USA v. Richard Zorn
OPINION filed: AFFIRMED, decision not for publication. R. Guy Cole , Jr., Circuit Judge; Eric L. Clay, Circuit Judge authoring, and William O. Bertelsman, U.S. District Judge for the Eastern District of KY.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0972n.06
Nov 13, 2013
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
COLE and CLAY, Circuit Judges; BERTELSMAN, District Judge.*
CLAY, Circuit Judge. Defendant Richard Zorn appeals his sentence following his pleabased conviction for receipt, possession, and distribution of child pornography in violation of 18
U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B). The only issue raised on appeal is the procedural
reasonableness of Defendant’s sentence. For the following reasons, we AFFIRM the judgment of
the district court.
Following the recovery by law enforcement officials of over 2,500 images of child
pornography from Defendant’s home and computers, Defendant was arrested and charged in state
The Honorable William O. Bertelsman, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
court with fourteen offenses involving child pornography.1 Bond was set at $250,000 and Defendant
was held in state custody.
Several weeks later, while Defendant was still in custody awaiting his state trial, a federal
grand jury charged him with possession, receipt, and distribution of child pornography in violation
of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B). Defendant pled guilty to all three federal
offenses, and he was transferred into federal custody on August 26, 2010. At the time of the
transfer, he had spent eight and a half months in state jail.
At Defendant’s December 2010 federal sentencing hearing, which occurred prior to his state
sentencing, the district court sentenced him to 151 months’ imprisonment. Defendant asked the
district judge to subtract eight and a half months2 from the 151-month sentence to give Defendant
“credit” for the time between December 2009 and August 2010 that the Bureau of Prisons would
not credit toward his federal sentence.3 The district judge denied the request, stating, “151 is the
correct sentence here. I understand your argument. I respectfully decline.” (R. 36, Transcript of
December 2010 Sentencing Hearing, Pg ID 299)
Two additional counts were added later.
Defendant has alternated between requesting an “eight month” sentencing reduction and
requesting credit for the “eight and a half months” that Defendant spent in state custody. For the
sake of consistency, we interpret both of these iterations as a request for an eight and a half month
Controlling law at the time of Defendant’s original sentencing hearing did not recognize
a federal court’s power to declare that a sentence run concurrently with an impending state sentence.
After recognizing this limitation, Defendant asked the district court for an adjustment under
U.S.S.G. § 5G1.3 in order to “effectively run [the federal sentence] concurrent” to the state sentence.
(R. 36, Transcript of December 2010 Sentencing Hearing, Pg ID 299) Essentially, Defendant’s
request for an adjustment was framed as a permissible alternative to a concurrent sentence.
Defendant appealed the district court’s decision. After this Court affirmed the conviction
and sentence, the Supreme Court vacated the judgment and remanded for further consideration in
light of its decision in Setser v. United States, 132 S. Ct. 1463 (2012). This Court, in turn, remanded
the case to the district court “with instructions for the court to exercise its discretion whether
[Defendant]’s federal sentence should run consecutive to, or concurrent with, his state-court
sentence.”4 United States v. Zorn, 487 F. App’x 289 (6th Cir. 2012).
On remand, Defendant asked the district court for a concurrent sentence and repeated his
request for an eight and a half month sentence reduction under U.S.S.G. § 5G1.3(b) to account for
the time he spent in state custody before he was transferred into federal custody.5 The district court
ordered Defendant’s federal sentence to run concurrent with his state sentence, but denied
Defendant’s request to subtract eight and a half months from the sentence to adjust for the time he
spent in state custody. Defendant filed a timely notice of appeal, arguing his sentence to be
procedurally unreasonable because the district court failed to explain its refusal to reduce the
sentence by eight and a half months.
Pursuant to a plea agreement with the state, Defendant pleaded nolo contendre to one count
of child sexually abusive activity in exchange for dismissal of fifteen other counts and an agreed
sentence of eighteen months to twenty years, to run concurrent with his federal sentence.
The district court set a briefing schedule requiring Defendant to file a sentencing
memorandum by a designated date and the government to file a response two weeks later. After
each party had submitted its sentencing memorandum, Defendant filed a reply brief without asking
the court’s permission. In his unauthorized reply brief, Defendant also made a passing reference to
U.S.S.G. § 5G1.3(c), but did not develop any argument based upon this section.
We review a district court’s sentencing determination for reasonableness “under a deferential
abuse-of-discretion standard.” United States v. Lalonde, 509 F.3d 750, 769 (6th Cir. 2007) (citing
Gall v. United States, 552 U.S. 38, 41 (2007)).6
Defendant argues that his sentence is procedurally unreasonable because the district court
failed to explain why it would not reduce his sentence by eight and a half months served in state
custody for the same conduct. The government responds by pointing out that the district court’s
opinion re-sentencing Defendant not only expressly acknowledged this argument, but also explained
the underlying law and applied it to the facts of the case.
“[I]f a defendant raises a particular argument in support of a lower sentence, the record must
reflect that the district judge both considered the defendant’s argument and explained the basis for
rejecting it.” United States v. Petrus, 588 F.3d 347, 352 (6th Cir. 2009). “Sometimes the
circumstances will call for a brief explanation; sometimes they will call for a lengthier explanation,”
Rita v. United States, 551 U.S. 338, 357 (2007), but “the sentencing court must, at the very least,
‘set forth enough [of a statement of reasons] to satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising his own legal decision making
authority.’” United States v. Herrod, 342 F. App’x 180, 187 (6th Cir. 2009) (Clay, J., concurring)
(quoting Rita, 551 U.S. at 356).
We apply a different standard of review when a defendant fails to object to his sentence
after he was given an opportunity to do so. See United States v. Novales, 589 F.3d 310, 313–14 (6th
Cir. 2009). In the present case, Defendant did not have an opportunity to object to the procedural
reasonableness of his sentence because the parties waived a hearing pursuant to E.D.Mich. LR
In this case, the record makes clear that the sentencing judge listened to each argument. See
Rita, 551 U.S. at 357. First, the opinion expressly states the district judge’s understanding that
Defendant was seeking both “a federal sentence that proceeds concurrently with his state sentence,
and credit for his time in state jail in pre-sentence detention.” Zorn, 2013 WL 718505 at *1
(emphasis added). Next, after explaining U.S.S.G. § 5G1.3 in the context of determining whether
to run sentences concurrently or consecutively, the district court opinion specifically addresses
Defendant’s argument that U.S.S.G. § 5G1.3(b) supports his requested sentence reduction. Id. at
*3. The opinion explains that Defendant’s argument fails because
[s]ection 5G1.3(b) applies only if the conduct punished by the state sentence was ‘the basis
for an increase in the offense level’ for the federal sentence. [Defendant] received his state
sentence for the manner in which he manipulated one of his pornographic photos. He
received his federal sentence for possessing the 2,594 illegal pornographic photos found on
his computer. If [Defendant] had possessed 2,593 illegal pornographic photos, he would
have had the same offense level. See [United States v. Brown, 417 F. App’x 488, 493– 94
(6th Cir. 2011)]. Section 5G3.1(b) is therefore inapplicable.
This is not a case where the district judge ignored or failed to respond to Defendant’s
argument. See, e.g., United States v. Wallace, 597 F.3d 794, 802–08 (finding plain error where
“[t]he district judge was completely non-responsive to [the defendant’s] argument” and “did not
make even a cursory mention of” the argument in the record). In the present case, the district judge
acknowledged Defendant’s argument for a sentence reduction under U.S.S.G. § 5G1.3(b) and
rejected it because the proffered law was inapplicable to the facts of Defendant’s case. The opinion
also acknowledged that Defendant “raise[d] U.S.S.G § 5G1.3(c), but only in his unauthorized reply
[to the government’s response to Defendant’s sentencing memorandum],”7 Zorn, 2013 WL 718505
at *3 The district court did not abuse its discretion in declining to entertain an undeveloped
argument raised only in an untimely, unauthorized memorandum to the court.
On this record, we can be satisfied that the court considered the substance of Defendant’s
argument that it should adjust his sentence by the eight and a half months he spent in state custody,
and disagreed that an adjustment in Defendant’s favor would be appropriate. The district judge was
correct in his conclusion that the adjustment was not mandatory under U.S.S.G. § 5G1.3(b), and
gave an adequate explanation for his decision not to adjust downward.
For the foregoing reasons, we AFFIRM.
Defendant’s first and only mention of U.S.S.G. § 5G1.3(c) to the district court appeared in
an unauthorized reply to the government’s response to Defendant’s sentencing memorandum. In
this memorandum, Defendant states, “Even if this Court does not adopt the proposed reading of
5G1.3(b), under 5G1.3(c) the Court retains discretion to credit [Defendant] with the 8 and ½ months
he served in state pretrial custody.” (Id.) On appeal, Defendant points to U.S.S.G. § 5G1.3(c),
application note 3(E), which permits a downward departure in the judge’s discretion “in an
extraordinary case involving an undischarged term of imprisonment under subsection (c).”
Defendant did not bring the application note to the attention of the district court, and he did not
argue that this is an extraordinary case; he merely reminded the district court that it had the authority
to adjust the sentence in its discretion.
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