United States v. Ryan Ahern

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 1, 2022
• Docket: 21-2938
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0139n.06

Case No. 21-2938

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED ) Apr 01, 2022 UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE WESTERN DISTRICT OF ) MICHIGAN RYAN JOSEPH AHERN, ) ) Defendant-Appellant. )

Before: McKEAGUE, GRIFFIN, and READLER, Circuit Judges.

CHAD A. READLER, Circuit Judge. Ryan Joseph Ahern pleaded guilty to producing a

pornographic video of his ten-year-old daughter. The district court applied a two-level sentencing

enhancement because Ahern sexually contacted his daughter while making the video. The court

then sentenced Ahern within the Guidelines range. Ahern appeals, challenging both the

application of the enhancement (on insufficiency of the evidence grounds) and his within-

Guidelines sentence (as substantively unreasonable). We affirm.

BACKGROUND

After receiving tips that a person with Yahoo username “ryan ahern” had shared about 150

images of child pornography, officers executed search warrants for Ryan Ahern’s home and email

accounts. During their search, officers discovered over 2,000 images of child pornography on Case No. 21-2938, United States v. Ahern

Ahern’s phone. In addition, they confirmed that Ahern had sent about 150 images of child

pornography between his different email addresses.

Officers also learned that Ahern had tried to exchange child pornography by email with

others:

Ahern: Whatcha got for trade? [Other user]: I got a lot of pics and some videos[.] You have to send some to receive[.] I am into black Asian and Hispanic girls if you have any send them and I will send you some as well. Ahern: What are you looking for specifically. I have 10yo twin daughters, they do whatever I want them too, and I love it. But I want to see some videos before I send you some of mine. Want to watch them both suck the cum out of my cock together at the same time? Ahern: By the way, they just started getting little tits, and they’re Mexican/Caucasian.

As this conversation suggests, Ahern not only possessed and viewed child pornography,

but also produced it. Of the several videos depicting child pornography that Ahern recorded, one

is relevant here: Ahern filmed himself pulling aside the underwear of one of his ten-year-old

daughters to reveal her vagina, where he focused the camera. He then emailed the video to himself

with the subject line “My very own little puss.”

A grand jury indicted Ahern on two counts of producing and attempting to produce child

pornography, in violation of 18 U.S.C. § 2251(a), (e), one count of receiving child pornography,

in violation of 18 U.S.C. § 2252A(a)(2), (b)(2), and one count of possessing child pornography

involving prepubescent minors, in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). Ahern and the

government then worked out a plea deal. Under the agreement, Ahern pleaded guilty to one count

of producing child pornography—the video described above—in violation of § 2251(a), (e). In

exchange, the government dropped the remaining counts and agreed not to contest Ahern’s request

for an acceptance of responsibility reduction.

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The presentence report calculated Ahern’s total offense level as 42. That calculation

included a two-level enhancement under U.S.S.G. § 2G2.1(b)(2)(A) because Ahern’s offense

involved a sexual act or sexual contact. Adding in Ahern’s criminal history category of I yielded

a Guidelines range of 360 months to life. But because § 2251(e) sets a 360-month statutory

maximum sentence, the Guidelines range became 360 months.

At sentencing, the district court imposed a Guidelines sentence of 360 months and asked if

Ahern had any objections. He did not. This appeal followed.

ANALYSIS

A. Ahern first contends that the district court erred in assessing a two-level enhancement

under U.S.S.G. § 2G2.1(b)(2)(A). In Ahern’s view, there was insufficient evidence before the

district court to conclude that his offense involved a sexual act or sexual contact. As Ahern failed

to object to the enhancement at sentencing, we review for plain error. See Fed. R. Crim. P. 52(b).

That means that Ahern 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).

This is an “‘extremely deferential’ standard,” under which “we reverse only in exceptional

circumstances to correct obvious errors that would result in a miscarriage of justice.” United States

v. Hymes, 19 F.4th 928, 933 (6th Cir. 2021) (citation omitted).

Under § 2G2.1(b)(2)(A), a two-level enhancement applies if Ahern’s offense involved “the

commission of a sexual act or sexual contact.” The government maintains that sexual contact

occurred. 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[.]”

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18 U.S.C. § 2246(3); see also § 2G2.1 cmt. n.2 (incorporating § 2246(3)’s definition of sexual

contact for purposes of § 2G2.1(b)(2)). For the enhancement to apply, the government must show

by a preponderance of the evidence that Ahern sexually contacted his daughter while she was being

filmed. See United States v. Aleo, 681 F.3d 290, 298 (6th Cir. 2012). The district court, for its

part, was “free to make reasonable inferences” from admitted facts to determine whether sexual

contact occurred. United States v. Parrish, 915 F.3d 1043, 1048 (6th Cir. 2019).

Ahern’s plea agreement says that he pulled his ten-year-old daughter’s underwear aside to

film her vagina:

Defendant used his iPhone XR to create a video as he pulled the underwear aside of a girl who was born in July of 2009, which exposed the child’s genitals and was the focus of the video. Defendant then sent a copy of that video to himself using his Yahoo! email account, and he titled that email “My very own little puss.”

Based on the plea agreement, the district court could reasonably infer that Ahern touched

his daughter’s genitalia, groin, inner thigh, or buttocks as he pulled her underwear aside, “either

directly or through” her underwear. § 2246(3); see Parrish, 915 F.3d at 1048. Indeed, it is difficult

to imagine how Ahern might have removed his daughter’s underwear without doing so.

Nor did the district court plainly err in finding that the touching was intentional. After all,

Ahern admitted to pulling his daughter’s underwear aside to focus the camera on her vagina. From

there, it is no great leap to think that Ahern intentionally touched his daughter’s genitalia, groin,

inner thigh, or buttocks to facilitate removing her underwear. What is more, Ahern acted for his

own sexual gratification, emailing the video to himself with the subject line “My very own little

puss.” And, on other occasions, Ahern boasted about his ability to coerce his daughters into sexual

activity. These facts, viewed through the lens of our “exceedingly deferential” standard of review,

support the inference that Ahern intended to touch his daughter’s genitalia, groin, inner thigh, or

buttocks while removing her underwear. United States v. Maye, 582 F.3d 622, 637 (6th Cir. 2009)

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(Batchelder, J., concurring in part and dissenting in part) (quoting United States v. Kemp, 546 F.3d

759, 764 (6th Cir. 2008)).

In many respects, Ahern’s case parallels United States v. King, 979 F.3d 1075 (5th Cir.

2020). There, a pastor “posed minors engaged in sexually explicit conduct and produced sexually

explicit images of those minors[.]” Id. at 1082. This description, bolstered by evidence that the

pastor had sexually contacted a young boy on other occasions, sufficed to show that he sexually

contacted the children while posing them for purposes of § 2G2.1(b)(2)(A). Id. at 1083. Notably,

the court held as much even though it recognized that the pastor “could have ‘posed’ the children

by giving them instructions.” Id. Much the same is true here. That Ahern could have removed

his daughter’s underwear without touching her does not prevent the district court from drawing

the reasonable inference that touching in fact occurred. And the possibility that any touching was

“merely incidental” to Ahern’s efforts to focus the camera on his daughter’s vagina, as he

maintains on appeal, does not overcome the “considerable deference” we owe to the district court’s

factual findings on plain error review. Id. (citation omitted).

* * * * *

Ahern’s case illustrates the vital role of timely objections. If Ahern had objected at

sentencing, the government would have introduced Ahern’s video into evidence. The district court

would then have watched the video and, according to the government, seen “Ahern’s hand . . .

resting on the child’s buttocks.” Such proof of sexual contact would have removed any doubt that

§ 2G2.1(b)(2)(A) applies. Or, if the video showed that no sexual contact occurred, the district

court would not have applied the enhancement. Either way, there seemingly would have been no

need for an appeal about § 2G2.1(b)(2)(A), a time-consuming endeavor for all involved. Cf.

Henderson v. United States, 568 U.S. 266, 285–86 (2013) (Scalia, J., dissenting) (warning that

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relaxation of the demand for contemporaneous objections risks squandering limited judicial

resources).

B. Consider next whether Ahern’s Guidelines sentence is substantively unreasonable.

That would be the case if the district court placed too much weight on some 18 U.S.C. § 3553(a)

sentencing factors and too little weight on others, yielding a sentence that “is too long (if a

defendant appeals) or too short (if the government appeals).” United States v. Rayyan, 885

F.3d 436, 442 (6th Cir. 2018). We review a sentence’s substantive reasonableness for abuse of

discretion. See id. Always deferential, see United States v. Thomas, 933 F.3d 605, 613 (6th Cir.

2019), our review is doubly so where the sentence falls within the Guidelines and thus enjoys a

presumption of reasonableness, see Vonner, 516 F.3d at 389.

Ahern first contends that the district court placed too little weight on the need to reduce

unwarranted sentence disparities between similarly situated defendants under § 3553(a)(6). “But

§ 3553(a)(6) ordinarily is ‘an improper vehicle’ for challenging a within-Guidelines sentence

because the Guidelines . . . address the statutory purpose of combatting disparity.” Hymes,

19 F.4th at 937 (citation omitted); see also United States v. Shrake, 515 F.3d 743, 748 (7th Cir.

2008) (Easterbrook, J.) (declaring that “it is pointless for a defendant” with a Guidelines sentence

to mount a § 3553(a)(6) challenge, “for the ranges are themselves designed to treat similar

offenders similarly” (citation omitted)). Today’s case exemplifies the point. By sentencing Ahern

within the Guidelines range, the district court placed adequate weight on the need to avoid

unwarranted sentence disparities.

Resisting this conclusion, Ahern points out that his Guidelines range coincided with the

statutory maximum. So, he says, the “worst of the worst”—those who commit aggravated sexual

abuse on an infant or toddler to produce child pornography depicting sadistic or masochistic

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conduct and then distribute the images to others—would receive the same sentence as him, creating

unwarranted disparities. Ahern’s argument, however, suffers from legal and factual flaws. As a

legal matter, far from ameliorating sentence disparities, Ahern’s proposed remedy of a downward

variance would instead exacerbate them by treating Ahern better than similarly situated defendants

who receive Guidelines sentences. See United States v. Swafford, 639 F.3d 265, 270 (6th Cir.

2011). Indeed, we have repeatedly held below-Guidelines sentences substantively unreasonable

where the district court failed to place adequate weight on the need to treat like defendants alike.

See, e.g., United States v. Robinson, 778 F.3d 515, 521–22 (6th Cir. 2015); United States v. Peppel,

707 F.3d 627, 638–40 (6th Cir. 2013); United States v. Bistline, 665 F.3d 758, 767 (6th Cir. 2012).

Turning to the facts, Ahern overlooks how a defendant charged with similar crimes could

receive a longer sentence. When indicted, Ahern faced a statutory maximum of 1,200 months.

Only after pleading guilty to one count in exchange for the government dropping the other three

did Ahern’s statutory maximum fall to 360 months. But if a defendant, as Ahern puts it, constitutes

the “worst of the worst,” there is no guarantee that the government would offer the same plea deal.

And even if the government did, the district court might reject the deal. See Fed. R. Crim. P.

11(c)(3)(A). Following conviction, then, a “worst of the worst” defendant may well receive a

sentence above 360 months. See, e.g., United States v. Aguilar-Andres, 780 F. App’x 231, 232–

33 (6th Cir. 2019) (upholding the district court’s decision to impose consecutive sentences totaling

600 months where the defendant filmed himself raping his six-year-old sister, captured sexually

explicit images of his four-year-old cousin, and distributed the materials over the internet). In a

similar vein, Ahern ignores the fact that his 360-month Guidelines range accounts for the severity

of his conduct, including enhancements because his offense involved a prepubescent minor, his

own child, and sexual contact. The offense level was further increased because Ahern had engaged

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in a pattern of similar activity. A less culpable defendant convicted of the same crime, on the other

hand, could easily face a shorter Guidelines range absent one or more of these enhancements.

Ahern cites three cases that, he says, show why imposing a sentence at the statutory

maximum conflicts with § 3553(a)(6). But two of those cases involved upward variances

exceeding 420 months, and thus shed little light on the substantive reasonableness of Ahern’s

Guidelines sentence. See Aleo, 681 F.3d at 300; United States v. Poynter, 495 F.3d 349, 349–50

(6th Cir. 2007). And the third case rejected the defendant’s substantive reasonableness challenge

to his below-Guidelines sentence without discussing whether the district court should have varied

downwards in the first place. See United States v. Frei, 995 F.3d 561, 567–68 (6th Cir. 2021).

Lastly, Ahern asserts that the district court neglected to place the weight § 3553(a)(1)

demands on his history and characteristics, including childhood sexual abuse by his babysitter’s

son, trauma from a sexual relationship with his older sister, and frustration caused by his

girlfriend’s “lack of sexual responsiveness.” The district court, however, thoroughly discussed

Ahern’s background, identifying the “considerable abuse and neglect” he suffered as a child, the

fact that he left home at an early age, and “his ability to work and support a family” as an adult.

In particular, the district court considered and rejected Ahern’s argument that his childhood abuse

justified a lower sentence; the court explained that Ahern’s personal experiences put him on notice

about the harm he would inflict on his daughters by using them to create pornographic films. Then,

turning to the remaining § 3553(a) factors, the district court found that the gravity of Ahern’s

offense—including victimizing “his own young daughters”—weighed towards a harsher sentence.

See § 3553(a)(2)(A). So did the need to protect the public from the danger that Ahern would

commit similar crimes when released. See § 3553(a)(2)(C). After considering the relevant

sentencing factors, the district court acknowledged that it often viewed the Guidelines’ “basketball

8 Case No. 21-2938, United States v. Ahern

score sentences” for child pornography offenses as too harsh. Yet, in this case, the court deemed

the Guidelines range appropriate.

All things considered, the district court carefully weighed Ahern’s history and

characteristics in imposing Ahern’s Guidelines sentence. We find no abuse of discretion. See

United States v. Potts, 947 F.3d 357, 372–73 (6th Cir. 2020).

We affirm Ahern’s sentence.