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Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0235p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 07-4387 v. , > - Defendant-Appellant. - ANTHONY V. LAPSINS, - N Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 06-00095-001—Michael R. Barrett, District Judge. Argued: April 21, 2009 Decided and Filed: July 7, 2009 * Before: BATCHELDER an
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0235p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 07-4387 v. , > - Defendant-Appellant. - ANTHONY V. LAPSINS, - N Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 06-00095-001—Michael R. Barrett, District Judge. Argued: April 21, 2009 Decided and Filed: July 7, 2009 * Before: BATCHELDER and..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0235p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 07-4387
v.
,
>
-
Defendant-Appellant. -
ANTHONY V. LAPSINS,
-
N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 06-00095-001—Michael R. Barrett, District Judge.
Argued: April 21, 2009
Decided and Filed: July 7, 2009
*
Before: BATCHELDER and COLE, Circuit Judges; LAWSON, District Judge.
_________________
COUNSEL
ARGUED: H. Louis Sirkin, SIRKIN PINALES & SCHWARTZ LLP, Cincinnati, Ohio,
for Appellant. Christy L. Muncy, ASSISTANT UNITED STATES ATTORNEY,
Cincinnati, Ohio, for Appellee. ON BRIEF: H. Louis Sirkin, Scott Ryan Nazzarine,
SIRKIN PINALES & SCHWARTZ LLP, Cincinnati, Ohio, for Appellant. Christy L.
Muncy, ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.
_________________
OPINION
_________________
COLE, Circuit Judge. Anthony Lapsins was indicted on three counts related to
the possession and transportation of child pornography. Following the denial of his
motion to suppress evidence obtained through a warranted search of his home, he
*
The Honorable David M. Lawson, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
No. 07-4387 United States v. Lapsins Page 2
pleaded guilty to one count of transporting and shipping child pornography in violation
of 18 U.S.C. § 2252(a)(1), conditional upon his right to appeal the suppression ruling.
On appeal, he claims that the search warrant was not supported by probable cause. He
also argues that he was erroneously denied a three-point—as opposed to a two-
point—reduction for acceptance of responsibility in his criminal offense level under
§ 3E1.1 of the United States Sentencing Guidelines (the “Guidelines” or “U.S.S.G.”) and
challenges the procedural and substantive reasonableness of his sentence. For the
following reasons, we AFFIRM the district court’s denial of the suppression motion and
AFFIRM Lapsins’s sentence.
I. BACKGROUND
The following facts were set forth in the affidavit of Federal Bureau of
Investigation Special Agent Jeffrey Klain, which was submitted to a federal magistrate
judge in support of Klain’s request for a warrant to search Lapsins’s house.
Lapsins came to the attention of law enforcement officials in Ohio through a
separate investigation of a suspected child pornographer in Greensburg, Pennsylvania
(the “Greensburg Suspect”). On October 27, 2005, Greensburg police officer Robert
Jones (“Patrolman Jones” or “Jones”), working as part of a Pennsylvania State Police
Computer Crime Task Force, was examining the hard-drive of the Greensburg Suspect’s
computer and discovered a transcript of a “Yahoo! Instant Messenger” conversation (the
“chat”), dated March 27, 2005, between the Greensburg Suspect and a then-unknown
person using the screen-name “budmanoh69.” In the chat, budmanoh69 made the
following statements:
“its so hot to see a young little girls undeveloped body.”
“when I see a very young hot little girl alone i cant stop from trying to
expose my cock to her or try to fondle or molest her.”
In response to the question, “have you had a little one,” budmanoh69
replied, “ooohhh yes.”
“i let a guy i met online molest my daughter at 8mos . . . it was extremely
hot” [this was not true, as budmanoh69—later discovered to be
Lapsins—does not have a daughter].
No. 07-4387 United States v. Lapsins Page 3
“you have any hot xxx baby pics? . . . want one that we can look at and
talk about on the phone?? . . . you get it? . . . sent.”
“we going to look at that pic on the phone together??”
(Record on Appeal (“ROA”) 73-74.) During the chat, budmanoh69 provided the
Greensburg Suspect with a phone number so they could discuss the image budmanoh69
had sent.
Patrolman Jones also located an email that budmanoh69 sent to the Greensburg
Suspect during the course of the chat from the email address budmanoh69@aol.com.
Attached to the email was an image that “depict[ed] a baby girl with an erect adult penis
in the foreground and ejaculate covering the exposed vaginal area of the baby girl.”
(ROA 75.) Patrolman Jones sent the image to the National Center for Missing and
Exploited Children (“NCMEC”), a “national clearinghouse that gathers information
about missing and sexually exploited children for law enforcement use.” (ROA 59-60.)
According to Jones, as set forth in Special Agent Klain’s affidavit, the NCMEC
“concluded that [the image] was a known victim image from the Camille [photograph]
series, identifiable by Yves Goethals of the Belgian National Police.” (ROA 76.)
On November 3, 2005, Patrolman Jones sent America On-Line (“AOL”) a court
order directing it to provide him with subscriber and billing information for the
individual using the AOL email address “budmanoh69@aol.com.” AOL informed Jones
that the email account was registered to Anthony Lapsins, who had provided as his
address 8065 Kingfisher Lane in West Chester, Ohio. Several AOL screen-names were
associated with the budmanoh69@aol.com email address, including budmanoh69,
tonylapl, cincym, carmen4fun, and lapsins. AOL also provided Jones with a telephone
number for Lapsins—the same number budmanoh69 had given the Greensburg Suspect.
Jones also obtained a court order requiring Yahoo! to provide information about the user
of the Yahoo! screen-name budmanoh69 and learned that the user of that screen-name
had listed budmanoh69@aol.com as an alternate email address.
Patrolman Jones requested from the NCMEC any “CyberTipline Reports”
concerning budmanoh69. According to Klain’s affidavit, “CyberTipline Reports” are
No. 07-4387 United States v. Lapsins Page 4
“reports forwarded from NCMEC to the law enforcement community . . . based on
information obtained from various sources to include individuals and members of the
Internet services industry.” (ROA 60.) The NCMEC “neither investigates nor vouches
for the accuracy of the information reported to itself [and] forwards all information
unedited to law enforcement agencies for investigation and disposition pursuant to its
congressional mandate to operate as a clearinghouse.” (ROA 60.) Jones received a
CyberTipline report stating that, on November 14, 2005, budmanoh69, using IP address
71.64.193.15, uploaded 132 child pornographic images to the website
http://photos.yahoo.com/budmanoh69. The report stated that the IP address was
assigned to a server designated “cinci.res.rr.com.” Special Agent Klain contacted Time
Warner Cable and learned that this server provides residential cable modem service in
the Cincinnati area, which “can only be used where the cable modem is installed.”
(ROA 78.)
A West Chester police officer working with Klain contacted Cincinnati Bell and
confirmed that the telephone number Lapsins had given the Greensburg Suspect was a
Cincinnati Bell Wireless cellular phone number registered to Anthony Lapsins at the
Kingfisher Lane address. Klain confirmed, via Ohio Bureau of Motor Vehicles records,
West Chester Police Department records, and Butler County property records, that
Lapsins lived at the Kingfisher Lane address.
Based on the above information, a magistrate judge granted Klain a search
warrant for Lapsins’s house on December 19, 2005. The warrant was executed the
following day, and investigators seized Lapsins’s computer, various computer-related
equipment, and numerous compact discs, Zip disks, and other diskettes. According to
the Presentence Investigation Report (“PSR”), these materials contained approximately
1400 images of child pornography, including the image that had been emailed to the
Greensburg Suspect, and sixty-nine pornographic videos of children. Also according to
the PSR, Lapsins admitted to investigating agents that he sent the image to the
Greensburg Suspect, possessed child pornography, and created a Yahoo! group to share
child pornography.
No. 07-4387 United States v. Lapsins Page 5
The district court found that the warrant to search Lapsins’s house was supported
by probable cause and denied his motion to suppress the evidence obtained from the
search. Lapsins entered a conditional guilty plea and was sentenced to 168 months in
prison, followed by supervised release for life.
II. ANALYSIS
A. Suppression motion
Lapsins argues that the warrant authorizing the search of his house was not
supported by probable cause. He contends that Klain’s supporting affidavit did not
provide reason to believe that the pornographic images at issue were photographs of real
children, as opposed to computer-generated images, or that evidence related to the
suspected crime would be located at Lapsins’s house. He also argues that the
information on which the warrant relied was stale because one of the major events
described in the affidavit, the Yahoo! chat and emailing of the image to the Greensburg
Suspect, occurred nine months before the warrant was issued.
1. Standard of review and probable cause standard
In an appeal following the denial of a motion to suppress evidence, we review
the district court’s factual findings for clear error and its legal conclusions de novo. See
United States v. Terry, 522 F.3d 645, 647 (6th Cir. 2008). “[W]hen judging the
sufficiency of an affidavit to establish probable cause in support of a search warrant, the
Supreme Court has ‘repeatedly said that after-the-fact scrutiny . . . should not take the
form of de novo review . . . . Rather, reviewing courts are to accord the magistrate’s
determination ‘great deference.’’”
Id. (quoting United States v. Allen,
211 F.3d 970, 973
(6th Cir. 2000) (en banc) (quoting Illinois v. Gates,
462 U.S. 213, 236 (1983))). “‘[S]o
long as the magistrate had a ‘substantial basis for . . . concluding’ that a search would
uncover evidence of wrongdoing, the Fourth Amendment requires no more.’”
Allen, 211
F.3d at 973 (quoting
Gates, 462 U.S. at 236 (quoting Jones v. United States,
362 U.S.
257, 271 (1960))).
No. 07-4387 United States v. Lapsins Page 6
“In deciding whether to issue a search warrant, the Fourth Amendment requires
‘the issuing magistrate . . . simply to make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit before him . . . there is a fair
probability that contraband or evidence of a crime will be found in a particular place.’”
Terry, 522 F.3d at 648 (quoting
Gates, 462 U.S. at 238). “[P]robable cause requires only
a probability or substantial chance of criminal activity, not an actual showing of such
activity.”
Gates, 462 U.S. at 243 n.13.
2. The affidavit provided probable cause to believe that Lapsins possessed
pornographic images of real children, rather than solely computer-
generated images
Lapsins argues that there was insufficient evidence that the images referenced
in the affidavit were images of actual children as opposed to computer-generated images,
which are not unlawful to possess. See Ashcroft v. Free Speech Coalition, 535 U.S. 234,
256 (2002) (holding that Congress’s ban on possession of virtual child pornography
violated the First Amendment because, among other reasons, its creation does not
involve actual children). This argument fails because the affidavit contained several
assertions that, considered together and under the totality of the circumstances, provided
probable cause to believe that the pornographic images at issue included images of real
children. See
Gates, 462 U.S. at 238 (holding that a totality-of-the-circumstances
analysis applies to probable-cause determinations).
The affidavit stated that the child in the image emailed by Lapsins was a known
victim who, according to the NCMEC, was identifiable by Yves Goethals, a Belgian
police officer. While Lapsins is correct that the affidavit provided no additional
information about Goethals’s reliability, in general, “another law enforcement officer is
a reliable source and . . . consequently no special showing of reliability need be made
as a part of the probable cause determination.” 2 Wayne R. LaFave, Search and Seizure
§ 3.5(a) (4th ed. 2008). On the other hand, Klain learned of this information indirectly
through an NCMEC report, and “long chains of information passed through police
channels” are deemed less reliable, particularly when the affidavit does not set forth the
factual basis for an officer’s statement. Id. We need not arrive at an exact measure of
No. 07-4387 United States v. Lapsins Page 7
Goethals’s reliability—the fact that a law enforcement officer claimed to have identified
the child in the photograph, when combined with the other information presented in the
affidavit, provided sufficient probable cause to believe that Lapsins possessed images
of real children.
The affidavit also stated that the “NCMEC analyzed the image [emailed to the
Greensburg Suspect] and concluded that [it depicted] a known victim.” (ROA 76.)
While the NCMEC’s conclusion as to the identifiability of the victim was based on
information provided by Goethals, the affidavit also stated that the NCMEC, which has
expertise in child pornography, “analyzed” the image and informed Patrolman Jones that
it was a photograph of an identified victim, i.e., a real child. The magistrate judge could
reasonably have assumed that the NCMEC would not have made such an assertion if the
image had appeared to be a virtual, computer-generated image.
In addition, the affidavit shows that Patrolman Jones viewed the image emailed
to the Greensburg Suspect, and although the affidavit does not contain a statement by
Jones that he believed the photograph to depict a real child, the affidavit as a whole
implies such a belief. According to the affidavit, “Patrolman Jones’s forensics show that
the image sent in the body of the email . . . depict[ed] a baby girl with an erect adult
penis in the foreground and ejaculate covering the exposed vaginal area of the baby
girl.” (ROA 75.) Jones, who was trained in computer forensics and the investigation of
child pornography, provided Agent Klain with the NCMEC’s conclusion that the image
depicted a known child-victim. The overall implication is that Jones did not believe that
the image was computer-generated (such that it could not possibly depict a real child),
and this contributed to the reasonableness of the magistrate’s common-sense conclusion
that the image Lapsins sent likely depicted a real child.
In addition to information suggesting that the image emailed to the Greensburg
Suspect was a photograph of a real child, the warrant relied on a report by Yahoo! to the
NCMEC stating that Lapsins uploaded 132 images of child pornography to the
budmanoh69 site on a specified date. While the affidavit did not contain descriptions
of the images, nor an assertion that any of the photographs depicted real children rather
No. 07-4387 United States v. Lapsins Page 8
than computer-generated images, at the probable-cause stage of the analysis, the
magistrate judge would have been justified in finding that Lapsins’s possession of such
a large quantity of purported child pornography contributed to the “fair probability” that
some of the images Lapsins possessed were of real children, though we express no
opinion about whether such a report, on its own, would support a finding of probable
cause. Although we find that the affidavit was sufficient on this point in the present
case, the better practice would be to include a plain statement of the affiant’s belief that
the image depicted a real child, together with a recitation of the facts that support such
belief.
Neither at the suppression hearing nor on appeal has Lapsins pointed to any
information that would have suggested to the investigating officers or the magistrate that
the images were not of real children. Although the burden of demonstrating probable
cause rests with the Government, we have held that “[s]ince a probable cause finding
does not require a preponderance of the evidence, in order to undermine the magistrate’s
finding, the likelihood of an innocent explanation must (at the very least) be greater than
the likelihood of a guilty one.” Terry, 522 F.3d at 650 (holding that the possibility that
a pornographic image emailed by defendant was an innocent reply to a spam message
to which the image had been attached by the original sender did not negate finding of
probable cause). Nothing in Lapsins’s chat with the Greensburg Suspect, for example,
provided any reason to believe that Lapsins was referring something other than a
photograph of a child when he offered to send a “hot xxx baby pic[]” shortly after
describing his urge to molest real children.
As required at the probable-cause stage, the warrant in this case was supported
by “a probability or substantial chance of” possession of images of actual children; “an
actual showing” that the images depicted real children was not required, see Gates, 462
U.S. at 243 n.13, even though such a showing was arguably made through the
information provided by Goethals. See also United States v. Wagers,
452 F.3d 534, 538-
39 (6th Cir. 2006) (holding that defendant’s subscriptions to websites containing child
pornography but also possibly containing adult pornographic images provided probable
No. 07-4387 United States v. Lapsins Page 9
cause for a search warrant even though the supporting affidavits did not specifically
allege that the defendant had viewed the child pornography on the sites). In this case,
the magistrate judge permissibly found a “fair probability” that some of the images in
Lapsins’s possession were images of real children.
3. The affidavit set forth a sufficient nexus between the suspected illegal
activity and Lapsins’s home
Lapsins argues that even if the affidavit established probable cause to believe that
he had transmitted images of child pornography over the internet, it did not provide
probable cause that such images would be found in his home. While Lapsins is correct
that the mere fact that a person is suspected of a crime does not justify the conclusion
that fruits of that crime will be found at his residence, see United States v. McPhearson,
469 F.3d 518, 524-25 (6th Cir. 2006) (holding that suspect’s possession of drugs on his
person did not provide probable cause to search his home), in this case, the affidavit
included information providing a sufficient nexus to Lapsins’s home.
As an initial matter, Lapsins does not dispute that ample evidence connected him
to the budmanoh69 Yahoo! and AOL screen-names and email address, and established
that he lived at the Kingfisher Lane address. Despite Lapsins’s arguments to the
contrary, the affidavit also set forth evidence giving rise to a fair probability that images
of child pornography transmitted by budmanoh69 would be found in Lapsins’s home,
particularly on a home computer. The pictures uploaded by budmanoh69 to the
budmanoh69 Yahoo! group on November 14, 2005 originated from an IP address
associated with a residential cable modem in the Cincinnati area. See Terry, 522 F.3d
at 648 (concluding that where suspect was registered user of AOL account from which
image was sent at 2:30 a.m. and was known to have a home computer through which he
accessed that account, it “requires no great leap of logic” to conclude that his home
computer was probably used to send the image). Lapsins’s chat with the Greensburg
Suspect took place between the hours of 6:30 and 8:30 in the morning—a time when
Lapsins likely would have been using a home computer. See
id. at 649 n.1.
Furthermore, his upload of 132 images to the budmanoh69 Yahoo! site was traced to a
residential cable modem server in the Cincinnati area. In addition, this particular
No. 07-4387 United States v. Lapsins Page 10
“criminal activity (viewing child pornography) is much more tied to a place of privacy,
seclusion, and high-speed Internet connectivity (e.g. a home or office) than the storing
of drugs.”
Wagers, 452 F.3d at 540; see also
Terry, 522 F.3d at 648 (“[T]he district court
did not err in concluding that as a matter of plain common sense, if . . . a pornographic
image has originated or emanated from a particular individual’s email account, it
logically follows that the image is likely to be found on that individual’s computer or on
storage media associated with the computer.” (internal quotation marks omitted)).
Although the affidavit did not allege that the IP address from which
budmanoh69 uploaded child pornography was registered to Lapsins by name, cf.
Wagers, 452 F.3d at 539 (IP address specifically assigned to defendant was used to
purchase website subscriptions), we stated in Terry that “the Wagers opinion did not
hold that IP information was an indispensable prerequisite to obtaining a search warrant
. . . , only that such information contributed to the totality of the probable cause
determination.”
Terry, 522 F.3d at 649. In this case, as in Terry, there was also
evidence that the defendant had actually possessed child pornography (since he had
emailed an image), as opposed to merely having had access to it, as in Wagers. The
Terry court found that “use of Terry’s personal e-mail account in the wee hours of the
morning [to send child pornography], combined with information that Terry used his
home computer to access that account, established at least a ‘fair probability’ that the
computer used to send the messages was, in fact, the one in Terry’s home.”
Id. Here,
there was no direct evidence that Lapsins used a home computer to access his AOL or
Yahoo! accounts, but the fact that images were uploaded by budmanoh69 from a
residential cable modem in the city where Lapsins lived, combined with the early
morning chat, allowed the magistrate judge to make that inference.
Lapsins claims that the report from the NCMEC that he had uploaded 132 images
on a certain date is unreliable because the NCMEC relies on information from “various
sources [] includ[ing] individuals and members of the Internet services industry,” and
“neither investigates nor vouches for the accuracy of the information reported to itself.”
(ROA 60.) According to the affidavit, the NCMEC informed Patrolman Jones of “past
No. 07-4387 United States v. Lapsins Page 11
reports by Yahoo! of budmanoh69 uploading child pornography to Yahoo! groups.”
(ROA 77.) Jones provided Klain with these reports, one of which contained the precise
date, time, and originating IP address of the upload of 132 images, as well as the screen-
name of the uploader: budmanoh69. Even if the report was unreliable in isolation, it was
corroborated by the fact that the upload came from a residential cable modem in the
Cincinnati area and that the Yahoo! user budmanoh69 was independently known to be
a transmitter of child pornography (by virtue of the email to the Greensburg Suspect).
For the foregoing reasons, the warrant was supported by probable cause to believe that
child pornography would be found at Lapsins’s home.
4. The information supporting the warrant was not stale
The email from Lapsins to the Greensburg Suspect was sent on March 27, 2005,
but the warrant application was not submitted until December 19, 2005—nearly nine
months later. However, the warrant was also supported by the NCMEC report that
budmanoh69 had uploaded 132 images of child pornography on November 14,
2005—only about one month before the warrant was executed. Since this information
was reliable enough to contribute to a finding of probable cause, it remedied any
potential staleness defect. See, e.g., United States v. Prideaux-Wentz, 543 F.3d 954, 958
(7th Cir. 2008) (recognizing that, in child pornography context, “more recent evidence
of continuing criminal activity [can] bolster probable cause and freshen the older
information”); see also
Terry, 522 F.3d at 650 n.2 (noting that pornographic images can
often be recovered from computers by forensic examiners such that the passage of time
does not greatly affect the probable cause calculus).
B. Sentencing Guidelines reduction for acceptance of responsibility
Lapsins argues that he was entitled to a three-point reduction in his base offense
level for acceptance of responsibility, instead of the two-point reduction he received.
For the following reasons, the prosecution was not required to move for the additional
one-point reduction.
No. 07-4387 United States v. Lapsins Page 12
1. The Guideline provision
Section 3E1.1 of the Guidelines provides for a potential reduction of three points
for acceptance of responsibility. Section 3E1.1(a) allows the district court to reduce the
offense level by two points if “the defendant clearly demonstrates acceptance of
responsibility for his offense.” U.S.S.G. § 3E1.1(a). Section 3E1.1(b), on the other
hand, allows for a reduction of one additional point
upon motion of the government stating that the defendant has assisted
authorities in the investigation or prosecution of his own misconduct by
timely notifying authorities of his intention to enter a plea of guilty,
thereby permitting the government to avoid preparing for trial and
permitting the government and the court to allocate their resources
efficiently.
U.S.S.G. § 3E1.1(b). This additional one-point reduction is not available absent a
motion from the government. United States v. Smith, 429 F.3d 620, 628 (6th Cir. 2005).
2. Prosecution’s refusal to move for a third point
The initial PSR, dated February 7, 2007, recommended that Lapsins receive a full
three-point reduction for acceptance of responsibility, finding that a letter he had
submitted to the court revealed that he had accepted responsibility and that his decision
to plead guilty had permitted the government to avoid preparing for trial.
In a March 2, 2007 memorandum to the United States Probation Office
(“USPO”), Lapsins lodged a number of objections to the description of his offense
contained in the initial PSR. In particular, Lapsins denied that he had created a Yahoo!
“group,” attempting to distinguish a Yahoo! “photos” website from a Yahoo! “groups”
website. He also stated that he “denies ever having had a Yahoo group, and the
government has presented no evidence of such,” and that he “emphatically denies ever
having started a child pornography Yahoo group.” (Docs. Under Seal 51-52.1) He also
objected to a statement in the PSR that he owned and controlled the membership of a
1
“Docs. Under Seal” refers to a document, separate from the ROA, that is listed on the appellate
docket sheet as “Pre-sentence report” bearing the title “Documents Under Seal.”
No. 07-4387 United States v. Lapsins Page 13
Yahoo! group. The Government argued that these statements directly contradicted
Lapsins’s prior sworn admission in the “Statement of Facts” attached to his plea
agreement that he “had created the Yahoo Group ‘budmanoh69,’” which “facilitated the
distribution and sharing of child pornography.” (ROA 178.)
In his memorandum to the USPO, Lapsins also denied the statement in the PSR
that he uploaded 132 images to the budmanoh69 Yahoo! group on November 14, 2005,
claiming that his screen-name had been stolen. Lapsins also objected to the PSR’s
statement about the number of photographs and videos he had possessed and uploaded
to the budmanoh69 site, arguing that “[b]ecause there is no proof or substantiation of
these allegations, they should be stricken from the record.” (Docs. Under Seal 52.)
As a result of these objections, the USPO, in a revised PSR dated March 23,
2007, changed its position and recommended that Lapsins not receive any reduction for
acceptance of responsibility because, although he had “made a statement detailing his
involvement in the instant offense,” he “later denied portions of the Statement of Facts.”
(Docs. Under Seal 34.)
At an evidentiary hearing to address Lapsins’s objections to the initial PSR, the
prosecutor argued that “[Lapsins] is either lying then or he’s lying now and he’s subject
to a perjury prosecution, and it would be inappropriate for this Court to grant him
acceptance of responsibility having previously stated under oath that the Statement of
Facts is accurate yet stand[ing] here today denying [it].” (ROA II,2 Sept. 26, 2007 Evid.
Hr’g 21.) The prosecutor also stated, “if I were in [defense counsel’s] shoes, Your
Honor, I would simply withdraw the objection . . . . Then there is no possibility of there
being anything contrary . . . . Whether he distributed 132 images on a particular day or
400 on another day doesn’t affect the Guidelines.” (Id. 21-22.) In response to this
argument, Lapsins’s counsel withdrew the objections.
2
“ROA II” refers to a document listed on the appellate docket sheet as “Record on Appeal,
Transcripts, Filed. Vol 2.” This non-indexed, non-consecutively paged document contains transcripts of
several proceedings, including the suppression hearing and sentencing hearing. Accordingly, citations
herein to ROA II include names of specific documents and page numbers within those documents.
No. 07-4387 United States v. Lapsins Page 14
At sentencing, the Government urged the district court not to award any
reduction for acceptance of responsibility, claiming that Lapsins’s objections to the
initial PSR, as well as a sentencing memorandum he filed just prior to sentencing that
used the word “allegedly” to describe acts to which Lapsins had pleaded guilty, showed
that he had not accepted responsibility. In addition, the prosecutor stated: “Clearly, the
[G]overnment is not going to give that third point [under § 3E1.1(b)].” (ROA II, Sent’g
Hr’g 6.) The prosecutor argued that he was entitled to refuse to move for a reduction
because the plea agreement stated that if Lapsins made false statements or
misrepresentations to any government entity following his plea, the Government would
not be obligated to make certain recommendations in his favor, including moving for a
one-point reduction under § 3E1.1(b).
The district judge was not persuaded by the prosecutor or the USPO, and he
determined that Lapsins’s Statement of Facts and guilty plea merited a two-level
reduction under § 3E1.1(a). At sentencing, the district judge made no comment about
the Government’s decision not to move for an additional one-point reduction. The judge
went on to calculate a Guidelines range of 168 to 210 months, and sentenced Lapsins to
168 months’ imprisonment. (If the Government had moved for the additional one-point
reduction, the recommended range would have been 151 to 188 months.)
3. The prosecutor was not required to move for the additional reduction
The Government urges that we should review for plain error the district court’s
failure to require the prosecution to move for the additional point, claiming that
Lapsins’s counsel did not specifically object to the Government’s decision not to move
for the additional point. Lapsins points out that he had already argued several times,
including during the sentencing hearing, that his objections to the PSR did not indicate
an unwillingness to accept responsibility. We need not resolve this question because
Lapsins’s argument fails even under a de novo standard of review.
U.S.S.G. § 3E1.1(b) commits the decision whether to file a motion for an
additional one-point reduction to the government’s discretion, and we have held that this
discretion is subject to the limitation that the government may not act with a
No. 07-4387 United States v. Lapsins Page 15
constitutionally impermissible motive. See Smith, 429 F.3d at 628 (citing Wade v.
United States,
504 U.S. 181, 186-87 (1992) (holding that prosecutor’s decision not to
move for a sentence reduction for substantial assistance must bear a rational relation to
legitimate government end and must not be based on factors such as religion, sex, or
race)); see also United States v. Drennon,
516 F.3d 160, 162-63 (3d Cir. 2008) (holding
that the prosecutor’s decision not to move for a § 3E1.1(b) reduction is entitled to “full
deference” unless the record shows the decision was attributable to an unconstitutional
motive); United States v. Espinoza-Cano,
456 F.3d 1126, 1138 (9th Cir. 2006)
(defendant must present objective evidence of an improper motive or arbitrary action to
overcome government’s decision not to move for reduction under U.S.S.G. § 3E1.1(b)).
This case differs from the typical case involving § 3E1.1(b) because the
government’s decision to move for the reduction is usually based on whether the
defendant pleaded guilty early enough to save the government the expense of preparing
for trial. See, e.g., Smith, 429 F.3d at 628 (explaining that the government is given the
discretion to move for the reduction or not because it is in the best position to know
whether the defendant’s cooperation and acceptance of responsibility have allowed the
government to preserve resources); see also U.S.S.G. § 3E1.1 cmt. n.6 (same). Although
the Government argues in its brief that Lapsins did not save it the resources he might
have, it is apparent that the real reason the Government refused to move for the reduction
was that “the defendant made objections to the initial PSR that were contradictory to
statements he had sworn to in the signed Statement of Facts. Because of this less than
candid position, the government felt the defendant was no longer deserving of
acceptance of responsibility.” (Gov’t Br. 39.) The record makes clear that the
prosecutor did not believe that Lapsins had fully accepted responsibility for his actions.
(See, e.g., ROA II, Sent’g Hr’g 23 (“[H]e continues to use the word ‘allegedly.’ This is
an individual who still can’t wrap his brain around his conduct . . . . It’s not allegedly
anymore. Come on. Just admit it, once.”).)
Section 3E1.1(b) does not state that the prosecutor can refuse to move for the
reduction because he does not agree with the district court’s determination that the
No. 07-4387 United States v. Lapsins Page 16
defendant has accepted responsibility, and the text of the provision focuses on whether
the defendant has allowed the government to avoid preparing for trial. This might
suggest that the government is required to base its decision about whether to move for
the reduction solely on whether the defendant has saved the government resources.
However, the Second Circuit recently addressed this issue and held that the government
is entitled to refuse to move for the reduction based on its belief that the defendant has
not genuinely accepted responsibility, even if the district court awards a two-point
reduction under § 3E1.1(a). See United States v. Sloley, 464 F.3d 355, 359 (2d Cir.
2006). The Second Circuit found that to hold otherwise would be to ignore both the
plain language of § 3E1.1(b), which allows for the reduction “upon motion of the
government,” and comment 6 to that section, which states that “an adjustment under
subsection (b) may only be granted upon formal motion by the government.” U.S.S.G.
§ 3E1.1(b) & cmt. 6;
Sloley, 464 F.3d at 359. The Slolely court also reasoned that
subsection (b) would be rendered a nullity if the government were required to agree with
the court’s assessment of acceptance of responsibility: “Section 3E1.1 is crafted and
structured in a manner that divides the power to reduce a defendant’s offense level for
acceptance of responsibility between the sentencing court and the prosecutor. Such a
division of power . . . implicitly contemplates situations in which a court may find
acceptance of responsibility while the government prosecutor may not.”
Sloley, 464
F.3d at 359. We find the Second Circuit’s reasoning persuasive. While on its face
§ 3E1.1(b) does not appear to contemplate the prosecutor’s refusal to move for the point
for any reason other than the wasting of government resources, to hold that the district
court could compel the government to make the motion would be directly contrary to the
section’s commitment of this decision to the government’s discretion.
Therefore, we conclude that the government may decline to move for a reduction
under § 3E1.1(b) so long as the decision does not rest on a constitutionally
impermissible factor and is not arbitrary. See Wade, 504 U.S. at 186-86;
Smith, 429 F.3d
at 628. We do not reach the situation in which the prosecutor has promised, as a
condition of the defendant’s guilty plea, to move for the reduction because Lapsins’s
counsel conceded at oral argument that no such promise was made in this case. As
No. 07-4387 United States v. Lapsins Page 17
Lapsins does not allege that the Government acted based on a constitutionally
impermissible factor, the question remaining is whether the Government’s decision not
to move for the reduction was arbitrary.
Lapsins essentially argues that the prosecutor’s decision was arbitrary because
there was no valid reason for him to conclude that Lapsins had not accepted
responsibility. On the contrary, Lapsins claims, the record shows that he was truly
remorseful for his crimes, and the prosecutor misinterpreted defense counsel’s use of the
word “allegedly” and filing of various factual objections to the PSR as manifesting
Lapsins’s refusal to accept responsibility, when in fact they merely represented legal
strategy by defense counsel. While it is true that Lapsins’s counsel withdrew the
objections to the PSR (under pressure from the prosecutor), and while the use of
“allegedly” may not be a good indicator of Lapsins’s own mindset, the record
nonetheless shows that Lapsins attempted to retract his admission to forming a Yahoo!
group devoted to child pornography. For example, at the September 26, 2007
evidentiary hearing (which post-dated Lapsins’s sworn admissions in the Statement of
Facts) after conferring with Lapsins, defense counsel stated to the district judge, “He is
claiming he did not create the group.” (See ROA II, Sept. 26, 2007 Evid. Hr’g 19); cf.
Sloley, 464 F.3d at 361 (“[T]he record shows that Sloley’s reneging on his admission . . .
made in the plea agreement . . . is what led the government to conclude that he had not
accepted responsibility.”). Given that Lapsins denied his prior sworn admissions, that
§ 3E1.1(b) commits the decision whether to move for the reduction to the discretion of
the prosecutor, and that the record shows that the prosecutor believed in good faith that
Lapsins had not accepted responsibility, we hold that the prosecutor’s decision not to
move for the reduction was permissible.
No. 07-4387 United States v. Lapsins Page 18
C. Reasonableness of sentence
1. Lapsins’s claims of sentencing error
Lapsins claims his sentence was procedurally unreasonable because the district
court failed to consider certain arguments relating to the factors set forth in 18 U.S.C.
§ 3553(a) and gave only a conclusory explanation of his sentencing decision. While
Lapsins generally frames his argument as one of procedural unreasonableness, he
appears to assert a substantive unreasonableness claim as well. At the outset, it is worth
noting that the district judge was generous to Lapsins in several respects: he granted
Lapsins a downward variance from Criminal History Category II to Category I, finding
that “based upon the prior conduct of the defendant, [Criminal History Category II]
overstates his – it over-represents his criminal history, and so I’m going to make a
variance pursuant to [U.S.S.G. §] 4A1.3 to indicate that he has a Criminal History Level
of I.” (ROA II, Sent’g Hr’g 11-12.); he granted Lapsins a two-point reduction in
Criminal Offense Level for acceptance of responsibility despite the USPO’s
recommendation to the contrary; and he sentenced Lapsins at the bottom of the
recommended Guidelines range.
Lapsins claims that the court failed to consider his asserted “relatively low
chance of recidivism,” his “strong, dedicated support system,” his “shame and guilt,” his
successful work history, his “willingness and desire to seek counseling,” and the fact that
he was battling a substance abuse problem, all of which, Lapsins claims, pointed to a
below-Guidelines sentence. (Lapsins Br. 44-46.) In addition, Lapsins argues that the
district court failed to address his arguments that a below-Guidelines sentence would be
sufficient to provide specific deterrence and that a long incarceration would interfere
with his ability to seek treatment and counseling. Lapsins also argues that the district
court failed to address his argument that he should receive a significant downward
departure similar to that upheld on appeal by this Court in United States v. Cherry, 487
F.3d 366 (6th Cir. 2007), because the circumstances of the two defendants are similar,
and to refuse to give Lapsins a similar departure would result in an unwarranted
sentencing discrepancy.
No. 07-4387 United States v. Lapsins Page 19
2. Standard of review
Following United States v. Booker, 543 U.S. 220 (2005), we review a district
court’s sentencing decisions “under a deferential abuse-of-discretion standard” for
reasonableness. Gall v. United States,
128 S. Ct. 586, 591 (2007); United States v.
Stephens,
549 F.3d 459, 464 (6th Cir. 2008). This inquiry has both a procedural and a
substantive component.
Gall, 128 S. Ct. at 597.
A sentence is procedurally unreasonable if the district court failed to calculate
(or improperly calculated) the Guidelines range, treated the Guidelines as mandatory,
failed to consider the § 3553(a) factors, selected a sentence based on clearly erroneous
facts, or failed adequately to explain the chosen sentence. Gall, 128 S. Ct. at 597. We
review the district court’s application of the Sentencing Guidelines de novo and its
findings of fact at sentencing for clear error. See United States v. Hunt,
487 F.3d 347,
350 (6th Cir. 2007).
If a sentence is procedurally sound, we then consider its substantive
reasonableness. Gall, 128 S. Ct. at 597. A sentence is substantively unreasonable if the
district court “selects a sentence arbitrarily, bases the sentence on impermissible factors,
fails to consider relevant sentencing factors, or gives an unreasonable amount of weight
to any pertinent factor.” United States v. Conatser,
514 F.3d 508, 520 (6th Cir. 2008).
Sentences imposed within a properly-calculated Guidelines range enjoy a rebuttable
presumption of substantive reasonableness on appeal. United States v. Vonner,
516 F.3d
382, 389 (6th Cir. 2008) (en banc); see also Rita v. United States,
551 U.S. 338, 347
(2007) (“[A] court of appeals may apply a presumption of reasonableness to a district
court sentence that reflects a proper application of the Sentencing Guidelines.”).
After the district judge announced Lapsins’s sentence, he asked both counsel for
objections, and defense counsel stated that he had no objections other than those already
raised. Because Lapsins did not object to the district court’s explanation of the § 3553(a)
factors, we review Lapsins’s challenge to the sufficiency of that explanation for plain
error. See Vonner, 516 F.3d at 386. This requires Lapsins to show (1) error (2) that
“was obvious or clear,” (3) that “affected defendant’s substantial rights,” and (4) that
No. 07-4387 United States v. Lapsins Page 20
“affected the fairness, integrity, or public reputation of the judicial proceedings.”
Id.
(internal quotations omitted).
3. Analysis
Because the sentence was within the Guidelines range, a rebuttable presumption
of reasonableness applies. See Vonner, 516 F.3d at 389. Here, although the district
judge could have said more about why he chose not to accept Lapsins’s arguments for
a downward departure, the sentence was not plainly erroneous, either procedurally or
substantively.
The record reveals that the district judge considered a large quantity of
information relating to Lapsins’s characteristics, background, psychological state, and
family circumstances. The judge reviewed numerous letters submitted by Lapsins’s
family and heard testimony at an evidentiary hearing from the psychologist who had
been treating Lapsins since his arrest. The psychologist’s testimony included, at the
district judge’s instigation, discussion of Lapsins’s treatability and likelihood of
recidivism. The district judge also heard live statements from three of Lapsins’s family
members. The judge obviously considered Lapsins’s criminal background, as he granted
Lapsins a downward variance based on that background.
Lapsins concedes that the district judge was well informed about Lapsins’s
relevant characteristics but argues that the record must reflect both that the district judge
considered the defendant’s argument and that the judge explained the basis for rejecting
it. The district judge’s recitation of the § 3553 factors was fairly terse:
It’s my duty to sentence Mr. Lapsins at this time. 18 U.S.C. [§] 3553
instructs the Court to impose a sentence which is sufficient but not
greater than necessary to comply with the purposes set forth in Paragraph
2 of the section.
The Court finds that the sentence I’m about to impose is in
accordance with 18 U.S.C. [§] 3553(a), as well as the proper application
of the sentencing guidelines as described in 18 U.S.C. [§] 3553(a) which
include:
No. 07-4387 United States v. Lapsins Page 21
The nature and circumstances of the offense and the history and
the characteristics of Mr. Lapsins;
The sentence will also reflect the seriousness of the offense,
promote respect for the law, and provide just punishment for the offense;
To afford adequate deterrence to criminal conduct;
The sentence will also protect the public from further crimes of
Mr. Lapsins and, hopefully, Mr. Lapsins can get the needed educational
and medical care and treatment that is needed in the most effective
manner.
...
Therefore, Mr. Lapsins is committed to the custody of the United
States Bureau of Prisons for a term of 168 months. He is ordered placed
on Supervised Release for life due to the seriousness of the offense, the
length of time that he was involved with the possession of child
pornography, and the need for continued mental health treatment.
...
The court considers the sentence to be just and reasonable in light
of the defendant’s conduct and the applicable sentencing factors.
(ROA II, Sent’g Hr’g 25-31.)
Although the district judge did not articulate his reasons for rejecting Lapsins’s
arguments, his reasoning was “sufficiently detailed to reflect the considerations listed
in § 3553(a) and to allow for meaningful appellate review.” United States v. Mayberry,
540 F.3d 506, 518 (6th Cir. 2008) (internal quotations omitted). The district court is not
required to “give the reasons for rejecting any and all arguments [made] by the parties
for alternative sentences.”
Vonner, 516 F.3d at 387. It is sufficient if the district judge
“set[s] forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking
authority.”
Rita, 551 U.S. at 356; see also United States v. Moon,
513 F.3d 527, 539 (6th
Cir. 2008) (stating that the district court must “provide some indication that the court
considered the defendant’s arguments in favor of a lower sentence and the basis for
rejecting such arguments”); United States v. Gale,
468 F.3d 929, 940 (6th Cir. 2006)
(noting that remand may be appropriate where “a defendant’s argument and supporting
No. 07-4387 United States v. Lapsins Page 22
evidence presents an arguably meritorious claim for a lesser sentence, but there is little
to suggest that the district court actually considered it”). A less lengthy explanation will
suffice for a within-Guidelines sentence when “the record makes clear that the
sentencing judge considered the [defendant’s] evidence and arguments.”
Rita, 551 U.S.
at 359.
Although the district court did not specifically respond to Lapsins’s arguments
about his remorse, family support, substance abuse problems, and willingness to undergo
counseling, these matters are encompassed within § 3553(a)(1), which requires a
sentencing court to consider “the history and characteristics of the defendant.” The
district court stated that it had accounted for the “nature and circumstances of the offense
and the history and the characteristics of Mr. Lapsins,” as well as a number of other
§ 3553(a) considerations. (ROA II, Sent’g Hr’g 25.) As noted above, the record reveals
that the district judge considered Lapsins’s arguments and evidence in support of a
downward variance (in addition to the criminal history downward variance already
given). Therefore, Lapsins has not established that his sentence was procedurally
unreasonable.
Lapsins’s substantive unreasonableness argument is based on essentially the
same claim as his procedural unreasonableness argument—that the district court failed
to consider pertinent § 3553 factors. Because the sentence falls within the properly-
calculated Guidelines range, it is entitled to a presumption of reasonableness. See
Vonner, 516 F.3d at 389. Lapsins’s argument that he is entitled to a below-Guidelines
sentence because a defendant with similar characteristics received a downward departure
in United States v. Cherry can be construed as a substantive unreasonableness argument,
but it is without merit—the fact that a judge in an unrelated case found a specific
individual deserving of a downward departure does not mean that the judge in this case
plainly erred by sentencing Lapsins within the Guidelines after considering the nature
of his crime and his personal characteristics. See, e.g., United States v. Brinda, No. 07-
6357,
2009 U.S. App. LEXIS 7936, at *10-11 (6th Cir. Apr. 15, 2009) (holding that
defendant in child pornography case did not rebut presumption of reasonableness by
No. 07-4387 United States v. Lapsins Page 23
pointing to other defendants who received similar sentences for purportedly more
culpable conduct). Lapsins has not rebutted the presumption of substantive
reasonableness accorded to within-Guidelines sentences.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of Lapsins’s
suppression motion and AFFIRM Lapsins’s sentence.
