NOT RECOMMENDED FOR PUBLICATION File Name: 24a0250n.06
Case No. 23-1757
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Jun 07, 2024 ) UNITED STATES OF AMERICA, KELLY L. STEPHENS, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF MICHAEL JOHN BATT, ) MICHIGAN Defendant-Appellant. ) ) OPINION
Before: COLE, GIBBONS, and READLER, Circuit Judges.
CHAD A. READLER, Circuit Judge. Michael John Batt struck up an online conversation
with an undercover officer. During the conversation, Batt described sexually abusing his young
daughters. He also sent the officer explicit photos of his children. These events culminated in Batt
pleading guilty to sexual exploitation crimes. On appeal, Batt challenges the procedural and
substantive reasonableness of his within-Guidelines sentence. We affirm.
I.
An undercover officer posted a picture on social media of a young girl holding a man’s
hand with the caption, “Any other local dads out here with similar interests?” Michael John Batt
responded, “Yes.” The officer asked “[w]hat [Batt was] into.” “Incest,” Batt replied. “The more
taboo things. Younger.” Batt said he had done “some touching, rubbing, [and] exploring” with
his children. Batt then asked to switch to a secure messaging application to “go into more details.” No. 23-1757, United States v. Batt
In messages sent over the next few weeks, Batt described his conduct. He recounted in
detail how he touched his daughters sexually while bathing and had them perform oral sex on him.
He also described performing oral sex on them and digitally penetrating them, sometimes while
they slept.
Batt also said he had “a few” “naked pictures” of his daughter, but he tried “to not do
anything overtly obvious.” He said his wife did not know about the abuse, so he had to be “careful”
and “sneaky.” Batt later sent the officer five photos of his daughters in various states of undress.
Law enforcement obtained and executed a search warrant for Batt’s home. There, they
discovered roughly 55,000 files of apparent child pornography on an encrypted hard drive. Batt
agreed to talk with the investigators. He admitted to taking explicit photos of his two daughters,
but he denied sexually abusing them. He claimed his online comments were “just talk.”
Investigators interviewed Batt’s older daughter, who did not report any sexual abuse. His other
daughter was too young to speak with investigators.
Batt pleaded guilty to sexual exploitation of a child and attempted sexual exploitation of a
child, in violation of 18 U.S.C. § 2251(a), (e). The probation office drafted a presentence report
that recommended a two-point enhancement under U.S.S.G. § 2G2.1(b)(2)(A) for commission of
“a sexual act or sexual contact.” After accounting for the mandatory minimum, Batt’s Guidelines
term of imprisonment was 360 months. Batt lodged no objections.
During Batt’s sentencing hearing, the district court noted that, based on the presentence
report, Batt had committed an offense “involving a sexual act or conduct—contact.” Batt again
made no objection. Batt did, however, request a downward variance based on his personal
characteristics. The government opposed, in part because Batt “physically abused his daughters.”
2 No. 23-1757, United States v. Batt
The district court denied the requested variance and sentenced Batt to 360 months of confinement.
The court asked if there were any objections to the sentence; Batt declined.
The district court entered judgment, and this timely appeal followed.
II.
A.1. Batt argues his sentence is procedurally unreasonable because the district court
improperly found that he committed a sexual act or sexual conduct, which triggered a two-level
enhancement. U.S.S.G. § 2G2.1(b)(2)(A). Before addressing this claim, however, we first
determine our standard of review. Batt concedes that he failed to preserve this issue, urging us to
review for plain error. To prevail under that standard, Batt must “show (1) error (2) that was
obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness, integrity,
or public reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th
Cir. 2008) (en banc) (cleaned up).
The government labels Batt’s actions as more than mere forfeiture, accusing Batt of
inviting any error and suggesting we decline review absent a “manifest injustice.” See, e.g., United
States v. Akridge, 62 F.4th 258, 263 (6th Cir. 2023). The line between forfeiture and invited error
can be difficult to parse, especially in the sentencing context. See, e.g., id. at 262–64. Here, we
need not weigh in on that delicate question, as Batt’s claim fails even under the more favorable
plain error standard. See, e.g., id.
2. We turn, then, to the merits of Batt’s procedural reasonableness claim. For the two-
level enhancement from § 2G2.1(b)(2)(A) to apply, the government had to prove by a
preponderance of the evidence that Batt committed “a sexual act or sexual contact.” United States
v. Aleo, 681 F.3d 290, 298, 300 (6th Cir. 2012) (citation omitted).
3 No. 23-1757, United States v. Batt
Both parties agree we look to the statutory definitions of “sexual act” and “sexual contact.”
See United States v. Skouteris, 51 F.4th 658, 672 (6th Cir. 2022) (citation omitted); see also
U.S.S.G. § 2G2.1(b)(2)(A) cmt. n.2. A “sexual act” includes “contact between the mouth and the
penis,” penetration of the genitals “by a hand or finger,” and touching of the genitals “to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C.
§ 2246(2). “Sexual contact,” in turn, means “the intentional touching, either directly or through
the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”
Id. § 2246(3).
Here, there were two independent bases for applying § 2G2.1(b)(2)(A). First is the “sexual
act” aspect of the conduct. Consider Batt’s comments to the undercover agent. Batt explained
how he touched and penetrated his daughters’ genitals, performed oral sex on them, and made them
perform oral sex on him. These actions constituted “sexual act[s]” that were relevant conduct for
the purpose of the enhancement. See U.S.S.G. § 1B1.3(a)(1) (defining relevant conduct to include
conduct “that occurred during the commission of the offense of conviction” and “in preparation
for that offense”).
Second, with respect to “sexual contact,” photos depicted Batt’s daughters posing
undressed. The district court fairly inferred both that Batt had touched his daughters’ “genitalia,
anus, groin, breast, inner thigh, or buttocks” to position them for these photos, and that the photos
were made “to arouse or gratify the sexual desire[s]” of Batt and others. See United States v.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT RECOMMENDED FOR PUBLICATION File Name: 24a0250n.06
Case No. 23-1757
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Jun 07, 2024 ) UNITED STATES OF AMERICA, KELLY L. STEPHENS, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF MICHAEL JOHN BATT, ) MICHIGAN Defendant-Appellant. ) ) OPINION
Before: COLE, GIBBONS, and READLER, Circuit Judges.
CHAD A. READLER, Circuit Judge. Michael John Batt struck up an online conversation
with an undercover officer. During the conversation, Batt described sexually abusing his young
daughters. He also sent the officer explicit photos of his children. These events culminated in Batt
pleading guilty to sexual exploitation crimes. On appeal, Batt challenges the procedural and
substantive reasonableness of his within-Guidelines sentence. We affirm.
I.
An undercover officer posted a picture on social media of a young girl holding a man’s
hand with the caption, “Any other local dads out here with similar interests?” Michael John Batt
responded, “Yes.” The officer asked “[w]hat [Batt was] into.” “Incest,” Batt replied. “The more
taboo things. Younger.” Batt said he had done “some touching, rubbing, [and] exploring” with
his children. Batt then asked to switch to a secure messaging application to “go into more details.” No. 23-1757, United States v. Batt
In messages sent over the next few weeks, Batt described his conduct. He recounted in
detail how he touched his daughters sexually while bathing and had them perform oral sex on him.
He also described performing oral sex on them and digitally penetrating them, sometimes while
they slept.
Batt also said he had “a few” “naked pictures” of his daughter, but he tried “to not do
anything overtly obvious.” He said his wife did not know about the abuse, so he had to be “careful”
and “sneaky.” Batt later sent the officer five photos of his daughters in various states of undress.
Law enforcement obtained and executed a search warrant for Batt’s home. There, they
discovered roughly 55,000 files of apparent child pornography on an encrypted hard drive. Batt
agreed to talk with the investigators. He admitted to taking explicit photos of his two daughters,
but he denied sexually abusing them. He claimed his online comments were “just talk.”
Investigators interviewed Batt’s older daughter, who did not report any sexual abuse. His other
daughter was too young to speak with investigators.
Batt pleaded guilty to sexual exploitation of a child and attempted sexual exploitation of a
child, in violation of 18 U.S.C. § 2251(a), (e). The probation office drafted a presentence report
that recommended a two-point enhancement under U.S.S.G. § 2G2.1(b)(2)(A) for commission of
“a sexual act or sexual contact.” After accounting for the mandatory minimum, Batt’s Guidelines
term of imprisonment was 360 months. Batt lodged no objections.
During Batt’s sentencing hearing, the district court noted that, based on the presentence
report, Batt had committed an offense “involving a sexual act or conduct—contact.” Batt again
made no objection. Batt did, however, request a downward variance based on his personal
characteristics. The government opposed, in part because Batt “physically abused his daughters.”
2 No. 23-1757, United States v. Batt
The district court denied the requested variance and sentenced Batt to 360 months of confinement.
The court asked if there were any objections to the sentence; Batt declined.
The district court entered judgment, and this timely appeal followed.
II.
A.1. Batt argues his sentence is procedurally unreasonable because the district court
improperly found that he committed a sexual act or sexual conduct, which triggered a two-level
enhancement. U.S.S.G. § 2G2.1(b)(2)(A). Before addressing this claim, however, we first
determine our standard of review. Batt concedes that he failed to preserve this issue, urging us to
review for plain error. To prevail under that standard, Batt must “show (1) error (2) that was
obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness, integrity,
or public reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th
Cir. 2008) (en banc) (cleaned up).
The government labels Batt’s actions as more than mere forfeiture, accusing Batt of
inviting any error and suggesting we decline review absent a “manifest injustice.” See, e.g., United
States v. Akridge, 62 F.4th 258, 263 (6th Cir. 2023). The line between forfeiture and invited error
can be difficult to parse, especially in the sentencing context. See, e.g., id. at 262–64. Here, we
need not weigh in on that delicate question, as Batt’s claim fails even under the more favorable
plain error standard. See, e.g., id.
2. We turn, then, to the merits of Batt’s procedural reasonableness claim. For the two-
level enhancement from § 2G2.1(b)(2)(A) to apply, the government had to prove by a
preponderance of the evidence that Batt committed “a sexual act or sexual contact.” United States
v. Aleo, 681 F.3d 290, 298, 300 (6th Cir. 2012) (citation omitted).
3 No. 23-1757, United States v. Batt
Both parties agree we look to the statutory definitions of “sexual act” and “sexual contact.”
See United States v. Skouteris, 51 F.4th 658, 672 (6th Cir. 2022) (citation omitted); see also
U.S.S.G. § 2G2.1(b)(2)(A) cmt. n.2. A “sexual act” includes “contact between the mouth and the
penis,” penetration of the genitals “by a hand or finger,” and touching of the genitals “to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C.
§ 2246(2). “Sexual contact,” in turn, means “the intentional touching, either directly or through
the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”
Id. § 2246(3).
Here, there were two independent bases for applying § 2G2.1(b)(2)(A). First is the “sexual
act” aspect of the conduct. Consider Batt’s comments to the undercover agent. Batt explained
how he touched and penetrated his daughters’ genitals, performed oral sex on them, and made them
perform oral sex on him. These actions constituted “sexual act[s]” that were relevant conduct for
the purpose of the enhancement. See U.S.S.G. § 1B1.3(a)(1) (defining relevant conduct to include
conduct “that occurred during the commission of the offense of conviction” and “in preparation
for that offense”).
Second, with respect to “sexual contact,” photos depicted Batt’s daughters posing
undressed. The district court fairly inferred both that Batt had touched his daughters’ “genitalia,
anus, groin, breast, inner thigh, or buttocks” to position them for these photos, and that the photos
were made “to arouse or gratify the sexual desire[s]” of Batt and others. See United States v.
Parrish, 915 F.3d 1043, 1048 (6th Cir. 2019) (noting the district court was “free to make reasonable
inferences” from the evidence). That inference was enough for the district court to conclude, by a
4 No. 23-1757, United States v. Batt
preponderance of the evidence, that the “sexual contact” aspect of the enhancement applied. Thus,
we see no error in either respect, let alone one that is clear or obvious.
Batt urges a different conclusion. He does so first by attempting to distinguish his case
from others involving sexual acts or sexual conduct: United States v. Shafer, 573 F.3d 267 (6th Cir.
2009), United States v. Ahern, No. 21-2938, 2022 WL 985820 (6th Cir. Apr. 1, 2022), and United
States v. Sanderson, No. 21-5900, 2022 WL 1133114 (6th Cir. Apr. 18, 2022). He points out that
in each of those cases, there was more evidence of wrongdoing than present here. Perhaps so. But
that fact has little bearing on whether the evidence in today’s case was sufficient. We ask whether
the evidence reached the evidentiary floor, not the ceiling. As already discussed, there was ample
evidence of sexual acts or sexual contact on Batt’s part. That conclusion is consistent with Shafer,
Ahern, and Sanderson.
Nor are we persuaded by Batt’s repeated claims that his statements were “just talk.” While
it is true that Batt denied touching his daughters, and that his older daughter did not report any
abuse, the record was more robust. Looking to the entire record, the district court found it more
likely than not that Batt’s original statements admitting sexual misconduct were true—rather than
his self-serving, post-hoc denials. See United States v. Ruiz-Lopez, 53 F.4th 400, 402–03 (6th Cir.
2022). That court is far better positioned than this one to make credibility determinations. In the
end, Batt fails to demonstrate a plain error in the district court proceedings.
B. Next, Batt argues that his sentence is substantively unreasonable, an issue we review
for an abuse of discretion. United States v. Milliron, 984 F.3d 1188, 1195 (6th Cir. 2021).
“A substantive reasonableness challenge focuses on the length of the sentence itself, asking if the
sentence is too long (if a defendant appeals) or too short (if the government appeals).”
5 No. 23-1757, United States v. Batt
United States v. Hymes, 19 F.4th 928, 932 (6th Cir. 2021) (cleaned up). A sentence within the
Guidelines range—like the one here—is presumed reasonable. Vonner, 516 F.3d at 389.
Batt fails to carry this heavy burden. By and large, he merely repackages his procedural
reasonableness argument, asserting, again, that there was insufficient evidence of a sexual act or
sexual contact. Because the district court reasonably concluded that Batt had made sexual contact
with his daughters and that he engaged in sexual acts with them, this argument fails.
Even were we to credit Batt’s arguments, in the end his sentence was consistent with the
conduct to which he pleaded guilty. His crimes involved producing child pornography. And the
photos he admitted to producing, the district court emphasized, revealed the depravity of Batt’s
misconduct: “The sexual exploitation of [Batt’s] two young daughters [was] pretty much off the
scale in terms of seriousness.” We see no basis to doubt that grim conclusion. And the sentence
Batt received, 360 months, would have been within the Guidelines range even without the
§ 2G2.1(b)(2)(A) enhancement.
At day’s end, the district court considered the arguments of the parties—including Batt’s
written and oral requests for a downward variance—and weighed the § 3553(a) factors to select a
sentence within the Guidelines range that was sufficient, but not greater than necessary. This was
not an abuse of discretion.
* * * * *
We affirm the judgment of the district court.