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United States v. Nichols

United States Court of Appeals, Sixth Circuit

November 21, 2019

United States of America, Plaintiff-Appellee,
v.
Lucas Anthony Nichols, Defendant-Appellant.

          Argued: October 22, 2019

          Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 3:17-cr-00122-1-Thomas A. Varlan, District Judge.

         ARGUED:

          Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant.

          Matthew T. Morris, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

         ON BRIEF:

          Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant.

          Terra L. Bay, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, for Appellee.

          Before: CLAY, THAPAR, and NALBANDIAN, Circuit Judges.

          OPINION

          THAPAR, CIRCUIT JUDGE

         Lucas Nichols pled guilty to receipt and possession of child pornography. The district court then enhanced his sentence because some of his victims were "vulnerable." U.S. Sentencing Guidelines Manual § 3A1.1(b)(1) (U.S. Sentencing Comm'n 2018). Nichols now argues that the sentencing guidelines prohibited the use of that enhancement. We see things differently and affirm.

         In 2017, federal law enforcement executed a search warrant at Nichols's home in Knoxville, Tennessee. During the search, agents discovered child pornography on his phone and tablet. Nichols then confessed that he had traded child pornography on various internet platforms (like Dropbox). He also admitted that he had sexually abused young girls on multiple occasions and sometimes documented the abuse in videos and photographs. In the end, investigators uncovered hundreds of videos and photographs in his possession. Many of these images depicted graphic scenes of adult men sexually abusing children as young as toddlers.

         Before sentencing, the probation office prepared a presentence report, which (as relevant here) applied two sentencing enhancements. First, it found that Nichols possessed material depicting "sadistic or masochistic conduct or other depictions of violence." U.S.S.G. § 2G2.2(b)(4)(A). Second, it found that his offense harmed a "vulnerable victim." Id. § 3A1.1(b)(1). Nichols objected to the latter enhancement, arguing that he also possessed material depicting "sexual abuse or exploitation of an infant or toddler." Id. § 2G2.2(b)(4)(B). He pointed out that the commentary to § 2G2.2 provides that "[i]f subsection (b)(4)(B) applies," a court should not apply § 3A1.1(b). Id. cmt. n.4. And he noted that if § 3A1.1(b) did not apply, then his guidelines range would be 210 to 262 months rather than 262 to 327 months. But the probation officer recommended that the district court reject this argument, explaining that she had applied an enhancement under subsection (b)(4)(A), not (b)(4)(B).

         At sentencing, Nichols renewed his objection. After hearing arguments on the issue, the district court agreed with the probation officer (and the government) that the guidelines allowed it to enhance a sentence under both § 2G2.2(b)(4)(A) and § 3A1.1(b) so long as it did not use § 2G2.2(b)(4)(B). And the court chose to do so given the facts of the offense. It then sentenced Nichols to 262 months' imprisonment. We review that sentence for an abuse of discretion. United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007).

         To understand this case, it helps to know a little background about the relevant guidelines provision. Until recently, § 2G2.2(b)(4) covered only material that depicted "sadistic or masochistic conduct or other depictions of violence." But in 2016, the Sentencing Commission amended that provision to include material that depicted "sexual abuse or exploitation of an infant or toddler." It did so to resolve a circuit split over whether the "vulnerable victim" enhancement in § 3A1.1(b) applied to victims who were vulnerable only because they were very young (i.e., infants or toddlers). Rather than amend § 3A1.1(b), though, the Commission amended § 2G2.2(b)(4) to cover infants and toddlers. See generally U.S.S.G. supp. to app. C, amend. 801, at 133-35. The new provision states: "If the offense involved material that portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B) sexual abuse or exploitation of an infant or toddler, increase by 4 levels." U.S.S.G. § 2G2.2(b)(4). The Commission also added commentary that instructs: "If subsection (b)(4)(b) applies, do not apply § 3A1.1(b)." Id. cmt. n.4. The question here is whether that commentary bars the application of § 3A1.1(b) to Nichols.

         By its plain terms, the commentary has no relevance to this case. The district court enhanced Nichols's sentence under subsection (b)(4)(A), not (b)(4)(B). The court applied the former subsection because Nichols had a video of a ten-year-old girl "held in place by her hair while an adult male vaginally penetrated her" and a picture of a "blindfolded teenage female performing oral sex on an adult male." R. 42, Pg. ID 218, 220. That material clearly depicts "sadistic" conduct. See United States v. Corp, 668 F.3d 379, 390 (6th Cir. 2012). And because the district court applied an enhancement under subsection ...


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