USA v. Christopher Hammond
OPINION filed: AFFIRMED, decision not for publication. Richard F. Suhrheinrich, Circuit Judge; Karen Nelson Moore, Circuit Judge and Thomas L. Ludington, (authoring) U.S. District Judge for the Eastern District of MI.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0060n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA
Feb 01, 2016
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
Before: SUHRHEINRICH and MOORE, Circuit Judges; LUDINGTON, District Judge.*
LUDINGTON, District Judge.
On May 22, 2014, authorities seized a cellphone
containing 422 images and two videos of child pornography in the course of executing an arrest
warrant for Appellant Christopher Hammond for failing to register as a sex offender in the State
of Michigan. Pursuant to that discovery, an indictment was returned charging Hammond with
possession of child pornography. Hammond was arrested on June 4, 2014, and ultimately pled
guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A).
The United States probation department prepared a Presentence Investigation Report
(“PSR”) recommending a five-point enhancement based on Hammond’s pattern of activity
involving the sexual abuse or exploitation of a minor. Hammond filed an objection to the fivepoint enhancement, which was overruled by the District Court Judge.
Hammond had a guideline range of 210-262 months and a criminal history category of IV, the
The Honorable Thomas L. Ludington, District Judge for the Eastern District of Michigan,
sitting by designation.
USA v. Hammond
District Judge sentenced Hammond to 240 months’ incarceration followed by lifetime supervised
release. Hammond now appeals his sentence, arguing that the record did not support the District
Judge’s application of the five-point enhancement. For the reasons set forth below, we AFFIRM.
The events underlying Hammond’s current appeal began in the year 1996 in the state of
Kansas, where Hammond was charged with aggravated indecent liberties with a child in
violation of K.S.A. 21-3504(a)(3)(A) and attempted aggravated indecent liberties with a child in
violation of K.S.A. 21-3301(a). “Aggravated indecent liberties with a child” is defined by the
Kansas statute as “Any lewd fondling or touching of the person of either the child or the
offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either
the child or the offender, or both” when the child is under 14 years of age. 21-3504(a)(3)(A).
The conduct underlying the 1996 Kansas charges was detailed in a PSR. The Kansas PSR
explains that a four year-old girl stated to her mother that Hammond “had gotten her out of bed
the night before and brought her into the living room to put lotion on her vagina.” During the
presentence interview in that case, Hammond told the investigator, “It happened. I’m not
denying that it happened. Why, I don’t know.” He elaborated:
I don’t understand why. I kind of detest it. It’s something I don’t agree with. It
happened. I’m responsible. I’m not attracted to young children sexually. I like
kids, period. I’ll get on the floor and play house or Barbies. I was in Grand
Rapids, Michigan, stranded there. My brother and sister-in-law up and moved in
two days. The same thing happened with [my daughter] and I moved back to Ann
Arbor. That was two years ago. I convinced my family it never happened. I
tricked them all, passed the polygraph; it was investigated but not official. It was
fondling. Exactly the same thing. And that was it; I’ve been around hundreds of
USA v. Hammond
Hammond ultimately pled no contest to the attempt charge, and was sentenced to
44 months in prison. The court also sentenced him to 60 months of post release supervision,
explaining that “Defendant has been diagnosed as a pedophile; defendant self admits to
committing similar offense on a prior occasion; the victim of this offense was a small child.” The
court also informed Hammond of his duty to register as provided by the habitual sex offender
Eighteen years later in the state of Michigan, an arrest warrant was issued for Hammond
after he failed to register as a sex offender. On March 20, 2014, law enforcement went to
Hammond’s last known residence and made contact with another resident at that location.
The resident informed the officers that he had observed pornographic images of girls who
appeared to be around seven-years-old on Hammond’s cellphone. Hammond was eventually
arrested at a bus stop on April 1, 2014, and his cellphone was seized based on the statements of
his previous roommate. On April 9, 2014, a state search warrant was obtained to search
Hammond’s cellular phone.
Pursuant to that warrant, the Government discovered approximately 422 images and two
videos of child pornography on Hammond’s cellphone. Consequently, on May 22, 2014, the
Government initiated the instant case against Hammond by filing an indictment charging him
with one count of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(b)
and (b)(2), and one forfeiture count. Hammond was arrested in the Eastern District of Michigan
on June 4, 2014, and found competent to stand trial on December 4, 2014. A superseding felony
information was issued on December 28, 2014 charging Hammond with one count of receipt of
USA v. Hammond
child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1)and one forfeiture
On December 30, 2014, Hammond entered into a plea agreement with the Government,
in which he agreed to plead guilty to the offense alleged in the superseding information and
waive his right to an indictment. Hammond also agreed to forfeit the property identified in the
forfeiture allegation. He specifically reserved his right to appeal any objections preserved at
sentencing to the District Court’s calculation of his final Guidelines range.
The United States Probation Department prepared an initial PSR on March 30, 2015, and
a revised PSR on April 29, 2015, recommending application of the five-level enhancement of
U.S.S.G. § 2G2.2(b)(5) due to Hammond’s pattern of activity involving the sexual abuse or
exploitation of a minor. That recommendation was based on Hammond’s Kansas conviction and
his statement that the same thing had happened with his daughter but that authorities had not
been able to prove it occurred. The PSR further noted that Hammond’s mother had confirmed
that he had sexually abused his daughter. Hammond filed numerous objections to the PSR,
including an objection to the five-level enhancement.
Hammond’s sentencing took place on May 27, 2015. In overruling Hammond’s objection
to the five-level pattern of activity enhancement, the district court looked to both the plea
documents from Hammond’s prior conviction and the unchallenged facts in the PSR.1 Sent. Tr.
24:15-25, Pg. ID 392. Based on the totality of that evidence, the district judge did not think there
was “any question that Mr. Hammond pled guilty to actual touching under the clothing of the
little girl.” Id. at 25:1-2. The district court explained that Mr. Hammond had never denied that
Throughout the sentencing hearing, both the parties and the district court conflated an increase of the statutory
range under 18 U.S.C. § 2252A(b)(1) with an application of the five-level enhancement of U.S.S.G. § 2G2.2(b)(5).
This caused some confusion, as a sentencing court is more limited in the documents it can consider in increasing a
statutory minimum based on prior offenses, see Shepard v. United States, 541 U.S. 13 (2005), than it is in applying
U.S.S.G. §2G2.2(b)(5). Hammond challenges only the application of U.S.S.G. § 2G2.2(b)(5).
USA v. Hammond
the four year old child stated that Mr. Hammond put lotion on her vagina. The court went on to
explain that “it’s really unlikely that he would have put lotion on her vagina not under her
clothing.” Id. The district court concluded that Hammond’s acknowledgment that he committed
the same offense with his daughter was sufficient to establish a pattern of activity. Id. at 25:1114.
We review district court sentencing decisions for reasonableness. Gall v. United States,
552, U.S. 38, 51 (2007). This reasonableness inquiry has two parts. First, an appellate court
must “ensure that the district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range”. Id. Second, if 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.” Id. If
the sentence is within the Guidelines range, an appellate court may apply a presumption of
reasonableness. Id. When reviewing procedural errors, we review a sentencing court’s factual
determinations for clear error and its interpretations of the guidelines de novo. United States v.
Paull, 551 F.3d 516, 526 (6th Cir. 2009).
Hammond claims that the district court’s calculation of his guideline range constitutes
significant procedural error because the five-level pattern of activity enhancement is not
supported by the record. Hammond argues that the evidence relied on does not contain sufficient
indicia of reliability to support its probable accuracy as required by U.S.S.G. § 6A1.3(a). He
also argues that his prior Kansas conviction is not an offense that falls within the scope of
U.S.S.G. § 2G2.2(b)(5).
USA v. Hammond
Section 2G2.2(b)(5) provides: “If the defendant engaged in a pattern of activity involving
the sexual abuse or exploitation of a minor, increase by 5 levels.” U.S.S.G. § 2G2.2(b)(5). The
application notes explain that such a pattern consists of “any combination of two or more
separate instances of the sexual abuse or sexual exploitation of a minor by the defendant,
whether or not the abuse or exploitation (A) occurred during the course of the offense;
(B) involved the same minor; or (C) resulted in a conviction for such conduct.” U.S.S.G. § 2G2.2
Cmt. n.1. Sexual abuse or exploitation includes conduct described in 18 U.S.C. §§ 2241, 2242,
and 2243, among others, as well as “an offense under state law, that would have been an offense
under… such section if the offense had occurred within the special maritime or territorial
jurisdiction of the United States.” Id. The enhancement applies to attempts as well as completed
To constitute an offense under 18 U.S.C. §§ 2241, 2242, and 2243, the conduct must
include a “sexual act” instead of mere “sexual conduct.” “Sexual act” is defined in 18 U.S.C.
§ 2246(2)(D) as “the intentional touching, not through the clothing, of the genitalia of another
person who has not attained the age of 16 years with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person.” Id. (emphasis added).
The district court is permitted to find facts supporting the pattern-of-activity enhancement
by a preponderance of the evidence. See United States v. Davis, 751 F.3d 769, 778 (6th Cir.
2014) (citing United States v. Denson, 728 F.3d 603, 614 (6th Cir. 2013)). “Accordingly, the
district court is not limited to Shepard-approved documents in making this determination” (as it
would be in the case of determining a mandatory minimum sentence) “so long as the information
USA v. Hammond
it relies on is reliable.” Id. A sentencing court “may accept any undisputed portion of the
presentence report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A).
In summary, the district court could properly apply the five-level increase in this case if it
found that evidence with “sufficient indicia of reliability to support its probable accuracy”
demonstrated that Hammond, on at least two prior occasions, had touched or attempted to touch
the genitalia of a minor or minors under the clothing. United States v. Hunt, 487 F.3d 347, 352
(6th Cir. 2007) (quoting U.S.S.G. § 6A1.3(a)).
Hammond has not produced any evidence to contradict the information set forth in the
PSR. Instead he argues that the information does not have sufficient indicia of reliability to
support the five-level enhancement.
Generally, “[w]hen a defendant fails to produce any
evidence to contradict the facts set forth in the PSR, a district court is entitled to rely on those
facts when sentencing the defendant.” United States v. Geerken, 506 F.3d 461, 467 (6th Cir.
2007) (citing United States v. Duckro, 466 F.3d 438, 449 (6th Cir. 2006)). At the same time,
however, this Court has held that evidence relied on by a sentencing court must have at least a
minimum indication of reliability. United States v. Reid, 357 F.3d 574, 582 (6th Cir. 2004).
Hammond first alleges that the evidence relied on by the district judge is not sufficiently
reliable because the evidence contains “multiple levels of hearsay.” Sentencing courts may
consider hearsay without any confrontation requirement “[s]o long as the evidence in the
presentence report bears some minimal indicia of reliability in respect of defendant’s right to due
process.” United States v. Silverman, 976 F.2d 1502, 1511 (6th Cir. 1992) (internal quotation
marks omitted). See also United States v. Katzoppoulos, 437 F.3d 569, 576 (6th Cir. 2006)
USA v. Hammond
(explaining that the Sixth Circuit will “continue to observe [our] precedent that testimonial
hearsay does not affect a defendant’s right to confrontation at sentencing.”). Furthermore, we
have previously held that “[i]f a prior statement is sufficiently reliable to be substantively
admissible under the rules of evidence, such a statement surely possesses the ‘minimal indicia of
reliability’ necessary for its use at sentencing.” United States v. Hadley, 431 F.3d 484, 512 (6th
Hammond himself acknowledges that “The PSR prepared in the Kansas case states that a
four year-old girl stated to her mother that Mr. Hammond ‘had gotten her out of bed the night
before and brought her into the living room to put lotion on her vagina area.’” Hammond claims
this statement is not reliable because “the information was based on something the four-year-old
(1) apparently told her mother (2), who reported something to the police (3) whose report
apparently was incorporated into the state presentence report (4).” However, concerns regarding
the reliability of the statement were largely alleviated when, during the Kansas presentence
investigation, Hammond told the investigator, “It happened. I’m not denying that it happened.
Why, I don’t know” and “[i]t was fondling.” In the district court Hammond did not deny that he
made such statements, and he does not contest them on appeal. To the extent he argues that what
he admitted is different than what the four-year-old described, the district court found that a
preponderance of the evidence suggested that “it” referred to getting the four-year-old out of bed
and bringing her to the living room in order to put lotion on her vagina. Hammond has not
established that this finding was clear error.
Hammond also argues that the instant PSR did not accurately report the substance of the
1996 Kansas PSR, demonstrating that the evidence relied on by the district court is not
USA v. Hammond
sufficiently reliable. Hammond’s critique focuses on the portion of the PSR that states:
“According to the presentence report prepared for [the 1996] offense, Mr. Hammond fondled the
vagina [sic] a four-year old girl for whom he was babysitting. The child disclosed it to her
mother and her mother, in turn, reported the incident to police.” Hammond now argues that this
summary does not accurately report the statement of the child.
Hammond did not previously contest or object to the PSR’s characterization of the
Kansas offense. In fact, when asked at sentencing if he had any factual objections to the PSR,
Hammond’s counsel stated that there were “[n]o factual issues other than how they may impact
the objections, legal objections we make” and that “we really don’t take any issue with the report
regarding Mr. Hammond and the essentials of what we will be discussing later by way of
objection.” Because Hammond did not object to the facts set forth in the PSR, the district court
was “entitled to rely on those facts when sentencing the defendant.” Geerken, 506 F.3d at 467.
Accordingly, Hammond may not challenge the facts now on appeal.
Furthermore, the PSR’s summary of the Kansas offense is not so inaccurate as to cast the
reliability of the PSR into doubt. The Kansas documents make clear that Hammond was charged
with aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A) and
attempted aggravated indecent liberties with a child in violation of K.S.A. 21-3301(a). Those
charges stemmed from a statement that a four-year-old made to her mother that Hammond “had
gotten her out of bed the night before and brought her into the living room to put lotion on her
In discussing the offense with the presentence investigator in that matter,
Hammond himself stated “[i]t was fondling.” Accordingly, the PSR in the present matter is not
inaccurate in characterizing the prior Kansas offense as fondling.
USA v. Hammond
Hammond next argues that his prior Kansas conviction does not support an application of
§ 2G2.2(b)(5)’s five-point enhancement because the relevant Kansas statute does not require
touching under the clothing. At sentencing, the district court noted that Hammond had never
denied the child’s statement that Hammond put lotion on her vagina and found that “it’s really
unlikely that he would have put lotion on her vagina not under her clothing.”
As Hammond points out, the child’s statement, as reported in the Kansas PSR, was not
that Hammond actually put lotion on her vagina but that he “had gotten her out of bed the night
before and brought her into the living room to put lotion on her vagina area.” Yet any error the
sentencing judge made in construing the statement to mean that Hammond actually put lotion on
the child’s vagina is harmless, because section 2G2.2(b)(5) applies to attempts as well as to
Besides, Hammond’s statements that “[i]t happened” and “[i]t was
fondling” suggest that he did in fact complete the offense.
The district court’s finding that Hammond had touched the child directly on the vagina,
as opposed to through the clothing, is supported by the evidence. As the district judge stated, it
is really unlikely that Hammond would have put lotion on the girl’s vagina through the clothing.
The district court therefore did not commit clear error in concluding that the conduct underlying
Hammond’s Kansas conviction supported an application of section 2G2.2(b)(5).
Finally, Hammond argues that the evidence did not support a finding that he fondled his
daughter under her clothing. Hammond therefore argues that the evidence does not support a
finding that Hammond engaged in a pattern of activity involving the sexual abuse or exploitation
of a minor as required under section 2G2.2(b)(5).
USA v. Hammond
Because the evidence supports a finding that Hammond’s conduct with the Kansas child
was a qualifying sexual act, the evidence also supports a finding that Hammond’s conduct with
his daughter was a qualifying sexual act.
Hammond himself admitted during the Kansas
investigation: “The same thing happened with [my daughter] and I moved back to Ann Arbor.
That was two years ago. I convinced my family it never happened. I tricked them all, passed the
polygraph; it was investigated but not official. It was fondling. Exactly the same thing.”
Additionally, the PSR states that Hammond’s mother confirmed that he had sexually abused his
daughter. Hammond did not object to either portion of the PSR.
Hammond’s admission that the “same thing” that happened with the Kansas girl also
happened with his daughter, together with his mother’s corroborating statements, support a
finding that his conduct with his daughter was a qualifying sexual act. Consequently, the district
court did not clearly err in finding that Hammond had touched the genitalia of a minor or minors
under the clothing on at least two prior occasions, and applying the pattern of activity
enhancement under section 2G2.2(b)(5).
Accordingly, Hammond’s sentence is AFFIRMED.
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