NOT RECOMMENDED FOR PUBLICATION
No. 17-5866
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 11, 2018 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT RYAN JAMES DAY, ) COURT FOR THE MIDDLE ) DISTRICT OF TENNESSEE Defendant-Appellant. ) ) )
BEFORE: BATCHELDER, SUTTON, and WHITE, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Defendant-Appellant Ryan Day argues that
the district court imposed a procedurally unreasonable sentence for his conviction on four counts
of producing child pornography. We disagree and AFFIRM.
I.
Day repeatedly sexually abused his girlfriend’s minor daughter, A.E., beginning when she
was four or five years old. He photographed and videotaped many of his abuses of A.E. and,
eventually, sent some of these images to an undercover police officer posing online as a person
interested in child pornography. The police arrested Day and found on his phone more
pornographic images of A.E.
The government charged Day with four counts of producing child pornography in violation
of 18 U.S.C. § 2251(a), (d). Each count related to his production of pornographic images of A.E. No. 17-5866, United States v. Day
on four different days between November 2012 and August 2013, when she was eight years old.
Day pleaded guilty to all four counts without a plea agreement.
Day faced a lengthy sentence. His guidelines range was life in prison,1 and 18 U.S.C.
§ 2251(e) required that he be sentenced to a mandatory minimum of 15 years and a maximum of
30 years on each count. The probation officer recommended concurrent sentences of 360 months
on counts one through three and a consecutive sentence of 360 months on count four, for a total of
720 months—a 60-year sentence.
Day and the government each filed a sentencing memorandum. Day argued that the district
court should vary downward and impose a sentence of 25 years’ imprisonment based on difficult
circumstances of his upbringing. The government requested a sentence of 50 years’ imprisonment,
noting that Day had, multiple times over a period of years, sexually abused a minor in his care,
photographed the abuse, and distributed the images online in an effort to obtain images of other
minors being abused.
The court imposed a sentence of 50 years’ imprisonment. After handing down the
sentence, the court asked the parties “does anyone have objections to my sentence that have not
been previously raised?” Day’s counsel responded, “in order to preserve any appellate review, I
think I need to make an objection under United States versus Bostic, so we do make that objection
to the 50-year sentence.” See United States v. Bostic, 371 F.3d 865 (6th Cir. 2004). The court
acknowledged Day’s objection and informed him of his right to appeal. Day filed this timely
appeal.
1 After applying the appropriate sentencing enhancements and reductions, the probation officer calculated Day’s total offense level to be 48, five levels above the maximum sentencing level in the guidelines. The probation officer reduced Day’s offense level to 43 per guidelines instructions. See USSG Ch. 5, Pt.A, cmt. 2. Day’s prior criminal history produced a criminal history score of 6 and a criminal history category of III, yielding a life sentence. However, because the maximum statutorily authorized sentence was 30 years’ imprisonment, that became the guidelines sentence for each count.
-2- No. 17-5866, United States v. Day
II.
Day argues that the district court imposed a procedurally unreasonable sentence because it
failed to (1) “explain how Mr. Day’s background informed the sentence,” and (2) “address the
potential for sentencing disparities created by this lengthy sentence.” We find no error and affirm
the judgment of the district court.
A.
The parties dispute the appropriate standard of review. The government asserts that “Day’s
perfunctory reference to Bostic was insufficient to preserve his claims for appellate review”; hence,
we must review for plain error. Day asserts that his objection before the trial court was specific
enough to warrant review under an abuse of discretion standard.
To trigger an abuse of discretion standard of review, “[a] party ‘must object with that
reasonable degree of specificity which would have adequately apprised the trial court of the true
basis for his objection.’” Bostic, 371 F.3d at 871 (quoting United States v. LeBlanc, 612 F.2d
1012, 1014 (6th Cir. 1980)). “[A] boilerplate response (such as an objection to a sentence ‘on both
procedural and substantive grounds’) is not ‘specific enough to give the district court an
opportunity to correct the alleged error.’” United States v. Davis, 702 F. App’x 247, 251 (6th Cir.
2017) (quoting United States v. Simmons, 587 F.3d 348, 353, 356 (6th Cir. 2009)). If a defendant
intends to challenge the adequacy of a district court’s explanation for a sentence—as Day wished
to do here—he must “assert a specific objection to the allegedly inadequate” explanation. Id.
(quoting United States v. Penaloza, 648 F. App’x 508, 536 (6th Cir. 2016)). Day’s objection to
the “50-year sentence” was “not specific enough to give the district court an opportunity to correct
the alleged error.” Id. (quoting Simmons, 587 F.3d at 356). And though Day attempts to overcome
his deficient objection by arguing that Bostic is a “flexible” and “practical” standard, this court has
-3- No. 17-5866, United States v. Day
plainly rejected similar arguments. See id. at 251–52 (“flexible, practical” standard does not
excuse insufficiently specific objection). We review Day’s appeal under a plain-error standard.
B.
Under plain-error review we may reverse only where there is “an ‘error’ that is ‘plain’ and
that ‘affects substantial rights.’” United States v. Olano, 507 U.S. 725, 732 (1993) (alteration
omitted); Fed. R. Crim. P. 52(b). Even where those three factors are met, we still do not reverse
unless the error “seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (quoting United States v. Young, 470 U.S. 1, 15 (1985)). “Absent any error, our
inquiry is at an end.” United States v. Lumbard, 706 F.3d 716, 721 (6th Cir. 2013) (quoting United
States v. Mahon, 444 F.3d 530, 533 (6th Cir. 2006)).
We may handily reject Day’s procedural unreasonableness argument.2 A district court
imposes a procedurally unreasonable sentence by “failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider the 18 U.S.C.
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall v. United States,
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NOT RECOMMENDED FOR PUBLICATION
No. 17-5866
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 11, 2018 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT RYAN JAMES DAY, ) COURT FOR THE MIDDLE ) DISTRICT OF TENNESSEE Defendant-Appellant. ) ) )
BEFORE: BATCHELDER, SUTTON, and WHITE, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Defendant-Appellant Ryan Day argues that
the district court imposed a procedurally unreasonable sentence for his conviction on four counts
of producing child pornography. We disagree and AFFIRM.
I.
Day repeatedly sexually abused his girlfriend’s minor daughter, A.E., beginning when she
was four or five years old. He photographed and videotaped many of his abuses of A.E. and,
eventually, sent some of these images to an undercover police officer posing online as a person
interested in child pornography. The police arrested Day and found on his phone more
pornographic images of A.E.
The government charged Day with four counts of producing child pornography in violation
of 18 U.S.C. § 2251(a), (d). Each count related to his production of pornographic images of A.E. No. 17-5866, United States v. Day
on four different days between November 2012 and August 2013, when she was eight years old.
Day pleaded guilty to all four counts without a plea agreement.
Day faced a lengthy sentence. His guidelines range was life in prison,1 and 18 U.S.C.
§ 2251(e) required that he be sentenced to a mandatory minimum of 15 years and a maximum of
30 years on each count. The probation officer recommended concurrent sentences of 360 months
on counts one through three and a consecutive sentence of 360 months on count four, for a total of
720 months—a 60-year sentence.
Day and the government each filed a sentencing memorandum. Day argued that the district
court should vary downward and impose a sentence of 25 years’ imprisonment based on difficult
circumstances of his upbringing. The government requested a sentence of 50 years’ imprisonment,
noting that Day had, multiple times over a period of years, sexually abused a minor in his care,
photographed the abuse, and distributed the images online in an effort to obtain images of other
minors being abused.
The court imposed a sentence of 50 years’ imprisonment. After handing down the
sentence, the court asked the parties “does anyone have objections to my sentence that have not
been previously raised?” Day’s counsel responded, “in order to preserve any appellate review, I
think I need to make an objection under United States versus Bostic, so we do make that objection
to the 50-year sentence.” See United States v. Bostic, 371 F.3d 865 (6th Cir. 2004). The court
acknowledged Day’s objection and informed him of his right to appeal. Day filed this timely
appeal.
1 After applying the appropriate sentencing enhancements and reductions, the probation officer calculated Day’s total offense level to be 48, five levels above the maximum sentencing level in the guidelines. The probation officer reduced Day’s offense level to 43 per guidelines instructions. See USSG Ch. 5, Pt.A, cmt. 2. Day’s prior criminal history produced a criminal history score of 6 and a criminal history category of III, yielding a life sentence. However, because the maximum statutorily authorized sentence was 30 years’ imprisonment, that became the guidelines sentence for each count.
-2- No. 17-5866, United States v. Day
II.
Day argues that the district court imposed a procedurally unreasonable sentence because it
failed to (1) “explain how Mr. Day’s background informed the sentence,” and (2) “address the
potential for sentencing disparities created by this lengthy sentence.” We find no error and affirm
the judgment of the district court.
A.
The parties dispute the appropriate standard of review. The government asserts that “Day’s
perfunctory reference to Bostic was insufficient to preserve his claims for appellate review”; hence,
we must review for plain error. Day asserts that his objection before the trial court was specific
enough to warrant review under an abuse of discretion standard.
To trigger an abuse of discretion standard of review, “[a] party ‘must object with that
reasonable degree of specificity which would have adequately apprised the trial court of the true
basis for his objection.’” Bostic, 371 F.3d at 871 (quoting United States v. LeBlanc, 612 F.2d
1012, 1014 (6th Cir. 1980)). “[A] boilerplate response (such as an objection to a sentence ‘on both
procedural and substantive grounds’) is not ‘specific enough to give the district court an
opportunity to correct the alleged error.’” United States v. Davis, 702 F. App’x 247, 251 (6th Cir.
2017) (quoting United States v. Simmons, 587 F.3d 348, 353, 356 (6th Cir. 2009)). If a defendant
intends to challenge the adequacy of a district court’s explanation for a sentence—as Day wished
to do here—he must “assert a specific objection to the allegedly inadequate” explanation. Id.
(quoting United States v. Penaloza, 648 F. App’x 508, 536 (6th Cir. 2016)). Day’s objection to
the “50-year sentence” was “not specific enough to give the district court an opportunity to correct
the alleged error.” Id. (quoting Simmons, 587 F.3d at 356). And though Day attempts to overcome
his deficient objection by arguing that Bostic is a “flexible” and “practical” standard, this court has
-3- No. 17-5866, United States v. Day
plainly rejected similar arguments. See id. at 251–52 (“flexible, practical” standard does not
excuse insufficiently specific objection). We review Day’s appeal under a plain-error standard.
B.
Under plain-error review we may reverse only where there is “an ‘error’ that is ‘plain’ and
that ‘affects substantial rights.’” United States v. Olano, 507 U.S. 725, 732 (1993) (alteration
omitted); Fed. R. Crim. P. 52(b). Even where those three factors are met, we still do not reverse
unless the error “seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (quoting United States v. Young, 470 U.S. 1, 15 (1985)). “Absent any error, our
inquiry is at an end.” United States v. Lumbard, 706 F.3d 716, 721 (6th Cir. 2013) (quoting United
States v. Mahon, 444 F.3d 530, 533 (6th Cir. 2006)).
We may handily reject Day’s procedural unreasonableness argument.2 A district court
imposes a procedurally unreasonable sentence by “failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider the 18 U.S.C.
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). “The district court
must provide an articulation of the reasons [it] reached the sentence ultimately imposed . . . [that]
allow[s] for meaningful appellate review.” United States v. Solano–Rosales, 781 F.3d 345, 351
(6th Cir. 2015) (citations and internal quotations omitted).
Day’s assertion that the district court failed to address his background sufficiently is belied
by the sentencing transcript. At sentencing, Day “agree[d] with . . . the circumstances of this case,”
acknowledged that “the only issue . . . [wa]s what’s the appropriate sentence,” and asked the court
to impose a sentence of 25 years because a longer sentence would be an effective life sentence.
2 Even under an abuse of discretion standard, Day’s argument would fail.
-4- No. 17-5866, United States v. Day
The court, running through an abbreviated but detailed recitation of Day’s family history,
education, and mental history, emphasized his adoption, his ADHD and mental health issues, that
his adoptive family regretted taking him off of medication, and that Day likely inherited some of
the mental health issues from his biological mother who suffered from bipolar disorder and
schizophrenia. Because Day’s conduct was “one of the most serious crimes that ever comes before
the Court” and was “much, much more serious than simply viewing child pornography,” the court
imposed a sentence of 50 years with 30 years on each of counts one through three to run
concurrently and 20 years on count four to run consecutively.3 The court stated that this sentence
“will reflect the seriousness of the offense, promote respect for the law, be a just punishment,
protect the public from further crimes, and hopefully provide this defendant with needed mental
health treatment. It will not create unwarranted sentencing disparities.” The district court’s
discussion shows that it gave adequate consideration to Day’s troubled background. The court did
not err, plainly or otherwise.
Day’s argument that the district court failed to address whether his sentence would create
an unwarranted disparity likewise fails. Before the district court, Day merely requested a 25-year
sentence, noting that such a sentence would mirror the sentence imposed in another case involving
the production of child pornography, United States v. Kolb, No. 3:13-cr-00062 (M.D. Tenn. Sept.
23, 2014). At no point did Day argue (in briefing or orally) what he now aims to argue—that the
50-year sentence requested by the government would create an unwarranted disparity with Kolb
or any other case.
3 Though Day characterizes the district court’s sentence as an “upward departure” in his reply brief, the court’s 50-year sentence was—as the district court noted during sentencing—technically “a bit of a [downward] variance” from the life sentence guidelines range.
-5- No. 17-5866, United States v. Day
Even if Day had made this argument, it would fail. 18 U.S.C. § 3553(a)(6) concerns
“national disparities” and “the Guidelines themselves represent the best indication of national
sentencing practices.” United States v. Houston, 529 F.3d 743, 752 (6th Cir. 2008). “[T]he district
court’s very act of correctly calculating and reviewing the advisory range indicates that a district
judge ‘necessarily gave significant weight and consideration to the need to avoid unwarranted
disparities.’” Simmons, 587 F.3d at 363 (quoting Gall, 552 U.S. at 54). By reasonably weighing
the Section 3553(a) factors and then sentencing defendant below the advisory life guidelines range,
the district court “adequately observed the need to avoid unwarranted disparities—especially
considering that defendant did not raise any such argument, factual or legal, at the time of
sentencing.” United States v. Samayoa-Baltazar, 436 F. App’x 620, 623 (6th Cir. 2011) (citing
Simmons, 587 F.3d at 363).
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
-6-