United States v. Nichols

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROY ALLEN NICHOLS, Defendant-Appellant.

No. 18-4240

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

February 4, 2020

NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0081n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: DAUGHTREY, CLAY, and GRIFFIN, Circuit Judges.

CLAY, Circuit Judge. Defendant Roy Allen Nichols appeals the judgment of the district court sentencing him to 235 months' imprisonment following his conviction for one count of receipt and distribution of visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). Nichols argues that his sentence is procedurally unreasonable because the district court wrongly applied a five-level sentence enhancement, pursuant to U.S.S.G. § 2G2.2(b)(5), on the basis that Nichols had engaged in a pattern of activity involving sexual abuse or exploitation of a minor. He further contends that the district court's imposition of a special condition of supervised release requiring him to submit to periodic polygraph testing at the discretion of his probation officer is procedurally and substantively unreasonable.

For the reasons set forth below, we AFFIRM the judgment of the district court.

FACTUAL BACKGROUND

In 2018, Nichols pleaded guilty to receiving and distributing visual depictions of minors engaged in sexually explicit conduct using the means and facilities of interstate commerce, in violation of 18 U.S.C. § 2252(a)(2). At his change of plea hearing, Nichols admitted that he shared child pornography involving "the lascivious display of genitals and vaginal rape of prepubescent and even toddler females" through a peer-to-peer file-sharing program on June 27, August 6, and August 13, 2017. (Change of Plea Hr'g Tr., R. 37 at PageID #496, 498.) A government search of Nichols' cell phone and laptop following their seizure uncovered child pornography depicting incestuous and sadomasochistic sex acts being performed on toddlers and prepubescent minors.

In preparation for Nichols' sentencing hearing, his probation officer prepared a presentence investigation report ("PSR"). Nichols' PSR describes his long history of sexually abusing minors. Nichols did not object to the PSR's presentation of these facts before the district court and does not contest their accuracy on appeal.

The narrative laid out in the PSR begins in 1982, when nineteen-year-old Nichols was found exposing his genitals to a seven-year-old girl, whose pants had been unfastened. No police report was filed about this incident, and Nichols was not convicted of any offense related to this conduct. However, Nichols subsequently admitted to authorities that, at age nineteen, he had molested a seven-year-old child in a bathroom and, specifically, performed oral sex on her.

Ten years later, in 1992, Nichols was reported to the police after offering a candy bar to a child in an attempt to lure the child from a public park into the woods. No charges were filed about this incident.

Later that year, then-thirty-year-old Nichols pleaded guilty to child enticement under Ohio law. According to a parole violation report and police report summarized in the PSR, Nicholsabducted two children, who later told authorities that Nichols had repeatedly offered them car rides in exchange for money. During one such car ride, Nichols touched a male child on the stomach. Upon arrest for his current offense, Nichols admitted to investigating police officers that he had "lured [the] children into his vehicle for purposes of sexual gratification," but denied that he touched the children inappropriately. (Final PSR, R. 21 at PageID #89.)

In 1998, the police inventoried Nichols' vehicle when he was stopped after a vehicle pursuit. In the process, the officers found pictures of minors "in various stages of dress," with genitals and sexually explicit phrases scrawled on some of them. (Id. at #90.) The PSR does not report any conviction related to this conduct.

The next year, Nichols was reported to the police after attempting to rape a thirteen-year-old. The PSR summarizes a police report indicating that then-thirty-six-year-old Nichols "attempted sexual intercourse with a 13-year-old female while she [w]as asleep. The victim was able to fight him off, but she reported the defendant ejaculated onto her shirt and the couch." (Id.) The PSR also does not report any convictions related to this conduct.

A police report from 2005 summarized in the PSR states that, following his release from prison for an unrelated offense, Nichols admitted several more instances of child sexual abuse to his post-release supervising officer. According to that report, Nichols admitted to having intercourse with his seven-year-old mentally challenged stepsister at age fourteen, having intercourse with a thirteen-year-old girl when he was twenty-three, and having "sexual contact with all of his sister's children, his sister's neighbor's children, and all of his father's children after his father re-married." (Id.) The PSR later discusses a presentence report prepared in 2006. At that time, Nichols admitted that he had intercourse with his mentally challenged stepsister when shewas nine years old and he was thirteen or fourteen years old. The PSR does not report convictions related to any of this conduct.

In 2006, Nichols pleaded guilty to multiple counts of pandering sexually oriented matter involving a minor under Ohio law. Investigations of this offense suggest Nichols possessed pornographic images of infants and children between the ages of four and eight and traded child pornography with between 100 and 150 individuals. After being released from prison following this offense, Nichols' supervising officer received a report that while in prison, Nichols "approached other inmates and showed pictures of an 8-year-old's vagina. Defendant Nichols allegedly told them how to molest young children without getting caught or how to dispose of the body if they decided to kill them." (Id. at #91.) Nichols violated his parole following this offense four times, evidently by viewing or possessing child pornography in February 2011, December 2011, and November 2012 and, in March 2015, using a computer in violation of his terms of release in order to visit dating sites.

After summarizing Nichols' history, the PSR detailed its recommended sentencing calculations. Among other things, it recommended applying the five-level enhancement at issue on appeal, because Nichols had "engaged in a pattern of activity involving the sexual abuse or exploitation of a minor." (Id. at #94 (citing U.S.S.G. § 2G2.2(b)(5)).) The PSR indicated that it applied that enhancement because:

Defendant Nichols has a prior conviction of Child Enticement from 1992 and Pandering Sexually Oriented Matter Involving a Minor (five counts) from 2006. . . . [D]efendant admitted to the past sexual contact with multiple minor children to a supervising officer in 2005. Also, the defendant violated the terms of his supervised release for the Pandering Sexually Oriented Matter Involving a Minor on four occasions between 2010 and 2015 for continued inappropriate sexual behavior.

(Id.)

Before his sentencing hearing, Nichols objected to the PSR's calculations based on the application of the five-level pattern-of-activity enhancement. Specifically, he argued—as he did in his briefing on appeal—that the enhancement was wrongly based on his convictions for child enticement and pandering sexually oriented matter involving a minor, as those convictions do not constitute sexual abuse or exploitation of a minor. The probation officer replied that Nichols "admitted to the past sexual contact with multiple minor children to a supervising officer in 2005" and "violated the terms of his supervised release for the Pandering Sexually Oriented Matter Involving a Minor on four occasions between 2010 and 2015 for continued inappropriate sexual behavior, as verified by police reports." (Id. at #118.)

Nichols reiterated this objection to the pattern-of-activity enhancement at his sentencing hearing. The district court overruled the objection, implying that in doing so it "accept[ed] the Government's contention and the probation officer's conclusion" in the PSR and finding that "the weight of authority amply supports the five-point enhancement." (Sent'g Hr'g Tr., R. 38 at PageID #510, 512; see also id. at #512 ("I do agree with the government.").)

The court then imposed a 235-month sentence, varying downward from Nichols' identified Guidelines range of 292 to 365 months' imprisonment. It discussed the 18 U.S.C. § 3553(a) factors. In doing so, it found that Nichols had demonstrated that he was "incapable of not succumbing to the temptation to endanger and injure young children," and said that prior defendants it had sentenced did not have "the history that [Nichols] did of repeated — starting 40 some years ago — of abusing, molesting, sexually attacking young children, enticing young children, trying to lure them into your van to do God knows what." (Id. at #530-31.) The court noted its intent to incapacitate Nichols, while allowing him the possibility of reentry post-incarceration, subject to strict conditions.

The court imposed as a special condition of supervised release periodic polygraph testing at the discretion of Nichols' probation officer, explaining that it believed "that would be necessary and that may be a mechanism in determining whether [Nichols] has re-offended or undertaken to re-offend." (Id. at #519.) It noted that this condition would contribute "to protect[ing] children," should Nichols ever be released from prison. (Id. at #531.) Finally, in Nichols' sentencing order, the court asserted that this condition was "a means to ensure that [Nichols is] in compliance with the requirements of [his] supervision or treatment program." (Sent'g Order, R. 25 at PageID #448.) It stated that it expected...