UNITED STATES of AMERICA v. Herbert L. Hunley

Judge Algenon L. Marbley, United States District Judge for the Southern District of Ohio,*
sitting by designation.
The parties stipulated to the facts.1
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0534n.06
Filed: August 28, 2008
No. 07-5334
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES of AMERICA,
Plaintiff-Appellee,
v.
HERBERT L. HUNLEY,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
Before: COOK and GRIFFIN, Circuit Judges, and MARBLEY, District Judge.*
MARBLEY, District Judge. Defendant-Appellant Herbert L. Hunley pleaded guilty to one
count of knowingly receiving child pornography through the Internet and one count of possessing
an unregistered firearm and silencer. The district court sentenced him to 151 months imprisonment,
the maximum within the Sentencing Guidelines. Hunley appeals, contending that his sentence is
substantively unreasonable. We AFFIRM.
I. BACKGROUND1
On December 15, 2003, officers from the Anderson County Sheriff’s Office and the Internet
Crimes Against Children Task Force (ICACTF) traveled to Hunley’s residence in Anderson County,

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Tennessee, on a tip that he possessed a sizeable collection of child pornography. With Hunley’s
consent, officers searched his residence. They seized his computer and two unregistered firearm
silencers. A forensic examination of Hunley’s computer revealed that he had downloaded 908
images of child pornography from the Internet, including pictures of prepubescent children and
sadistic behavior. The officers sent these images to the National Center for Missing and Exploited
Children (NCMEC), which determined that some of the children in the photographs were known
victims of sexual and physical abuse. Hunley’s computer also contained sixty-four images of his
granddaughter, a minor, posed in various sexually explicit positions.
Hunley pleaded guilty to one count of knowingly receiving child pornography that had
traveled through interstate commerce by computer and one count of possessing an unregistered
silencer. With no criminal history and a total offense level of 32, Hunley’s range under the 2003
Guidelines was 121 to 151 months. Hunley requested the minimum within-Guidelines sentence
because he had no criminal record and he suffered from medical problems. The government
requested a “serious sentence” consonant with the “mind boggling” nature of Hunley’s crimes. The
district court sentenced Hunley to 151 months imprisonment to be followed by a life term of
supervised release, the maximum within the Guidelines. Hunley appeals on the grounds that his
sentence is substantively unreasonable.
II. STANDARD OF REVIEW
We review the reasonableness of a criminal sentence under an abuse-of-discretion standard.
Gall v. United States, 128 S. Ct. 586, 594 (2007); United States v. Jeross, 521 F.3d 562, 569 (6th

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Cir. 2008). A sentence is substantively unreasonable if the “district court selects the sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors,
or giv[es] an unreasonable amount of weight to any pertinent factor.” United States v. Collington,
461 F.3d 805, 808 (6th Cir. 2006) (quoting United States v. Webb, 403 F.3d 373, 385 (6th Cir.
2005)). We accord a rebuttable presumption of reasonableness to sentences that fall within the
Guidelines range. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006); see Rita v. United
States, __ U.S. __, 127 S.Ct. 2456, 2462 (2007) (concluding that “a court of appeals may apply a
presumption of reasonableness to a district court sentence that reflects a proper application of the
Sentencing Guidelines”); see also United States v. Liou, 491 F.3d 334, 338–39 (6th Cir. 2007)
(noting that Rita’s presumption of reasonableness is not a burden-shifting presumption).
III. LAW & ANALYSIS
Hunley contends that his sentence is substantively unreasonable because: (1) he is 51 years
old; (2) he has no criminal record; (3) he has major health problems; (4) he served honorably in the
military for seven years; and (5) the sentencing judge gave undue weight to the pornographic images
of his granddaughter. Hunley concludes that a lesser sentence would satisfy all of the requirements
of 18 U.S.C. § 3553(a). This is insufficient to rebut the presumption of reasonableness accorded
Hunley’s within-Guidelines sentence. See United States v. Houston, 529 F.3d 743, 756 (6th Cir.
2008) (refusing to overturn a sentence merely because the defendant insisted that the district court
should have weighed the circumstances differently).

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The district court analyzed all of the § 3553(a) factors, including the considerations that
Hunley argues merit a shorter sentence. The court found the nature of the offense and the risk of
recidivism particularly important. Hunley maintained a sizeable database of child pornography,
including images of prepubescent children and sadistic behavior. But the court found the sixty-four
pornographic images of Hunley’s granddaughter especially disturbing. The sentencing judge
admonished him: “I have looked at these photographs. What you did, Mr. Hunley, to that little girl
will scar her for the rest of her life.” Hunley contends that the district court gave undue weight to
these pictures. This is not so. That Hunley would sexually abuse his granddaughter in order to
supplement his obscene collection adds an element of barbarity to the offense that the district court
was free to consider under § 3553(a).
The court also emphasized that the Counseling and Consultation Services (CCS) rated
Hunley as a moderate risk to reoffend. Although the court took into account Hunley’s age, his poor
health, his criminal history, and his military service, it stated that “the heinous nature of the crime
and likelihood of recidivism” favored “a lengthy period of incarceration . . . to protect the public
from further crimes of this defendant.” Accordingly, the court concluded that a within-Guidelines
sentence of 151 months was sufficient, but not greater than necessary, to comply with the purposes
of Section 3553(a).
The fact that the district court gave greater weight to the nature of the offense and the
likelihood of recidivism, rather than to the factors militating in favor of a shorter sentence, is not
sufficient to render Hunley’s sentence substantively unreasonable. See United States v.

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Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007). That Hunley desired a more lenient sentence,
without more, is not grounds to disturb the reasoned judgment of the district court. See United States
v. Jackson, 466 F.3d 537, 540 (6th Cir. 2006) (holding that the “fact that the district court did not
give the defendant the exact sentence he sought is not a cognizable basis to appeal, particularly
where the district court followed the mandate of § 3553(a) in all relevant respects”).
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.

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