United States v. Adam Libbey-Tipton ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0024p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 18-4067
v. │
│
│
ADAM LIBBEY-TIPTON, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:16-cr-00236-1—Patricia A. Gaughan, District Judge.
Argued: October 15, 2019
Decided and Filed: January 23, 2020
Before: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Vanessa F. Malone, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for
Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE, Cleveland,
Ohio, for Appellee. ON BRIEF: Vanessa F. Malone, FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S
OFFICE, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant Adam Libbey-Tipton was
indicted on three counts of accessing and possessing child pornography as a result of an FBI
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investigation identifying him as a user of a child-pornography website. The government sought
to introduce evidence of Libbey-Tipton’s prior conviction of child molestation as evidence of his
propensity to access and possess child pornography. The district court admitted the evidence
under Federal Rules of Evidence 414 and 403. Ultimately, the jury found Libbey-Tipton guilty
on all three counts and the district court sentenced him to 235 months in prison, 27 months lower
than the advisory Guidelines range.
On appeal, Libbey-Tipton challenges the admissibility of his prior conviction, the
reasonableness of his sentence, and the effectiveness of trial counsel. He also raises a Fourth
Amendment challenge to the district court’s denial of his motion to suppress the search warrant
that led to his identification as a user of the website. We conclude that the district court properly
admitted the evidence in question and that the sentence imposed was not unreasonable.
Moreover, the record is not sufficiently developed to review the ineffective-assistance-of-counsel
claim. Finally, the challenge to the validity of the search warrant is precluded by our holding in
United States v. Moorehead, 912 F.3d 963 (6th Cir. 2019), cert. denied, 140 S. Ct. 270, (2019).
For these reasons, we affirm the district court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In late 2014, the FBI became aware of the website on the dark web called “Playpen,” a
forum dedicated to the advertisement and distribution of child pornography. The FBI eventually
gained control of the website and ran the site for 13 days, allowing it to track the registered users
who were sharing, producing, and viewing child pornography on the site. The account relevant
in this case, “Revenger,” was found to have registered on Playpen on November 6, 2014, and
logged a total of 34 hours, 13 minutes, and 24 seconds between registration and the time the site
was taken offline on March 4, 2015. In that time, Revenger accessed 205 different postings that
were labeled with clear descriptions of the contents, including “11 YO boys fucking,” “underage
selfies,” “girls changing on beach,” and a variety of posts within the “preteen videos girls hard
core” section. Once a user accessed a posting, the images that could be anticipated from the
name of the posting appeared on the page as previews that were stored to a computer’s cache
automatically. From there, a user could decide whether to download the larger images or video
and save it to their computer. Among the many postings and images accessed by Revenger was
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a download of an image from a post within the “preteen videos girls hard core section” entitled
“New Mary 2014,” which notoriously depicted a prepubescent female being digitally penetrated
by someone else’s hand.
Pursuant to a warrant, the FBI used a variety of investigative technologies to trace the
account of Revenger back to the defendant Adam Libbey-Tipton’s IP address and computers’
MAC addresses at his residence in Cleveland, Ohio.1 This information was sent to the FBI’s
Violent Crime Squad in Cleveland, Ohio, and they obtained a search warrant for Libbey-Tipton’s
home. The search was executed with a focus on all digital devices in the home. The forensics
team performed on-site “previews” of all the discovered devices and seized all the devices that,
upon preview, had indicia of child pornography on them. Ultimately, all of the devices seized
were from Libbey-Tipton’s bedroom, the basement, the garage, and a storage device in the
garage’s ceiling. The previews did not find any evidence of child pornography on the devices
that belonged to the other residents of the house.
The forensic examinations of the seized devices uncovered 390 images depicting child
pornography. This number does not include images that were encrypted, because Libbey-Tipton
refused to provide his password, and forensic specialists were unable to decrypt some files.
Further, the MAC addresses of the seized devices—numbers that identify the individual hard
drive within a computer—corresponded to the images viewed by the Revenger account, linking
Libbey-Tipton to an additional 482 child-pornography images.
At the time of the search, Libbey-Tipton was residing with his then-girlfriend, his mother,
his brother, and his brother’s girlfriend, three of whom testified that they did not have access to
Libbey-Tipton’s bedroom computer because Libbey-Tipton usually kept his bedroom door
locked. Additionally, although Libbey-Tipton did not allow others to use his computer, he did
use the computers of others in the house.
1Generally, when a person uses the internet, information is passed along to the website that identifies the
user’s Internet Protocol address (IP address). Each modem has an IP address assigned to it, which is how internet
providers connect users to the internet. At any given time, only one person on the internet is using a particular IP
address, making IP addresses traceable to a particular location. Additionally, every physical connection to an
internet network has a Media Access Control (MAC) address, which identifies the specific computer being used. As
a result, IP addresses can be tracked to a specific physical address or home, and MAC addresses can be tracked
down to the specific computer at that physical address.
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Based on the evidence obtained, a grand jury indicted Libbey-Tipton on three counts:
(1) “knowingly receiv[ing] . . . by computer, numerous computer files, which . . . contained
visual depictions of real minors engaged in sexually explicit conduct, as defined in Title 18,
United States Code, Section 2256(2), in violation of Title 18, United States Code, Section
2252(a)(2)”; (2) “knowingly access[ing] with intent to view, numerous digital files containing
depictions of real minors engaged in sexually explicit conduct . . . by any means including by
computer, in violation of Title 18 United States Code, Section 2252(a)(4)(B)”; and
(3) “knowingly possess[ing] a Dell computer [and five hard drives] . . . which contained visual
depictions of real minors engaged in sexually explicit conduct . . . in violation of Title 18 United
States Code, Section 2252(a)(4)(B).”
Prior to trial, the government submitted notice of intent to admit evidence of Libbey-
Tipton’s prior child-molestation conviction under Federal Rule of Evidence 414. Libbey-Tipton
had been convicted of gross sexual imposition for an incident involving his minor cousin a little
more than a year after he had first begun receiving child pornography electronically. Libbey-
Tipton’s cousin, who was four-years-old at the time of the assault, was at her grandparents’
house with her older sister. She was in Libbey-Tipton’s room, jumping on his bed with her sister
while Libbey-Tipton played video games. Libbey-Tipton approached her on the bed and pulled
up her clothes and touched her vagina with his finger. Defense counsel filed a motion in limine
to exclude mention of the prior child-molestation conviction. Ultimately, however, the district
court found the evidence admissible under Federal Rules of Evidence 414 and 403.
At trial, the government’s case relied on the testimony of FBI special agents, a special
investigator with the county prosecutor’s office who was commander of the Ohio Internet
Crimes Against Children Task Force, and a computer forensic specialist at the Ohio Bureau of
Criminal Investigation. Those witnesses detailed how Libbey-Tipton’s identity was discovered
and how he—and his computers—were connected to Revenger. The government also called
Nichole Morabito, the girlfriend of Libbey-Tipton’s brother, and Ashlie Mason, Libbey-Tipton’s
ex-girlfriend, as witnesses. Morabito testified that she contacted the National Center of Missing
and Exploited Children CyberTipline after developing concerns about Libbey-Tipton because of
conversations with friends and family. She testified that she had seen Libbey-Tipton looking at
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images of nude girls and that, on more than one occasion, he had asked her to look at the images
on his bedroom computer, while asking her what age she thought the girls were. Morabito
estimated the girls were between the ages of 13 and 15. Mason, defendant’s girlfriend at the
time of the search, described Libbey-Tipton as mostly keeping his bedroom door locked and said
that at least once a day he would be in his room with the door locked, keeping her out even
though they otherwise shared the room together.
Additionally, Libbey-Tipton’s cousin testified via video conference regarding Libbey-
Tipton’s molestation of her when she was four years old. In the middle of her testimony,
Libbey-Tipton’s counsel objected to the evidence and offered to stipulate to the prior conviction,
but the government was unwilling to accept the stipulation. Defense counsel’s request for a
special jury instruction failed when he could not specify what type of instruction he was
requesting.
The defense called only two witnesses at trial, relying on challenges to the proof laid out
by the government and by showing that others had access to Libbey-Tipton’s computers.
Ultimately, the jury found Libbey-Tipton guilty on all three counts of the indictment,
although count three was dismissed later upon motion by the government. The district court
sentenced Libbey-Tipton to 235 months in prison on each of the two remaining counts, to run
concurrently, resulting in a sentence below the advisory Guidelines range.
DISCUSSION
Challenge Under Federal Rules of Evidence 414 and 403
Libbey-Tipton asserts that the district court abused its discretion when it permitted
testimony regarding his prior conviction of gross sexual imposition of a minor. He contends that
Federal Rule of Evidence 414 calls for a more stringent analysis when the prior offense is sexual
abuse of a child and the current offense is possession and receipt of child pornography. Further,
he argues that Federal Rule of Evidence 403 prevents admission in this case, because any
probative value his prior conviction might have had was substantially outweighed by the danger
of unfair prejudice presented by the stigma of child sexual abuse.
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We review evidentiary decisions under an-abuse-of-discretion standard. United States v.
Underwood, 859 F.3d 386, 389 (6th Cir. 2017) (citing United States v. Henderson, 626 F.3d 326,
333 (6th Cir. 2010)). In the case of a Rule 403 analysis, we grant the district court “very broad”
discretion in making its determinations. United States v. Newsom, 452 F.3d 593, 603 (6th Cir.
2006) (citing United States v. Vance, 871 F.2d 572, 576 (6th Cir. 1989)). Under this standard,
“this court takes a maximal view of the probative effect of the evidence and a minimal view of
its unfairly prejudicial effect, and will hold that the district court erred only if the latter
outweighs the former.” United States v. Sassanelli, 118 F.3d 495, 498 (6th Cir. 1997) (citing
United States v. Sanders, 95 F.3d 449, 453 (6th Cir. 1996)).
In ruling on the government’s notice of intent to produce evidence of Libbey-Tipton’s
child-molestation conviction under Rule 414 and the defense’s motion in limine to exclude it, the
district court determined that although some prejudice would be caused by the admission of the
prior conviction, the probative value of the evidence would not be “substantially outweighed by
the danger of unfair prejudice.” The district court further reasoned that in adopting Rule 414,
Congress—“by design”—distinguished prior instances of child molestation from other bad acts.
The court noted that the prior act and offense in question were similar enough to be considered
“of the same type,” and that the prior conviction was “highly relevant to whether the defendant—
as opposed to another individual—committed the charged crimes.”
Federal Rule of Evidence 414(a) provides: “In a criminal case in which a defendant is
accused of child molestation, the court may admit evidence that the defendant committed any
other child molestation. The evidence may be considered on any matter to which it is relevant.”
(Emphasis added.) As defined, Rule 414’s reference to “child molestation” broadly includes the
receipt of child pornography. “Child molestation” is defined by Rule 414(d)(2)(B) to mean any
crime under federal or state law involving “any conduct prohibited by 18 U.S.C. chapter 110,”
which embraces the knowing receipt, by computer, of “any visual depiction” involving “a minor
engaging in sexually explicit conduct.” 18 U.S.C. § 2252(a)(2); see also United States v.
Seymour, 468 F.3d 378, 385 (6th Cir. 2006). Thus, Rule 414 “create[d] an exception to the
general ban on propensity evidence contained in Rule 404(b).” Underwood, 859 F.3d at 393
(quoting Seymour, 468 F.3d at 384–85).
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Relevant evidence of a defendant’s prior child molestation is admissible under Rule 414
unless “its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. In considering the probative
value of evidence, courts may consider the closeness in time between the acts, the similarity
between the act in question and the prior act, and the necessity of the evidence to the
government’s case, including whether there were less invasive means of obtaining the
information. See, e.g., Underwood, 859 F.3d at 393. When evaluating the probative value of
evidence, the court should analyze it separately from the government’s need for the evidence.
United States v. Stout, 509 F.3d 796, 800 (6th Cir. 2007) (“[T]he need for the evidence does not
make the evidence more likely to prove that which it is offered to prove. Probative value and
need for the evidence are separate considerations that weigh in favor of admission under the Rule
403 balancing test.”).
Libbey-Tipton’s main argument attacks the evidence’s probative value, claiming that “a
propensity to sexually abuse a child does not directly translate to a propensity to possess and
receive child pornography.” That argument, however, relies almost exclusively on an
unpublished opinion that has no precedential value and is also distinguishable from this case in
two ways. United States v. Hough, 385 F. App’x 535 (6th Cir. 2010).
First, although the court in Hough stated that “[a] propensity to sexually abuse a child
does not directly translate to a propensity to download child pornography,” 385 F. App’x at 537,
it relied on United States v. Hall, a case noting that the Sixth Circuit has held that “prior
molestations create the logical inference that the defendant ‘has a sexual interest in children that
is strong enough to cause him to break the law.’” Hough, 385 F. App’x at 536 (quoting United
States v. Hall, 202 F.3d 270, 2000 WL 32010, at *4 (6th Cir. 2000) (table decision). The court in
Hough elaborated:
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To some degree, evidence of Hough’s molestations of the four girls makes it more
likely he would download child pornography. In addition, it is a logical inference
that Hough’s preferences for incest, sodomy, oral sex, and prepubescent girls
would translate from his actions in the molestations to the images and searches for
child pornography, indicating it was Hough who downloaded the images.
Hough, 385 F. App’x. at 537.
It is notable that the language of Rule 414 reads “the court may admit evidence that the
defendant committed any other child molestation,” implying that the prior acts do not need to be
identical to be admitted. Fed. R. Evid. 414(a) (emphasis added). In this case, moreover, the
physical act and the subject matter of the child pornography are strikingly similar. For example,
Libbey-Tipton’s prior act involved the use of his fingers to touch a prepubescent girl’s vagina up
through the leg of her pants. Similarly, the government’s record of Libbey-Tipton’s Playpen
activity includes his access to a post containing a video depicting an adult male touching the
vagina of a prepubescent girl with his finger and to a post named “Nude public upskirts”
containing images of prepubescent girls’ vaginas exposed to the public. It is logical to infer that
Libbey-Tipton’s preference for pornography depicting prepubescent girls would translate from
his actions in the molestation of his four-year-old cousin and serve as relevant evidence of
whether it was Libbey-Tipton that downloaded the images. This connection aligns with the
court’s reasoning in admitting prior-act evidence to show intent and knowledge in Hall:
Hall’s prior conviction and his nude photographs were relevant because they
show that Hall intentionally pursued a sexual interest in children, thereby
demonstrating his intent to knowingly receive child pornography. Hall’s prior
conviction for the sodomy and sexual abuse of a young boy also creates the
logical inference that he has a sexual interest in children that is strong enough to
cause him to break the law. Such a person is more likely to be interested in and to
knowingly receive child pornography, rather than to receive the images accidently
without the requisite knowledge or intent.
2000 WL 32010, at *3. Because Rule 414 allows for admission of propensity evidence, the use
of Libbey-Tipton’s prior act to show his motivation and intention in viewing such images is
relevant and logical.
Hough also can be distinguished from this case because in Hough, the allegations of past
child molestation sought to be introduced were unproven. Hough, 385 F. App’x at 537–38.
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As such, the court found that the introduction of those prior acts could shift the focus of the
jurors from the current charges and could turn into a series of distracting mini-trials. Id. As the
government points out, Libbey-Tipton, conversely, was convicted by a jury of child molestation,
and thus the occurrence of the prior act is not in question.
There are additional factors the court should consider when evaluating whether the prior-
act evidence was probative. In considering proximity in time, Libbey-Tipton’s molestation of
his four-year-old cousin occurred in July 2005, and count one of the superseding indictment
indicates that Libbey-Tipton began knowingly receiving child pornography on or about October
26, 2006. Although we have acknowledged that the passage of time could raise issues of
reliability, the government contends that “it is reasonable to assume that a victim of child abuse
is not likely to forget such a traumatic event,” quoting United States v. Gabe, 237 F.3d 954, 960
(8th Cir. 2001). In Underwood, we referenced Gabe to uphold the admission of uncharged prior
acts of molestation that were 20 years old. 859 F.3d at 393 (citing Gabe, 237 F.3d at 959–60).
We further noted that at the time the Violent Crime Control and Law Enforcement Act—which
promoted Rule 414—was proposed, the House sponsor made clear that the absence of a time
limit was intentional. Id. (quoting 140 Cong. Rec. H8968—01, H8991 (daily ed. Aug. 21,
1994)) (“No time limit is imposed on the uncharged offense for which evidence may be
admitted.”). Given that we have admitted an uncharged act of molestation more than 20 years
old, the 15-month lapse in time in this case cannot be considered grounds for reversal of the
conviction.
In evaluating the probative value of prior acts, courts also consider the necessity of the
evidence to the government’s case. See Stout, 509 F.3d at 800. In that analysis, the
government’s need for the evidence to prove a certain element of a crime should be balanced
against alternative means of proving the element. Id. In Stout, because there was an alternate
means of proof available—the defendant’s ex-wife’s testimony that she had seen internet history
files on Stout’s computer indicating he had watched child pornography—the district court
decided not to admit the prior acts of the defendant, which were considered particularly
inflammatory. Id. at 800–01.
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In this case, both parties agree the government had anticipated that Libbey-Tipton would
argue that the pornography was not his, because there were others living in the house and the
computers had been purchased used. As a result, the government believed that the prior-act
evidence was necessary to show propensity in order to rebut that defense. The government relies
on the parallel facts in United States v. Jones, an unpublished Sixth Circuit case, which held that
a defendant’s “prior conviction for sexual misconduct with a minor was probative of his sexual
interest in children and helped rebut his defense that his neighbors had downloaded child
pornography to his computer without his knowledge.” United States v. Jones, 747 F. App’x 348,
357 (6th Cir. 2018). Indeed, in this case the defense insists that “[t]here was never concrete
evidence indicating that Libbey-Tipton was ‘Revenger,’ or that he set up the member profile on
Playpen.” But in contending that there was no more in the record than mere “speculation” that
he was actually Revenger, Libbey-Tipton also makes the government’s case for the introduction
of the relevant prior conviction based on an act that would clearly be of interest to Revenger.
Libbey-Tipton also contends that the victim of his prior criminal conviction need not
have been called to testify because he offered to stipulate to the fact of the conviction. In
evaluating the government’s necessity for offering the evidence of the prior crime, we should
consider the alternate means available as proof for the same issue, such as a stipulation. Stout,
509 F.3d at 800. But, Libbey-Tipton’s offer to stipulate was not made until the victim-witness
was on the stand (via video) and the direct examination was underway, at which point the issue
had already been briefed and the district judge had determined that the evidence was admissible
under Rule 414.
Moreover, the government is not required to accept a stipulation in place of evidence that
would establish its “human significance” with the jury. United States v. Luck, 852 F.3d 615, 626
(6th Cir. 2017). In Luck, we declined to extend the ruling in Old Chief v. United States, 519 U.S.
172 (1997), and instead allowed the government to use images over a defendant’s proffered
stipulation because
child pornography cases are especially susceptible to a wide range of strong
emotional responses, including disbelief that a defendant would commit the act in
question. Showing the actual images paints a portrait far more vivid than a
sanitized stipulation, thereby establishing for the jury “its human significance,”
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and in the process “implicating the law’s moral underpinnings and a juror’s
obligation to sit in judgment.”
Id. at 626 (quoting Old Chief, 519 U.S. at 187).
Of course, Rule 414 must be read in conjunction with Rule 403. Once a court determines
that the evidence has probative value, it must find that the value is not substantially outweighed
by a danger of unfair prejudice. Inflammatory details that have little probative value would be
considered unfairly prejudicial—as opposed to simply prejudicial. United States v. Sims,
708 F.3d 832, 835–36 (6th Cir. 2013) (citing United States v. Bilderbeck, 163 F.3d 971, 978 (6th
Cir. 1999) (noting that “unfair prejudice [ ] mean[s] the undue tendency to suggest a decision
based on improper considerations”)). Details have been considered inflammatory enough to be
unfairly prejudicial when the prior acts were “more lurid and [ ] more interesting than the
evidence surrounding the actual charges.” Stout, 509 F.3d at 801.
In Stout, for example, we upheld a district court’s decision to suppress evidence of a prior
sexual act due to the unfair prejudice it would impose on the defendant. Id. In applying the
balancing test, we concluded that the prior acts of the defendant—videotaping his 14-year-old
daughter in the shower and sexually abusing his six-year-old stepdaughter—would “be more
alarm[ing] and disgust[ing] [to the jury] . . . than the actual charged conduct.” Id.As Libbey-Tipton concedes in his brief, “[e]vidence that is prejudicial only in the sense
that it paints the defendant in a bad light is not unfairly prejudicial pursuant to Rule 403.”
Sanders, 95 F.3d at 453 (citing United States v. Mullins, 22 F.3d 1365, 1373 (6th Cir. 1994)).
But his brief presents no argument as to why the evidence in question would unfairly prejudice
him, other than the stigma associated with child molestation. Moreover, it was within the district
judge’s discretion to determine that the prejudice was not unfair.
Because Libbey-Tipton contended that the government could not prove that the images
belonged to him, the evidence of his prior act could be considered necessary to show propensity
and motive. Furthermore, the prior act was sufficiently similar to the child-pornography offense,
was within the time proximity allowed by this court, and was relevant and necessary to the
government’s case. Taking the “maximal view of the probative effect of the evidence and a
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minimal view of its unfairly prejudicial effect,” Sassanelli, 118 F.3d at 498 (citation omitted),
and granting the district court “very broad” discretion, Newsom, 452 F.3d at 603 (citation
omitted), we decline to hold that the district court’s decision to allow the admission of the prior
act under Rules 414 and 403 constituted an abuse of discretion.
Challenge to the Reasonableness of Libbey-Tipton’s Sentence
Libbey-Tipton challenges the reasonableness of his sentence on several grounds. First,
he contends that the district court incorrectly calculated the number of pornographic images he
viewed, possessed, or accessed. Second, he argues that the length of his sentence is
unreasonable due to the district court’s failure to consider his mental health issues and policy
concerns regarding the application of the enhancements listed in § 2G2.2 of the United States
Sentencing Guidelines.
Relying on U.S.S.G. § 2G2.2, the district court concluded that Libbey-Tipton had a base
offense level of 22, with an 18-level increase based on enhancements including: two levels for
material that included a prepubescent minor; four levels for material that included “sadistic or
masochistic conduct or other depictions of violence”; five levels for a pattern of conduct that
involved the sexual abuse of minors; two levels for the use of a computer; and five levels for the
offense involving over 600 images. A two-level reduction was applied because Libbey-Tipton
did not intend to traffic or distribute the material, resulting in an advisory Guidelines range of
262 to 327 months. The district court ultimately sentenced Libbey-Tipton to two concurrent
235-month sentences. Even so, Libbey-Tipton argues that he should have been sentenced as a
level-33 offender, with a sentencing range of 151–188 months.
In reviewing the reasonableness of a sentence, we apply an abuse-of-discretion standard
of review. Gall v. United States, 552 U.S. 38, 51 (2007). “Review for reasonableness has both
procedural and substantive components.” United States v. Sexton, 512 F.3d 326, 331 (6th Cir.
2008) (citing Gall, 552 U.S. at 50; United States v. Borho, 485 F.3d 904, 908 (6th Cir. 2007)).
If, on review, the appellate court finds “that the district court’s sentencing decision is
procedurally sound, the appellate court should then consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard.” Gall, 552 U.S. at 50. An appellate
No. 18-4067 United States v. Libbey-Tipton Page 13
court may—but is not required to—presume that a sentence is substantively reasonable if it falls
within the applicable Guidelines range. Rita v. United States, 551 U.S. 338, 354–55 (2007). The
same presumption “naturally extends to sentences below the Guidelines range.” United States v.
Pirosko, 787 F.3d 358, 374 (6th Cir. 2015) (citation omitted).
When evaluating whether a challenge is procedural or substantive, we look “beyond the
label [appellant] assigns to his argument.” United States v. Parrish, 915 F.3d 1043, 1048 (6th
Cir. 2019). Libbey-Tipton argues that his sentencing claim should be evaluated using only a
substantive-reasonableness analysis. The Government correctly points out, however, that at least
one aspect of Libbey-Tipton’s argument should be considered a procedural-reasonableness
challenge.
The analysis for a procedural-reasonableness claim “is a process-driven one.” United
States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018), cert. denied, 139 S. Ct. 264 (2018). It
requires us to evaluate whether the court properly calculated the Guidelines range, treated the
range as advisory and not mandatory, considered the sentencing factors in 18 U.S.C. § 3553(a)
while excluding impermissible factors, determined the sentence “based on facts that are not
clearly erroneous,” and explained the reasoning behind the sentence. Id. When a defendant
contends that there is insufficient evidence to support a district court’s finding used, we treat it as
a contention “that the district court made an erroneous factual finding” in sentencing and, as
such, the claim triggers an analysis under procedural reasonableness. Parrish, 915 F.3d at 1047.
In calculating a sentence for possession of child pornography, a district court first must
look to the provisions of U.S.S.G. § 2G2.2. The guidelines call for an increase of five levels if
an offense involves 600 or more images. U.S.S.G. § 2G2.2(b)(7)(D). In sentencing
Libbey-Tipton, the district court found that Libbey-Tipton’s conduct involved 872 images of
child pornography, calculated by adding the 390 images of pornography found on
Libbey-Tipton’s hard drives to the 482 images the FBI found to be accessed by him online under
the username Revenger.
Libbey-Tipton argues, however, that “many of the purported images were located in
unallocated space, or were accessed by viewing the Playpen website and not downloaded or
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retained” on any of his devices. Citing an unpublished Sixth Circuit case and a published case
from the Tenth Circuit, Libbey-Tipton contends that the images found in unallocated space “may
be insufficient” to support the five-level enhancement because the enhancement “requires proof
the images were knowingly possessed by or accessed with intent to view,” citing United States v.
Keefer, 490 F. App’x 797, 799-800 (6th Cir. 2012), and United States v. Dobbs, 629 F.3d 1199,
1204 (10th Cir. 2011)). In Keefer, the court held that the “mere presence of 1,215 images in [ ]
‘unallocated space’ [ ] was insufficient relevant conduct to justify the enhancement because the
[government’s] sole explanation of the unallocated space was an ‘unverified, unexplained
website definition’ that ‘images are stored in unallocated space if they were present on a
computer at some point’ . . . [and] [p]resence does not equate to knowing possession.” Keefer,
490 F. App’x at 799.
Importantly, however, the court also noted that “[b]oth 18 U.S.C. §§ 2252(a)(4) and
2252A(a)(5) were amended in 2008 to criminalize the knowing access of child pornography with
the intent to view it in addition to knowing possession.” Id. at n.1 (citing Effective Child
Pornography Prosecution Act of 2007, Pub. L. No. 110–358, § 203, 122 Stat. 4001 (2008)).
Because the district court found Libbey-Tipton guilty of violating the provisions of
18 § 2252(a)(4)(B) after the effective date of the 2008 amendments, Keefer provides him no
avenue for relief. Likewise, Libbey-Tipton’s reliance on Dobbs is misplaced. Dobbs involved a
challenge to the sufficiency of the convicting evidence when only two pornographic images were
in question, and both were cache files. 629 F.3d at 1208. Here, however, the ruling in Dobbs is
not relevant because Libbey-Tipton did not challenge the sufficiency of evidence at trial, and the
evidentiary standard applicable at sentencing is different from that at a hearing to determine guilt
or innocence. Sexton, 512 F.3d at 330 (“Where, as here, a district court understands that the
Guidelines are only advisory, judicial fact-finding done by the preponderance of the evidence is
permissible.”).
Even so, Libbey-Tipton argues that “the government presented no evidence at sentencing
to prove” the files had belonged to or had been accessed by him. The presentence report,
however, outlines the process used to connect Libbey-Tipton to the Revenger account, tracking
the IP address for the user, then—pursuant to a search warrant based on that IP address—finding
No. 18-4067 United States v. Libbey-Tipton Page 15
390 child-pornography images on Libbey-Tipton’s hard drives. Even without the unallocated
files on the hard-drive, the FBI’s account of Libbey-Tipton’s actions on Playpen provided
sufficient evidence to qualify for the five-level sentencing enhancement. As a result, the district
court cannot be said to have committed plain error in relying upon the government’s calculation
of the number of pornographic images in Libbey-Tipton’s possession.
A substantive-reasonableness analysis focuses on the length of the sentence. United States v.
Clayton, 937 F.3d 630, 643 (6th Cir. 2019). On appeal, we consider whether a sentence is
reasonable by questioning whether the district court appropriately balanced the factors laid out in
18 U.S.C. § 3553(a). Id. (citing Rayyan, 885 F.3d at 442). These factors include “the nature and
circumstances of [defendant’s] conduct, [defendant’s] history and characteristics, the need for
the sentence, sentencing disparities, and the need for restitution.” Pirosko, 787 F.3d at 374–75.
When a defendant raises a specific argument in pursuit of a lower sentence, the district court
must demonstrate that it considered the argument, Parrish, 915 F.3d at 1049 (citations omitted),
but “a district court need not provide an explanation for rejecting a mitigating argument if ‘the
matter is conceptually simple’ and ‘the record makes clear that the sentencing judge considered
the evidence and arguments.’” Sexton, 512 F.3d at 332 (quoting Rita, 551 U.S. at 339–40)
(additional citation omitted).
Libbey-Tipton contends that the district court did not give proper weight to the argument that
courts have rejected the child-pornography guidelines because of their harshness and the fact that
the computer enhancement could be applied in almost all cases. In support of his position,
Libbey-Tipton cites United States v. Marshall to emphasize that other courts have rejected the
child-pornography guidelines and varied downward due to the severe sentences called for under
the Guidelines. 870 F. Supp. 2d 489, 493 (N.D. Ohio 2012), aff’d, 736 F.3d 492 (6th Cir. 2013).
We have considered the same argument in other child-pornography cases but determined it to be
“unavailing.” See Pirosko, 787 F.3d at 375 (citing United States v. Bistline, 665 F.3d 758, 762–
764 (6th Cir. 2012) (holding that a district court’s disagreement with §2G2.2 on policy grounds
was not sufficient to justify the downward variance granted); see also United States v.
Cunningham, 669 F.3d 723, 733 (6th Cir. 2012) (rejecting the argument that § 2G2.2 is “unfit for
deference” because of its “purported lack of empirical grounding”)).
No. 18-4067 United States v. Libbey-Tipton Page 16
Nor does Libbey-Tipton’s argument regarding the prevalence of computer use in
child-pornography crimes entitle him to relief. Libbey-Tipton points out that, as of 2017, 95.7%
of child-pornography offenses involve the use of a computer, and as such, the enhancement for
use of a computer in the crime under U.S.S.G. § 2G2.2(b)(6) fails to distinguish between
defendants who are more of a threat to the community or more culpable than other offenders,
citing United States Sentencing Commission, Use of Guidelines and Specific Offense
Characteristics for Fiscal Year 2017, at 45, and Marshall, 870 F. Supp. 2d at 494. But we have
also rejected this argument, explaining the purpose of the computer-use enhancement and, thus,
denying that the increase is unnecessary or redundant:
[B]ecause Lewis could have violated the statute without using a computer, we
cannot say that computer use is an element of the crime. The fact that he did use
a computer, then, may serve as an offense characteristic affecting the
determination of his sentence, and which may result in an additional sentence
enhancement. This position is bolstered by the fact that the U.S.S.G.
§ 2G2.2(b)(6) enhancement for using a computer aims at punishing a distinct
harm beyond the mere transmission of child pornography. Specifically,
“[d]istributing child pornography through computers is particularly harmful
because it can reach an almost limitless audience. Because of its wide
dissemination and instantaneous transmission, computer-assisted trafficking is
also more difficult for law enforcement officials to investigate and prosecute.” As
such, we cannot accept Lewis’s position that enhancing his sentence for his use of
a computer is double-counting when the enhancement is designed to address a
distinct harm.
United States v. Lewis, 605 F.3d 395, 403 (6th Cir. 2010) (citing United States v. Lebovitz,
401 F.3d 1263, 1271 (11th Cir. 2005) (quoting H.R.Rep. No. 104–90, at 3–4 (1995), as reprinted
in 1995 U.S.C.C.A.N. 759, 760–61)).
Nonetheless, the district court did entertain Libbey-Tipton’s arguments. At the sentencing
hearing, the district court noted that it has “historically given a downward variance in cases of
this nature” because the advisory range in child-pornography cases “appear[s] to be more severe
when compared to crimes that are equally serious.” The district court then went through a
variety of the 18 U.S.C. § 3553(a) factors it considered, including the defendant’s family
background and mental health history, and any expression of remorse. Ultimately, however, the
district court determined that because of the defendant’s lack of remorse, his “very sophisticated
No. 18-4067 United States v. Libbey-Tipton Page 17
effort to hide the conduct,” and his previous conduct “act[ing] on his desires with a child,” it
“[could] not justify the normal variance that [it had] done historically in cases of this nature.”
Even so, the district court still granted a one-level downward variance due to consideration of
factors Libbey-Tipton specified in his brief, including the familial abuse he had endured in his
life and his acknowledged suicide attempts. Although the district court did not refer to the use of
computers specifically, the court made clear at three separate points that it had considered the
policy issues with the Guidelines range, which is why it opted for a downward variance. As a
result, the record before us “makes clear that the sentencing judge considered the evidence and
arguments.” Sexton, 512 F.3d at 332.
The district court in this case clearly laid out its justification for the below-Guidelines
sentence, considered the matters that both parties raised, and did not give unreasonable weight to
any factor in particular. Weighing the various appropriate factors “is a matter of reasoned
discretion, not math, and our highly deferential review of a district court’s sentencing decisions
reflects as much.” Rayyan, 885 F.3d at 442 (citing Gall, 552 U.S. at 51). We conclude that the
district court did not abuse its discretion in refusing a greater downward variance.
CONCLUSION
For the reasons set out above, we AFFIRM the judgment of the district court.