentenc ing conce rning Steward’ s allocution, his mother’s testimony , and letters the court rec eived

on Steward’ s behalf

. Steward believes the comments indicate the district c ourt g ave unrea sonable weig ht to a perc eived lac k of appr eciation for the ser iousness of the off ense a nd respe ct for la

w. Having car efully revie wed the district c ourt’s comments, we are not convince d the district court g ave undue weig ht to the seriousness of the offe nse. I n isolation, the court’s comments might

seem harsh, but rea d in the context of the entire rec ord, the rema rks responde d direc tly to an attitude

ex presse d in some of the letters and in some portions of the testimony tending to minimi ze t h e seriousness of Stewa

rd’s c onduct in rec eiving , possessing, a nd viewing child pornog raphy

. The district court discussed all of the § 3553(a) sentenc ing fac tors, including the nature and circ umstances of the offe nse; Stew a r d ’ s h is to r y a n d c h a r acte ristics; the need to ref lect the seriousness of the offe nse, promote respe ct for the law and provide just punishment for the offe nse; the need to deter future criminal conduct; the need to protect the public; the need to provide for Steward’ s reha bilitation, and the kinds of sentenc es av ai l ab l e. T he court expressly rec og nized its duty to deter mine a re asonable sentenc e not g reater than ne cessa ry to meet sentenc ing obje ctives. The district cour

t ultim ately

deter mined that a sente nce of

97 months at the low end of the advisory g uideline rang e was too long, but the s tatut o ry minimum sentenc e of 60 months was too short. The district judge rec og nized that Steward would have fac ed a far lon ger s en tence if the g overnme nt had not ag ree d to dismiss the distribution char g e. The court was conce rned wi t h t he larg e number of child pornog raphy imag es Steward d o wnl oaded, as well as Steward’ s conduct in

5obtaining a second computer and downloading more child pornog raphy even afte r I CE ag ents seized

comput er s fr o m h is pare nts’ home during execution of a sear ch war rant. The court also found, howeve r, that a term of 97 months was unnece ssary to deter Steward from future criminal conduct, Steward had probably lear ned from the experience , Steward was “a lot y oung er than 19 mentally and developmenta lly ,” an d t he psy cholog ical evidenc e confirme d Steward suffe red from depre ssion which made him less likely to understand and control his conduct. Contrary to Steward’ s argument, the district court considere d Steward’ s age , his depre ssion and psy cholog ical evalua tions, his expressed re morse, and his lac k of a c riminal history

. We conclude the district court did not abuse its discretion in choosing an imprisonment term of 70 months, which was 27 months below the low end of the advisory g uideline rang e and only 10 months highe r than the statutory minimum sentenc e. The court considere d all of the § 3553(a) sentenc ing fac t o rs , without g iving undue weig ht to the seriousness of the offe nse. We g ive “due defe renc e to the district court’s decision that the § 3553(a) fac tors, on a whole, justify the extent of the var iance [] ” fr om the g uideline ra ng e. Henry , 545 F.3d at 385. For all of these r easons, we AF F IRM the sentenc e as substantively rea sonable.

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