## Facts

- Thomas Cunningham pleaded guilty in the Northern District of Ohio to three child-pornography offenses involving receipt and possession, in violation of 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2), and 2252A(a)(5)(B).
- Investigators traced a screen name linked to sending child-pornography images to Cunningham.
- Forensic review of an email account associated with Cunningham found at least fourteen still images and one movie file depicting minors engaged in sexually explicit conduct.
- A search of Cunningham’s residence yielded two computers containing more than 130 images and a video depicting child pornography; Cunningham admitted the material was his.
- Forensic analysis indicated Cunningham accessed child-pornography material over multiple years (beginning by 2005), with especially heavy activity in 2008, including sending files to other users.
- Some files were recovered from unallocated space, indicating deletion attempts.
- The district court calculated the advisory Sentencing Guidelines range under U.S.S.G. § 2G2.2 and imposed concurrent terms of 121 months and 120 months, plus supervised release and conditions.
- Cunningham appealed, challenging the sentence as procedurally and substantively unreasonable.

## Issues

1. Whether the sentence was procedurally unreasonable due to alleged errors in Guidelines calculation, insufficient explanation, or inadequate consideration of 18 U.S.C. § 3553(a) arguments (including policy criticisms of U.S.S.G. § 2G2.2).
2. Whether the sentence was substantively unreasonable because it was greater than necessary to satisfy the purposes of sentencing under § 3553(a).

## Decision

- The Sixth Circuit affirmed the judgment and sentence.
- The court held the sentence was procedurally reasonable because the district court properly calculated the Guidelines, treated them as advisory, considered the § 3553(a) factors, and gave an adequate explanation.
- The court held the sentence was substantively reasonable because it fell within the properly calculated Guidelines range and was justified by the seriousness and duration of the conduct, distribution activity, deterrence, and protection of the public.
- The court applied abuse-of-discretion review under Gall v. United States and recognized a rebuttable presumption of reasonableness for within-Guidelines sentences.

## Legal Principles

- Appellate review of federal sentences proceeds under Gall’s abuse-of-discretion framework: procedural reasonableness first, then substantive reasonableness.
- A within-Guidelines sentence receives a rebuttable presumption of reasonableness on appeal in the Sixth Circuit.
- A sentencing court must consider the § 3553(a) factors and explain the chosen sentence, but it need not expressly address or rebut every mitigation argument if the record shows the arguments were considered.
- District courts may vary from the Guidelines based on policy disagreement (including with U.S.S.G. § 2G2.2), but they are not required to do so; following § 2G2.2 is not procedural error by itself.

## Conclusion

The Sixth Circuit upheld Cunningham’s concurrent 121- and 120-month sentences for child-pornography offenses, finding no procedural error in the Guidelines calculation or explanation and concluding the within-Guidelines term was not greater than necessary under § 3553(a) given the multi-year pattern of possession and distribution and the need for deterrence and public protection.


United States v. Cunningham, 669 F.3d 723 (6th Cir. 2012)