On August 20. 2020, the Sixth Circuit held Daniel Fleisher’s 447 month sentence for sexual exploitation of a minor and receipt and distribution of visual depictions of real minors engaged in sexually explicit conduct was not procedurally or substantively unreasonable.

Mr. Fleisher was charged with two counts of sexual exploitation involving two separate minors, one count of receipt and distribution of visual depictions of real minors engaged in sexually explicit conduct, and one count of possession of child pornography. The parties entered into a plea agreement in which Mr. Fleisher pled guilty to sexual exploitation involving Minor #1, and receipt and distribution of visual depictions of real minors engaged in sexually explicit conduct. The government agreed to dismiss the exploitation count involving Minor # 2 and the child pornography charge. The plea agreement also included “a section labeled, ‘RELEVANT CONDUCT,’ which contained Fleischer’s admission to the offense conduct involving Minor Victim #2.”

The parties’ plea agreement contemplated a total offense level 39 and did not include “a calculation to account for Fleischer’s conduct with respect to Minor Victim # 2, nor did it include a calculation to reflect his pattern of activity.” The parties did acknowledge in the plea agreement that the sentencing recommendation was not binding on the court. The Presentence Investigation Report calculated Mr. Fleischer’s total offense level at 42, with an enhancements for relevant conduct involving Minor #2 and pattern of abuse. The district court followed the guidelines recommended by the PSR.

On appeal, Mr. Fleischer argued his sentence was procedurally unreasonable because the court used the guidelines calculation that was inconsistent with the parties’ collective sentencing recommendation in the plea agreement. The Sixth Circuit noted the recommendation by the parties was not binding on the district court and the record supported the application of the enhancements.

Mr. Fleischer also argued that his sentence was procedurally unreasonable because the application of both enhancements was impermissible double counting. While the Sixth Circuit noted it was the “first court of appeals to consider a double-counting challenge based upon the district court’s application of § 2G2.1(d)(1) and § 2G2.2(b)(5),” the Court took guidance from other circuits and found “the Guidelines separately punish defendants who sexually exploit multiple victims, and child pornography offenders who have a history of more than one instance of sexually abusing or exploiting a child. These enhancements are therefore not premised on the ‘same type of harm.’” Because the enhancements did not punish the same type of harm, they application of the two were not impermissible double counting.

The Court also rejected Mr. Fleisher’s argument that his sentence was substantively unreasonable because it exceeded the range contemplated by the parties in the plea agreement and placed too much weight on the seriousness of his offenses. The Sixth Circuit found the district court “gave a thorough and methodical rationale for its review and considered the various sentencing factors; and [ ] the court advanced a thoughtful explanation for why the parties’ non-binding sentencing recommendations, as set forth in the plea agreement, were insufficient in this case.”