NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0017n.06

No. 20-4229

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT L. HUDSON,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF 

OHIO 

Before: GIBBONS, READLER, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge. Before sentencing, defendants must file written objections to 

information in their presentence reports that they find inaccurate. Fed. R. Crim. P. 32(f)(1). If a 

defendant fails to object to a factual statement in the report, a district court at sentencing may treat 

this “undisputed portion” as a “finding of fact.” Fed. R. Crim. P. 32(i)(3)(A). This case shows 

why these rules exist. Robert Hudson pleaded guilty to receiving child pornography. According 

to his presentence report, Hudson confessed to the police that he had sexually abused two children. 

The report thus proposed that Hudson receive a sentence enhancement for “engag[ing] in a pattern 

of activity involving the sexual abuse or exploitation of a minor[.]” U.S.S.G. § 2G2.2(b)(5). 

Hudson did not object to his presentence report, so the government did not introduce evidence of

his sexual abuse at sentencing. On appeal, though, Hudson argues that the court wrongly relied

on the presentence report alone without putting the government to its proof. Because of his failure 
No. 20-4229, United States v. Hudson

2

to object to the report, however, the district court could rely on it. We thus affirm Hudson’s 

sentence.

I

Kik Messenger, a mobile app, allows people to communicate with one another and share 

photos and videos over their phones. In 2018, FBI agents learned that a user of this app had been

distributing child pornography. A search of this person’s residence revealed that he had 

communicated with, and sent child pornography to, another Kik user who went by 

“starlesdreamer” and who suggested that he lived in Ohio. Over the course of their conversations, 

these two individuals discussed abusing children and opined on the best methods to gain access to

them in order to do so. Starlesdreamer also boasted to once having sexual contact with a 12-yearold boy (whom we will refer to as “Minor A”). He further asserted that he had attempted to “play” 

with the private parts of another infant boy but that the infant had been too young. (We will refer 

to this infant as “Minor B.”)

Investigators subpoenaed Kik for information about starlesdreamer’s account. They 

learned that this account had been accessed by IP addresses at the houses of Hudson’s mother and 

aunt in West Carrollton and Dayton, Ohio. They also learned that the accountholder had chosen 

the profile name “R H” and that the email address associated with the account had posted a story 

on a different website under the name “Robert Hudson.” They lastly learned that the West 

Carrollton Police Department had been investigating Hudson for sexual abuse.

On January 18, 2019, the police executed a search warrant at Hudson’s Dayton home and 

seized his phone and other electronic devices. His phone had been used to access the 

starlesdreamer account, to download child-pornography images, and to search the internet for

pedophilia-related topics. Investigators later obtained a warrant to search Hudson’s Google and 
No. 20-4229, United States v. Hudson

3

email accounts and found additional internet searches about pedophilia and about how to seek 

psychiatric help for pedophilic urges.

During the search of his home, Hudson agreed to an interview with the police. He told 

investigators that he had exchanged child pornography with other Kik users and had discussed

ways to lure children into engaging in sexual activity. Hudson also admitted to having sexual 

contact with Minors A and B. He acknowledged his longstanding attraction to Minor A and 

confessed “to touching the minor’s penis on at least two occasions,” which he also admitted 

“sexually aroused” him. Presentence Rep., at 17. Hudson described the details of these two 

incidents, which occurred six years apart when Minor A was 6 and 12. Hudson also admitted to 

inappropriately touching Minor B when the child was under 2. Hudson explained that, while 

changing Minor B’s diaper, he “touch[ed] and play[ed] with Minor B’s penis for a short period of 

time” and that he had been “sexually aroused by it.” Id. at 18.

Hudson pleaded guilty to one count of receiving child pornography in violation of 

18 U.S.C. § 2252(a)(2). In the plea agreement, he admitted that he had used the “starlesdreamer” 

Kik account to text with others about sexually abusing children and that he had communicated

about his prior sexual contact with Minor A.

The probation office prepared a presentence report for Hudson. Based on Hudson’s sexual 

contact with Minors A and B, this report recommended that he receive a five-level sentence 

enhancement for engaging in a pattern of activity involving the sexual abuse or exploitation of a 

minor. See U.S.S.G. § 2G2.2(b)(5). The report calculated Hudson’s initial guideline range as

262 to 327 months. Because, however, his offense had a statutory maximum sentence of 

240 months, the report identified that term as the guidelines sentence. See 18 U.S.C. § 2252(b)(1). 
No. 20-4229, United States v. Hudson

4

Hudson filed no objections to the presentence report’s five-level enhancement or recommended 

sentence.

At sentencing, Hudson confirmed that he did not object to the presentence report. The 

district court thus adopted the report’s calculations, including its use of the enhancement for

Hudson’s sexual abuse of Minors A and B.

The court and Hudson’s counsel next debated how his abuse of these children should affect

the court’s balancing of the sentencing factors in 18 U.S.C. § 3553(a) and its consideration of the

need to protect the public from Hudson. Hudson’s counsel suggested that the record left unclear

whether Hudson had molested the children, arguing that his boastings on Kik were not reliable and 

that he had been intoxicated when he confessed to the police during the search of his home. The 

court agreed that online statements like Hudson’s are often unreliable because people in chatrooms 

“say whatever they feel is necessary . . . to establish a rapport” with others. Sent. Tr., R.45, PageID 

186, 198. But the court found Hudson’s case different because of his confession to the police. The 

court did not believe that his use of alcohol before this confession rendered it unreliable. The court 

noted further that Hudson’s abuse of Minors A and B was even more problematic because he had

been talking with others about ways to “gain[] access to additional victims.” Id., PageID 204–05.

The court nevertheless imposed a term of imprisonment significantly below the 

recommended guidelines sentence of 20 years. It reasoned that the guidelines governing childpornography offenses are so “draconian” as to be “absurd.” Id., PageID 197. It thus imposed a 

below-guidelines sentence of 16 years’ imprisonment. After issuing this sentence, the court asked 

Hudson if he had any other objections. Hudson did not.
No. 20-4229, United States v. Hudson

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II

Hudson now argues that the district court should not have imposed the five-level sentence 

enhancement for “engag[ing] in a pattern of activity involving the sexual abuse or exploitation of” 

Minors A and B. U.S.S.G. § 2G2.2(b)(5). If the court wrongly applied this enhancement, this

error could render its sentence procedurally unreasonable and require a remand for resentencing 

under a properly calculated guidelines range. See United States v. Riccardi, 989 F.3d 476, 481 

(6th Cir. 2021). But Hudson has failed to show error.

We ordinarily review this type of procedural-reasonableness challenge for an abuse of 

discretion. United States v. Sands, 4 F.4th 417, 420 (6th Cir. 2021). Under that standard, we 

would apply de novo review to the district court’s resolution of legal issues (such as its 

interpretation of the phrase “pattern of activity” in § 2G2.2(b)(5)) and clear-error review to its

findings of fact (such as its factual finding that Hudson had engaged in the sexual misconduct 

listed in the presentence report). See id.; United States v. Thomas, 933 F.3d 605, 608 (6th Cir. 

2019). That said, if a defendant fails to preserve a procedural challenge in the district court, we 

will review the challenge only for plain error on appeal. See United States v. Collins, 860 F. App’x 

405, 408 (6th Cir. 2021).

This plain-error standard applies here because Hudson did not object in the district court 

to the enhancement under § 2G2.2(b)(5). See United States v. Hatcher, 947 F.3d 383, 389 (6th 

Cir. 2020). To begin with, he did not file a written objection to the presentence report’s proposed 

use of this enhancement. In addition, he and his lawyer confirmed at the beginning of the 

sentencing that he did not object to his presentence report. He also raised no objection to the

enhancement throughout the sentencing hearing. At the end of the hearing, his lawyer even 
No. 20-4229, United States v. Hudson

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reiterated that he had no further objections that he had not already raised. See United States v. 

Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008) (en banc).

Hudson responds that his trial counsel did suggest to the district court that Hudson might

not have abused the two children because his statements to other Kik users were unreliable. Yet 

his counsel made these comments in the context of discussing the appropriate sentence under the

sentencing factors in § 3553(a), not when disagreeing with the enhancement in § 2G2.2(b)(5). To 

the extent that counsel really meant to challenge the enhancement, these arguments failed to alert 

the district court to the “true basis” for the objection. United States v. Bostic, 371 F.3d 865, 871 

(6th Cir. 2004) (citation omitted). And we would encourage improper “sandbagging” of district 

courts if we held that the court in this case could not rely on Hudson’s unambiguous representation 

that he did not object to the calculations in his presentence report. See Puckett v. United States, 

556 U.S. 129, 134 (2009). Plain-error review thus applies.

This standard requires Hudson to prove that the district court erred by applying 

§ 2G2.2(b)(5)’s enhancement to him, that this error was obvious, that it affected Hudson’s 

substantial rights, and that it seriously affected his sentencing’s fairness, integrity, or public 

reputation. See Molina-Martinez v. United States, 578 U.S. 189, 194 (2016). What is Hudson’s 

claimed error? He does not challenge the district court’s legal interpretation of § 2G2.2(b)(5). 

That is, he does not dispute that he would have “engaged in a pattern of activity involving the 

sexual abuse or exploitation of” Minors A and B if he engaged in the conduct that his presentence 

report asserts he confessed to. U.S.S.G. § 2G2.2(b)(5). So, unlike in other recent cases, we need 

not consider any interpretive questions related to § 2G2.2(b)(5)’s language. Cf. United States v. 

Bishop, 797 F. App’x 208, 211–12 (6th Cir. 2019); United States v. Doutt, 926 F.3d 244, 246–48 

(6th Cir. 2019); United States v. Ladeau, 688 F. App’x 342, 348–50 (6th Cir. 2017). 
No. 20-4229, United States v. Hudson

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Hudson instead challenges only the evidentiary basis for the district court’s findings that he 

engaged in this sexual misconduct. He claims that the court wrongly found that he had committed

sexual abuse based on nothing other than the presentence report and wrongly failed to require the 

government to present evidence of his sexual abuse of Minors A and B.

Given his litigation choices in the district court, however, the court did not err by relying 

on the presentence report. Under the Federal Rules of Criminal Procedure, a court “may accept 

any undisputed portion of the presentence report as a finding of fact[.]” Fed. R. Crim. 

P. 32(i)(3)(A); United States v. Nichols, 802 F. App’x 172, 179 (6th Cir. 2020). To create a factual 

dispute requiring resolution by a district court, moreover, a defendant must provide evidence that 

places the report’s findings into doubt. See United States v. Cover, 800 F.3d 275, 278 (6th Cir. 

2015) (per curiam). The defendant cannot rely on a “bare denial” of factual representations in the 

report. Id. (quoting United States v. Lang, 333 F.3d 678, 681 (6th Cir. 2003)). Here, however, 

Hudson did not object to the presentence report’s findings that he confessed to the police about his

abuse of Minors A and B. So the court could “accept” the confession’s existence and its contents 

without testimony from the relevant law-enforcement officers on the subject. Fed. R. Crim. 

P. 32(i)(3)(A). And again, Hudson does not dispute that his confession—if introduced through a 

proper evidentiary route—would have permitted the court to find § 2G2.2(b)(5)’s requirements 

satisfied. See United States v. Richards, 790 F. App’x 788, 789 (6th Cir. 2020).

Allowing defendants to accept factual findings in presentence reports may often benefit

them. They may “prefer that the sentencing judge not review the evidence for fear that . . . it will 

lead the judge to impose a harsher sentence.” United States v. Nichols, 943 F.3d 773, 775 n.1 (6th 

Cir. 2019). Suppose, for example, that overwhelming evidence showed that a defendant engaged 

in especially horrendous sexual abuse of infants. Cf. id. at 774. The defendant might believe it is 
No. 20-4229, United States v. Hudson

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better to have the court merely accept the presentence report’s findings than have the government 

introduce at sentencing, say, a victim’s testimony. If, however, we adopt Hudson’s argument that 

courts may not rely on factual representations in presentence reports even when defendants do not 

object to them, other defendants could not make this choice between accepting the report’s findings

or putting the government to its proof. The government would have to present the evidence at

every sentencing. Cf. Old Chief v. United States, 519 U.S. 172, 190–92 (1997).

Hudson’s contrary arguments lack merit. He cites many cases in which we have noted that 

district courts cannot treat factual representations in presentence reports as the actual facts unless 

the government supports the representations with sufficient proof at sentencing. See, e.g., United 

States v. Traylor, 511 F. App’x 449, 452 (6th Cir. 2013); United States v. Tarwater, 308 F.3d 494, 

518 (6th Cir. 2002). But this caselaw concerns factual representations that a defendant has 

contested. See, e.g., Tarwater, 308 F.3d at 518; see also Fed. R. Crim. P. 32(i)(3)(B). Hudson did 

not contest his presentence report, so the caselaw does not apply here. The district court thus 

properly relied on the representations made in Hudson’s presentence report.

We affirm.