United States v. Eric Burrows

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 16, 2020
• Docket: 19-4155
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL TEXT PUBLICATION File Name: 20a0585n.06

No. 19-4155

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 16, 2020 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF ERIC DANIEL BURROWS, ) OHIO ) Defendant-Appellant. ) OPINION ) )

BEFORE: CLAY, GIBBONS, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge. Eric Burrows pled guilty to receiving, accessing with

intent to view, and possessing child pornography. His Sentencing Guidelines range was 97 to 121

months in prison. The district court sentenced him to 97 months. Burrows appeals, arguing that

his sentence is substantively unreasonable. Because the sentence is reasonable and the district

court didn’t abuse its discretion, we AFFIRM.

I.

A.

In 2012, Homeland Security Investigations began to investigate a fee-based website called

“Website M,” which sold child pornography. The website required users to have a username and

password before they could use it. But once users set these up, they could purchase passwords for No. 19-4155, United States v. Burrows

folders containing images and videos of child pornography and child erotica. After a user paid for

a password, the website automatically emailed the user with the password to access the folder.

During its investigation into Website M, Homeland Security analyzed payment processor

records associated with the website and identified users who made multiple purchases from the

site. Through this and other investigation, Homeland Security determined that Eric Burrows

bought several files from Website M between 2017 and 2018.

Based on this evidence, federal agents executed a search warrant at Burrows’s car repair

shop in Elyria, Ohio. During the search, they discovered two devices with child pornography

containing nearly 10,000 images of child abuse material, including fifty-two videos. Among the

images and videos Burrows bought were naked prepubescent girls performing various sex acts on

themselves. Multiple involved adult men performing sex acts on toddlers. Others featured

prepubescent girls whipping or pretending to choke themselves. Many displayed the girls’

genitals. The devices also contained another 167,713 images of child exploitative material.

In an interview with federal agents, Burrows admitted that the email address associated

with the Website M purchases was his and that no one else had access to it. Still, Burrows at first

denied buying and viewing child pornography. But when the interviewing agent pressed him, he

changed his tone, claiming that he “didn’t think it was porn” and “didn’t look at it as porn”—“it”

referring to “naked images of young women.” (R. 25, Presentence Investigation Report, PageID

# 177.) And Burrows then volunteered to the agent that the age of consent was “like 15, 16 years

old. Not that I’ve ever had sex with a child, but anyways. Just throwing it out there.” (Id.) When

the agent asked Burrows about the youngest child he saw in naked images, Burrows replied that

he thought his purchases might’ve included some nine- or ten-year-old children by mistake. (Id.)

That ended the interview—Burrows asked for a lawyer shortly after.

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B.

A federal grand jury indicted Burrows. The indictment charged three violations of federal

law: receipt of visual depictions of real minors engaged in sexually explicit conduct; accessing

child pornography with intent to view; and possession of child pornography. See 18 U.S.C.

§§ 2252(a)(2), 2252A(a)(5)(B). Burrows pled guilty to all three counts. Under the Federal

Sentencing Guidelines, Burrows’s base offense level was 22. See U.S.S.G. § 2G2.2. This level

fell to 20 because Burrows didn’t distribute or traffic in child pornography.

But Burrows’s offense level increased to 33 based on four § 2G2.2 factors: (1) the material

Burrows bought involved a prepubescent minor under the age of twelve; (2) the material portrayed

sadistic or masochistic conduct and sexual abuse and exploitation of a toddler; (3) Burrows used a

computer to possess the material; and (4) Burrows had nearly 10,000 images and fifty-two videos.

See U.S.S.G. § 2G2.2. After Burrows accepted responsibility, his offense level was 30, and the

guideline range for his sentence was 97 to 121 months.

The district court sentenced Burrows to a within-Guidelines sentence of 97 months, at the

bottom of the range. The court noted that other courts, focusing on the traits of child-pornography

defendants, have imposed below-Guidelines sentences. (R. 34, Sentencing Tr., PageID # 300.)

But that perspective was “seriously misguided” in the court’s eyes because it didn’t focus enough

on how child pornography affects victims and the public. (Id.) And in the court’s opinion,

Burrows didn’t “understand, fully understand, that this is serious in nature and this conduct is the

kind of conduct that must be obviously deterred.” (Id. at PageID # 302.)

The district court also noted that it had reviewed the sentencing memoranda submitted by

the government and defense. These included several empirical studies offering differing views

about the dangers that offenders like Burrows, who “feed the market” for child pornography, pose.

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(Id.) And the court observed that Burrows “sought out” the pornography, which included videos

(one forty-eight minutes long) and contained images of “infant, toddler-aged children” and

children engaged in sadistic and masochistic violence. (Id. at 301.) Finally, the court found that

Burrows was less than truthful in his interview with federal agents, at first claiming he didn’t view

child pornography, then claiming not to think of the images as pornographic.

Burrows now appeals his sentence. He argues that it was “greater than necessary” to

achieve federal sentencing purposes. (Appellant Br. at 23.) He also argues that the Federal

Guidelines fail to distinguish offenders by their level of culpability, and that the district court relied

too heavily on Burrows’s interview with federal agents and too little on his age. Ultimately, he

thinks the district court erred by not applying a downward variance and sentencing him to 60

months in prison—the statutory minimum. Because the district court’s sentence is reasonable and

well within the court’s broad discretion, we affirm.

II.

“[A]ppellate review of sentencing decisions is limited to determining whether they are

‘reasonable.’” Gall v. United States, 552 U.S. 38, 46 (2007). We review whether a sentence was

reasonable under an abuse-of-discretion standard.1 Id. “A sentence may be substantively

unreasonable where the district court selects the sentence arbitrarily, bases the sentence on

1 Burrows purports to attack both the procedural and substantive reasonableness of his sentence. But he presents no arguments that go to procedural unreasonableness. He doesn’t claim that the district court improperly calculated his guideline range, treated the Guidelines as mandatory, failed to consider the § 3553(a) factors, based his sentence on clearly erroneous facts, or failed to explain the sentence. See Gall, 552 U.S. at 51 (laying out the factors for a procedurally unreasonable sentence). Burrows’s argument is that his sentence is too long, given his age and other factors, and that the district court placed too much weight on his conflicting statements during his interview with federal agents. That’s a claim of substantive unreasonableness. See United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018) (describing substantive unreasonableness as when “the court placed too much weight on some of the § 3553(a) factors and too little on others in sentencing the individual”). So we review his sentence for substantive unreasonableness only. 4 No. 19-4155, United States v. Burrows

impermissible factors, fails to consider pertinent § 3553(a) factors, or gives an unreasonable

amount of weight to any pertinent factor.” United States v. Carter, 510 F.3d 593, 601 (6th Cir.

2007) (quotations and alterations omitted). “In reviewing the sentence’s substantive

reasonableness, we consider ‘the length of the sentence and the factors evaluated ... by the district

court in reaching its sentencing determination,’” affording due deference to the district court’s

decision. United States v. Cunningham, 669 F.3d 723, 733 (6th Cir. 2012).

“A claim that a sentence is substantively unreasonable is a claim that a sentence is too

long.” United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). But substantive reasonableness

isn’t a matter of mathematical exactitude, so we’re “highly deferential” to the district court’s

reasoned discretion. Id. And “[a] sentence that falls within a properly calculated guideline range

is afforded a rebuttable presumption of reasonableness.” United States v. Brogdon, 503 F.3d 555,

559 (6th Cir. 2007). Thus, “it is incumbent upon the defendant” sentenced to a within-Guidelines

sentence “to demonstrate that his sentence is unreasonable.” Id. This burden is a heavy one for

Burrows, whose sentence is at the lowest end of his Guidelines range. See Cunningham, 669 F.3d

at 733.

Burrows fails to carry that burden. To start, Burrows’s sentence fell within the Guidelines

range, so we presume that it’s reasonable. Brogdon, 503 F.3d at 559. Burrows makes several

arguments about why his sentence is unreasonable. We’ve seen and rejected these arguments in

the past, and we do so again here.

Let’s start with Burrows’s claim that the district court should’ve granted a downward

variance because a majority of other “defendants with similar records” received below-Guidelines

sentences. (Appellant Br. at 30.) To be sure, uniformity among similarly situated defendants is

an important consideration in sentencing. See 18 U.S.C. § 3553(a), (a)(6) (“The court, in

5 No. 19-4155, United States v. Burrows

determining the particular sentence to be imposed, shall consider . . . the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found guilty of similar

conduct.”). But Burrows’s argument here is unconvincing. For starters, “[n]ational uniformity is

generally taken into account by the Sentencing Guidelines.” United States v. Rossi, 422 F. App’x

425, 435 (6th Cir. 2011) (quoting United States v. Simmons, 501 F.3d 620, 626 (6th Cir. 2007)).

And the Guidelines are the best evidence of national sentencing practices. United States v.

Pendygraft, 782 F. App’x 424, 428 (6th Cir. 2019). So when the district court here properly

calculated Burrows’s Guidelines range and applied a sentence in that range, “it necessarily [took]

steps to avoid a national disparity.” Id. (quoting United States v. Frazier, 547 F. App’x 729, 737

(6th Cir. 2013)).

Burrows, then, is asserting that the district court erred by not deviating from the Guidelines.

He wanted the district court to impose a below-Guidelines sentence of 60 months. But varying

from the Guidelines presents a “formidable task” for a district court. United States v. Bistline, 665

F.3d 758, 764 (6th Cir. 2012). It requires the court to break with the empirical and value judgments

Congress made in designing the Guidelines. Id. And “[i]f that is true, a district court cannot be

said to have abused its discretion merely because it followed § 2G2.2 (and agreed with its

policies).” United States v. Lynde, 926 F.3d 275, 280–81 (6th Cir.), cert. denied, 140 S. Ct. 326

(2019). A district court, in other words, may rely on the Guidelines and § 2G2.2 enhancements—

which the district court did here. Cunningham, 669 F.3d at 733. This wasn’t an abuse of

discretion.

Burrows also argues that Congress’s assumptions underlying the Guidelines aren’t

supported by the evidence. Indeed, the Sentencing Commission itself has criticized them before

Congress. According to Burrows, the Guidelines stem from the belief that those who view child

6 No. 19-4155, United States v. Burrows

pornography are really child molesters—and the data doesn’t support this. So Burrows “is not the

dangerous offender Congress envisioned.” (Appellant Br. at 26.) Putting aside whether Burrows’s

argument is true, “Congress’s long and repeated involvement in raising the offense levels for §

2G2.2 makes clear that the grounds of its action were not only empirical, but retributive—that they

included not only deterrence, but punishment.” Bistline, 665 F.3d at 764. That’s because Congress

recognizes “that child pornography is a serious crime.” United States v. Schrank, --- F.3d ----, No.

19-5903, 2020 WL 5511980, at *2 (6th Cir. Sept. 14, 2020).

Burrows simply disagrees with the policy decisions Congress made when it crafted the

Sentencing Guidelines. And he tries to shoehorn this disagreement into a claim of substantive

unreasonableness. But we’ve “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.” Lynde, 926 F.3d at 278. Indeed, “[t]his kind

of policy disagreement . . . is not sufficient by itself to demonstrate the district court abused its

discretion by arbitrarily selecting his sentence.” United States v. Souders, 747 F. App’x 269, 274

(6th Cir. 2018).

Burrows’s remaining arguments are also unpersuasive. He points to a handful of district

court judges who sentenced child pornography offenders less harshly than he was or stated their

disagreement with the Guidelines. But we’ve previously “criticized the comparison of the

defendant’s sentence to those imposed in other singular cases as weak evidence” to show a

sentence disparity. Rossi, 422 F. App’x at 435. Besides, the district court noted these judges’

opinions. It viewed them as “seriously misguided” because they don’t focus enough on how child

pornography affects its victims and the public. (R. 34, Sentencing Tr., PageID # 300.) This was

well within the district court’s discretion. That one district court disagrees with and rejects a

7 No. 19-4155, United States v. Burrows

Guideline’s policy doesn’t mean another court must do the same. See United States v. Brooks, 628

F.3d 791, 800 (6th Cir. 2011).

Burrows also claims that he’s the least culpable kind of child pornography offender because

he didn’t create or distribute any material or molest any children. But it makes little sense for

Burrows to try to justify a more lenient sentence on these grounds. “Just as the federal sentencing

laws impose greater sentences upon sellers of controlled substances than upon those who are

caught possessing such substances, … the federal child sexual offense laws do so as well.” United

States v. Camiscione, 591 F.3d 823, 834 (6th Cir. 2010). In other words, the Guidelines already

considered these factors in adjusting Burrows’s offense level and setting his sentence range. See

United States v. Robinson, 669 F.3d 767, 777–78 (6th Cir. 2012).

Finally, Burrows argues that the district court relied too heavily on his statements to

investigators and not enough on his age. This is wrong. The district court explicitly noted

Burrows’s age in sentencing him. (R. 34, Sentencing Tr., PageID # 299.) But the court also noted

that Burrows paid for the pornography in multiple, distinct digital packages, possessed images and

videos of toddlers and children under twelve being sexually abused, and possessed those images

in large numbers. And the district court felt that Burrows didn’t appreciate the gravity of his

actions. When, as here, the district court considers and weighs the relevant factors, the defendant

bears a heavy burden to show that the court gave an unreasonable amount of weight to any given

one. United States v. Thomas, 395 F. App’x 168, 174 (6th Cir. 2010). So we reject Burrows’s

argument that the district court didn’t give his age enough weight. That argument was, like all

Burrows’s other arguments, “fully before the district judge, and . . . expressly noted and considered

before being rejected.” Id. (quotations omitted). Burrows’s “contention that his age deserves

greater weight and mandates a . . . reduction fails to overcome the presumption of reasonableness.”

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United States v. Martin, 722 F. App’x 435, 438 (6th Cir. 2018). We decline to second guess the

district court’s reasoned and articulate weighing of the relevant sentencing factors.

III.

“The district court properly considered the sentencing factors, balanced them, and imposed

a reasonable sentence.” United States v. Holland, 799 F. App’x 380, 387 (6th Cir. 2020). Our job

isn’t to replace the district court’s judgment with our own, but to ensure the district court remains

within its wide berth of reasoned discretion. Just because Burrows didn’t get the sentence he

wanted doesn’t mean that the district court abused its discretion.

We AFFIRM.