from the United States District Court for the Northern
District of Ohio at Akron. No. 5:17-cr-00429-1- Dan A.
Polster, District Judge.
B. Russ, Nashville, Tennessee, for Appellant.
Danielle K. Angeli, UNITED STATES ATTORNEY'S OFFICE,
Cleveland, Ohio, for Appellee.
Before: COOK, NALBANDIAN, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
2G2.2 of the Sentencing Guidelines increases the recommended
sentence in child-pornography cases if the offense involves a
minor under the age of 12, the use of a computer, or other
aggravating factors. This Guideline has repeatedly been
subject to the criticism that its enhancements apply in most
child-pornography cases and generate unduly harsh sentences.
Our court has just as repeatedly rebuffed claims that courts
must decline to follow § 2G2.2 because it arose from too
much democratic tinkering by Congress and not enough
empirical research by the Sentencing Commission. United
States v. Cunningham, 669 F.3d 723, 733 (6th Cir. 2012).
Lawrence Lynde, who pleaded guilty to a child-pornography
offense, asks us to depart from our cases and reject §
2G2.2 because the Commission added its expert voice to the
criticism in a 2012 report to Congress. But just as this
report cannot compel the legislative branch to depart from
its policy choices about § 2G2.2's content, cf.
United States v. Bistline, 665 F.3d 758, 761-64 (6th
Cir. 2012), so too it cannot compel the judicial branch to
depart from its legal judgment about § 2G2.2's
validity. We thus affirm Lynde's sentence.
detailing our reasoning, we start with the facts. In October
2015, federal officials received a tip from Canadian
authorities that Lynde had been trading child pornography
online. An investigation uncovered that he had exchanged 62
images with another individual on the online application
"Kik" between October and December 2014. Executing
a search warrant at Lynde's home in December 2015,
federal agents recovered 322 images and five videos of child
pornography. The images showed, among other things,
prepubescent minors, including toddlers, engaged in
genital-to-genital intercourse with adult males. Lynde
ultimately pleaded guilty to receiving and distributing child
pornography, in violation of 18 U.S.C. § 2252(a)(2).
knowing receipt and distribution of child pornography carries
a statutory minimum of five years' imprisonment and a
statutory maximum of twenty years. 18 U.S.C. §
2252(b)(1). The Sentencing Guidelines assigned Lynde's
crime a base offense level of 22. U.S.S.G. § 2G2.2(a)(2)
(2016). His presentence report applied five § 2G2.2
enhancements: (1) Lynde's offense involved children under
12, id. § 2G2.2(b)(2); (2) Lynde knowingly
distributed child pornography, id. §
2G2.2(b)(3)(F); (3) the child pornography presented sadistic
or masochistic conduct and the sexual abuse of a toddler,
id. § 2G2.2(b)(4); (4) Lynde had used a
computer, id. § 2G2.2(b)(6); and (5) Lynde
possessed over 600 images, id. §
2G2.2(b)(7)(D). (Under the Guidelines commentary, every video
is "considered to have 75 images." Id.
§ 2G2.2, cmt. n.6(B)(ii).) After reductions for
acceptance of responsibility, Lynde's total offense level
was 34. With no criminal history, he faced a Guidelines range
between 151 and 188 months.
sentencing, Lynde's counsel objected to the § 2G2.2
enhancements. Counsel conceded that they applied. But he
described § 2G2.2 as "broken" because it
produced harsh sentences through enhancements that enlarge
the punishment in most cases. Counsel also highlighted
Lynde's otherwise productive life and strong family
support. A married father of three who provided care to his
sick wife, Lynde served in the military and then began a
career servicing x-ray equipment, which occasionally took him
overseas on charitable work. Lynde's counsel thus
requested the statutory minimum-a five-year sentence.
district court agreed that the presentence report correctly
calculated the Guidelines range, but decided that a
Guidelines sentence would be "longer than
necessary" under 18 U.S.C. § 3553(a). It rejected
the use-of-a-computer enhancement because the court had never
presided over a child-pornography case that did not involve a
computer. It also decreased the offense level because of
Lynde's family circumstances. All in all, its reductions
reduced the Guidelines range to between 97 and 121 months.
Because of Lynde's "particularly exemplary
life," the court settled on a 97-month sentence.
review this sentence "under a deferential
abuse-of-discretion standard." Gall v. United
States, 552 U.S. 38, 41 (2007). While a sentence must be
both procedurally and substantively reasonable, id.
at 51-52, Lynde does not identify any procedural problems
with his sentence. He simply disputes the bottom-line number,
arguing that his 97-month sentence is "too long."
United States v. Rayyan, 885 F.3d 436, 442 (6th Cir.
2018). Lynde presents wholesale and retail challenges in
support of this substantive argument: He broadly asserts that
the district court should have rejected the § 2G2.2
enhancements on policy grounds that would apply to most
defendants, and he narrowly asserts that the district court
wrongly balanced the § 3553(a) factors in his case.
Challenge. We typically start with an appellate
presumption of reasonableness if the district court imposes a
sentence within the Guidelines range (or a sentence below
that range where, as here, the defendant is the one
appealing). United States v. Curry, 536 F.3d 571,
573 (6th Cir. 2008). This "presumption reflects the fact
that, by the time an appeals court is considering a
within-Guidelines sentence on review, both the
sentencing judge and the Sentencing Commission will have
reached the same conclusion as to the proper
sentence in the particular case." Rita v. United
States, 551 U.S. 338, 347 (2007). And when a judge
departs downward from the Guidelines range, "simple
logic compels the conclusion" that a
"defendant's task of persuading us that the more
lenient sentence . . . is unreasonably long is even more
demanding." Curry, 536 F.3d at 573. Flipping
this logic on its head, Lynde argues that we should treat as
unreasonable even a below-Guidelines sentence that
relies on § 2G2.2's enhancements. That is so, Lynde
claims, because those enhancements neither (1) arise from the
Commission's careful study into the courts' past
sentencing practices nor (2) adequately distinguish among
not taken kindly to Lynde's claim that § 2G2.2
deserves to be cast aside because of its "purported lack
of empirical grounding." Cunningham, 669 F.3d
at 733. His premise is correct. Congress has actively policed
§ 2G2.2, so the Commission's usual statistical
methods have taken a backseat to Congress's "desire
to cast a wider criminal net and impose harsher
punishments." United States v. McNerney, 636
F.3d 772, 775-76 (6th Cir. 2011). But Lynde's conclusion
does not follow. To the contrary, Congress's direct
involvement is a "virtue, rather than [a] vice," in
a republic like ours because "[t]he Constitution is
fundamentally a democratic document, not a technocratic
one." Bistline, 665 F.3d at 762. If the
representatives who are accountable to the People ...