UNITED STATES of America, Plaintiff-Appellee, v. Jerry PAULL, Defendant-Appellant, 551 F.3d 516

BOGGS, C.J., delivered the opinion of the court. GRIFFIN, J. (pp. 530-33), delivered a separate opinion concurring in part and dissenting in part. MERRITT, J. (pp. 533-35), delivered a separate dissenting opinion. OPINION BOGGS, Chief Judge. Jerry Pauli was convicted pursuant to a conditional plea agreement on four counts of knowing possession of child pornography under the Child Pornography Protection Act, 18 U.S.C. § 2252 et seq. and sentenced to imprisonment for 210 months. He now appeals both his conviction and sentence.

He claims that the district court ruled improperly on a variety of pre-trial motions, including his motions to suppress for violations of his Fourth Amendment and Miranda rights, and his motions to dismiss the indictment because the statute is void for vagueness and because it deprived him of a fair trial. He also appeals his sentence, claiming that the district court incorrectly calculated his guideline range and abused its discretion in failing to vary downward in light of his efforts at rehabilitation and his poor health. For the reasons discussed below we affirm Pauli’s conviction and his sentence. I.

Factual & Procedural History In 2004, Special Agent Hagan of Immigration and Customs Enforcement (ICE) became aware, through multiple investigations of websites known to traffic in images of child pornography, of Jerry Pauli’s online activity involving child pornography. In June of that year, Hagan obtained a search warrant for Pauli’s Amherst, Ohio residence based on an affidavit detailing Pauli’s subscriptions to websites containing advertising with images of child pornography and her experience as an investigator of child pornography.

While executing the warrant, Agent Hagan informed Pauli that he was not under arrest and that the officers were there only to execute the warrant. She asked whether he was willing to explain his “side of the story” but Pauli declined to speak with her. She thereafter left him under supervision of a local officer and joined the search. Conversation in passing between Pauli and the searching officers continued but there was no subsequent discussion regarding the search or the suspected crime.

In the course of the search, officers found a garbage can in the garage with “a number of double and triple bagged bundles” in it. In those bundles “there were printed images of child pornography” and “a number of floppy disks, a number of CDs, videotapes, as well as a number of computer printouts of Mr. Pauli’s.” The collection of child pornography totaled over 3,700 images, not including the video tapes.

Agent Hagan took this evidence from the garage into the kitchen and laid it on the table in front of Pauli, telling him that she no longer needed “to talk with [him] because ... [she] had the evidence there” and then left the kitchen. Pauli immediately requested to speak with her and she returned to the kitchen. Before Pauli made any statement, Agent Hagan advised him again that he was not under arrest. She nevertheless informed him of his Miranda rights and gave Pauli a statement and waiver of those rights, which he read and signed.

He proceeded to give an oral statement taking responsibility for “all the items that were in the garage [and admitting] that they contained child pornography.” He subsequently provided a written statement that memorialized his confession and explained his history of involvement with child pornography. Pauli was ultimately indicted on four counts of possession of child pornography under § 2252A(a)(2). Pauli made a number of pre-trial motions, all. of which the district court denied. First, he moved to suppress the evidence found under the Fourth Amendment.

Pauli argued that the search violated his Fourth Amendment rights because the warrant was based on an insufficient affidavit, and was over-broad. The court held that there was probable cause to search the entire premises based on the type of evidence and crime involved even considering the delay between the gathering of the warrant evidence and the search. In the alternative, the court held that there was “a good faith basis that the officers believe[d] that the magistrate was correct” and, therefore, the search fit within the exception of United States v. Leon.

Second, Pauli argued that his confessions were obtained in violation of the Miranda rule. Both Pauli and Mrs. Pauli had testified that, after the initial conversation with Hagan, Pauli was interrogated by multiple officers throughout the two-hour search, and that in response repeatedly requested legal counsel. The executing police officers testified to the contrary, claiming that there was no repeated interrogation and Pauli never asked for counsel. The district court decided the credibility issue in favor of the officers, describing Pauli’s testimony as “completely not believable” and Mrs.

Pauli’s testimony as “completely unbelievable.” Even if the credibility issue came out the other way, the court held that the interaction was non-custodial because the police tactics were merely reasonable measures to ensure officer safety and did not rebut the presumption that conversations in the home are non-custodial. Pauli also moved to dismiss the indictment based on a vagueness challenge to § 2252 and his allegations that his right to a fair trial was violated. The district court rejected both as meritless.

Having failed to obtain suppression of the evidence against him or a dismissal of the charges, Pauli entered a conditional plea of guilty on all four counts of the indictment, reserving his right to appeal any rulings on pre-trial motions and his eventual sentence.

The agreement stipulated to an applicable offense level of 30, which included several enhancements based on the circumstances of the crime (enhancements of two levels for images containing a prepubescent minor, four levels for images portraying sadistic/masochistic conduct; two levels for the use of computer; and five levels for the possession of over 600 illegal images). The agreement also left open the possibility of additional reductions or enhancements to this agreed-upon offense level.

To that end, the Pre-Sentence Investigation Report recommended two additional enhancements: two levels for obstruction of justice under U.S.S.G. § 3C1.1 and five levels for a pattern of activity involving the sexual abuse of a minor under U.S.S.G. § 2G2.2(b)(5). The report also recommended against a downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E 1.1(

a) because of Pauli’s obstruction of justice. The addition of these adjustments yielded an offense level of 37 and a guideline range of 210 to 262 months of imprisonment. At the sentencing hearing, the district court made findings of fact and adopted the report’s recommendations. First, the court held that Pauli had not demonstrated sufficient acceptance of responsibility to support a reduction because he only cooperated when it was in his best interest and because his behavior supported an obstruction of justice enhancement.

Indeed, the court held that two courses of behavior supported the upward adjustment for obstruction of justice. The court’s credibility determination at the suppression hearing supported a finding that Pauli perjured himself in giving his version of events.

The court concluded that “it’s pretty clear to me based on my observation of his demeanor and other testimony that was given at that hearing that he testified falsely.” The court also found Pauli had consistently “wiped the computer for the reason ... that he could be caught possessing this material.... ” Third, the court held that the evidence supported the adjustment for a pattern of activity involving the sexual abuse of a minor. The court based this enhancement on allegations from Andrew Barry, a friend of Pauli’s son, that during the early and mid-80s, Pauli molested him.

The court relied on a letter sent from Barry to the United States Attorney’s office and testimony from the probation officer assigned to the case that recounted telephone interviews with Barry and several of his family members and concluded the allegations were credible. The court rejected Pauli’s argument that only “live testimony from Andrew Barry” should be used. The district court then sentenced Pauli to 210 months in prison, the bottom of the guideline range for an offense level of 37.

In doing so, the court rejected Pauli’s argument for downward variances based on his poor health, his on-going rehabilitation, and his own history of child sexual abuse. The court explained that “your age, your health, your lack of a criminal history under [18 U.S.C. § ] 3553 are factors that the Court must and I have considered.

I also consider the fact that there’s mandatory minimum sentences in this case that are required.” But in addition, § 3553 requires “taking into consideration the information ... about what happens to the victims.... ” The court emphasized that Pauli demonstrated no “empathy, emotion, sorrow, compassion for those children, those thousands of children that are put in this position by people in a place of trust.” The court concluded that because the § 3553(

a) factors point in opposite directions, “the only fair thing to do is to sentence you within the guidelines.” II. Pre-Trial Motions A Pauli advances two Fourth Amendment theories under which the district court erred in denying his motion to suppress the evidence seized from his home.

Pauli first argues that the warrant did not establish probable cause because, in his view, the affidavit relied on events that were “at least thirteen months [after] the last time the accused subscribed to the suspect website.... ” The district court held that the affidavit was sufficient as a matter of law, and, in the alternative, that even if probable cause was lacking, evidence should not be suppressed because the search was in good faith within the meaning of United States v. Leon. We review both of these conclusions de novo. United States v. Kincaide, 145 F.3d 771, 779 (6th Cir.1998).

As a general matter, Pauli is correct that an affidavit must allege “facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.” Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 77 L.Ed. 260 (1932). But that principle alone does not demand suppression in this case. Instead, “[t]he expiration of probable cause is determined by the circumstances of each case and depends on the inherent nature of the crime.” United States v. Hython, 443 F.3d 480, 485 (6th Cir.2006) (citing Sgro, 287 U.S. at 210-11, 53 S.Ct. 138).

Applying this approach to child pornography, we have reasoned that because the crime is generally carried out in the secrecy of the home and over a long period, the same time limitations that have been applied to more fleeting crimes do not control the staleness inquiry for child pornography. See United States v. Wagers, 452 F.3d 534, 540 (6th Cir.2006) (“[Ejvidence that a person has visited or subscribed to websites containing child pornography supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material.”).

This approach to staleness in child pornography cases comports with the practice of other circuits. See, e.g., United States v. Martin, 418 F.3d 148, 157 (2d Cir.2005); United States v. Froman, 355 F.3d 882, 890-91 (5th Cir.2004). Indeed, in a case similar to Pauli’s the Ninth Circuit affirmed the denial of a motion to suppress because “the nature of the crime ... provided good reason to believe the computerized visual depictions [of child pornography] downloaded by [the defendant] would be present in his apartment when the search was conducted ten months later.” United States v.

Lacy, 119 F.3d 742, 746 (9th Cir.1997) (internal quotation marks omitted). The affidavit in this case alleged that Pauli subscribed to child pornography websites and that he continued to do so over the course of two years. Pauli argues that these allegations are too generalized and remote to provide probable cause against him at the time of the search. But he does not dispute that the affidavit alleges that he was subscribing and downloading images from multiple sites. This makes the habits of similarly situated consumers of child pornography relevant.

See Lacy, 119 F.3d at 746 n. 6 (“The affidavit in this case contained sufficient evidence that [the defendant] had downloaded computerized visual depictions of child pornography to provide a foundation for evidence regarding practices of possessors of such pornography.”).

For instance, one of the websites to which Pauli subscribed was described as an “online-sharing-community” that was “created specifically for sharing child pornography collections.” The affidavit’s expert description of the barter economy in child pornography provides context for that subscription: Pauli was likely involved in an exchange of images and he therefore is likely to have a large cache of such images in order to facilitate that participation.

Moreover, while Pauli last purchased a subscription thirteen months prior to the search, the record is silent regarding how long it was for or whether it had indeed expired at the time of the search. Cf. Wagers, 452 F.3d at 538-39 (upholding probable cause despite all three of the defendant’s website subscriptions having lapsed prior to the government investigation). In light of the nature of the crime, these allegations are sufficient to establish a fair probability of on-going criminal activity.

In any case, even if the affidavit did not support probable cause, it fits comfortably within the Leon good-faith exception, which allows admission of evidence “seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.” United States v. Leon, 468 U.S. 897, 905, 104 S.Ct. 3405, 82 L.Ed.2d 677(1984).

Pauli argues that the affidavit’s generalities make it “bare bones” and therefore ineligible for this exception, but our eases on point hold that even where an officer’s experience provides too little evidence to establish probable cause, it suffices to make the affidavit not bare bones by providing a reasonable connection between the defendant and the alleged crime. See United States v.

Schultz, 14 F.3d 1093, 1098 (6th Cir.1994) (“[AJlthough we have held [an affiant’s] training and experience were not sufficient to establish a nexus of probable cause ... the connection was not so remote as to trip on the ‘so lacking’ hurdle.”). To the extent that one is persuaded that there are gaps in the evidence caused by the delay between the investigation and the search, they were filled in by Agent Hagan’s experience, whose familiarity with consumers of child pornographers gave her adequate reason to suspect that Pauli continued to possess illegal images.

That is sufficient for a seizing officer to have relied on the warrant in good faith. Next, Pauli argues that the search warrant was “overbroad” because it permitted the search of his garage in addition to the residence. This argument fails because it assumes, without authority, that a garage is presumptively excluded from a valid warrant to search a house. Our law presumes the opposite, that “a warrant for the search of a specified residence or premises authorizes the search of auxiliary and outbuildings within the curtilage.” United States v.

Watkins, 179 F.3d 489, 505 (6th Cir.1999) (Boggs, J. concurring) (collecting cases). To be sure, there are cases similar to those described in United States v. Ross where “probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase.” 456 U.S. 798, 824, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). But this case is not such a case.

In a case like Pauli’s, where the evidence sought includes images that the defendant likely wants to keep secret, even from his wife, and can easily be concealed in storage in a garage or basement, a reasonable search includes those areas. See Watkins, 179 F.3d at 506 (“[T]he weight of the authority is clear that when searching for small portable items such as drugs and records, there is no need to provide separate probable cause or identification of auxiliary structures”).

In other words, if there was probable cause to believe Pauli possessed child pornography at his residence, there was probable cause to search in the most likely hiding places. B Pauli argues that both his oral and written confessions were obtained in violation of his Miranda rights and therefore should have been suppressed. Because the district court’s resolution of this issue involved rejecting Pauli’s version of events, he must demonstrate both that the district court’s factual conclusions were in error and that its legal holding was wrong.

We review the factual question for clear error and the legal question de novo. See United States v. Foster, 376 F.3d 577, 583 (6th Cir.2004). Pauli makes no attempt to demonstrate that the district court clearly erred in crediting the officers’ testimony. Pauli only repeats his insistence that his testimony (and his wife’s corroboration) that he was questioned during the search and that, during these interrogations, he repeatedly requested a lawyer should be believed.

Having no new reason now, reviewing a cold transcript under a deferential standard, to revisit the district court’s conclusions, we will not displace the district court’s findings that the Paulis were not credible and that the officers’ version was the truthful one. See Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”); United States v.

White, 270 F.3d 356, 366 (6th Cir.2001) (upholding district court factual findings because district court credited officer testimony over the appellant’s). On that view of the evidence, the officers asked Pauli only once for an interview and, after he declined, they had no substantive conversations with him until he offered to make a statement and never requested a lawyer. Absent a claim he was interrogated or asked for an attorney, there can be no Miranda violation.

C Pauli claims that the intersection of prosecutorial discretion and the harshness of 18 U.S.C. § 2252A would have denied him a fair trial in violation of his Due Process and Sixth Amendment rights. This argument is premised on the fact that the statute has no explicit exception for those who possess or view illegal images in connection with a trial defense and, therefore, any expert (or counsel) would necessarily violate the law (and chance prosecution) by undertaking an analysis of the images.

For example, Pauli argues that a defendant wishing to put on a defense that the images he possessed were not illegal photographs but legal digitally generated images could not do so because no expert capable of distinguishing the images would be willing to undertake the attendant risk of prosecution. Worse, Pauli argues, the government’s experts are inoculated from this risk by prosecutorial discretion. In light of this alleged handicap to his defense, Pauli concludes that he should not be tried at all for his possession of child pornography.

Pauli, however, makes no allegations that the government used the law to disrupt his defense or that any specific expert witness would not cooperate. Nor does he show that, if this had been the case, he could not have asked the district court for relief short of dismissal. See United States v. Miller, 2007 WL 188277, at *4, 2007 U.S. Dist. LEXIS 4332 at * 12-13 (N.D.Ohio Jan. 22, 2007) (“There is no indication that defendant has been deprived of the content of the actual images charged.

Nor is there any persuasive argument as to why a limited protective immunity order could not be issued in this matter.”); United States v. Halter, 2006 U.S. Dist. LEXIS 54276 at *9-10 (N.D.Ohio March 31, 2006) (“The Court conferred with counsel on this very issue prior to trial and the United States proposed that the [illegal] images be made available for Defense counsel’s review, subject to a protective order, with the supervision of the FBI.”).

Indeed, the state court decision Pauli cites as authority for this fair trial argument proves this point: the court dismissed the charges under the Ohio child pornography statute because “the Defendant ... may be prosecuted by the Federal Government. The Court feels that would be the preferable outcome” because a federal court could try the case “without running the risk that the Defense expert would find himself indicted for the possession of this material.” State v. Drady, Case No.2004-CR-349 at 8 (Ohio Court of Common Pleas 2004).

Pauli was tried in a federal court and could have worked with the district court and the government to ensure that he could put on the defense he wanted. But he chose not to. There was no violation of Pauli’s right to a fair trial. D Pauli’s final pre-trial argument was that § 2252 et seq. is unconstitutionally vague because “he lacks the capacity to know whether the charged items contain actual minors” or virtual images of simulated child pornography protected under Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).

This argument fails because it misapprehends the void for vagueness doctrine. “Vagueness doctrine is an outgrowth not of the First Amendment but of the Due Process Clause of the Fifth Amendment. A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes discriminatory enforcement.” United States v. Williams, — U.S.-, 128 S.Ct. 1830, 1845, 170 L.Ed.2d 650 (2008).

These due process origins mean that “[w]hat renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminancy of precisely what that fact is.” Williams, 128 S.Ct. at 1846. Thus, in Williams, the Supreme Court described the lower court’s “error [as] ... fundamental” because it focused on the fact it may generate close cases and not the statute’s sufficiently clear description of the prohibited conduct. Ibid.

Pauli makes the same fundamental error in asking us to invalidate the Child Pornography Prevention Act. He does not argue that a person cannot read the statute and determine what is illegal; instead he argues that, knowing what is illegal, he cannot distinguish between the prohibited and the permitted. Such an inability to determine whether a crime has been committed “is addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.” Williams, 128 S.Ct. at 1846.

The government provides a helpful analogy: “A defendant in a drug case could use [the] same logic to argue the drug statutes are unconstitutionally vague because he could not know at the time of purchase whether he was buying authentic cocaine.” Appel-lee’s Br. at 54. Like the drug messenger arguing the substance he possessed was not real drugs, Pauli’s refuge from illegal prosecution is not the constitution but putting the government to its burden to prove that he possessed child pornography. III.

Sentencing In reviewing federal sentences after Booker, “the question in the end is whether the district court abused its discretion.” United States v. Grossman, 513 F.3d 592, 595 (6th Cir.2008) (citing Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). This review for abuse of discretion proceeds in two dimensions. The first ensures “that the district court committed no significant procedural error.” Gall, 128 S.Ct. at 597. The second considers “the substantive reasonableness of the sentence imposed.” Ibid. Pauli alleges errors in both dimensions and we take each in turn.

A Pauli charges the district court with three errors in calculating his offense level: the district court should not have enhanced his sentence for obstruction of justice; the district court should not have enhanced his sentence for a pattern of activity involving the sexual abuse of a minor; and the court should have reduced his sentence for acceptance of responsibility. When reviewing such procedural errors, our circuit defers to the sentencing court’s factual determinations unless clearly erroneous but reviews

interpretations of the guidelines de novo. United States v. Davidson, 409 F.3d 304, 310 (6th Cir.2005). First, the application of the enhancement for obstruction of justice under U.S.S.G. § 3C1.1 was proper in this case. A finding of specific acts of perjury supports this enhancement. See United States v. Lawrence, 308 F.3d 623, 632 (6th Cir.2002) (“[A] district court’s findings will be adequate if: 1) the record is sufficiently clear to indicate which statements the district court consider perjurious; and 2) the district court found that the statements satisfied each element of perjury.”).

The district court made such a finding here: I had to make a judgment whether the officers testified truthfully and/or whether Mr. Pauli was testifying falsely when he accused them of lying. It was very clear to me, because he signed statements at the time of his arrest, that no promises of any leniency of any kind were made ... and so either he lied then or lied during his testimony ... And it’s pretty clear to me based on my observation of his demeanor, and the other testimony that was given at the hearing that he testified falsely.

Like Pauli’s argument for reversal on the Miranda issue, his claim here that his testimony was truthful and the officers were lying simply reasserts his trial court insistence that he testified truthfully despite the express holding that he did not. And, again, this assertion is without support in the record and does not demonstrate clear error. Anderson, 470 U.S. at 574, 105 S.Ct. 1504. Accordingly, the district court did not err in finding he committed perjury. On this record, enhancing Pauli’s total offense level by two under U.S.S.G. § 3C1.1 was appropriate.

Second, the five-level enhancement under U.S.S.G. § 2G2.2(b)(5) for a pattern of activity involving sexual abuse or exploitation of a minor was appropriate. Pauli insists that the facts were legally insufficient to support the district court’s holding. The letter from Barry detailing the abuse, however, makes specific allegations, including when the activity started, the time of day and year (evenings during football and basketball season, when Pauli would be free from his other family members), and was corroborated by family members of the victim.

Pauli argued at sentencing that he was always at those basketball and football games to watch his son perform in the high school band and provided the court with letters from family friends indicating that Pauli attended all of his son’s events. Evidently, the district court credited Barry’s specifics over Pauli’s generalities. But, regardless, disputed facts do not make evidence insufficient and Pauli offers no reason why it would be clear error to find that, by a preponderance of the evidence, Pauli did molest Barry. Pauli’s arguments also imply that basing the enhancement on hearsay evidence at all was error.

The district court’s reliance on Barry’s letter without live testimony from Barry is clearly permissible under our law. See United States v. Silverman, 976 F.2d 1502, 1511 (6th Cir.1992) (en banc) (“So long as the evidence in the presentence report bears some minimal indicia of reliability in respect of.defendant’s right to due process, the district court ... may ... consider and rely on hearsay evidence without any confrontation requirement.”) (internal quotation marks omitted).

While recent developments in sentencing and Confrontation Clause jurisprudence “may be a broad signal of the future, there is nothing specific in Blakely, Booker or Crawford that would cause this Court to reverse its long-settled rule of law that [the] Confrontation Clause permits the admission of testimonial hearsay evidence at sentencing proceedings,” and so we will “continue to observe [our] precedent that testimonial hearsay does not affect a defendant’s right to confrontation at sentencing.” United States v. Katzopoulos, 437 F.3d 569, 576 (6th Cir.2006).

We underscore that this cautious approach to a changing area of law is the proper result of following our precedent. Crawford dealt only with the content of what the Confrontation Clause requires and not the scope of when it applies. Sil-verman, on the other hand, rested on the proposition that the Confrontation Clause does not regulate information relied on in sentencing and not that the clause applied but it nevertheless permitted the use of hearsay.

See Silverman, 976 F.2d at 1508 (explaining that despite the guidelines’ alteration of sentencing considerations, “the permissible methods of informing the sentencing judge and the need for information in fashioning sentences in light of the constitutional rights of defendants at sentencing have not essentially changed. The standard has always been that ... specific procedures, such as are required at trial, are simply not constitutionally mandated.... ”). The rule in Crawford thus does not affect the basis for Silverman. See United States v.

Stone, 432 F.3d 651, 654 (6th Cir.2005) (“Because Crawford was concerned only with testimonial evidence introduced at trial, Crawford does not change our ... rule that the confrontation clause does not apply in sentencing proceedings.”); United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir.2005) (holding that Crawford does not affect admissibility of hearsay in hearings regarding the revocation of supervised release). This approach of leaving Crawford’s Confrontation Clause rule where it is found has been adopted by every court of appeals to consider the decision’s implication for hearsay in sentencing hearings.

See United States v. Beydoun, 469 F.3d 102, 108 (5th Cir.2006) (“[T]here is no Crawford violation when hearsay testimony is used at sentencing, rather than at trial.”); United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir.2005) (“Crawford dealt with trial rights and we see no reason to extend Crawford to sentencing proceedings. The right to confrontation is not a sentencing right.”); United States v.

Roche, 415 F.3d 614, 618 (7th Cir.2005) (holding Crawford does not bar hearsay in sentencing because “the relevant provision at sentencing is the Due Process Clause, not the confrontation clause....”); United States v. Luciano, 414 F.3d 174, 178 (1st Cir.2005) (“Nothing in Crawford requires us to alter our previous conclusion that there is no ... Confrontation Clause right at sentencing.”); United States v.

Martinez, 413 F.3d 239, 243 (2d Cir.2005) (“Neither Crawford nor Booker ... addressed the applicability of the right of confrontation to the sentencing context ... nor did [they] so undermine the rationale of Second Circuit precedent involving the consideration of hearsay testimony at sentencing-”). Third, Pauli does not show that the district court erred in refusing to apply a two-level reduction for the acceptance of responsibility because of Pauli’s obstruction of justice.

In cases such as Pauli’s where a defendant’s plea counsels for a reduction but his behavior does not, the guideline’s application note explains “[c]onduet resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility. There may, however, be extraordinary cases.... ” U.S.S.G. § 3E1.1, cmt. n. 4.

In implementing this “extraordinary case” exception to the proposition that obstructing justice demonstrates a lack of acceptance, we have “consistently granted district courts great leeway when making this determination,” United States v. Roberts, 243 F.3d 235, 241 (6th Cir.2001) (collecting cases), and held that “the defendant has the burden of proving the extraordinary nature of his or her case,” United States v. Jeross, 521 F.3d 562, 582 (6th Cir.2008). Here, Pauli makes no argument why his obstruction is not a run-of-the-mill case.

Instead, he continues to rely on the very testimony the district court held perjurious in his suppression argument before this court, without making any new good faith argument that the district court erred in its credibility and factual findings. Cf. Unit ed States v. Gregory, 315 F.3d 637, 640-41 (6th Cir.2003) (holding a defendant is not “entitled to an adjustment for acceptance of responsibility” where the obstruction is “on-going”). On this record, Pauli has not demonstrated the district court was acting impermissibly in refusing the reduction.

B Pauli further claims that the sentence was substantively unreasonable. Our circuit takes a deferential approach to this type of substantive sentencing challenge. See United States v. Vonner, 516 F.3d 382, 392 (6th Cir.2008) (en banc) (“[T]he central lesson [of recent Supreme Court activity is] that district courts ... deserve the benefit of the doubt when we review their sentences and the reasons given for them.”). This is especially true in cases, like Pauli’s, where the district court agrees with the recommendations in the sentencing guidelines.

In such cases “this court has embraced an appellate presumption of reasonableness” that the defendant must rebut. Id. at 389. Pauli attempts to do so with two arguments. First, he alleges that the sentence is greater than necessary to serve the purposes of § 3553(a). Second, he argues that the district court over-emphasized the impact on victims and inappropriately discounted factors that weighed for a downward variance.

Taken in concert and at full face value these claims make at least a plausible argument that the presumption has been rebutted: Pauli is an old and sick man who has been extraordinary in his attempts to rehabilitate himself and but for the district court’s over-emphasis on the impact on the victims he should have received a fighter sentence. The record, however, also contains material that belies this characterization of the considerations relevant to Pauli’s sentencing. The district court’s

summary illustrates the competing factors: Now, I could vary up, and that’s something I considered in this case due to the nature of the volume and the number of images you had and the extent of what you did, or I could vary down because of your age, your health, and your lack of criminal background and, in fact, the things that you’ve done since your arrest to try to prevent yourself from ever engaging in this type of conduct. But I want you to know I’ve taken all of that into consideration, and I think the only fair thing to do is sentence you within the guidelines.

Far from being impermissible or inadequate, this analysis of the considerations the court found most important — the defendant’s circumstances and the seriousness of the crime — is just the sort of balancing a sentencing court should be doing. See, e.g., United States v. Duane, 533 F.3d 441, 453 (6th Cir.2008) (upholding a within-guidefines sentence as substantively reasonable where “the district court clearly considered the § 3553(

a) factors that it found most pertinent — namely the seriousness of the crime, the need for deterrence and the guidelines range.”). Indeed, this is what is meant by the “on-the-scene assessment of the competing considerations” to which we are to defer. United States v. Grossman, 513 F.3d at 596. More broadly, we cannot say, in fight of our deferential review, that the sentence of 210 months of imprisonment was unreasonable. It is at the lower end of the guidelines range and accurately reflects both the reasons to vary downward and the severity of Pauli’s offense. See Vonner, 516 F.3d at 390.

To be sure, there are reasons here — as in any sentencing case — to be sympathetic to the defendant. Pauli is a former minister who has admirably worked with a sex addiction group at rehabilitating himself and others, and the combination of his age, his various health problems, and the length of his sentence mean he almost certainly will die in jail or shortly after his sentence expires. But our role as an appellate court is not “to impose sentences in the first instance or to second guess the individualized sentencing discretion when it appropriately relies on the § 3553(

a) factors.... ” United States v. Davis, 537 F.3d 611, 618 (6th Cir.2008). Indeed, we routinely uphold the sentences of sick defendants, e.g. United States v. Johnson, 239 F.App’x 986, 992 (6th Cir. 2007) (unpublished decision), and the sentences of rehabilitated defendants, e.g. United States v. Monday, 218 F. App’x 419, 424 (6th Cir.2007) (unpublished decision), over their appeals for a variance. This is because we are reviewing for unreasonable sentences, not sympathetic defendants.

Defendants such as Pauli are sentenced only after their crime, the actual possession of images of actual young children depicting actual sexual abuse has been proven or they, as in Pauli’s ease, have admitted to guilt, pursuant to a constitutionally prescribed process designed to guard against erroneous conviction.

Under these circumstances, it seems to me that the dissent’s suggestion that such convictions “border[] on” “the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries” cannot be maintained, without some risk of terminological inexactitude. IV. Conclusion The judgment of the district court is therefore AFFIRMED. . There is some dispute over whether we have jurisdiction to hear the appeal on issues beyond sentencing.

Pauli's Notice of Appeal is not a model of clarity, stating: "[T]he Defendant ... hereby gives Notice of Appeal ... from the sentencing ... on the questions of law and fact on the above entitled cause entered by the said district court in its sentencing of defendant on April 5, 2007.” On one view, this limits the issues on appeal to only the designated sentencing issue. See McLaurin v. Fischer, 768 F.2d 98, 101-02 (6th Cir. 1985).

But the better reading, in light of the fact that, as the Notice indicates, "counsel was advised ... to file a Notice of Appeal in a timely manner without the Judgment and Commitment Order, which, to date, has not been journalized,” is that this is a generalized notice of appeal sufficient to give us jurisdiction over Pauli’s entire appeal. This broader reading is confirmed by the Notice's second paragraph beginning ''[t]he appeal will also challenge ... the legality of the sentence”— language that would not make sense unless Pauli intended to challenge the conviction and pre-trial orders as well.

Moreover, our circuit has avoided "overly technical reading[s]” of the notice of appeal requirement, Caudill v. Hollan, 431 F.3d 900, 904 (6th Cir.2005), in an effort to apply the principle that "[a] mistake in designating the judgment appealed from is not always fatal, so long as the intent to appeal ... can fairly be inferred ... and the other party was not misled or prejudiced.” Sanabria v. United States, 437 U.S. 54, 68 n. 21, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). Thus, we have jurisdiction to review both the pre-trial and sentencing portions of Pauli’s appeal. .

Because either basis could have supported the enhancement independently, there is no need to consider the district court's alternative conclusion that "wiping” a computer was sufficient. We note, however, that Pauli’s behavior probably did not support the enhancement because he did not know that he was under investigation when he "wiped” his computer. See United States v.

Brown, 237 F.3d 625, 628 (6th Cir.2001) ("The obstruction adjustment applies where a defendant engages in obstructive conduct with knowledge that he or she is the subject of an investigation or with the correct belief that an investigation of the defendant is probably underway.”). . Pauli also argues that the supporting facts should have been found beyond a reasonable doubt.

This is foreclosed by previous decisions because ''[t]his court has squarely rejected defendants’ contention that Booker and Blakely [ ] require all factual finding affecting a sentence’s severity to be made by a jury beyond a reasonable doubt.” United States v. Sexton, 512 F.3d 326, 329-30 (6th Cir.2008). . The Eleventh Circuit has extended Confrontation Clause rights to death penalty cases but that extension occurred long before Crawford and was not altered by the Supreme court's recent decisions. See United States v.

Brown, 441 F.3d 1330, 1361 n. 12 (11th Cir.2006) ("We have held that Crawford does not apply in the context of non-capital sentencing. However, death is different, and we have held ... that the constitutional right to cross-examine witnesses applies to capital sentencing hearings.”) (internal citations omitted).