NOT RECOMMENDED FOR PUBLICATION File Name: 24a0513n.06
No. 24-5071
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Dec 10, 2024 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF TENNESSEE CHRISTOPHER TERRY, ) Defendant-Appellant. ) OPINION
Before: KETHLEDGE, LARSEN, and MATHIS, Circuit Judges.
KETHLEDGE, Circuit Judge. Defendant Christopher Terry challenges the reasonableness
of his 327-month sentence for two child-pornography offenses. We reject his arguments and
affirm.
I.
On November 9, 2021, an undercover FBI agent was monitoring messages in a group chat
when he saw a user, later identified as Christopher Terry, post a link to at least 23 videos that
contained child sexual-abuse material. Of those videos, one showed an adult male having vaginal
sex with a seven-year-old girl as she cried and yelled; three others involved sexual abuse of
toddlers; and another depicted bestiality with a seven- or eight-year-old girl. Also, at the time of
his arrest in July 2022, Terry had two videos and four images of sexual abuse of prepubescent girls
on his cellphone and an image of sexual abuse of underage boys on a thumb drive found in his
apartment. No. 24-5071, United States v. Terry
Terry thereafter pled guilty to both distribution of child pornography and possession of
child pornography. See 18 U.S.C. § 2252A(a)(2) and (a)(5)(B). Terry had two prior federal
convictions—one for using a computer to entice a child (specifically a four-year-old girl) to engage
in sexual activity, another for possession of child pornography, see 18 U.S.C. § 2252A(b)—for
which he was sentenced to 97 months’ imprisonment in 2005. Terry was released in 2011 and
thereafter violated the terms of his supervised release four different times—including twice for
viewing child pornography in a public library and once for failing a polygraph exam required by
his counseling program—for which he was sentenced to a total of an additional 36 months in
prison. In this case, based in part on all that criminal history, the probation officer calculated a
total offense level of 41 and an uncontested criminal history category of IV—which yielded a
guidelines range of 360 to 720 months. Terry lodged several objections to that guidelines range
and filed a motion for a downward variance. The government opposed both.
At sentencing, the district court sustained Terry’s objections to two enhancements (not at
issue here) and granted a further one-level reduction for acceptance of responsibility (on the
government’s motion). The district court thus reduced Terry’s total offense level to 36 and
calculated a new guidelines range of 262 to 327 months. Terry did not object to that guidelines
range, but urged the court to vary downward to a sentence of 210 months.
Specifically, Terry (through his counsel) first urged the court to vary downward based on
Terry’s acceptance of responsibility, his own history of sexual abuse as a child, and his past
participation in sex-offender counseling. Terry also argued, as he had in the motion, that the child-
pornography guidelines for non-production offenses—U.S.S.G. § 2G2.2—required application of
four enhancements in most cases, which in his view made that guideline suspect. Terry also cited
data from the Sentencing Commission, showing that judges varied downward in more than half of
-2- No. 24-5071, United States v. Terry
cases sentenced in which § 2G2.2 applied. See U.S. Sentencing Comm’n, Quick Facts: Child
Pornography Offenders (2022). The district court recognized Terry’s policy arguments “based on
the Sentencing Commission’s report, data and recommendations” about “a general heartland of
defendants.” But the court was not persuaded to vary downward, explaining in detail why Terry
was not a typical child-pornography offender: Terry had two prior child-sex crimes (enticement
and possession of child pornography); he had violated his supervised release at least four times
(three times for again viewing child pornography); and he had admitted to “hands-on” sexual abuse
of two teenage girls. During allocution, Terry expressed remorse, admitted to being addicted to
sex and child pornography, and reiterated his desire for treatment.
The district court then proceeded to discuss the relevant sentencing factors from 18 U.S.C.
§ 3553(a), observing (among other things) that “Mr. Terry’s extensive record of child sex crimes
and disrespect for the law is shocking and dangerous.” The court concluded that a sentence at the
top of the guidelines range—327 months—would be “sufficient, but not greater than necessary,”
to satisfy the purposes of sentencing, and that a lesser sentence “would fail to reflect the damage
that Mr. Terry has caused to his child victims and the danger to the community that he continues
to present.”
Accordingly, the district court imposed concurrent prison sentences of 327 months for
distribution and 240 months for possession of child pornography, to be followed by lifetime
supervision. The court then asked if Terry’s counsel had any remaining objections, see United
States v. Bostic, 371 F.3d 865 (6th Cir. 2004); his counsel objected (as relevant here) that the court
had overlooked other factors, including the “disparity” created by Terry’s sentence “as evidenced
by sentencing statistics.” In response, the district court explained, again, that Terry’s long history
of child-sex offenses put him “outside of the heartland of those guidelines.”
-3- No. 24-5071, United States v. Terry
This appeal followed.
II.
We generally review the procedural and substantive reasonableness of Terry’s sentence for
an abuse of discretion. Gall v. United States, 552 U.S. 38, 41 (2007).
A.
Terry argues that the district court did not adequately explain its reasons for rejecting his
argument for a downward variance based on putative flaws in the child-pornography guidelines.
When a defendant makes a non-frivolous argument in support of a lower sentence, the record must
show that the district court considered that argument and gave a reasoned basis for rejecting it.
United States v. Gunter, 620 F.3d 642, 645-47 (6th Cir. 2010).
Here—more than once—the district court expressly addressed Terry’s request that the
court vary downward based on the Sentencing Commission’s reports, data, and recommendations
concerning § 2G2.2. The court did not overlook Terry’s arguments about § 2G2.2; instead, it
deemed those arguments inapposite in Terry’s case, given his long history as “a serial child sex
crime offender.” PageID 525; see also PageID 509, 527, 535. The record makes clear that the
district court both considered Terry’s arguments about § 2G2.2 and gave a reasoned basis for
rejecting them. See Rita v. United States, 551 U.S. 338, 356 (2007).
B.
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NOT RECOMMENDED FOR PUBLICATION File Name: 24a0513n.06
No. 24-5071
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Dec 10, 2024 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF TENNESSEE CHRISTOPHER TERRY, ) Defendant-Appellant. ) OPINION
Before: KETHLEDGE, LARSEN, and MATHIS, Circuit Judges.
KETHLEDGE, Circuit Judge. Defendant Christopher Terry challenges the reasonableness
of his 327-month sentence for two child-pornography offenses. We reject his arguments and
affirm.
I.
On November 9, 2021, an undercover FBI agent was monitoring messages in a group chat
when he saw a user, later identified as Christopher Terry, post a link to at least 23 videos that
contained child sexual-abuse material. Of those videos, one showed an adult male having vaginal
sex with a seven-year-old girl as she cried and yelled; three others involved sexual abuse of
toddlers; and another depicted bestiality with a seven- or eight-year-old girl. Also, at the time of
his arrest in July 2022, Terry had two videos and four images of sexual abuse of prepubescent girls
on his cellphone and an image of sexual abuse of underage boys on a thumb drive found in his
apartment. No. 24-5071, United States v. Terry
Terry thereafter pled guilty to both distribution of child pornography and possession of
child pornography. See 18 U.S.C. § 2252A(a)(2) and (a)(5)(B). Terry had two prior federal
convictions—one for using a computer to entice a child (specifically a four-year-old girl) to engage
in sexual activity, another for possession of child pornography, see 18 U.S.C. § 2252A(b)—for
which he was sentenced to 97 months’ imprisonment in 2005. Terry was released in 2011 and
thereafter violated the terms of his supervised release four different times—including twice for
viewing child pornography in a public library and once for failing a polygraph exam required by
his counseling program—for which he was sentenced to a total of an additional 36 months in
prison. In this case, based in part on all that criminal history, the probation officer calculated a
total offense level of 41 and an uncontested criminal history category of IV—which yielded a
guidelines range of 360 to 720 months. Terry lodged several objections to that guidelines range
and filed a motion for a downward variance. The government opposed both.
At sentencing, the district court sustained Terry’s objections to two enhancements (not at
issue here) and granted a further one-level reduction for acceptance of responsibility (on the
government’s motion). The district court thus reduced Terry’s total offense level to 36 and
calculated a new guidelines range of 262 to 327 months. Terry did not object to that guidelines
range, but urged the court to vary downward to a sentence of 210 months.
Specifically, Terry (through his counsel) first urged the court to vary downward based on
Terry’s acceptance of responsibility, his own history of sexual abuse as a child, and his past
participation in sex-offender counseling. Terry also argued, as he had in the motion, that the child-
pornography guidelines for non-production offenses—U.S.S.G. § 2G2.2—required application of
four enhancements in most cases, which in his view made that guideline suspect. Terry also cited
data from the Sentencing Commission, showing that judges varied downward in more than half of
-2- No. 24-5071, United States v. Terry
cases sentenced in which § 2G2.2 applied. See U.S. Sentencing Comm’n, Quick Facts: Child
Pornography Offenders (2022). The district court recognized Terry’s policy arguments “based on
the Sentencing Commission’s report, data and recommendations” about “a general heartland of
defendants.” But the court was not persuaded to vary downward, explaining in detail why Terry
was not a typical child-pornography offender: Terry had two prior child-sex crimes (enticement
and possession of child pornography); he had violated his supervised release at least four times
(three times for again viewing child pornography); and he had admitted to “hands-on” sexual abuse
of two teenage girls. During allocution, Terry expressed remorse, admitted to being addicted to
sex and child pornography, and reiterated his desire for treatment.
The district court then proceeded to discuss the relevant sentencing factors from 18 U.S.C.
§ 3553(a), observing (among other things) that “Mr. Terry’s extensive record of child sex crimes
and disrespect for the law is shocking and dangerous.” The court concluded that a sentence at the
top of the guidelines range—327 months—would be “sufficient, but not greater than necessary,”
to satisfy the purposes of sentencing, and that a lesser sentence “would fail to reflect the damage
that Mr. Terry has caused to his child victims and the danger to the community that he continues
to present.”
Accordingly, the district court imposed concurrent prison sentences of 327 months for
distribution and 240 months for possession of child pornography, to be followed by lifetime
supervision. The court then asked if Terry’s counsel had any remaining objections, see United
States v. Bostic, 371 F.3d 865 (6th Cir. 2004); his counsel objected (as relevant here) that the court
had overlooked other factors, including the “disparity” created by Terry’s sentence “as evidenced
by sentencing statistics.” In response, the district court explained, again, that Terry’s long history
of child-sex offenses put him “outside of the heartland of those guidelines.”
-3- No. 24-5071, United States v. Terry
This appeal followed.
II.
We generally review the procedural and substantive reasonableness of Terry’s sentence for
an abuse of discretion. Gall v. United States, 552 U.S. 38, 41 (2007).
A.
Terry argues that the district court did not adequately explain its reasons for rejecting his
argument for a downward variance based on putative flaws in the child-pornography guidelines.
When a defendant makes a non-frivolous argument in support of a lower sentence, the record must
show that the district court considered that argument and gave a reasoned basis for rejecting it.
United States v. Gunter, 620 F.3d 642, 645-47 (6th Cir. 2010).
Here—more than once—the district court expressly addressed Terry’s request that the
court vary downward based on the Sentencing Commission’s reports, data, and recommendations
concerning § 2G2.2. The court did not overlook Terry’s arguments about § 2G2.2; instead, it
deemed those arguments inapposite in Terry’s case, given his long history as “a serial child sex
crime offender.” PageID 525; see also PageID 509, 527, 535. The record makes clear that the
district court both considered Terry’s arguments about § 2G2.2 and gave a reasoned basis for
rejecting them. See Rita v. United States, 551 U.S. 338, 356 (2007).
B.
Terry also argues that his sentence is substantively unreasonable. We presume otherwise,
given that his sentence was within his guidelines range. United States v. Graham, 622 F.3d 445,
464 (6th Cir. 2010). A sentence is substantively unreasonable if “the court places too much weight
on some of the § 3553(a) factors and too little on others in sentencing the individual.” United
States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018).
-4- No. 24-5071, United States v. Terry
Terry argues that sentences calculated under § 2G2.2 are “likely to be unreasonable”
because four of its six enhancements apply in most cases and, therefore, do not adequately
distinguish among more and less culpable offenders. Appellant Br., p. 27-29. But this court has
expressly rejected the same “wholesale” challenge to the reasonableness of sentences to which
§ 2G2.2 applies. See United States v. Lynde, 926 F.3d 275, 279-80 (6th Cir. 2019). Moreover,
§ 2G2.2’s enhancements were mandated by Congress, exercising its legislative power directly; and
those enhancements reflect “a retributive judgment that certain crimes are reprehensible and
warrant serious punishment as a result.” United States v. Bistline, 665 F.3d 758, 764 (6th Cir.
2012). Nor has Terry demonstrated that judgment to be unreasonable: that most child-
pornography defendants possess images of young children being sexually abused, and of violent
or sadistic conduct, and more than 600 such images (see U.S.S.G. § 2G2.2(b)(2), (b)(4), and
(b)(7)(D)), does not mean those defendants should therefore receive lesser sentences. To the
contrary, that means that such defendants are in fact highly culpable. Defendants who commit
serious crimes do not get a break simply because many other defendants commit those same crimes
too. The § 2G2.2 enhancements are valid if the harms they address are real—no matter how often
those enhancement apply. United States v. Walters, 775 F.3d 778, 786-87 (6th Cir. 2015). And
Terry has not shown that the harms addressed in § 2G2.2 are not anything but real for the children
depicted in these images and videos. See Bistline, 665 F.3d at 766.
Nor, as our court has already explained, do the Sentencing Commission’s criticism of those
enhancements make § 2G2.2’s enhancements “invalid or illegitimate.” Lynde, 926 F.3d at 281
(citation omitted) (collecting cases). Here, the district court applied the § 2G2.2 enhancements to
Terry’s offenses and rejected his contention that the resulting offense level overstated his
culpability in this case. That did not make Terry’s sentence substantively unreasonable.
-5- No. 24-5071, United States v. Terry
That leaves Terry’s argument that the district court put too much weight on “the nature and
circumstances of the offense and the history and characteristics of the defendant,” § 3553(a)(2)(A),
and too little on mitigating factors, such as his “age, his inability to obtain proper treatment, his
history of abuse, and sentencing disparities.” Appellant Br. at 25. Suffice it to say that the court
addressed all those factors and gave considered reasons for balancing them as it did. The decision
about what weight to put on a given factor is “a matter of reasoned discretion, not math, and our
highly deferential review of a district court’s sentencing decisions reflects as much.” Rayyan, 885
F.3d at 442. Terry’s sentence was substantively reasonable.
* * *
The district court’s judgment is affirmed.
-6-