USA v. Jonathan Phillip

Filing

Per Curiam OPINION filed: The District Court's sentence is AFFIRMED. Decision not for publication pursuant to local rule 206. Richard F. Suhrheinrich, Circuit Judge; Julia Smith Gibbons, Circuit Judge and David W. McKeague, Circuit Judge.

Case: 10-3973

Document: 006111180028

Filed: 01/10/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0033n.06
FILED

No. 10-3973

Jan 10, 2012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JONATHAN LEIGH PHILLIPS,
Defendant-Appellant.

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LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO

BEFORE: SUHRHEINRICH, GIBBONS, and McKEAGUE, Circuit Judges.

PER CURIAM. Jonathan Leigh Phillips appeals the sentence imposed by the district court
following his guilty plea to receiving or distributing visual depictions of minors engaged in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(2), receiving or distributing child pornography,
in violation of 18 U.S.C. § 2252A(a)(2), and possessing child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). The district court adopted the offense level calculations in the presentence report,
which determined that Phillips’s total offense level was 37 and that his criminal history category was
IV. The court determined that Phillips’s guidelines range of imprisonment was 292 to 365 months,
but that he was subject to a statutory maximum sentence of 240 months. The court sentenced
Phillips to an effective term of 160 months in prison.
On appeal, Phillips argues that the sentence was procedurally and substantively unreasonable
for several reasons: (1) the district court erroneously concluded that the child pornography
sentencing guidelines were based on empirical data and the Sentencing Commission’s own expertise

Case: 10-3973

Document: 006111180028

Filed: 01/10/2012

Page: 2

No. 10-3973
United States v. Phillips
rather than congressional directives; (2) the court improperly deferred to the child pornography
guidelines, which are inherently flawed; and (3) the court failed to properly consider his risk of
recidivism.
We review sentences for both procedural and substantive reasonableness using an abuse-ofdiscretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). To determine whether a sentence
is procedurally reasonable, we must “ensure that the district court committed no significant
procedural error, such as 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.”
Id. “For a sentence to be substantively reasonable, it must be proportionate to the seriousness of the
circumstances of the offense and offender, and sufficient but not greater than necessary, to comply
with the purposes of § 3553(a).” United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008) (internal
quotation marks omitted). “A sentence may be substantively unreasonable if the district court selects
the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent
§ 3553(a) factors or gives an unreasonable amount of weight to any pertinent factor.” Id. at 510
(internal quotation marks and alterations omitted).

We apply a rebuttable presumption of

reasonableness to a within-guidelines sentence, see United States v. Vonner, 516 F.3d 382, 389 (6th
Cir. 2008) (en banc), and a defendant’s burden to demonstrate that a below-guidelines sentence was
unreasonable is even more demanding. United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008).
The district court’s below-guidelines sentence was not unreasonable. Phillips has not shown
that the court relied on any significant factual inaccuracy concerning the history of the child
pornography guidelines by adopting the discussion set forth in United States v. Cunningham, 680
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Case: 10-3973

Document: 006111180028

Filed: 01/10/2012

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F. Supp. 2d 844, 849-51 (N.D. Ohio 2010). Further, although the district court had discretion to
disagree with the child pornography guidelines for policy reasons and to reject the guidelines range
because of that disagreement, it was not required to do so. See United States v. Brooks, 628 F.3d
791, 799-800 (6th Cir.), cert. denied, 131 S. Ct. 3077 (2011). Finally, the district court gave proper
consideration to Phillips’s risk of recidivism by weighing the conclusions in the psychological
evaluation with the difficulty of predicting future behavior and Phillips’s long history of viewing
child pornography.
Accordingly, we affirm the district court’s sentence.

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