United States of America v. Michael W. Seibert, Jr

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 19-2400
UNITED STATES OF AMERICA
v.
MICHAEL W. SEIBERT, JR.,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5-17-cr-00572-001)
District Judge: Honorable Joseph F. Leeson, Junior
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 29, 2020
Before: AMBRO, HARDIMAN, and RESTREPO, Circuit
Judges.
(Filed: August 19, 2020)
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John J. Waldron
Huber, Waldron & Williams, LLP
535 Hamilton Street, Suite 102
Allentown, PA 18101
Counsel for Appellant
William M. McSwain
Frank A. Labor III
Michelle Rotella
Eileen C. Zelek
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE COURT
RESTREPO, Circuit Judge.
Michael Seibert pleaded guilty to production and
possession of child pornography following a raid in which law
enforcement agents recovered approximately 1,500 images.
The District Court imposed a sentence of 360 months’
imprisonment, which fell within the Sentencing Guidelines
range. On appeal, Seibert challenges his sentence on
procedural and substantive grounds. Because the District Court
did not commit a procedural error and Seibert does not satisfy
his burden to prove substantive unreasonableness, we will
affirm the sentence the District Court imposed.
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I.
Seibert first started viewing child pornography a decade
ago. He used several computers and a cell phone to view
images and he stored them on flash drives, a SkyDrive cloud
storage account, and several email accounts. He also
participated in Internet chat rooms about child pornography
and even created a Facebook profile depicting himself as a
teenager to communicate with children. He spent years
obtaining, producing, and storing child pornography.
Approximately ten years ago, Seibert began to
communicate with two teenage females. Over the next three to
four years, he chatted with them via Internet chat rooms, text
messages, and phone. Seibert convinced both to send him
sexually explicit photos of themselves. His criminal activity
did not end there—he also communicated with at least ten other
minors and sent several nude images of himself to minors.
After receiving a tip that child pornography was
uploaded to a SkyDrive account, Homeland Security
Investigations (“HSI”) began investigating Seibert in March
2014. On July 2, 2014, law enforcement agents executed a
search of his residence, where they seized computers and
storage devices containing child pornography. At the time of
the search, the agents also interviewed Seibert. He admitted to
viewing and storing child pornography. Law enforcement
ultimately recovered 1,525 images.
On October 26, 2017, Seibert was indicted for two
counts of production and one count of possession of child
pornography. He eventually pleaded guilty to each count. In
calculating the applicable Sentencing Guidelines range, the

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Probation Office recommended applying enhancements under
U.S.S.G. §§ 2G2.2(b)(5) and 4B1.5(b)(1), resulting in a total
offense level of 42. The Guidelines range amounted to 360
months to life imprisonment.
The sentencing hearing took place on June 6, 2019.
While Seibert advocated for the statutory minimum sentence
of fifteen years’ imprisonment, the Government requested
thirty years, which is the low end of the Guidelines range. After
applying the two enhancements and weighing the 18 U.S.C. §
3553(a) sentencing factors,1 the District Court sentenced
1 Pursuant to § 3553(a), the trial court must consider the
following factors upon sentencing a defendant:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed . . . ;
(3) the kinds of sentences available;
(4) the kinds of sentence and sentencing range
established . . . ;
(5) any pertinent policy statement . . . [;]
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.

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Seibert to 360 months’ imprisonment. Seibert filed a timely
notice of appeal to challenge the District Court’s judgment of
conviction and sentence.
II.
The District Court had jurisdiction over the criminal
proceedings under 18 U.S.C. § 3231. This Court has
jurisdiction to review Seibert’s final conviction and sentence
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
“[A]ppellate review of sentencing decisions is limited
to determining whether they are reasonable.” Gall v. United
States, 552 U.S. 38, 46 (2007) (internal quotation marks
omitted). The burden is on the party challenging the sentence
to show that it was unreasonable. United States v. Tomko, 562
F.3d 558, 567 (3d Cir. 2009) (en banc). The abuse of discretion
standard applies to our reasonableness review. Id. Factual
findings relevant to the Sentencing Guidelines are reviewed for
clear error, and the District Court’s Guidelines interpretation is
reviewed de novo. United States v. Grier, 475 F.3d 556, 570
(3d Cir. 2007) (en banc). The District Court’s application of
the Guidelines is reviewed for abuse of discretion. United
States v. McClure-Potts, 908 F.3d 30, 33 n.2 (3d Cir. 2018).
III.
Seibert claims that the District Court procedurally erred
in its Guidelines calculation. He also argues that the District
Court’s sentence is substantively unreasonable. We disagree.

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A.
District courts follow a three-step process to determine
the appropriate sentence following a criminal conviction.
United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). The
sentencing court must “first calculat[e] the applicable
Guidelines range[,] . . . then rule on any motions for departure
and, if a motion is granted, state how the departure affects the
Guidelines calculation[,] . . . [and finally] consider all of the §
3553(a) factors and determine the appropriate sentence to
impose.” United States v. Levinson, 543 F.3d 190, 194–95 (3d
Cir. 2008). “[T]he Guidelines are only advisory, but they
nonetheless provide the initial benchmark.” United States v.
Lopez-Reyes, 589 F.3d 667, 670 (3d Cir. 2009) (internal
quotation marks omitted).
On appeal, we first consider whether the district court
committed procedural error, such as “improperly calculating[]
the Guidelines range . . . [or] failing to consider the § 3553(a)
factors.” Tomko, 562 F.3d at 567 (quoting Gall, 552 U.S. at
51). We then determine if the sentence is substantively
reasonable. United States v. Merced, 603 F.3d 203, 214 (3d
Cir. 2010). We focus on the “totality of the circumstances” and
affirm a procedurally sound sentence “unless no reasonable
sentencing court would have imposed the same sentence on
that particular defendant for the reasons the district court
provided.”2 Tomko, 562 F.3d at 567–68. Overall, our
2 Procedural and substantive reasonableness are often
interconnected as “procedural problems may lead to
substantive problems.” Levinson, 543 F.3d at 195; see also
United States v. Goff, 501 F.3d 250, 256 (3d Cir. 2007) (noting

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reasonableness review focuses on “whether the record as a
whole reflects rational and meaningful consideration of the
factors enumerated in 18 U.S.C. § 3553(a).” Grier, 475 F.3d at
571.
B.
Seibert argues that the District Court procedurally erred
by miscalculating the applicable Guidelines range. He
specifically challenges the District Court’s concurrent
application of the five-level enhancements under both §
2G2.2(b)(5) and § 4B1.5(b)(1). In his view, the District Court
engaged in improper “double counting” because the
provisions’ language is identical, and each enhancement
applied to the same conduct.
In United States v. Reynos, this Court explained that
“[i]mproper double counting occurs when a district court
imposes two or more upward adjustments within the same
Guideline range, when both are premised on the same
conduct.” 680 F.3d 283, 291 (3d Cir. 2012). However, double
counting is permissible so long as the Guidelines do not
explicitly prohibit simultaneous application of the provisions
in question. See United States v. Johnstone, 107 F.3d 200, 212
(3d Cir. 1997) (concluding that double counting of weapons
enhancements “is permissible because it is explicitly mandated
by the clear and unambiguous language” of the relevant
Guidelines section); United States v. Wong, 3 F.3d 667, 671
(3d Cir. 1993) (noting that “an adjustment that clearly applies
to the conduct of an offense must be imposed unless the
Guidelines exclude its applicability”).
that substantive issues in the case were “a product of the
District Court’s procedurally flawed approach”).

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We begin with the language of § 2G2.2(b)(5) and §
4B1.5(b)(1) to determine whether the Guidelines prohibit their
simultaneous application. Section 2G2.2(b)(5) provides for a
five-level increase “[i]f the defendant engaged in a pattern of
activity involving the sexual abuse or exploitation of a minor.”
A pattern of activity is defined as “any combination of two or
more separate instances” of sexual abuse or exploitation of a
minor. § 2G2.2 cmt. n.1. Section 2G2.2(b)(5) is an offense-
specific enhancement that “punish[es] a defendant for the
specific characteristics of the offenses of conviction.” See
United States v. Dowell, 771 F.3d 162, 171 (4th Cir. 2014).
Section 4B1.5(b)(1) is similar to § 2G2.2(b)(5) in some
respects but ultimately addresses a separate sentencing
consideration. This enhancement mandates a five-level
increase for a “covered sex crime” in which “the defendant
engaged in a pattern of activity involving prohibited sexual
conduct.” § 4B1.5(b)(1). The notes define a pattern of activity
as, “on at least two separate occasions, . . . engag[ing] in
prohibited sexual conduct with a minor.” § 4B1.5 cmt.
n.4(B)(i). Because it pertains to the part of the Guidelines
dealing with career offenders, § 4B1.5(b)(1) is more than an
offense-specific enhancement. Dowell, 771 F.3d at 171 (noting
that the enhancement “is located in Chapter Four of the
Guidelines under the provisions covering ‘Career Offenders
and Criminal Livelihood’”). It allows district courts to impose
longer sentences when “the defendant presents a continuing
danger to the public.” Id.3
3 Seibert urges us to require district courts to identify the
specific aims of the enhancements in order to simultaneously
apply both. We decline to do so because neither the Guidelines

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The Guidelines do not prohibit simultaneous
application of these two enhancements. See id. at 170 (stating
that applying § 2G2.2(b)(5) and § 4B1.5(b)(1) “to the same
conduct was permitted because it was not expressly prohibited
by the Guidelines”). In fact, the Guidelines expressly
contemplate the application of both enhancements to the same
conduct. See § 4B1.5(b)(1) (“The offense level shall be 5 plus
the offense level determined under Chapters Two and Three.”)
(emphasis added); see also Dowell, 771 F.3d at 170 (“[T]he
[G]uidelines intend the cumulative application of these
enhancements.” (quoting United States v. Schellenberger, 246
F. App’x 830, 832 (4th Cir. 2007))). Therefore, even if the
District Court applied § 2G2.2(b)(5) and § 4B1.5(b)(1) to the
same conduct, it did not err because the Guidelines permit the
simultaneous application of both enhancements.
Moreover, the District Court applied the § 2G2.2(b)(5)
and § 4B1.5(b)(1) enhancements to different conduct. See
United States v. Fisher, 502 F.3d 293, 309 (3d Cir. 2007)
(allowing simultaneous application of two enhancements
where each “involves conduct which the other does not”).
Regarding the § 4B1.5(b)(1) enhancement, the District Court
explained that Seibert’s “production of child pornography with
minor number one and minor number two constitutes a pattern
of activity because each count represents a second occasion.”
App. 109. Meanwhile, the District Court applied § 2G2.2(b)(5)
to Seibert’s possession conviction because he possessed
sexually explicit images of minors in addition to the two
referenced in the indictment. Each enhancement covers
dissimilar conduct against separate groups of minors.
nor our precedent requires the sentencing court to make such a
showing.

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The District Court did not engage in impermissible
double counting when it simultaneously applied the
enhancements under § 2G2.2(b)(5) and § 4B1.5(b)(1). Not
only did it apply each enhancement to distinct conduct, but the
Guidelines allow for the simultaneous application of both
enhancements even to the same conduct. The Court’s
Guidelines calculation did not result in a procedural error.
C.
Seibert next claims that 360 months’ imprisonment is a
substantively unreasonable sentence and that the District Court
should have granted a downward variance.4 He argues that the
District Court’s application of the § 3553(a) factors led to an
unduly harsh sentence because it did not place enough weight
on his personal circumstances.
4 At certain points in his brief, Seibert seems to suggest
that the District Court ignored the § 3553(a) factors, which
would be procedural error. United States v. Negroni, 638 F.3d
434, 444 n.9 (3d Cir. 2011) (identifying “fail[ure] to consider
the § 3553(a) factors” as indicative of procedural error (quoting
Gall, 552 U.S. at 51)). However, since Seibert premises his §
3553(a) arguments on the perceived inadequate weight
afforded to those factors, and since the Court clearly applied
the § 3553(a) factors, we construe these arguments as
substantive rather than procedural challenges. Merced, 603
F.3d at 217 (clarifying that the sentencing court’s “choice of
sentence did not afford [the § 3553(a)] factors enough weight .
. . is a substantive complaint, not a procedural one”) (emphasis
in original).

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In support of a downward variance from the Guidelines
range, Seibert presented evidence detailing his personal history
and characteristics, including the mental health, medical, and
learning challenges he has long faced. In particular, Seibert
submitted a psychological evaluation concluding that he “has
the libido of an adult but the mind of a small child and does not
have the capacity to use rationality to control his impulses.”
App. 59. During the sentencing hearing, the District Court
acknowledged this evidence but concluded that Seibert’s
“family struggles” are not “unusually severe.” App. 171–72.
The District Court thus declined to grant Seibert’s request for
a downward variance from the Guidelines range to the fifteen-
year mandatory minimum.
Seibert’s argument that the District Court abused its
discretion by not affording enough weight to those factors is
unavailing. As we have previously explained, “a district
court’s failure to give mitigating factors the weight a defendant
contends they deserve” does not make a sentence substantively
unreasonable. United States v. Bungar, 478 F.3d 540, 546 (3d
Cir. 2007); see also United States v. Young, 634 F.3d 233, 243
(3d Cir. 2011) (“The District Court’s decision to accord less
weight to mitigation factors than that urged by [the defendant]
does not render the sentence unreasonable.”). It is the trial court
that “sees and hears the evidence, makes credibility
determinations, [and] has full knowledge of the facts and gains
insights not conveyed by the record.” Tomko, 562 F.3d at 561
(quoting Gall, 552 U.S. at 51). We thus defer to the District
Court’s application of the § 3553(a) factors. Bungar, 478 F.3d
at 543 (noting that our review of a district court’s application
of the § 3553(a) factors “to the circumstances of [a] case . . . is
highly deferential”).

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Seibert views the Guidelines ranges for child
pornography offenses as too harsh and his conduct as less
serious than that of other defendants who received similar
sentences. It is not our role as a reviewing court to vacate a
sentence within the Guidelines range due to policy
disagreements with the Guidelines. See Tomko, 562 F.3d at 574
(“If abuse-of-discretion review cannot strike [the balance
between reducing unjustified sentencing disparities and
considering defendants as individuals], it is not our role as
appellate judges to adjust the scales.”); see also United States
v. Booker, 543 U.S. 220, 265 (2005) (“The National
Legislature is equipped to devise and install, long term, the
sentencing system, compatible with the Constitution, that
Congress judges best for the federal system of justice.”).
Congress is best suited to make policy determinations
regarding the appropriateness of the Guidelines ranges for
child pornography.
That is why defendants bear a “heavy burden [to show]
that a sentence within the applicable Guidelines range was
substantively unreasonable.” See United States v. Fountain,
792 F.3d 310, 323 (3d Cir. 2015). Seibert does not satisfy his
burden. He possessed more than 1,500 images of child
pornography, admitted to exposing himself to others on dozens
of occasions, posed as a teenager to coerce two children to send
him sexually explicit images of themselves, communicated
with other minors in the attempt to entice them to do the same,
and even convinced a woman to send him pictures of herself
having sexual contact with her seven-year-old daughter. The
Guidelines ranges for child pornography offenses are high to
deter individuals from the very activity Seibert engaged in. Cf.
Goff, 501 F.3d at 261 (“The logic of deterrence suggests that
the lighter the punishment for downloading and uploading

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child pornography, the greater the customer demand for it and
so the more will be produced.” (quoting United States v.
Goldberg, 491 F.3d 668, 672 (7th Cir. 2007)). The District
Court did not abuse its discretion when it sentenced Seibert to
the low end of the Guidelines range for his criminal conduct.
Thus, we hold that Seibert’s sentence is procedurally and
substantively reasonable.
IV.
For the foregoing reasons, we will affirm the District
Court’s judgment sentencing Seibert to prison for 360 months.

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