USA v. Michael J. McClure

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11253
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL J. MCCLURE,
a.k.a. Diamond Daddy,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:21-cr-00051-TKW-1
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2 Opinion of the Court 22-11253
____________________
Before BRANCH , LAGOA , and BRASHER , Circuit Judges.
PER CURIAM:
We grant the petition for rehearing in part and issue the re-
vised opinion.
Michael J. McClure victimized his six-year-old daughter by
sending pornographic photos to an online group under the
username “Diamond Daddy.” McClure pleaded guilty to three
criminal counts: distribution of child pornography, production of
child pornography, and willfully engaging in a child exploitation
enterprise. The district court calculated McClure’s offense level by
imposing a five-level pattern of activity enhancement for distrib-
uting child pornography on over ten occasions. The court then sen-
tenced McClure to fifty years’ confinement, varying downward
from the Guidelines range of life. On appeal, McClure argues that
the district court erred in imposing a five-level enhancement. We
disagree and therefore affirm McClure’s sentence.
I.
McClure, under the username “Diamond Daddy,” served as
the administrator of a Kik Messenger group named “Petite daugh
interests” containing between eighteen and twenty-five members.
McClure sent pornographic images of his six-year-old daughter to
the group and engaged in vile conversations with group members
about abusing children. After the FBI seized McClure’s phone, they
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22-11253 Opinion of the Court 3
discovered hundreds of images of the victim, including images of
child pornography that depicted the victim’s sexual abuse.
McClure pleaded guilty to engaging in a child exploitation enter-
prise, production of child pornography, and distribution of child
pornography.
Central to this appeal, the district court calculated McClure’s
offense level by adding an enhancement: five levels for engaging in
a pattern of activity involving prohibited sexual conduct when
McClure “produced child sexual abuse material on at least ten sep-
arate occasions.”
See U.S.S.G. § 4B1.5(b). After the enhancement,
McClure’s adjusted offense level of forty-three yielded a guideline
sentence range of life in prison. McClure objected to the enhance-
ment, alleging that his charge for engaging in a child exploitation
enterprise is not a “covered offense” to which the Section 4B1.5(b)
enhancement applies. The district court overruled McClure’s ob-
jection, maintaining the enhancement.
During sentencing, McClure requested twenty years’ im-
prisonment (the statutory minimum sentence for the child exploi-
tation enterprise offense) based on his lack of criminal history and
his diagnosis of pedophilic disorder, among other reasons. The dis-
trict court considered McClure’s mitigating factors but concluded
that, based on its assessment of the Section 3553(a) factors, the de-
pravity of McClure’s conduct—as a producer of child pornography,
the “administrator” of the online chat group, and the father of the
victim—demanded a longer sentence than the mandatory mini-
mum. The district court then varied downward from the
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4 Opinion of the Court 22-11253
Guidelines, sentencing McClure to fifty years’ (600 months’) con-
finement for the child exploitation enterprise, thirty years for pro-
duction of child pornography, and twenty years for distribution of
child pornography to be served concurrently: fifty years’ confine-
ment total. The district court said its fifty-year (600-month) sen-
tence would be the same “irrespective of whether the guideline
range” included the Section 4B1.5(b) pattern of activity enhance-
ment, i.e., even if the guidelines advisory range were 292 to 365
months instead of life.
II.
On appeal, McClure contends that the district court erred in
imposing the five-level enhancement under Section 4B1.5(b). But
when a district court states that it would impose the same sentence
regardless of an alleged guideline error, as it did here, any error in
the guideline calculation is harmless so long as the sentence im-
posed is substantively reasonable.
See United States v. Goldman,
953 F.3d 1213, 1221 (11th Cir. 2020) (citing
United States v. Keene,
470 F.3d 1347, 1349 (11th Cir. 2006)). Accordingly, we “assume the
guidelines error the defendant alleges and reduce the guidelines
calculation and its corresponding range accordingly.”
Id. Without
the Section 4B1.5(b) enhancement, the guideline range would have
advised 292 to 365 months imprisonment. We then assess “the sub-
stantive reasonableness of the sentence actually imposed,” 600
months, “in light of the reduced sentencing range.”
Id.
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22-11253 Opinion of the Court 5
We review the substantive reasonableness of a sentence—
whether inside or outside the guidelines range—“under a deferen-
tial abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38,
41 (2007). The district court is tasked with formulating a sentence
that is “sufficient, but not greater than necessary.” 18 U.S.C. §
3553(a). The sentence should account for the offense’s gravity, de-
ter criminal conduct, “protect the public” from the defendant’s fu-
ture crimes, and rehabilitate the defendant.
Id. § 3553(a)(2).
When a sentence is above the guidelines range, we “may
consider the deviation, ‘but must give due deference to the district
court’s decision that the [Section] 3553(a) factors, on a whole, jus-
tify the extent of the variance.’”
United States v. Williams, 526 F.3d
1312, 1322 (11th Cir. 2008) (quoting
Gall, 552 U.S. at 51). “We may
vacate a sentence because of the variance only if we are left with
the definite and firm conviction that the district court committed a
clear error of judgment in weighing the [Section] 3553(a) factors.”
United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (internal
quotation omitted).
We are not persuaded, much less left with the “definite and
firm conviction,” that the district court erred in imposing a fifty-
year sentence.
See id. To be sure, fifty years (600 months) is a sig-
nificant upward variance from the (assumed) guidelines range of
292 to 365 months’ imprisonment. Yet, given the facts and the Sec-
tion 3553(a) factors, we believe the district court reasonably con-
cluded that a fifty-year sentence was appropriate. Specifically, the
district court heavily weighed the seriousness of McClure’s offense
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6 Opinion of the Court 22-11253
as a producer of child pornography and as the group “administra-
tor” rather than a mere consumer or possessor. The court consid-
ered a harsher sentence necessary to adequately deter lesser child
pornography-related offenses and promote respect for the law. Fi-
nally, the district court considered particularly deplorable the posi-
tion of trust that McClure betrayed as the victim’s father and the
lifelong harm he imposed.
We are satisfied that “the [Section] 3553(a) factors, on a
whole, justify the extent of the variance.”
Williams, 526 F.3d at
1322. The district court therefore did not abuse its discretion by
imposing a fifty-year sentence. We also note that we have upheld
fifty-year sentences in other cases involving the production of child
pornography.
See, e.g.,
United States v. Woodson, 30 F.4th 1295,
1307 (11th Cir. 2022) (affirming fifty-year sentence for producing
pornographic images);
United States v. Beatty, 2022 WL 1719054,
at *1 (11th Cir. May 27, 2022) (per curiam) (same);
United States v.
Killen, 773 F. App’x 567, 569 (11th Cir. 2019) (per curiam) (same).
Because we determine the sentence imposed was substan-
tively reasonable, even assuming a reduced guidelines range with-
out the Section 4B1.5(b)(1) enhancement, “any error in the guide-
line calculation [wa]s harmless.”
See Goldman, 953 F.3d at 1221.
Accordingly, we do not reach the issue of whether the Section
4B1.5(b)(1) was correctly imposed for McClure’s child exploitation
enterprise charge.
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22-11253 Opinion of the Court 7
III.
We AFFIRM McClure’s conviction and sentence.
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