United States v. Eric Burrows ( 2020 )

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 20a0585n.06
No. 19-4155
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 16, 2020
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
ERIC DANIEL BURROWS, ) OHIO
)
Defendant-Appellant. ) OPINION
)
)
BEFORE: CLAY, GIBBONS, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. Eric Burrows pled guilty to receiving, accessing with
intent to view, and possessing child pornography. His Sentencing Guidelines range was 97 to 121
months in prison. The district court sentenced him to 97 months. Burrows appeals, arguing that
his sentence is substantively unreasonable. Because the sentence is reasonable and the district
court didn’t abuse its discretion, we AFFIRM.
I.
A.
In 2012, Homeland Security Investigations began to investigate a fee-based website called
“Website M,” which sold child pornography. The website required users to have a username and
password before they could use it. But once users set these up, they could purchase passwords for
No. 19-4155, United States v. Burrows
folders containing images and videos of child pornography and child erotica. After a user paid for
a password, the website automatically emailed the user with the password to access the folder.
During its investigation into Website M, Homeland Security analyzed payment processor
records associated with the website and identified users who made multiple purchases from the
site. Through this and other investigation, Homeland Security determined that Eric Burrows
bought several files from Website M between 2017 and 2018.
Based on this evidence, federal agents executed a search warrant at Burrows’s car repair
shop in Elyria, Ohio. During the search, they discovered two devices with child pornography
containing nearly 10,000 images of child abuse material, including fifty-two videos. Among the
images and videos Burrows bought were naked prepubescent girls performing various sex acts on
themselves. Multiple involved adult men performing sex acts on toddlers. Others featured
prepubescent girls whipping or pretending to choke themselves. Many displayed the girls’
genitals. The devices also contained another 167,713 images of child exploitative material.
In an interview with federal agents, Burrows admitted that the email address associated
with the Website M purchases was his and that no one else had access to it. Still, Burrows at first
denied buying and viewing child pornography. But when the interviewing agent pressed him, he
changed his tone, claiming that he “didn’t think it was porn” and “didn’t look at it as porn”—“it”
referring to “naked images of young women.” (R. 25, Presentence Investigation Report, PageID
# 177.) And Burrows then volunteered to the agent that the age of consent was “like 15, 16 years
old. Not that I’ve ever had sex with a child, but anyways. Just throwing it out there.” (Id.) When
the agent asked Burrows about the youngest child he saw in naked images, Burrows replied that
he thought his purchases might’ve included some nine- or ten-year-old children by mistake. (Id.)
That ended the interview—Burrows asked for a lawyer shortly after.
2
No. 19-4155, United States v. Burrows
B.
A federal grand jury indicted Burrows. The indictment charged three violations of federal
law: receipt of visual depictions of real minors engaged in sexually explicit conduct; accessing
child pornography with intent to view; and possession of child pornography. See 18 U.S.C.
§§ 2252(a)(2), 2252A(a)(5)(B). Burrows pled guilty to all three counts. Under the Federal
Sentencing Guidelines, Burrows’s base offense level was 22. See U.S.S.G. § 2G2.2. This level
fell to 20 because Burrows didn’t distribute or traffic in child pornography.
But Burrows’s offense level increased to 33 based on four § 2G2.2 factors: (1) the material
Burrows bought involved a prepubescent minor under the age of twelve; (2) the material portrayed
sadistic or masochistic conduct and sexual abuse and exploitation of a toddler; (3) Burrows used a
computer to possess the material; and (4) Burrows had nearly 10,000 images and fifty-two videos.
See U.S.S.G. § 2G2.2. After Burrows accepted responsibility, his offense level was 30, and the
guideline range for his sentence was 97 to 121 months.
The district court sentenced Burrows to a within-Guidelines sentence of 97 months, at the
bottom of the range. The court noted that other courts, focusing on the traits of child-pornography
defendants, have imposed below-Guidelines sentences. (R. 34, Sentencing Tr., PageID # 300.)
But that perspective was “seriously misguided” in the court’s eyes because it didn’t focus enough
on how child pornography affects victims and the public. (Id.) And in the court’s opinion,
Burrows didn’t “understand, fully understand, that this is serious in nature and this conduct is the
kind of conduct that must be obviously deterred.” (Id. at PageID # 302.)
The district court also noted that it had reviewed the sentencing memoranda submitted by
the government and defense. These included several empirical studies offering differing views
about the dangers that offenders like Burrows, who “feed the market” for child pornography, pose.
3
No. 19-4155, United States v. Burrows
(Id.) And the court observed that Burrows “sought out” the pornography, which included videos
(one forty-eight minutes long) and contained images of “infant, toddler-aged children” and
children engaged in sadistic and masochistic violence. (Id. at 301.) Finally, the court found that
Burrows was less than truthful in his interview with federal agents, at first claiming he didn’t view
child pornography, then claiming not to think of the images as pornographic.
Burrows now appeals his sentence. He argues that it was “greater than necessary” to
achieve federal sentencing purposes. (Appellant Br. at 23.) He also argues that the Federal
Guidelines fail to distinguish offenders by their level of culpability, and that the district court relied
too heavily on Burrows’s interview with federal agents and too little on his age. Ultimately, he
thinks the district court erred by not applying a downward variance and sentencing him to 60
months in prison—the statutory minimum. Because the district court’s sentence is reasonable and
well within the court’s broad discretion, we affirm.
II.
“[A]ppellate review of sentencing decisions is limited to determining whether they are
‘reasonable.’” Gall v. United States, 552 U.S. 38, 46 (2007). We review whether a sentence was
reasonable under an abuse-of-discretion standard.1 Id. “A sentence may be substantively
unreasonable where the district court selects the sentence arbitrarily, bases the sentence on
1
Burrows purports to attack both the procedural and substantive reasonableness of his sentence.
But he presents no arguments that go to procedural unreasonableness. He doesn’t claim that the
district court improperly calculated his guideline range, treated the Guidelines as mandatory, failed
to consider the § 3553(a) factors, based his sentence on clearly erroneous facts, or failed to explain
the sentence. See Gall, 552 U.S. at 51 (laying out the factors for a procedurally unreasonable
sentence). Burrows’s argument is that his sentence is too long, given his age and other factors,
and that the district court placed too much weight on his conflicting statements during his interview
with federal agents. That’s a claim of substantive unreasonableness. See United States v. Rayyan,
885 F.3d 436, 442 (6th Cir. 2018) (describing substantive unreasonableness as when “the court
placed too much weight on some of the § 3553(a) factors and too little on others in sentencing the
individual”). So we review his sentence for substantive unreasonableness only.
4
No. 19-4155, United States v. Burrows
impermissible factors, fails to consider pertinent § 3553(a) factors, or gives an unreasonable
amount of weight to any pertinent factor.” United States v. Carter, 510 F.3d 593, 601 (6th Cir.
2007) (quotations and alterations omitted). “In reviewing the sentence’s substantive
reasonableness, we consider ‘the length of the sentence and the factors evaluated ... by the district
court in reaching its sentencing determination,’” affording due deference to the district court’s
decision. United States v. Cunningham, 669 F.3d 723, 733 (6th Cir. 2012).
“A claim that a sentence is substantively unreasonable is a claim that a sentence is too
long.” United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). But substantive reasonableness
isn’t a matter of mathematical exactitude, so we’re “highly deferential” to the district court’s
reasoned discretion. Id. And “[a] sentence that falls within a properly calculated guideline range
is afforded a rebuttable presumption of reasonableness.” United States v. Brogdon, 503 F.3d 555,
559 (6th Cir. 2007). Thus, “it is incumbent upon the defendant” sentenced to a within-Guidelines
sentence “to demonstrate that his sentence is unreasonable.” Id. This burden is a heavy one for
Burrows, whose sentence is at the lowest end of his Guidelines range. See Cunningham, 669 F.3d
at 733.
Burrows fails to carry that burden. To start, Burrows’s sentence fell within the Guidelines
range, so we presume that it’s reasonable. Brogdon, 503 F.3d at 559. Burrows makes several
arguments about why his sentence is unreasonable. We’ve seen and rejected these arguments in
the past, and we do so again here.
Let’s start with Burrows’s claim that the district court should’ve granted a downward
variance because a majority of other “defendants with similar records” received below-Guidelines
sentences. (Appellant Br. at 30.) To be sure, uniformity among similarly situated defendants is
an important consideration in sentencing. See 18 U.S.C. § 3553(a), (a)(6) (“The court, in
5
No. 19-4155, United States v. Burrows
determining the particular sentence to be imposed, shall consider . . . the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of similar
conduct.”). But Burrows’s argument here is unconvincing. For starters, “[n]ational uniformity is
generally taken into account by the Sentencing Guidelines.” United States v. Rossi, 422 F. App’x
425, 435 (6th Cir. 2011) (quoting United States v. Simmons, 501 F.3d 620, 626 (6th Cir. 2007)).
And the Guidelines are the best evidence of national sentencing practices. United States v.
Pendygraft, 782 F. App’x 424, 428 (6th Cir. 2019). So when the district court here properly
calculated Burrows’s Guidelines range and applied a sentence in that range, “it necessarily [took]
steps to avoid a national disparity.” Id. (quoting United States v. Frazier, 547 F. App’x 729, 737
(6th Cir. 2013)).
Burrows, then, is asserting that the district court erred by not deviating from the Guidelines.
He wanted the district court to impose a below-Guidelines sentence of 60 months. But varying
from the Guidelines presents a “formidable task” for a district court. United States v. Bistline, 665
F.3d 758, 764 (6th Cir. 2012). It requires the court to break with the empirical and value judgments
Congress made in designing the Guidelines. Id. And “[i]f that is true, a district court cannot be
said to have abused its discretion merely because it followed § 2G2.2 (and agreed with its
policies).” United States v. Lynde, 926 F.3d 275, 280–81 (6th Cir.), cert. denied, 140 S. Ct. 326
(2019). A district court, in other words, may rely on the Guidelines and § 2G2.2 enhancements—
which the district court did here. Cunningham, 669 F.3d at 733. This wasn’t an abuse of
discretion.
Burrows also argues that Congress’s assumptions underlying the Guidelines aren’t
supported by the evidence. Indeed, the Sentencing Commission itself has criticized them before
Congress. According to Burrows, the Guidelines stem from the belief that those who view child
6
No. 19-4155, United States v. Burrows
pornography are really child molesters—and the data doesn’t support this. So Burrows “is not the
dangerous offender Congress envisioned.” (Appellant Br. at 26.) Putting aside whether Burrows’s
argument is true, “Congress’s long and repeated involvement in raising the offense levels for §
2G2.2 makes clear that the grounds of its action were not only empirical, but retributive—that they
included not only deterrence, but punishment.” Bistline, 665 F.3d at 764. That’s because Congress
recognizes “that child pornography is a serious crime.” United States v. Schrank, --- F.3d ----, No.
19-5903, 2020 WL 5511980, at *2 (6th Cir. Sept. 14, 2020).
Burrows simply disagrees with the policy decisions Congress made when it crafted the
Sentencing Guidelines. And he tries to shoehorn this disagreement into a claim of substantive
unreasonableness. But we’ve “repeatedly rebuffed claims that courts must decline to follow
§ 2G2.2 because it arose from too much democratic tinkering by Congress and not enough
empirical research by the Sentencing Commission.” Lynde, 926 F.3d at 278. Indeed, “[t]his kind
of policy disagreement . . . is not sufficient by itself to demonstrate the district court abused its
discretion by arbitrarily selecting his sentence.” United States v. Souders, 747 F. App’x 269, 274
(6th Cir. 2018).
Burrows’s remaining arguments are also unpersuasive. He points to a handful of district
court judges who sentenced child pornography offenders less harshly than he was or stated their
disagreement with the Guidelines. But we’ve previously “criticized the comparison of the
defendant’s sentence to those imposed in other singular cases as weak evidence” to show a
sentence disparity. Rossi, 422 F. App’x at 435. Besides, the district court noted these judges’
opinions. It viewed them as “seriously misguided” because they don’t focus enough on how child
pornography affects its victims and the public. (R. 34, Sentencing Tr., PageID # 300.) This was
well within the district court’s discretion. That one district court disagrees with and rejects a
7
No. 19-4155, United States v. Burrows
Guideline’s policy doesn’t mean another court must do the same. See United States v. Brooks, 628
F.3d 791, 800 (6th Cir. 2011).
Burrows also claims that he’s the least culpable kind of child pornography offender because
he didn’t create or distribute any material or molest any children. But it makes little sense for
Burrows to try to justify a more lenient sentence on these grounds. “Just as the federal sentencing
laws impose greater sentences upon sellers of controlled substances than upon those who are
caught possessing such substances, … the federal child sexual offense laws do so as well.” United
States v. Camiscione, 591 F.3d 823, 834 (6th Cir. 2010). In other words, the Guidelines already
considered these factors in adjusting Burrows’s offense level and setting his sentence range. See
United States v. Robinson, 669 F.3d 767, 777–78 (6th Cir. 2012).
Finally, Burrows argues that the district court relied too heavily on his statements to
investigators and not enough on his age. This is wrong. The district court explicitly noted
Burrows’s age in sentencing him. (R. 34, Sentencing Tr., PageID # 299.) But the court also noted
that Burrows paid for the pornography in multiple, distinct digital packages, possessed images and
videos of toddlers and children under twelve being sexually abused, and possessed those images
in large numbers. And the district court felt that Burrows didn’t appreciate the gravity of his
actions. When, as here, the district court considers and weighs the relevant factors, the defendant
bears a heavy burden to show that the court gave an unreasonable amount of weight to any given
one. United States v. Thomas, 395 F. App’x 168, 174 (6th Cir. 2010). So we reject Burrows’s
argument that the district court didn’t give his age enough weight. That argument was, like all
Burrows’s other arguments, “fully before the district judge, and . . . expressly noted and considered
before being rejected.” Id. (quotations omitted). Burrows’s “contention that his age deserves
greater weight and mandates a . . . reduction fails to overcome the presumption of reasonableness.”
8
No. 19-4155, United States v. Burrows
United States v. Martin, 722 F. App’x 435, 438 (6th Cir. 2018). We decline to second guess the
district court’s reasoned and articulate weighing of the relevant sentencing factors.
III.
“The district court properly considered the sentencing factors, balanced them, and imposed
a reasonable sentence.” United States v. Holland, 799 F. App’x 380, 387 (6th Cir. 2020). Our job
isn’t to replace the district court’s judgment with our own, but to ensure the district court remains
within its wide berth of reasoned discretion. Just because Burrows didn’t get the sentence he
wanted doesn’t mean that the district court abused its discretion.
We AFFIRM.
9