RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0091p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ┐ Plaintiff-Appellee, │ │ > No. 19-5539 v. │ │ │ JAMES ARMES, │ Defendant-Appellant. │ ┘ Appeal from the United States District Court for the Western District of Kentucky at Owensboro. No. 4:18-cr-00011-1—Joseph H. McKinley, Jr., District Judge. Argued: January 28, 2020 Decided and Filed: March 26, 2020 Before: COLE, Chief Judge; COOK and THAPAR, Circuit Judges. _________________ COUNSEL ARGUED: Frank W. Heft, Jr., OFFICE OF THE FEDERAL DEFENDER, INC., Louisville, Kentucky, for Appellant. L. Jay Gilbert, UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee. ON BRIEF: Frank W. Heft, Jr., Donald J. Meier, OFFICE OF THE FEDERAL DEFENDER, INC., Louisville, Kentucky, for Appellant. L. Jay Gilbert, UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee. THAPAR, J., delivered the opinion of the court in which COOK, J., joined. COLE, C.J. (pp. 14–19), delivered a separate dissenting opinion. _________________ OPINION _________________ THAPAR, Circuit Judge. Federal law mandates tough sentences for child pornographers—especially those with a history of sexual abuse. James Armes had such a history No. 19-5539 United States v. Armes Page 2 and received an enhanced sentence as a result. Because the district court got the law right and chose a reasonable sentence, we affirm. I. Armes pled guilty to five counts of producing, two counts of distributing, and one count of possessing child pornography. See 18 U.S.C. §§ 2251(a), 2252A(a)(2), 2252A(a)(5)(B). The images showed him molesting two members of his family—one an infant, the other a toddler— by fondling them and placing his genitals on various parts of their bodies. This wasn’t Armes’s first run-in with the law over his sexual behavior. The presentence report related that in 2005 Armes pled guilty to two counts of Kentucky third-degree rape. See Ky. Rev. Stat. Ann. § 510.060 (West 2005). The report added: “According to the Indictment, the defendant engaged in sexual intercourse with a victim that was less than 16 years old . . . while the defendant was over 21 years old.” R. 25, Pg. ID 167 (PSR ¶ 84). Armes didn’t object to these statements or (for that matter) any other factual statements in the report. These past convictions had sentencing consequences. Normally, the minimum prison terms for producing, distributing, and possessing child pornography are fifteen, five, and zero years (respectively). But those numbers rise to twenty-five, fifteen, and ten years for certain repeat sex offenders—including those with a past conviction under a state law “relating to aggravated sexual abuse, sexual abuse, [or] abusive sexual contact involving a minor or ward[.]” 18 U.S.C. §§ 2251(e), 2252A(b)(1)–(2). The district court found that Armes’s past convictions for Kentucky third-degree rape qualified under this sentencing enhancement. So the court applied the enhancement, making Armes’s minimum sentence twenty-five years. The Sentencing Guidelines recommended the maximum possible sentence—three hundred and fifty years. But the government asked for only seventy-five years. In the end, the district court varied ...
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