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United States v. Lynde

United States Court of Appeals, Sixth Circuit

June 7, 2019

United States of America, Plaintiff-Appellee,
Lawrence Michael Lynde, Defendant-Appellant.

          Appeal 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.

         ON BRIEF:

          Manuel 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.

         Section 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.

         Before 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).

         The 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.

         At 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.

         The 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.

         We 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.

         Wholesale 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 child-pornography offenders.

         We have 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 ...

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