NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0555n.06 No. 12-4240 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. PATRI CK MAHONEY , Def endant- Appellant. ) ) ) ) ) ) ) ) ) On Appea l from the United States District C o urt for the Southern District of Ohio

Be fore : BO GGS and SUHRHEI NRI CH, Circuit J udg es; and MURPHY, District Judge. *
BO GGS, Circuit J udg e. Def endant- appellant Patrick Mahoney pled g uilty to attempted coe rcion or e nticement of a minor to eng ag e in illeg al sexual a ctivity , in violation of 18 U.S.C. § 2422(b), and distribution of depictions of child pornog raphy via the internet, in violation of 18 U.S.C. § 2252(a) (2). On appea l, Mahoney challeng es his within-g uideline sentenc e of 360 months of imprisonment a n d 1 5 y e a r s of supervised rele ase, arg uing that his sentenc e is substantively

unrea sonable and that he was d en ied his rig ht to allocution at sentenc ing. For the rea sons that follow, we a ffirm Mahone y ’s sentenc e.

The Honora

ble Stephen J

. Murphy I I I , United States District J udg e for the Easter n District * of Michig an, sitting by

desig nation.No. 12-4240

United States v. Mahone

y I The fac ts conce rning Mahoney ’s underly ing conviction wer e clea rl y prese nted by Special Ag ent Cameron Br

y ant at Mahoney ’s plea proce eding s. No party disputes the following rendition of the fa cts: On Fe bruar

y 6, 2012, Detec tive Br ett Peache y of the Fr anklin County sheriff ’s office I nterne t Crimes Ag ainst Children task forc e was working in an underc over capa city and posing as the mother of three minor children, a g es 4, 8 and 11. During the course of the inves t iga tion, Detec tive Peache y eng ag ed in an instant messag ing ch at v ia the internet with an individual using the scre en name g odofepty ness on the Yahoo! I nstant Messeng er Prog ram. The individual using this scre en name was late r identified a s Patrick Mahone y of Columbus, Ohio. During the initia l co n v ersa tion and throug hout the additional conver sations that occur red on the subsequent 16 day s, Mahoney raised this issue and discussed in detail his interest in eng ag ing in various sex acts with the children of Detec tive Peache y ’s underc over persona . Mahoney also sent various files containing child pornog raphy to Detec tive Peache y ’s underc over persona totaling approximately 45 imag es and 9 videos depicting prepube scent males and fema les lasciviously display ing their g enitals and/or e ng ag ed in sexual activity with adult males or other children.

. . . Although Detec tive Peache y and Mahoney discussed the possibili ty of meeting in person se vera l times, no meeting w as eve r ar rang ed. Be g inning on Fe bruar

y 15, 2012, Fr an k l i n County sheriff ’s office I nterne t Crimes Aga i n st Children task forc e Detec tive J eff rey Shook, also acting in an underc over capa city and posing as a 15 y ear old g irl, eng ag ed in internet chat via Yahoo! Mess eng er with Mahoney

. Detec tive Shook’s underc over persona contac ted Mahoney via Yahoo! Messeng er a

nd stated that she liked his scr een na me.

. . . On Fe bruar

y 16, 2012, at approximately 11:31 a.m., Mahoney eng ag ed in a chat with Detec tive Shook’s underc over persona and asked what he believed to be the 15 y ear old female if she wa s available to meet the following day

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United States v. Mahone

y During the course of this chat session, Mahoney asked a fictitious 15 y ear old fema le if she was on the pill, wher e she wanted him to cum, if she had tried anal intercour se, if she l iked being li cked, if he could take pictures of their sex ual acts, and whether she had ever smoked fake pot. Mahoney further reque sted that she wea r a school g irl outfit. The mee ting wa s arr ang ed for Fe bruar y 17, 2012, at 9:00 a.m. On Fe bruar

y 17, 2012, I CAC t as k forc e office rs and ag ents set up surveillance outside of the restaur ant wher e Mahoney had arr ang ed to meet the fictitious 15 y ear old fema le. Additional office rs followed Mahoney as he left his home and then made sever al stops befor e arr iving at the prea rra ng ed meet location in Hilliard, Ohio, in the Southern District of Ohio.

. . . Upon his arr ival, I CAC office rs made contac t with Mahoney and advised him that he wa s under investig ation. Mahoney there afte r ag ree d to speak with office rs an d provided the following information to them. He had chatted online with what he believed to be a 15 y ear g irl. He had arr ived to meet the 15 y ear old g irl and have sex with her. He intended to use his cell phone to photogr aph the sexual ac t i v i t y . He had used a peer -to-pee r prog ram Gig atribe to download files containing child pornog raphy to a laptop computer, and that [si c] he had more than 100 files conta ining c hild pornog raphy on his computer. Mahoney further admitted that a stateme nt that he had made during the cour se of a previous chat with Detec tive Peache y ’s underc over p ersona reg arding his sexual co n d u ct wi th his minor stepdaug hter was true. Mahoney explained that he had eng ag ed in ora l, vag inal and ana l intercourse with his stepdaug hter fr om the ag e of 6 or 7 until she was a

pproxi mately

10 y ear s old on at least five oc casions. As a result of the investigation and the information provided by Mahoney , ag ents and off i cers executed a fede ral sear ch war rant at the Mahoney residenc e, 3661 Creekw ood Avenue , Columbus, Ohio 43223, i n the Southern District of Ohio. During the cour se of the se arc h war rant, officer s seized one Acer laptop computer, one Toshiba laptop computer, one Micro SD car d with rea der, and six compac t discs.

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United States v. Mahone

y A fore nsic previe w of the c omputers and e lectronic storag e of the device s reve aled the pre sence of numerous imag es and vide os of child pornog raphy

. Tr. of Plea

Procee dings at 20–23. At sentenc ing, both pa

rties ag ree d that Mahoney had a base offe nse level of 42 and criminal-history cate g ory of I , y ielding a sentencing rang e of 360 months to life. Nonethele ss, Mahoney ’s counse l reque sted that the di strict court vary downwar d to a base offe nse level of 33 and the attendant sentenc ing rang e of 135 to 168 months, arg uing that the
sentenc ing fac tors in 18 U.S.C. § 3553(a) , as applied to M ah o n ey , supported a belowg uideline sentenc e. After defe nse counsel prese n t ed t h is arg ument, the district judge informed Mahoney that he could make a statement. Mahoney proce eded to apolog ize to his fa mily and friends and then to g ive a long acc ount of his life, beg inning with his ear ly childhood and prog ressing up to the time h e l eft the Marines. Mahoney ’s discussion emphasized his traumatic discovery of his fathe r’s pornog raphy collection at ag e five and the
constant acc ess he had to pornog raphy duri n g h i s formative y ear s, his sexual interac tions with other minors during his prete en and teena g e y ear s, the perva sive culture of alcoholism,
p o rnogra phy , and casua l sex to which he was subjected while in the Marines , an d h i s combined use of

alcohol and ma

rijuana onc e he le ft the Mar ines. At this point, 14 pag es i nto the allocution, th e d i s t rict j udg e st opped Mahoney and said that he could continue afte r the g overnme nt had a chanc e to arg ue ag ainst a downwar d varia nce. The g overnme nt called Special Ag ent Br y ant to rec ite a number of fac ts pertinent
to the § 3553(a) sentenc ing fa ctors, and defe nse counsel also cross-e x amined Br y ant.

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United States v. Mahone

y After war ds, the district court returne d to Mahoney , asking , “[W ]hat else do y ou want me to know? ” M ahoney further apolog ized, and defe nse counsel made further arg uments on Mahoney ’s behalf

. L ater in the proce eding , Mahoney also interrupted the judge and was allowed to me ntion that he had car ed for his me ntally disabled y oung er brother for most of his life. Ultimately the district judge ref used to vary d ownwar d and sentenc ed Mahoney to 360 months of imprisonment, the low end of the g uideline rang e, to be followed by 15 y ear s of supervised rele ase. Maho ney now appea ls, arg uing that his sentenc e was substantively

unrea sonable a

nd that he wa s not allowed full allocution.
II A We revie w a dis t ri ct court’s sentenc e “under a defe rential abuse- of-discr etion standard for rea sonablene ss.” United States v. Stephens , 549 F.3d 459, 464 (6th Cir. 2008) (interna l quotation marks omi tted). Whil e thi s inquiry consists of bot h a procedura l and a substantive component, United States v. Bake r , 559 F.3d 443, 448 (6th Cir. 2009), Mahoney challeng es only the subst an t i ve rea sonablene ss of his sentenc e. “A sentenc e may be considere d substantively unrea sonable when the district court selec ts a sentenc e arbitra rily , bases the sentenc e on impermissible fac tors, fails to consider rele vant sentenc ing fac tors, or 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). “Sentenc es imposed wi t hin a proper ly -ca lculated

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United States v. Mahone

y Guidelines rang e enjoy a rebuttable presumption of substantive rea sonablene ss on appea l.” Bake r , 559 F.3d a t 448.
B On appea l, Maho n e y a

r g u e s th a t h is s e n te n c e w a s s u

b s ta n tive ly unrea sonable beca use the district judge place d undue weig ht on Mahoney ’s admission that he had sexually abused his stepdaug hter for a period of approximately three y ear s beg inning when she was six or

seven. Mahoney arg ues that “[e]ven though the alleg ations wer e not denied, and admittedly

are horrific , they ar e n eit her part of the offenses of conviction .

. . , nor were they rele vant conduct of the offe nses of conviction.” Appellant Br

. at 12. Acc ording ly , Mahoney arg ues that the abuse of his stepdaug hter “should not have been the overwhelming fac tor rela ted to
sentenc ing in this ca se.” Id . at 13. T o b egin, we note that the district court was statutorily require d to consider “t h e history and char acte ristics of the defe ndant” when imposing Mahoney ’s sentenc e. 18 U.S.C. § 3553(a) (1). By statute, “[n] o limit ation shall be place d on the information conce rning the backg round, char acte r, and conduct of a person convicted of an offe nse which a court of the United States may rec eive and consider for the purpose of imposing an ap p ropriate
sentenc e.” 18 U.S.C. § 3661. Thus, “sente ncing courts have broad discretion to consider various kinds of information” in confor mity with this section when calc ulating a defe ndant’s
sentenc e, United St ates v. W atts , 519 U.S. 148, 151 (1997), and the district court was well within its statutory authority to acc ount for Mahoney ’s long- term sexual abuse of his minor stepdaug hter whe n imposing his sentenc e. - 6 -No. 12-4240

United States v. Mahone

y Moving on to whether the district court place d undue weig ht on Mahoney ’s abuse of his stepdaug hter, we have noted that “[a] district court does not commit reve rsible erro r simply by attach[ing ] g reat weig ht to a single fac tor.” United States v. Thomas , 437 F. App’x 456, 458 (6th Cir. 2011) (interna l quotation marks omitted). When “a district court expli citly

or implicitl y considers and weig hs all pertinent fac tor s , a defe ndant clea rly bear s a much
g rea ter burden in arg uing that the court has g iven an ‘unre asonable amount of weig ht’ to any particula r one.” United States v. Thomas , 395 F. App’ x 168, 174 (6th Cir. 2010).
I n the i nstant case , the s en t encing transcr ipt clea rly indicates that the di strict judge fo cu s ed on a number of di ffe rent factors outli ned in 18 U.S.C. § 3553(a) when fashionin g Mahoney ’s sentenc e. The judge noted that Mahoney had talked a g rea t deal about his history and that he had “a sense of [Mahoney ’s] backg round.” More specific ally , the district judge stated that Mahoney had done “some honorable things” in his life, such as obtaining his GED, serving in the Marine Corps, and car ing for his br other, and that Mahoney ’s appetite for pornog raphy was piqued ear ly and “wa s met seeming ly at ever y turn in [hi s] adult life.” The district judge did mention Mahoney ’s abuse of his stepdaug hter, stating that Mahoney ’s “lifetime appetite” for pornog raphy “led to action ag ainst [hi s] stepdaug hter, and it is th[ is]
very ty pe of pr og ression of da

ng er tha t we ar e conc erne d about in these c ases.” The judg e
went on, howeve r, to state that “the public needs to be protec ted from this ty pe of conduct” and that the sentenc e he was imposing would “ade quately deter [Mahoney ’s] further criminal conduct” and “also provid e [ M ah o n ey ] drug and alcohol trea tment” as well as acc ess to a sex-offende r trea tment prog ram. Finally , the district judge noted that he was “mindful of the - 7 -No. 12-4240

United States v. Mahone

y need to avoid unwar

rante d sentenc ing disparities” and that he did n ’t b el i ev e “that this
sentenc e is a disparate sentenc e,” as it was at “the low end of the g uideline, which I believe is appropr iate.” He also found that the sentenc e was “suff icient, but not g reater than

nece ssary ,” to meet “ the statutory purposes.” I n sum, the district judge considere d numerous factors in arr iving at Mahoney ’s
sentenc e and clea

rly did not, as Mahoney claims , place “over whelming ” weig ht on Mahoney ’s abuse of his s t epdaug hter. This is espec ially true g iven that Mahoney was
sentenc ed withi n—actua lly at t he bott om of—his g uideline rang e a n d ar gues onl y that the district judge chose not to vary downward beca use of overe mphasis on Mahoney ’s abuse of his stepdaug hter. C o n sidering that a within-g uideline sentenc e enjoy s a rebuttable
p re s u mption of rea sonablene ss, Bake r , 559 F.3d at 448, Mahoney has not shown that t h e district judge , who considere d a broad varie ty of differ ent fac tors, g ave unrea sonable weig ht to the abuse of

Mahoney ’s stepdaug hter.
III A Be fore imposing a sentenc e, the district court must “addr ess the defe ndant persona lly in order to permit the defe ndant t o s p ea k or prese nt any information to mitigate the
sentenc e.” Fe d. R. Crim. P. 32 ( i )(4) (A)( ii). Whether or not a defe ndant has been denied the rig ht to allocution is an issue of law that we revie w de novo. United States v. Haygood , 549 F.3d 1049, 1054 ( 6th Cir. 2008).

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United States v. Mahone

y B

“ Co mp li a n c e w it h Ru le 3 2 ( i) ( 4 ) ( A ) ( ii ) r e q

uires the sentenc ing judge to persona lly a n d unambig uously invite the defe ndant to speak in his own behalf .” Ibid

. (interna l quotation marks omitted). Whil e a defe ndant’s rig ht to allocution “is not an empty formality ,” United States v. Griffin , 530 F.3d 433, 437 (6th Cir. 2008), this opportunity to addre ss the court also “is not unlimit ed in terms of either time or content,” United States v. Carter , 355 F.3d 920, 926 (6th Cir. 2004) (interna l quotation marks omitted).
I n the instant case , Mahoney does not dispute that the di strict judge persona lly and

u n am biguously invited him to speak on his own behalf

. Rather, Mahoney arg ues t h at t h e district judge ’s interrupting his allocution “der ailed” his train of thought and preve nted him from further expressing his remorse when he wa s l ater g iven the chanc e to resume his allocution. Appellant B r. at 16. Review of the transcr ipt reve als that while the district judge did interrupt Mahoney ’s allocution, this interruption occur red afte r Mahoney had delivere d a fourtee n-pag e soliloquy of deta i l ed and often rambling facts. When it beca me apparent that Mahoney ’s allocution would be quite leng thy , the district judge simply said: “L et me interrupt y ou there

. I ’m g oing
to ask the g o v er n m en t to g ive me their piece , then we’ ll come back to y ou. Okay ? ” The judge made perfe ctly clea r that this was a te mporary interruption and that Ma

honey would
ag ain be g iven the chanc e to spe ak. And once the g overnme nt prese nted its arg ument as to why the d i s t ri ct judge should not have gr anted Mahoney a downward departure , the j udg e allowed Ma

honey to resume his allocution, stating , “Mr. Mahoney , what else do y ou want - 9 -No. 12-4240

United States v. Mahone

y

me to know? ” At t h i s p o i n t , M ahoney spoke for another pag e and a half of transcr ipt, expressing his remorse —statements such as “I have done nothing but loath [si c] my self” and “[t] here ’s no deny ing what I did was horrible” —and stating that the crime was his fault—e.g ., “I made a choice

. I made the wrong choice when it was offe red. Nothing I can sit here a nd do will ever f

ix that.” Clear ly , the interruption did not preve nt Ma honey from further expressing his re morse as the defe nse cla ims.
I n addition, when Mahoney finished the second part of his allocution and the district judge beg an discussing the sentenc ing f actor s, Mahoney interrupted and asked the judge if he could speak y et ag ain. The judge g rante d Mahoney ’s reque st, allowing hi m a t h i rd opportunity to addre ss the court. During this final monologue , Mahoney discussed the fac t that he had car ed for his mentally d i sabled brother for most of his life, which the district judge said was to his cre dit. I n conclusion, the transcr ipt, when viewed on the whole, shows
not only that the district judge persona lly and unambig uously invited Mahoney to addre ss the court, but also that the judg e was extremely acc ommodating of

Mahoney ’s desire to speak and gav e h i m sever al extra chanc es to put forwa rd ever y thing he wanted to say . Thus, Mahoney was provided with an en t irely adequa te opportunity to exercise his rig ht to allocution. IV For the fore g oing r easons, we aff irm Mahoney ’s sentenc e.

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