NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0633n.06 No. 10-4571 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. STEPHEN AL L AN PRI TCHARD, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR T H E N O RT HERN DI STRI CT OF OH I O

BEF ORE: COL E, ROGERS, and GRI FF I N, Circuit J udg es. PER C URI AM. Def endant Stephen Pritchard appea ls for the second time his sentenc e of fifty -months’ imprisonment, arg

uing that it is proce durally and substantively unrea sonable. We disag ree and aff irm. I

. Prit char d pled g uilty to one count of knowing ly trave ling in interstate commerc e for the purpose of eng ag ing in illicit sexual conduct with another person, in viol ation of 18 U.S.C. § 2423(b). See United States v. Pritchard , 392 F. App’x 433, 435 (6th Cir. 2010). The district court imposed a sentenc e of fifty months’ imprisonment followed by five y ear s of supervised rele ase. Id. at 444. Pritchard a

ppeale d his se ntence to this court, a rg uing that his counsel was c onstitut ionally ineffe ctive, that there was an evidentiar y err or at the sentenc ing hear ing, and that his se ntence wasNo. 10-4571

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both proce durally and substantively unrea sonable. Id. at 434. This court vaca ted Pritchard’ s sentenc e on proce dural rea sonablene ss g rounds and rema n d ed fo r rese ntencing

. Id. The panel majority conclude d that the district court e rrone ously ignor ed a nonf

rivolous arg ument in favor of

a lower sentenc e when it failed to addre ss Dr. Orlando’ s testimony that Pritchard posed “a low risk of re cidivism[ .]” Id. at 441, 445 (citations and inter nal quotation marks omitted). This court a lso aff irmed the district court’s evidentiar y ruling and defe rr ed the ineffe ctive assistance of counsel claim for collater al revie w. On rema nd, the district court held a resen t en ci n g h ear ing and subsequently

imposed the same se ntence . Pritchard timely appea ls. I I

. Pritchard now argues that his new sentenc e is unrea sonab l e. He contends that it is proce durally unrea sonable beca use, o n ce aga i n, “the District Court failed to addre ss all of [hi s] nonfrivolous arguments for a lower sentenc e when it did not seriously addre ss [hi s] diag nosed very low risk of rec idivism ” and “base d its sentenc ing decision on clea rly erro n eo us fac ts, to wit, the incorre ct assumption that [he] is a pedophile.” He asser ts that i t i s substantively unrea sonable beca use t h e d i s t rict court place d “an unrea sonable amount of weig ht on the retribution fac tor [i n

s etting his] sentenc e.” Should he preva il, Pritchard also claims that a differ ent judge should b e assig ned to conduct the rese ntencing b ec au s e the district judge “has repe atedly adher ed to an

err oneous view of the fac ts and fac tors surrounding [hi s] sentenc e, has shown a bias ag ainst offe nders of [hi s] ty

pe, has demonstrated dis t ain [si c] for the sentenc ing g uidelines adopted by Congr ess, and has indicate d i t s disag ree ment with the ruling of this Court in [hi s] re- sentenc ing

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hear ing.” We addre ss eac h of these a rg uments in turn.

A. The touchstone of appellate revie w o f a d is tric t c o urt’s sentenc ing decision is rea sonablene ss, which has both a

proce dural a

nd a substantive compone nt. Gall v. United States , 552 U.S. 38, 51 (2007); United States v. Grossman , 513 F.3d 592, 595 (6th Cir. 2008). Such challeng es are g ener ally revie wed for an abuse of discretion. Gall , 552 U.S. at 51; United States v. Thompson , 515 F.3d 556, 560 (6th Cir. 2008)

. Howeve r, wher e, as here , a defe ndant fails to lodge an objection at the end of the sentenc ing hear ing in response to a proper ly worde d i n v i tation from the district court in compliance with United States v. Bostic , 371 F.3d 865 (6th Cir. 2 0 0 4 ), we revie w a defe ndant’s challeng e to the court’s explanation f or the sentenc e selec ted only for plain err or. United States v. Vonner , 516 F.3d 382, 385-86 (6th Cir. 2008) (en banc)

. Plain err or exis ts wher e there is (1) err or, (2) that was obvious or clea r, (3) that aff

ecte d a defe ndant’s substantial rig hts, and (4) that aff ecte d the fa irness, integ rity , or public reputation of t he judi cial procee dings. Id. at 386; see also United States v. W

ilson , 614 F.3d 219, 223 ( 6th Cir. 2010). Pritchard first argu es t h at “[t] he Dist rict C ourt committed plain err or when it

. . . . did not seriously addre ss [hi s] diag nosed very low risk of rec idivism ” and thus “g ave the appea ranc e, if not the rea lity , of doing nothing more than try ing to jus t i fy the ear lier sentenc e it had previously imposed.” We disa g ree . The district c ourt did not fail to c onsider Pritchard’ s argument; it si mply disag ree d that Pritchard was at a low risk for reof fending. T h e court cited parts of Dr. Orlando’ s repor t that it felt wer e not “consistent” with the conclusion that Pritchard was unlikely to reof fend.

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I t noted Dr. Orlando’s observa tions that Pritchard: “is self-c enter ed, aloof, and a controlling individual whose emotional maturity is signific a n tl y lo w e r th a

n h is a v e r a g e intellectual functioning ”; “is socially naive, cog nitively rig id, and has difficulty experiencing empathy for others”; “has a long history of alcohol abuse” ; that “[d] espite his deeply eng raine d persona lity probl em s , he has littl e insight i nto his psy cholog ical problems”; and that he “has been obsessed w i t h s ex u al activit y and pornog raphy , and over the y ear s his unconventional t hinking has led to a desire for incre asing ly deviant sexual stimul i.” Ultimately , the district court conclude d that “I think [P ritchar d] does pose

a risk of reof

fense beca

use of his to this point unrec og nized and untrea ted sexual problems.” On this

rec ord, we reje ct the asser tion that the distric t co u rt did not “make any specific mention of the evidenc e pre sented in Dr. Or lando’s testimony reg arding [P ritchar d’s] li kelihood of re -off ending ”

or “‘listen[] t o [t he] argument, consider[] the supporting evidenc e, [and take] defe ndant’s circ umstances

. . . into acc ount i n s en t encing him,’ with reg ard to Dr. Orlando’ s testimony .” Cf. Pritchard , 392 F. App’x at 4 4 0 -41. On rese ntencing , the district court plainly did listen to Pritchard’ s argument that he was unlikely to reof fend, and it made clea

r why it rea sonably reje cted that arg ument. The lawrequire s nothing more

. See U nited States v. Gale , 468 F.3d 929, 940 (6th Cir. 2006). Acc ording ly , on rese ntencing , there was no e rror , let alone plain e rror . Pritchard also argues that his sentenc e is proce durally unrea sonable beca use the district court relied on a

clea rly err oneous fa ct. S pecif

ically , Pritchard asserts that the district cour t’s statement that “I think Orlando’ s repor t does have some indication that [P ritchar d] was attrac ted to prepube scent minors[ ,]” was clea rly err oneous beca

use Dr. Orlando conclude d “that Appellant did

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not s u ff er from pedophilia[.] ” (citation and internal quotation marks omitted). This argument is unpersua sive. There was s u ff i ci ent evidenc e in the rec ord for the district court to conclude that Pritchard wa s attrac ted to prepube scent minors – name ly , Pritchard’ s statement in an interne t chat room that he ha d a sexual encounte r with an eleven-year -old. See Pritchard , 392 F. App’ x at 442 (holding that “the d istrict court did not commit a proce dural err or reg arding [P ritchar d’s] alleg ed statements that he had previously eng ag ed in pedophilic activities.”). The district court’s appar ent misstatement reg arding the source of that evidenc e during Pritchard’ s rese ntencing hear ing does not make the rele vant fac t clea rly err oneous. We the ref

ore reje ct Pritchard’ s claim that his sentenc e is proce durally

unrea sonable for

that rea son. B. Next, Pritchard argue s that his sentenc e is substantively unrea sonable beca use the district court g ave an “unre asonable amount of weig ht to the retributive fac tor when it imposed its sentenc e upon [hi m] .” Whil e a sentenc e “may be considere d substantively unreas o n able when the district court

. . . g ives an unrea sonable amount of weig ht to any pertinent fac tor,” United States v. Conatser , 514 F.3d 508, 520 (6th Cir. 2008), district courts are not require d to g ive eac h of the 18 U.S.C. § 3553(a) fac tors equal weig ht. See, e.g., United States v. Arias-Arrazola , 254 F. App’x 500, 503 (6th Cir. 2007) (noting that § 3553(a) “say s that the fac tors must all be considere d, not that they must be considere d with equal weig ht”); United St ates v. Benson , 195 F. App’x 414, 417 (6th Cir. 2006). Additionally , we af

fo rd a rebuttable presumption of substantive rea sonablene ss to a proper ly calc ulated, within-Guidelines sentenc e. United States v. Polihonki , 543 F.3d 318, 322 (6t h Cir.

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alls , 546 F.3d 728, 736 (6th Cir. 2008) (citing United States v. Vonner , 516 F.3d 382, 410-11 (6th Cir. 2008) (en banc) ). “[W ]e cannot rever se a sentenc e si mply beca use we deter mine that a differ ent sentenc e would be appropr iate.” United States v. Higgins , 557 F.3d 381, 398 (6th Cir. 2009). Pritchard has failed to re b u t the presumption of substantive rea sonablene ss. I t is true, as Pritchard notes, that the district judge opined at the rese ntencing hear ing that “re tribution” or “just punishment” is the “lar g est purpose for sentenc ing g ener ally , and it is in this case .” Howeve r, this does not mean that the district court g ave this fac tor unrea sonable weig ht. The district court found that Pritchard’ s offe nse was “more serious” than a simil ar offe nse with a highe r Guideline’s sentenc ing rang e. And it considere d the nature and circ umstances of the instant offe nse, Pritchard’ s history and char acte ristics, and the nee d for the sentenc e to a ffor d adequate deter renc e, protec t the public, and improve Pritchard’ s conduct and condition. The district co u rt ’s balanc ing of the § 3553(a) fac tors in this case did not rende r Pritchard’ s lower- end-of -the-G uideline’s-r ang e sentenc e of fifty -months’ imprisonment substantively unrea sonable. Cf. generally United States v. Paull , 551 F.3d 516, 529 (6th Cir. 2009) (“[T]his analy sis of the considerations the court found most important

– the defe ndant’s circ umstances and the seriousness of the crime – is just the sort of balanc in g a sentenc ing c ourt should be doing .”). C. Having deter

mined that Pritchard’ s sentence is reasona ble, we c onclude that his c laim that he should be re sentenc ed by a diffe rent judg e is moot.

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I I I

. For these re asons, we a ffirm the judg ment of the district cour t.

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