United States v. Michael Mudd

681 F. App'x 425
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 3, 2017
DocketCase 16-5798
StatusUnpublished
Cited by2 cases

This text of 681 F. App'x 425 (United States v. Michael Mudd) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Michael Mudd, 681 F. App'x 425 (6th Cir. 2017).

Opinions

MERRITT, Circuit Judge,

Defendant Michael Mudd was sentenced to 360 months in prison after pleading guilty to two counts of producing child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). Mudd now appeals his sentence, claiming that the district court improperly calculated his sentencing range under the Sentencing Guidelines and that his sentence was “greater than necessary” to punish the conduct at issue. Because none of his claims warrant relief on appeal, we AFFIRM the judgment of the district court.

I, Background

As part of an investigation into a website that facilitated the exchange of child pornography, federal authorities identified Mudd as a user of the website. Based on that information, law enforcement obtained and executed a warrant to search Mudd’s home where they seized various pieces of computer equipment.

Within twenty-four hours of the search of Mudd’s home, an individual informed law enforcement that her twelve-year-old son had told her that Mudd had previously recorded him engaged in sexually explicit conduct.1 In a forensic interview, the boy confirmed that Mudd had photographed and taken video of him while he was engaged in sexually explicit conduct on multiple occasions between the fall of 2013 and the summer of 2014. According to the boy, Mudd would show him pornographic photographs and videos of other boys and then ask him to mimic their poses while Mudd took photographs and video on his iPad.

On the basis of the information gained from the search and the forensic interview, a grand jury issued a fifteen-count indictment charging Mudd with thirteen counts of receipt of child pornography in violation of 18 U.S.C § 2252A(a)(2) and (b)(1), and two counts of production of child pornography in violation of 18 U.S.C. § 2251(a) and (e). Following negotiations with the United States, Mudd entered an open guilty plea to the two production counts. After Mudd was sentenced on the production counts, the thirteen remaining receipt counts in the indictment were dismissed upon the Government’s motion.

At the sentencing hearing, the district court calculated Mudd’s total offense level to be 42. That offense level included a two-point enhancement because of the district court’s finding that the offense involved “distribution” under U.S.S.G. [427]*427§ 2G2.1 (b)(3). Although Mudd’s past criminal history yielded a result of Category III under the Guidelines, the parties agreed that the result “overstated” his criminal history. Out of recognition of that fact, the district court reduced his criminal history to Category II. On the basis of a total offense level of 42 and a Category II criminal history, the district court calculated the sentencing range under the Guidelines to be 360 months to life. Each of Mudd’s two convictions carried a statutory minimum sentence of 15 years and a statutory maximum of 30 years. 18 U.S.C. § 2251(e).

Mudd’s arguments at the sentencing hearing underscored the tragic circumstances of this case. In support of his request for a sentence of fifteen years in prison—the statutory minimum—Mudd’s attorney directed the court’s attention to several mitigating facts: First, he noted that Mudd himself had been sexually abused by a priest as a child and had suffered severe emotional trauma as a result. Next, he emphasized that Mudd did not “revel[ ] in his predilections,” but rather consistently sought counseling and treatment. Finally, he reminded the court of the remorse that Mudd expressed in an earlier letter to the court. Despite Mudd’s arguments for mercy, the district court ordered a sentence of 360 months on each count to be served concurrently.

This appeal followed.

II. Standard of Review

Generally, our review of the district court’s sentencing decision is limited to reasonableness review under a deferential abuse-of-discretion standard. United States v. Bazazpour, 690 F.3d 796, 803 (6th Cir. 2012). We assess the reasonableness of sentences both procedurally and substantively. See United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008). A sentence is procedurally unreasonable if the district court “fail[s] to calculate (or improperly calcúlateles]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the [18 U.S.C.] § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Substantive reasonableness requires the sentence imposed by the district court to be reasonable based upon the totality of the circumstances, Id.

III. Distribution Sentencing Enhancement Claim

Mudd’s first claim on appeal is that the district court erroneously found that his offense involved “distribution” of child pornography under U.S.S.G. § 2G2.1(b)(3). Because Mudd’s act of showing the twelve-year-old boy various items of child pornography falls within the definition of “distribution” under § 2G2.1(b)(3), we affirm the district court’s application of the enhancement.

Section 2G2.1 is the relevant sentencing guideline for an individual convicted of producing child pornography in violation of 18 U.S.C. § 2251(a). See U.S.S.G. App. A. Specifically, § 2G2.1 provides for a two-level enhancement “[i]f the defendant knowingly engaged in distribution.” U.S.S.G. § 2G2.1(b)(3). The application notes appended to the guideline define “distribution” as “any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor.” U.S.S.G. § 2G2.1, Application Note 1.

The district court found that Mudd’s act of showing the boy various pieces of child [428]*428pornography so that he could replicate the poses in Mudd’s photographs constituted “distribution” within the meaning of U.S.S.G. § 2G2.1(b)(3) since the pornography “was used to groom [the] child” to pose for sexually explicit photographs and videos. Mudd contends that the district court’s application of the distribution enhancement was erroneous for two reasons: first, because the enhancement is only applicable when a defendant distributes the child pornography that they produced themselves; second, because the preponderance of evidence did not show that Mudd ever showed pornographic materials to the child.2 We address both arguments in turn.

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681 F. App'x 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-mudd-ca6-2017.