NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0240n.06 CASE NO. 17-5602 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES of AMERICA, Plaintiff-Appellee ,

v. WILLARD DEAN HALL, Defendant-Appellant . ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

Before: NORRIS, BATCHELDER, and STRANCH, Circuit Judges. ALICE M. BATCHELDER, Circuit Judge. The defendant appeals the sentence resulting from his conviction for the pr oduction of child pornography. We AFFIRM. I. In March 2015, Willard Dean Hall—a 45-year -old man—created a Facebook profile of a fictional 15-year-old boy named “Jimmy Slone,” wh ich he used to coerce nude pictures from at least three minor female victim s: FV-1, FV-2, and FV-3, ages 12, 16, and 13, respectively. Hall would identify a local girl on Facebook, contact her as “Slone,” offer some flattery, and begin to request, badger, and beg her to send him nude pictur es. He sent the girls pictures of “Slone’s” penis, sent one victim a picture of her in a pub lic place, as proof that he knew who she was, and sent pictures of guns with threats of self-harm when the victim refused to send nude pictures. When a victim would relent and send him a nude picture, Hall would use that picture to demand more pictures by threatening to po st the first nude pictur e publicly. He also th reatened to and did17-5602, United States v. Hall

2 send those nude pictures to other minors; specifica lly, he sent nude pictures of FV-1 to FV-3, to coax FV-3 and extort FV-1. He also sent nude pictures of FV-1 to FV -2’s minor boyfriend, to persuade that boy to obtain or send back pictures of a certain 9-or-10-year-old girl. According to Hall, this boy had sent him nude pictures of several other minor females (younger than 14) but refused the request for pictures of the 9-o r-10-year-old girl because she was too young. When school officials learned that a “Jimmy Slone” was circ ulating nude pictures of FV1 to students in their school, they contacted th e police, who investigated, seized the “Jimmy Slone” Facebook account, and connected it to Hall. At Hall’s residence, they found computers and equipment, 525 images (including the victims here), seven videos of child pornography, and the handguns in the threatening pictures he had sent to the victims. When questioned, Hall eventually admitted everything. Th e police arrested Hall and the fe deral grand jury indicted him on several counts, including Count 1 - Production of Child Pornography. Hall entered a guilty plea, pursuant to a plea agreement in which th e prosecution dismissed all but Count 1. The presentence report (PSR) calculated Hall ’s total offense level at 43, based on several enhancements and one reduction. The two enha ncements pertinent to this appeal are: 38. Adjustment for Role in the Offense: The defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense; therefore, increase by two levels. USSG § 3B1.4. PSR at 12-13. 61. Chapter Four Enhancement: The offens e of conviction is a covered sex crime (i.e., the production of child porn ography), neither USSG §§ 4B1.1 nor § 4B1.5(a) apply, and the defendant engage d in a pattern of activity involving prohibited sexual conduct, namely at leas t three instances of the production of child pornography given the respective conduct as to FV #1, FV #2, and FV #3. Therefore, the defenda nt is a repeat and dange rous sex offender against minors. Per § 4B1.5(b)(1), the offense level is determined as 5 plus the offense level determined under Chapters Two and Three.17-5602, United States v. Hall

3 PSR at 14. Hall’s criminal histor y category was I, base d on no prior crimes and zero points. The resulting range was life in prison, but the statutory maximum was 360 months. Following resolution of objections from both parties and a sentenci ng hearing, the distri ct court considered the § 3553(a) factors and senten ced Hall to the within-guidelin es sentence of 360 months. II. We review the district court’s legal in terpretations of the Guidelines de novo. United States v. Morgan , 687 F.3d 688, 693 (6th Cir. 2012). We review substantive reasonableness claims for abuse of discretion. United States v. Jackson , 877 F.3d 231, 236 (6th Cir. 2017). A. Hall contends that the 5-leve l “pattern of conduct” enhancement, U.S.S.G. § 4B1.5(b)(1), was improper. In calculating Hall ’s guideline range, the district c ourt added five levels to Hall’s offense-level tabulation, pursuant to § 4B1.5(b)(1), based on its finding that Hall had engaged in a pattern of activity comprising at least three separate instan ces of the production of child pornography, namely, FV-1, FV-2, and FV-3. Hall concedes the factual underpinning, see Apt. Br. at 8 (“Hall cannot dispute that there are two or more instances of prohibited sexual conduct”), but argues that § 4B1.5(b)(1) is inherently unreas onable “because it results in a guideline higher than would be achieved if Hall had a prior sex offense conviction ,” id. (emphasis added). This assertion is untrue. If Hall had a prior sex offense conviction , such that the court would apply § 4B1.5(a) rather th an § 4B1.5(b)(1), as Hall hypothe sizes, the resulting advisory guideline range would be exactly the same, albeit on a different calculation. Moreover, even if Hall’s assertion were true and the Sentencing Commission had decided to impose a more severe sentence on a “pattern of conduct” than on a “single pr ior conviction,” Hall’s disagreement with such a policy determination (e.g., according to Hall, “a prior sexual offense conviction[] is, presumably, something that would warrant a greatersentence than a ‘patte rn,’” Apt. Br. at 9)17-5602, United States v. Hall

4 would not render that decision nece ssarily unreasonable. More importantly, given that we have upheld the application of § 4B1.5(b )(1) on numerous similar occasions, see United States v.
Brattain , 539 F.3d 445, 447-48 (2008); United States v. Sibley , 681 F. App’x 457, 461-62 (6th Cir. 2017); United States v. Hammonds , 468 F. App’x 593, 596-97 (6th Cir. 2012), we cannot agree with Hall’s proposition that th e provision itself is inherently unreasonable. In short, the district court properly applied it the same way to these circumstances. This claim fails. B. Hall contends that the 2-le vel “use of a minor” enhancement, U.S.S.G. § 3B1.4, was improper. In calculating Hall’s guideline range, the district cour t added two levels to Hall’s offense-level tabulation, pursu ant to § 3B1.4, based on its findi ng that Hall used a minor to commit or further the crime, i.e., Hall used the nude pictures obtained fro m FV-1 to coax FV-3 and to barter with FV-2’s minor boyfriend. The cour t also relied on United States v. Broxmeyer , 699 F.3d 265, 281 (2d Cir. 2012), in fi nding that § 3B1.4 applies to a scenario, as we have here, in which a minor photographs herself, i.e ., acts as both photographer and subject. Hall argues that th e application of § 3B1.4 was improper because Broxmeyer applies only when a defendant uses one minor to photograph a nother minor. That is both factually incorrect,

as Broxmeyer , 699 F.3d at 281, applies to a scenario such as we have here in which a minor photographs herself, and legally irrelevant, as the district c ourt alternatively applied § 3B1.4 because Hall used the nude pictures obtained from FV-1 to coax FV-3 and to barter with FV-2’s minor boyfriend. Thus, we need not decide whether the district court’s reliance on Broxmeyer was appropriate. Hall has raised no legitimate cl aim of error on this issue. This claim fails. C. Hall raises three contentions that the within guidelines sentence is substantively unreasonable, because—he believes—it is greater than necessary to sa tisfy the § 3553(a) factors.17-5602, United States v. Hall

5 It is noteworthy that Hall does no t contend that the district cour t acted arbitrarily or beyond its authority, or that it clearly erre d on any factual findings or cons idered impermissible factors. Hall’s first contention is that the sentence wa s greater than necessary because his conduct was, in his opinion, “by no means the worst sort,” Apt. Br. at 12, 16 (citing cases in which the sentences were 17 and 16 years, respectively, for conduct that Hall believes was worse than his own). Thus, Hall suggests some type of improp er sentencing disparity based on these isolated cases. But such disparity is no t necessarily improper. The guidelines sent encing system of calculations and factors is designe d to create disparities based on the differences in individual cases and criminals. Disparities are problematic when they are “ nationaldisparities, not disparities between one individual’s senten ce and another individual’s sentence.” United States v. Jenkins , 528 F. App’x 483, 487 (6th Cir. 2013) (citation and quotation marks omitted). Hall also contends that the court overemphasized the harm to the minor victims and the danger to the public, while ignoring his proffered mitigating factors, namely, his absence of prior criminal record, mental infirmity from a 2005 au to accident, and willingness to participate in treatment. Apt. Br. at 13. But a careful review of the sentencing transcript reveals that the court considered the § 3553(a) factors, as require d, and produced a reasoned decision. Hall’s disagreement with the court’s subjective view of the factor s is not a basis for reversal. Finally, Hall contends that long prison se ntences do not deter cr ime and are actually counterproductive, Apt Br. at 13, in sisting that “it is the certainty of punishment rather than the length of the sentence that actually goes to deterr ence,” Apt. Reply Br. at 2. But Hall’s argument is, at best, one perspective. That the districtcourt was not persuaded does not support a claim of

error. See also United States v. Greer , 872 F.3d 790, 799 (6th Cir. 2017) (rejecting the argument “that a shorter sentence would be a more effective deterrent than a longer sentence”).17-5602, United States v. Hall

6 III. For all of the foregoing reasons, we AFFI RM the judgment of the district court.