NOT RECOMMENDED FOR PUBLICATION File Name: 17a0226n.06 No. 16-3473 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CORY A. BUCKHOLZ, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: SILER, MOORE, and GR IFFIN, Circuit Judges. GRIFFIN, Circuit Judge. Cory Buckholz appeals his within-Guidelin es sentence of 151 months for knowingly receiving and distributing visual depictions of minors engage d in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). Because this sentence is procedurally and substantively reasonable, we affirm.
I. In August 2014, law enforcement officers ex ecuted a search warrant at Buckholz’s residence. Buckholz was twenty-five years old and living with his mother. For most of his life, he had battled depression, anxiety, and drug addiction. Buckholz pr eviously earned some college credits, however, and had worked as an IT administrator for a financial services company. He also ran his own computer repair business.No. 16-3473, United States v. Buckholz

-2- Buckholz used peer-to-peer software on his home computer to dow nload and share child pornography. An undercover agent downloaded ei ght videos from Buckholz’s computer, which depicted prepubescent girls engaged in sexually explicit conduct with a dult men, and at times being subjected to sadistic conduct including b ondage. These videos led to the execution of a search warrant during which agents seized se veral items from Buckholz’s room, including two external hard drives, toddler pu ll-up diapers, and two pairs of girls’ underwear. A forensic analysis of the hard drives re vealed over six hundred additional images depicting prepubescent girls, many under the age of twelve, engaged in or al and genital intercou rse with adult men. Buckholz pleaded guilty to knowingly receivi ng and distributing visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S. C. § 2252(a)(2) and (b)(1). In the final presentence report (“PSR”), the probation officer calculated a total offense level of 34 under U.S.S.G. §§ 2G2.2 and 3E1.1 and placed Bu ckholz in Criminal History Category II. 1 Per the sentencing table, Buckholz’s advisory Guidelines range was 168-210 months. In his sentencing memorandum, Buckholz conte nded his criminal history score should be reduced to Category I, yielding a Guidelines ra nge of 151-188 months. Moreover, he requested a downward variance to the mandato ry minimum sentence of 60 months based on his personal circumstances. Buckholz also urged the district court to reject the ap plicable Guidelines on policy grounds because, in his view, they do not distinguish between those offenders who produce child pornography and those who view and distribute it. The government agreed the district court could reject a Guideline on policy grounds, but pressed for a Guidelines sentence. At sentencing, the district judge made a prel iminary finding of a tota l offense level of 34 and a criminal history category of II for a sent encing range of 168-210 months. Next, the district

1 Buckholz was sentenced on April 26, 2016. Th e 2015 version of the Guidelines Manual applied. See U.S.S.G. § 1B1.11(a).No. 16-3473, United States v. Buckholz

-3- judge explained he would compare the 18 U.S.C. § 3553(a) sentencing factors to Buckholz’s background, character, and history, and, in light of the facts and circumstances particular to Buckholz’s case, fashion a sentence “sufficient but not greater than necessary to meet the ends of justice.” He acknowledged “the Guidelines are advisory.” After hearing the parties’ statements, the dist rict judge kept his fi nding of a total offense level of 34, but found that Buc kholz’s “criminal history cate gory was overrepresented,” and departed downward to Category I. He credited Buckholz for his addressing his addiction and his lack of significant criminal history. The district judge furthe r acknowledged Buckholz’s “willingness to accept responsibility for [his] con duct[.]” He imposed a sentence of 151 months, at the bottom of the adjusted Guidelines range and seventeen months below the initial advisory range, followed by five years of supervised releas e. Buckholz timely appeals from this sentence.
II. A sentence must be both procedurally and substantively reasonable. United States v. Kamper , 748 F.3d 728, 739 (6th Cir. 2014). We review reasonableness challenges for abuse of discretion. Id. We first consider whether the district court committed “significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or fa iling to adequately explain th e chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall v. United States , 552 U.S. 38, 51 (2007). Buckholz urged the district court to reje ct the applicable child-pornography Guideline because it results in sentences greater than nece ssary to achieve the purposes of sentencing by failing to distinguish between those offenders who view and distribute child pornography andNo. 16-3473, United States v. Buckholz

-4- those who produce it. The district court dec lined, and imposed a Guidelines sentence. Defendant argues this sentence is procedurally unreasonable because the district judge did not recognize his power to vary from the Gu idelines specifically on policy grounds. We have “said that a district court may disagree with § 2G2.2 on policy grounds, just as it may any other” Guideline. United States v. Bistline , 665 F.3d 758, 761 (6th Cir. 2012). “A district court errs when it ‘fail[s] to appreciat e the scope of its discretion’ and ‘indicates that policy disagreements are not a proper basis to vary.’” Kamper , 748 F.3d at 742 (quoting United States v. Johnson , 407 F. App’x 8, 10 (6th Cir. 2010)). We “presume that the district court understood its authority to categori cally reject the Guidelines on policy grounds in the absence of any indication to the contrary, at least where it had the opportuni ty to consider an argument in favor of such a rejection or its authority to do so was clearly established at the time of sentencing.” United States v. Staten , 435 F. App’x 422, 425 (6th Cir. 2011) (citation omitted); Cf. United States v. Santillana , 540 F.3d 428, 431 (6th Cir. 2008) (“[W]e presume that the district court understood its di scretion, absent clear eviden ce to the contrary.”). A review of the sentencing record as a whol e supports the presumption that the district judge properly understood his au thority. The district court was aware of Buckholz’s policy argument, which he presented both in his sent ence memorandum and at th e sentencing hearing. At the hearing, defense counsel re peatedly reminded the district c ourt that it could deviate from the Guidelines range on policy grounds. The government never contested this proposition, conceding that “[t]he Court could, as some of your brethren have done, reject the Guidelines completely,” and citing two case s in which judges had recently done so. The prosecutor admitted “the Sixth Circuit says if you disagree with the Guidelines, you can reject them, of course, with your reasoning[.]” There was no di spute the district court had the authority toNo. 16-3473, United States v. Buckholz

-5- deviate from the Guidelines on policy grounds, and the district judge never disagreed with, or even questioned, the parties’ st atements to that effect. In sentencing Buckholz, the district judge never asserted he must do anything. He explicitly acknowledged the Guidelines were not mandatory, and that he could vary or depart, and demonstrated his appreciation of that fact by reducing Buckholz’s cr iminal history category and, as a result, his Guidelines range. Moreover, the district court expressed repeated skepticism of Buckholz’s policy grounds argument. When de fense counsel argued the Guidelines unfairly “imply that every endgame user is responsible fo r the harm . . . done to the original children[,]” the district court interjected that the Guidelines were “saying in part responsible.” Later, when defense counsel again argued Buckholz should not be punished “as if he t ook the pictures and in fact hurt the children,” the court stated he wo uld not be because, if Buckholz “had been the producer of these images, he woul d have been charged under a different sect ion.” The district court noted a “significant difference” betwee n the potential sentences a child pornography producer and defendants like Buckholz could receive . Buckholz was simply “not being treated the same” as someone who produced child pornography. Before imposing sentence, the district judge twice acknowledged the parties’ observation that other judges had varied fr om the Guidelines. And while some judges had rejected the Guidelines for being “awfully harsh” on offend ers who just “looked at images,” he thought it was more than “just looking at images” and stated the children depicted in the images suffer a lifetime of “degradation and embarrassment, humilia tion and pain.” When read in conjunction with the parties’ agreement that the district court could vary on policy grounds, and that other judges did, the district judge’s remarks thr oughout the hearing suggest he had consideredNo. 16-3473, United States v. Buckholz

-6- whether to vary from the child pornogra phy Guidelines on those grounds, not if he could vary from them, and ultimately declined to do so in this case. Buckholz presents no clear in dication otherwise. In s upport of his position, Buckholz points to a line of questioning the district court initiated early in the hearing. The district judge initially asked defense counsel “[t]he question I always have in these cases” concerning what factors he should consider “in or der to impose a sentence outside th e Guidelines[.]” In response to defense counsel’s assertion that the appli cable Guidelines “overvalue” Buckholz’s conduct, the district court observed: That goes to my question. That’s a kind of policy questi on, isn’t it? And Congress has decided that that is, this t ype of conduct warrants the Guideline of whatever the Guidelines falls to be. A nd my question is once I make a decision as to what the Guideline range is, under a ll the facts and circ umstances presented here, do I have to – in order to go – depa rt from the Guidelines one way or the other, do I look at just Mr. Buckholz, or do I look at something else? The district judge returned to hi s question at the end of the hear ing, explaining that he asks “in almost every case” whether “there [is] anything in this case that ’s different that hasn’t been considered when the Guidelines were establishe d, anything unique?” Here, he concluded that “the Guidelines have co nsidered everything.” For Buckholz, the district court thus pr esumed there was no reason to reject the Guidelines based on a policy disagreement. Bu t it is Buckholz who presumes too much. Although the district court acknowle dged the fact that Congress had made policy decisions with respect to what type of c onduct fell within which Guidelin e, it did not indicate it felt constrained by them. Indeed, the district court repeatedly sought reasons to vary or depart from defense counsel. In context, the dist rict court’s inquiry speaks more to its concern for avoiding a sentencing disparity by not imposing too lenien t a sentence compared to similarly-situatedNo. 16-3473, United States v. Buckholz

-7- defendants than to any belief it was not free to vary downward based on a categorical policy disagreement. Nor do the cases Buckholz relies on compel a diffe rent conclusion. In United States v. Johnson , the district judge r ecognized “the advisory character of the Guidelines,” but made “remarks about the proper role of courts” that revealed “his belief that a policy disagreement [was] not a proper basis for a judge to var y.” 407 F. App’x at 10. Similarly, in United States v. Montague , 438 F. App’x 478 (6th Cir. 2011), the distri ct court erred by “repeatedly express[ing] the mistaken view that it was without power to reject or vary from [an] enhancement on policy grounds, noting that it was ‘not [its ] job to figure out whether th e Guidelines are justified or
not.’” Id. at 482. The district court in United States v. Vandewege , 561 F.3d 608 (6th Cir. 2009), erred by stating “that policy judgments of whether crack and powder are equi valent or not is not for [it] to make.” Id. at 610. And in United States v. Johnson , 553 F.3d 990 (6th Cir. 2009), we did not assume the district court lacked full aw areness of its authority to vary, but relied on express statements made at the sentenci ng hearing, including that “the [c]ourt must apply the guidelines . . . ” Id . at 996 n.1. The district judge made no such express statements here. United States v. Maye , 582 F.3d 622 (6th Cir. 2009), does not help Buckhol z either. In that case, we remanded because, even though the dist rict judge “never explic itly stated that he felt bound by the crack-cocaine polic ies exemplified in the guidelin es, the transcript of the sentencing hearing suggests that he may have acted in adherence to those principles.” Id. at 633. Thus, even in Maye , there was some indication in the record that the district court felt so constrained. Buckholz points to no such acts or other indication in the sentencing record here. The crux of Buckholz’s claim is that the distri ct judge did not state in so many words that he could vary from the Guidelines based on a po licy disagreement. But a sentencing court needNo. 16-3473, United States v. Buckholz

-8- not “explicitly recognize that such variances [on policy grounds] are permitted when the court has given no indication that it believes they are prohibited and explicitly recognizes the advisory nature of the Guidelines.” United States v. Simmons , 587 F.3d 348, 364 (6th Cir. 2009). On the record before us, we have no cl ear indication the distri ct court did not rec ognize its authority to vary below the Guidelines on policy grounds. Remand is not required.
III. Finding no procedural error, we ask whethe r Buckholz’s sentence is substantively reasonable. See Kamper , 478 F.3d at 739. A district court imposes a substantively unreasonable sentence by “selecting the senten ce arbitrarily, basing the sent ence on impermissible factors, failing to consider pertinent § 3553(a) factors, or giving an unreasonable amount of weight to any pertinent factor.” United States v. Webb , 403 F.3d 373, 385 (6th Ci r. 2005) (footnotes omitted). Mindful of our institutional limitations as a reviewing court, we exercise “a great deal of deference” when reviewing a defendant’s sentence for substantive reasonableness. United States v. Mayberry , 540 F.3d 506, 519 (6th Cir. 2008). We presume Buckholz’s withinGuidelines sentence is reasonable. United States v. Vonner , 516 F.3d 382, 389–90 (6th Cir. 2008) (en banc). Buckholz has not rebutted our presumption. He requested a downward variance to 60 months, or 108 months below the lowest end of his advisory Guidelines range (168 months). He received a sentence of 151 months, at the very bottom of his adjusted Guidelines range as calculated after the district court departed downw ard to Criminal History Category I. Buckholz argues this sentence is “greater than necessary ” because the district court failed to give thoughtful consideration to his in dividual circumstances in light of the relevant sentencing factors. The sentencing record belies this claim.No. 16-3473, United States v. Buckholz

-9- At sentencing, the district judge acknowledge d the parties’ memoranda and repeatedly sought reasons to justify the significant variance Buckholz was requesting. In response, defense counsel argued at length that the Guidelines pu nish Buckholz’s conduct too harshly, given that he was just “a young person sitting in his baseme nt” who looked at pictures but did not abuse any children. Defense counsel also emphasized Buckholz’s lack of any significant, or related, criminal history. Buckholz detailed his financial struggles a nd substance abuse, expressed regret for his conduct, and explained how being incarcerated he lped him achieve sobriety and realize the consequences of his behavior. In particular, Buc kholz stressed the impact of his heroin addiction, and the district judge engaged him on this issue, aski ng how he got involved with the drug, how he paid for it, how he consumed it, and whether he was still using. Buckholz also explained how he had researched the programs avai lable at certain detenti on facilities with an eye to improving himself while incarcerated and being “successful in life.” The district judge gave adequate weight to these mitigating facts. He observed that Buckholz was a “smart kid” who “live[s] by his wits” and deserved “gre at” sympathy “for the circumstances of [his] young life.” The distri ct judge noted “a huge difference in [Buckholz] from the time of [his] arrest,” and credited him fo r persisting in his struggle with “addiction and [his] lack of criminal history, any kind of significant criminal history.” He then reduced Buckholz’s criminal history score to Category I. The district judge recognized Buckholz’s “willingness to accept respons ibility for [his] conduct,” and imposed only the “minimum sentence” under the adjusted ra nge in part because Buckholz wa s “a smart guy” who “just [has] to utilize intelligence and positively not negatively.” Finally, he recommended placement at the detention facilities Buckholz re quested because they offered sex offender treatment and tradeNo. 16-3473, United States v. Buckholz

-10- programs, showing consideration of a sentence th at would afford an opportunity for treatment and training. See 18 U.S.C. § 3553(a)(2)(D). To the extent the district judge did not provide a detailed discussion of all Buckholz’s mitigating circumstances when imposing sentence, he “is not required to explicitly address every mitigati ng argument that a defendant makes, particularly when those arguments are raised only in passing.” United States v. Madden , 515 F.3d 601, 611 (6th Cir. 2008). For the district judge, Buckholz’s mitigati ng circumstances justifie d a sentence at the bottom of the adjusted Guidelines range, but no lower. He disagreed with defense counsel’s conclusion that Buckholz was being punished as though he had produced child pornography, observing that different Guidelines , and harsher penalties, applie d to producers. The district judge also stressed the seriousne ss of the offense, “[p]rominent among the § 3553(a) factors” in the child pornography context. Bistline , 665 F.3d at 764. He acknowledged some judges view Guidelines sentences in child pornography cases as “awfully ha rsh,” but Buckholz was not “just looking at images” –– he was participating in th e “continued spread or distribution” of child pornography. Buckholz’s conduct was “so harmful” to the community because the “children in the images have received a life sentence of degradation and embarrassment, humiliation and pain every time these images – they’re out over the whol e world[.]” As this court has also observed, producers of child pornography are indeed more culpable, but this fact does not render possessors and distributors like Buckholz “barely culpable at all.” Bistline , 665 F.3d at 765. The district judge was clearly skeptical that Buckholz fully appreciated the consequences of his behavior. During Buckhol z’s allocution, the district judge interjected that Buckholz was “talking about everything except what [he] did,” and “kind of minimizing” his conduct. The district judge engaged in a dialog with Buckholz regarding his use of a shared folder to distributeNo. 16-3473, United States v. Buckholz

-11- child pornography videos, insisting that Buckholz knew other people could access those files. He concluded Buckholz was “missing something” in that his “addiction didn’t cause [him] to view and download child pornography.” Cf. Bistline , 665 F.3d at 765 (remarking that knowing possession of child pornography is not a passive act “that happens to a defendant”). And although Buckholz’s circumstances were “unique to [him],” they did not distinguish his case from the typical case covered by the Guidelin es. Thus, the court found that a Guidelines sentence would be “consistent with most ot her sentences that have been imposed” for Buckholz’s offense. The district judge was appropr iately attentiv e to a possible sentenci ng disparity in this case in light of Buckholz’s request for a sign ificant downward variance. Buckholz argues the district court’s conclusion that a downward variance here woul d create such a disparity was erroneous because below-Guidelines sentences have been imposed and upheld in some other child pornography cases in this circuit. The fl aw in Buckholz’s reasoning is obvious. Section 3553(a)(6) concerns national disp arities “among defendants with si milar records who have been found guilty of similar conduct.” The fact that this court has affirmed sentences below the Guidelines range in some child pornography cas es does not compel the conclusion that it was unreasonable to impose a Guidelines sentence in th is one. Just as this court has upheld shorter sentences for similar conduct, it has also upheld much longer ones. See, e.g. , United States v. Sprague , 370 F. App’x 638, 645–47 (6th Cir. 2010) (upholding a far-above-Guidelines 360- month sentence for receiving child pornography). The question on review is not whether the district court had the authority to impose a shor ter sentence, but whether the district court was unreasonable in imposing the sentence it did.No. 16-3473, United States v. Buckholz

-12- The district judge considered Buckholz’s m itigation arguments and provided a sufficient explanation for imposing a Guidelines sentence. Although it reached a different result than Buckholz wanted, “[a]s we have pr eviously explained, ‘[ t]hat the court did not weigh the factors raised by Defendant in the manner that he would have liked to have had them weighed does not indicate that the court acte d improperly or disregarded Defendant’s arguments.’” United States
v. Houston , 813 F.3d 282, 296 (6th Cir. 2016) (quoting United States v. Hogan , 458 F. App’x 498, 504 (6th Cir. 2012)). Buckholz’s within-Guide lines sentence is substantively reasonable.
IV. For these reasons, we affirm defendant’s sentence.