USA v. Lamb
OPINION filed : The judgment of the district court is AFFIRMED, decision not for publication pursuant to local rule 206. R. Guy Cole , Jr., Circuit Judge; Julia Smith Gibbons, Circuit Judge and Robert H. Cleland, U.S. District Judge, Authoring.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0413n.06
Jun 27, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
LEONARD GREEN, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF KENTUCKY
Before: COLE and GIBBONS, Circuit Judges; CLELAND, District Judge.*
CLELAND, District Judge. Timothy Lamb entered a plea of guilty to four counts involving
possession and transportation of child pornography and was sentenced to 210 months imprisonment.
He appeals this sentence as procedurally unreasonable because the district court did not expressly
address the request for a downward variance based upon his history of heart disease. Lamb did not
object to this aspect of his sentence at trial, and we review only for plain error. We AFFIRM.
In March 2005, the National Center for Missing and Exploited Children was contacted by
an internet hosting company with information that it had discovered images of child pornography
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
USA v. Lamb
uploaded to a group site hosted on its network. It appeared the group had been used to distribute and
trade such images, and the hosting company immediately disabled the group. Upon the issuance of
a subpoena, the Federal Bureau of Investigation obtained the internet protocol addresses and
transaction logs of group members. Tracing one of these addresses back to its source led the FBI to
Lamb’s residence in Louisville, Kentucky. On September 29, 2005, FBI agents searched the
residence and found an immense collection of pornography, containing approximately 17,000 images
and 135 videos of child pornography. When confronted, Lamb confessed to uploading images to
and downloading images from the group
A five-count indictment was returned charging Lamb with three counts of knowingly
transporting child pornography, 18 U.S.C. § 2252(a)(1), one count of knowingly receiving child
pornography, 18 U.S.C. § 2252(a)(2), and one count of knowingly possessing child pornography,
18 U.S.C. § 2252(a)(4)(B). A sixth count for forfeiture under 18 U.S.C. § 2253 was also included.
Without the benefit of a plea agreement, Lamb pled guilty to the transportation and possession
counts on January 24, 2006.
A presentence report was produced, which calculated a total offense level of 37 under the
U.S. Sentencing Guidelines. Based upon the total offense level and Lamb’s lack of a criminal
history, the presentence report calculated the Guidelines range of 210-262 months and noted the
statutory maximum of 240 months. The report also noted Lamb’s history of heart disease, including
a heart attack suffered in May, 2000. In its sentencing memorandum, the government argued for
upward departure based upon the sheer number of images and other photographs of local children,
USA v. Lamb
which it argued indicated a predatory intent and increased risk to the community even though the
photographs were not inherently pornographic. In his memorandum, Lamb argued that the nonpornographic photographs were part of an unrelated civil case involving a neighbor and asked for
a downward variance on the basis of Lamb’s health problems.
On April 17, 2007, the district court sentenced Lamb to 210 months imprisonment and ten
years of supervised release. At the hearing, the testimony of two expert witnesses was presented
concerning the number of images and Lamb’s risk of recidivism. The government and Lamb
reiterated the arguments set out in their sentencing memoranda. Both addressed at some length
Lamb’s health issues. After lamenting the difficulty of maintaining uniformity in sentences for child
pornography offenses, the court noted the “significant number of images that are involved” in
explaining the sentence. The court also discussed and rejected the government’s argument that the
non-pornographic photographs of neighborhood children indicated predatory behavior. Finally, the
court made a blanket statement that it had considered the Guidelines and the 18 U.S.C. § 3553(a)
factors before pronouncing a sentence of 210 months. Judgment was entered on April 20, 2007, and
Lamb appealed on April 30, 2007. The only issue on appeal is whether the sentencing court failed
to consider Lamb’s request for a downward variance based upon his health history.1
Although Lamb also appealed the constitutionality of the U.S. Sentencing Guidelines
§ 2G2.2 enhancement for number of images as directly legislated in violation of the separation of
powers doctrine, both Appellant and Appellee conceded at oral argument that the question had
already been decided in a recent opinion of this court, United States v. McNerney, 636 F.3d. 772, 778
(6th Cir. 2011) (finding § 2G2.2 valid).
USA v. Lamb
Lamb claims his sentence is procedurally unreasonable because the court failed to consider
the § 3553(a) factors, specifically his history of heart disease. We generally review sentences for
abuse of discretion, determining first whether sentences are procedurally reasonable and then
whether they are substantively reasonable. United States v. Bates, 552 F.3d 472, 476 (6th Cir. 2009)
(citing Gall v. United States, 552 U.S. 38, 51 (2007)). When an objection has not been preserved
at sentencing, as happened here, an appeal based on the waived objection is reviewed only for plain
error. Fed. R. Crim. P. 51(b); United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc).
Lamb’s argument for a downward variance on the grounds of his common health problems presents
nothing more than a generic request for a lenient sentence. As such, the district court’s failure to
expressly address the issue did not constitute plain error.
A. Standard of Review
Lamb’s appeal challenges only the sufficiency of the sentencing court’s explanation of his
sentence. Because Lamb failed to object to the explanation when asked whether he had “any
objections to the sentence pronounced not previously  raised on behalf of the defendant” at the
conclusion of sentencing, a plain error standard applies. See Vonner, 516 F.3d at 386; United States
v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004). Application of this standard is contested by Lamb,
who asserts that the objection was preserved by his earlier request for a variance. Lamb’s argument
USA v. Lamb
misses the mark. An objection cannot be “preserved” in advance of a sentencing event that has yet
to occur—and which may never occur.
A defendant need not object to the substantive
reasonableness of a sentence when pronounced, but he is required to object in order to preserve
abuse of discretion review of alleged procedural errors. A failure to consider the § 3553(a)
sentencing factors and a failure to explain adequately the sentencing decision are examples of
procedural errors that must be presented to the district court. Gall, 552 U.S. at 51; Vonner, 516 F.3d
at 392. They are conceptually distinct from an argument that the court abused its discretion in
weighing the various considerations during sentencing; this claim is reviewed for substantive
reasonableness. Gall, 552 U.S. at 56; Vonner, 516 F.3d at 390.
Lamb contends that raising the issue of his health in both his sentencing memorandum and
during the sentencing hearing preserves the objection. If Lamb were objecting to the discretionary
rejection of the request for a variance, his contention would be sound. However, Lamb objects to
the alleged failure of the district court even to consider his request for variance. The argument in
Vonner is directly analogous. 516 F.3d at 382. At his sentencing hearing, Vonner argued that the
court should apply a downward variance to his sentence because he had sustained abuse and neglect
during his childhood. The district court then implicitly rejected this argument by saying only that it
considered “the history and characteristics of the defendant,” and it proceeded to inquire whether
there were any objections to the sentence that had not been previously raised. Vonner’s counsel
voiced no objections. On appeal, however, Vonner argued that the district court had not adequately
considered his request for a downward variance or explained its decision to reject the variance. This
USA v. Lamb
court, sitting en banc, held that, under Bostic, Vonner had waived his objection by not objecting to
the alleged failure to consider his history and characteristics. As noted in Vonner, it is an absurdity
to object to a court’s failure to consider a § 3553(a) factor in sentencing before the court has
pronounced sentence. Id. at 386; see also United States v. Simmons, 587 F.3d 348, 354 (6th Cir.
2009); United States v. Blackie, 548 F.3d 395, 398 (6th Cir. 2008). Consequently, substantive
reasonableness need not be raised until appeal, but procedural objections must be presented to the
district court in order to preserve them for appeal.
In the instant case, Lamb first raised a request for variance based upon his health problems
in his sentencing memorandum and reiterated it at the sentencing. By the conclusion of the hearing,
however, the court had not expressly addressed the health concerns in explaining the sentence
imposed. When first asked whether he had any other objections, however, counsel asked only that
Lamb be housed near his elderly and ailing mother, which the court agreed to recommend. Asked
a second time, Lamb’s counsel replied “no objection, Your Honor.” Thereafter, Lamb did in fact
raise an issue regarding the sentence imposed for the count of possession, which exceeded the
statutory maximum sentence. The court recognized this and clarified the sentence for this count
capped at 120 months, to run concurrently with the three counts for transporting child pornography.
Before concluding the sentencing hearing, the court asked a third time, and no objection was voiced.
The court thrice afforded Lamb the opportunity to object, and he thrice failed to do so. Now, for the
first time, Lamb seeks to have this court review the sentence based upon an objection never made,
arguing the district court failed to consider his health problems. The materially indistinguishable
USA v. Lamb
decision in Vonner precludes abuse of discretion analysis. 516 F.3d at 386 (failure to challenge
adequacy of explanation waives objection). Therefore, the court will review for plain error.
As recently summarized by the Supreme Court,
an appellate court may, in its discretion, correct an error not raised at trial only where
the appellant demonstrates that (1) there is an “error”; (2) the error is “clear or
obvious, rather than subject to reasonable dispute”; (3) the error “affected the
appellant’s substantial rights, which in the ordinary case means” it “affected the
outcome of the district court proceedings”; and (4) “the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.”
United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (quoting Puckett v. United States, 129 S. Ct.
1423, 1429 (2009)); see also Johnson v. United States, 520 U.S. 461, 466-67 (1997); United States
v. Olano, 507 U.S. 725, 731-37 (1993). “At a minimum, a court of appeals cannot correct an error
pursuant to Rule 52(b) unless the error is clear under current law.” Olano, 507 U.S. at 734; accord
Johnson, 520 U.S. at 467. When reviewing sentences for plain error, the court applies “a deferential
standard in which sentences are reversed only in ‘exceptional circumstances . . . where the error is
so plain that the trial judge . . . [was] derelict in countenancing it.’” Simmons, 587 F.3d at 365
(quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).
B. No Plain Error
Turning to the first element of plain error analysis, there must be error before there can be
plain error. Although the Guidelines are merely advisory after Booker, district courts are required
to consider the correctly calculated Guidelines range when sentencing. United States v. Booker, 543
USA v. Lamb
U.S. 220, 264 (2005). “[A] district court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range.” Gall v. United States, 552 U.S. 38, 49 (2007) (citing
Rita v. United States, 551 U.S. 338, 347 (2007)); accord United States v. Bolds, 511 F.3d 568, 579
(6th Cir. 2007). The sentencing court must further consider the factors listed in 18 U.S.C. § 3553(a),
“make an individualized assessment based on the facts presented,” and state its reasons for imposing
the sentence as required by 18 U.S.C. § 3553(c). Gall, 552 U.S. at 50; accord United States v.
Petrus, 588 F.3d 347, 351-52 (6th Cir. 2009); Bolds, 511 F.3d at 579-80.
The district court did not err in declining to discuss its reasoning for not varying Lamb’s
sentence due to his poor health. Although the better practice may be to state that the court has
considered and rejected the request, “there is a sizeable gap between good sentencing practices and
reversibly bad sentencing practices.” Vonner, 516 F.3d at 389. All that a sentencing court must do
is consider and decide all clearly presented arguments for departure or variance. Rita, 551 U.S. at
358; Vonner, 516 F.3d at 388. “When a defendant raises a particular[, nonfrivolous] argument in
seeking a lower sentence, the record must reflect both that the district court considered the
defendant’s argument and that the judge explained the basis for rejecting it,” United States v.
Wallace, 597 F.3d 794, 803 (6th Cir. 2010) (citations omitted) (alteration in original), but the
requisite indication of consideration by the court varies in proportion to the complexity of the
argument, Rita, 551 U.S. at 356-57; Vonner, 516 F.3d at 387; Simmons, 587 F.3d at 362. Regardless
of whether it may be error to grant a variance without some indication of the reasoning, discussion
of all rejected requests for variances is not required. “Although Congress requires a court to give
USA v. Lamb
‘the reasons’ for its sentence, 18 U.S.C. § 3553(c), it does not say that courts must give the reasons
for rejecting any and all arguments by the parties for alternative sentences.” Vonner, 516 F.3d at
387. It suffices that “[t]he record makes clear that the sentencing judge listened to each argument,”
“considered the supporting evidence,” “was fully aware of the defendant’s various physical
ailments[,] and imposed a sentence that takes them into account.” Rita, 551 U.S. at 358.
At the sentencing hearing, defense counsel repeatedly mentioned Lamb’s heart problems,
arguing for a variance on that basis.2 This was Lamb’s primary argument for a lower sentence. The
government likewise addressed the issue, citing a string of cases wherein harsh sentences were
imposed despite the defendants’ ages or infirmities.3 Directly responding to Lamb’s request, the
government noted that his condition was not unique and “his medical needs can be met by the
Bureau of Prisons.” After hearing statements by both sides, the court proceeded to sentence Lamb
to 210 months, the lowest point within the Sentencing Guidelines range.
Speaking of Lamb’s health, defense counsel told the court: “I would like to tell the Court
I know what type of sentence I would like to recommend, but I don’t -- I don't really know how long
he has with the heart attack at age 40. I know he doesn't have the life expectancy of a healthy 40
The government offered the following:
The factors that [Lamb] has brought to the Court today that Mr. Lamb has suffered
a heart attack in a relatively early age, that’s very unfortunate. But he can certainly
-- his medical needs can be met by the Bureau of Prisons. He may or may not have
a long life expectancy. I don’t know. But age in and of itself, again, is not a factor
traditionally acceptable for a deviation of a lower sentence.
USA v. Lamb
Although the court did not discuss at length Lamb’s routine argument for a variance, it did
refer to the cases mentioned by the government. In fact, the court lamented the lack of uniformity
in sentences imposed for conduct similar to that of Lamb.4 The number and type of images involved
were discussed by the court, as well as Lamb’s role in trading images. The court considered these
aspects of the offense and determined “this is the type of sentence that should be given within the
sentencing guidelines.” The court did not stop with that pronouncement; it further discussed and
rejected the government’s argument for a longer sentence based upon the non-pornographic
photographs of neighborhood children. Under such circumstances, it seems that the court simply
found that argument lacking sufficient weight to warrant any more particularized consideration.
Where a matter is as conceptually simple as [a request for variance based upon
health, fear of retaliation in prison, and military record], and the record makes clear
that the sentencing judge considered the evidence and arguments, we do not believe
the law requires the judge to write more extensively [than to note the
inappropriateness of the requested variance and the appropriateness of a sentence
within the Guidelines range].
Rita, 551 U.S. at 359. Following Rita, this court has similarly found that a sentencing court need
not engage in a rote recitation of every conceivable ground for variance requested by a defendant.
E.g., United States v. Locklear, 631 F.3d 364, 370-71 (6th Cir. 2011); United States v. Brooks, 628
F.3d 791, 798 (6th Cir. 2011); United States v. Martinez, 588 F.3d 301, 327 (6th Cir. 2009);
The court began stating Lamb’s sentence by noting “[t]hese cases . . . are very difficult -become very difficult because of the -- when you apply the Guidelines, the . . . sentencings go up
rapidly. The government has talked about similarity of sentences, and . . . that’s difficult . . . to look
at. And I’ve gone through and reviewed a number of them.”
USA v. Lamb
Simmons, 587 F.3d at 361-62; Vonner, 516 F.3d at 388. While the district court would have done
well to have mentioned and explained its rejection of the argument, nothing in the record suggests
the court failed to consider the request for a downward variance. Indeed, the court indicated that it
considered the other arguments and made reference to the cases presented by the government for
comparison. Therefore, Lamb has not shown that the district court erred in not addressing his
request for a variance based upon his health concerns.
Even if we were to find that the district court erred in failing to properly address the claimed
ground for a variance, Lamb has not shown that this is a “clear or obvious” error. Previous cases
have recognized that routine health problems such as that presented in this case do not require
extensive analysis by the sentencing court. See, e.g., Locklear, 631 F.3d at 370-71; United States
v. Carpenter, 359 F. App’x 553, 558 (6th Cir. 2009); United States v. Ivey, 307 F. App’x 941, 94344 (6th Cir. 2009). As noted by the government at sentencing, the Bureau of Prisons is equipped to
treat one of the most common significant ailments of the modern world. The presentence report
confirms that Lamb was receiving medical treatment while awaiting sentencing. Lamb offers no
reason that his ill health necessitates a downward variance, nor does he argue that his health is
unusually poor. Instead, he presented a routine argument for a reduced sentence because he has a
higher statistical probability of premature death than an abstract ideal of a healthy individual of his
age. This is precisely the sort of conceptually simple argument that need not be extensively
addressed by the court in sentencing. See Rita, 551 U.S. at 356-57; Vonner, 516 F.3d at 387.
USA v. Lamb
We have repeatedly held that “a ritualistic incantation of the § 3553(a) factors” is
unnecessary. Wallace, 597 F.3d at 802; United States v. Chandler, 419 F.3d 484, 488 (6th Cir.
2005). To hold otherwise would be to require a sentencing court to expressly address and reject
every potential basis for a variance derived from a defendant’s history, producing nothing more than
a rote recitation of medical conditions, mental problems, childhood traumas, deficient parenting,
substance abuse, economic distress, “bad decisions,” and the many other well-known and toocommon landmarks of the path to criminal behavior. While such an analysis may be informative in
many cases, it is not required of proper sentencing. Rita, 551 U.S. at 357-58; Vonner, 516 F.3d at
386-87. Additionally, we are uncertain about the fundamental substance of Lamb’s argument—that
a shortened life expectancy demands a substantial explanation at sentencing—since the argument
implies that being nearer the grave confers a license to violate the law, or at least a discount on the
consequences. In the circumstances of this case, we disagree. We find that there was no plain error
committed in not discussing Lamb’s request for variance.
The judgment of the district court is AFFIRMED.
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