United States v. Brad Majors

20-5085

2021 | Cited 0 times | Sixth Circuit | April 20, 2021

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0203n.06

No. 20-5085

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

) FILED UNITED STATES OF AMERICA, Apr 20, 2021 ) Plaintiff-Appellee, DEBORAH S. HUNT, Clerk ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT BRAD ANTHONY MAJORS, ) COURT FOR THE EASTERN Defendant-Appellant. ) DISTRICT OF TENNESSEE ) )

BEFORE: SUHRHEINRICH, SILER, and SUTTON, Circuit Judges.

SUHRHEINRICH, Circuit Judge.

I. BACKGROUND

In November of 2018 Brad Majors’ eight-year-old biological daughter told her mother that

her father had been showing her pornography and engaging in sexual acts with her for about a

year. She showed her mother a box of sex toys that Majors had hidden in a crawl space in her

bedroom and explained that her father had been using them on her, at which point her mother

contacted the police and removed her daughter from the family home. The child explained to

authorities that her father had made her perform numerous sex acts, including using the sex toys

on herself, oral sex, vaginal penetration, and that one time he had made her pee into his mouth.

She stated that he would offer to buy her toys if she performed sexual acts on him and that he had

told her she would get in trouble if she told anyone about what they were doing. She also revealed

No. 20-5085, United States v. Majors

that her father had taken pictures and videos of several instances of the abuse and shared it on an

“app.”

When confronted by the police, Majors told the officers that he “assume[d] everything she

told you is the truth.” He confessed in detail to many instances of abuse, though he denied ever

penetrating her, instead asserting that “his penis was just inside the lips of his daughter’s vagina,

but not inside the vagina.” Majors also admitted that he made videos or took pictures of the abuse

“about every time,” and that he had shared two of those videos and two of those photographs

online. A search of Majors’ cellphone revealed four videos of Majors’ abusing his daughter, as

well as over a dozen videos and over 50 images of child pornography.

In May of 2019 Majors pleaded guilty to sexually exploiting a child for the production of

child pornography in violation of 18 U.S.C. § 2251(a), and to possessing child pornography in

violation of 18 U.S.C. § 2252A(a)(5)(B). The production count has a statutory sentencing range

of a minimum imprisonment term of fifteen years and maximum of thirty years, and the possession

count carries a penalty range of zero to twenty years’ imprisonment. See 18 U.S.C. § 2251(e); 18

U.S.C. § 2252A(b)(2).

Majors’ presentence report calculated that his combined offense level was 44 after

accounting for a three-level reduction for acceptance of responsibility. Because the maximum

offense level under the sentencing guidelines is 43, the report used this as his final offense level

and calculated Majors’ criminal history category as I. The resulting guidelines term was life in

prison. Because the guidelines sentence exceeded the statutorily authorized maximum, the

effective guidelines range became 600 months.

Because there were multiple convictions and a guidelines range greater than the statutory

maximum, the district court imposed consecutive sentences, pursuant to U.S.S.G. § 5G1.2(d), in

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No. 20-5085, United States v. Majors

order to achieve the guidelines effectively proscribed sentence of 600 months’ imprisonment.

Majors did not object to this calculation, but did move for a downward variance, specifically asking

the court to impose the sentences concurrently rather than consecutively. In support of the motion,

Majors filed a psychosexual risk assessment, which calculated his recidivism risk to be low to

moderate and suggested that Majors was amenable to sexual-offender treatment, positing that such

treatment could lower Majors’ risk of recidivism. The government opposed the motion for a

downward variance and proposed assigning Majors a sentence of the full 600 months.

At sentencing, Majors asked to call the author of the psychosexual risk assessment, Dr.

Adler, to further explain his findings. The court asked Majors’ counsel whether Dr. Adler would

add anything that was not already in the written report. Counsel told the court that Dr. Adler did

not have anything “additional to go [in]to the report” but wanted to further explain the report’s

findings. The court stated that it had “spent a lot of time” reviewing the report, then denied the

request to call Dr. Adler as a witness “[u]nless he has something in addition to what’s in the report

to add.”

Majors argued that the sentences for the two counts should run concurrently, stating that

he believed the statutory maximum of count one (360 months) encapsulated the totality of the

indictment and could reasonably be used as an approximation of the guidelines sentence of life

imprisonment. The court suggested that 360 months was a somewhat arbitrary approximation of

a life sentence and posited that an alternative method of calculation would be to consult the Social

Security life expectancy tables. The court stated that based on its recollection of the life

expectancy tables, Majors could expect to live roughly another 46 years from the time of

sentencing.

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No. 20-5085, United States v. Majors

The district court denied Majors’ request for a downward variance. It reiterated the

egregiousness of Majors’ conduct, saying, “[i]t’s hard to imagine an adult committing a more

serious offense than what we have here.” The court further noted that Majors had engaged in

manipulation and deception to enable him to continue committing the abuse. The court weighed

the § 3553(a) sentencing factors, finding that the most important consideration was that the

sentence must reflect the seriousness of the offense, and that deterrence was also an important

factor to be weighed. Majors again pointed out that the proper numerical expression of a life

sentence had not been fully determined. The child’s mother then read a victim impact statement

written by Majors’ daughter, as well as some of her own statement. The court sentenced Majors

to the adjusted guidelines sentence of 600 months’ imprisonment to be followed by fifteen years

of supervised release.

At the conclusion of sentencing, Majors objected to the sentence as “both substantively

and procedurally unreasonable.” He asserted that the court failed to properly account for some of

the § 3553(a) factors, “such as Mr. Majors’ history and characteristics, moderate level of risk to

reoffend, and high amenability to treatment” and that it “potentially also . . . bas[ed] the sentence

on some facts not contained in the record.” He argued that the court did not give enough weight

to the characteristics mentioned above and “gave undue weight” to other sentencing factors. He

now brings both procedural and substantive reasonableness challenges on appeal.

II. ANALYSIS

A. The district court did not procedurally err in its consideration of the psychosexual risk assessment.

Majors raises three procedural issues concerning the psychosexual risk assessment report

and the court’s decision not to allow Dr. Adler to testify further about the report’s contents. We

review the procedural reasonableness of a sentence for abuse of discretion. United States v.

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No. 20-5085, United States v. Majors

Vowell, 516 F.3d 503 , 509 (6th Cir. 2008). This includes the review of a district court’s limitation

on expert testimony. Decker v. GE Healthcare Inc., 770 F.3d 378 , 391 (6th Cir. 2015). “A district

court abuses its discretion when it applies the incorrect legal standard, misapplies the correct legal

standard, or relies upon clearly erroneous findings of fact.” United States v. Moore, 582 F.3d 641 ,

644 (6th Cir. 2009) (internal quotation marks omitted). This is a deferential standard of review,

where “factual findings will stand unless clearly erroneous and legal conclusions will stand unless

our fresh review leads to a contrary conclusion.” United States v. Rayyan, 885 F.3d 436 , 440 (6th

Cir. 2018).

Majors first argues that the district court procedurally erred by failing to make proper

factual findings regarding the psychosexual risk report, pointing out that the court did not comment

on the report’s conclusion that Majors was not predatory and was highly amenable to treatment.1

Majors suggests that this conduct is similar to what happened in United States v. Pritchard, where

this court found that the district court had procedurally erred when it failed to “make any findings

regarding the psychologist’s testimony, and therefore fail[ed] to address Defendant’s arguments

that he is not a pedophile and is unlikely to re-offend.” 392 F. App’x. 433, 442 (6th Cir. 2010).

But the case before us is meaningfully distinguishable. In Pritchard, we found that the there was

“no evidence in the record that the district court ‘listened to each argument, considered the

supporting evidence, was fully aware of the defendant’s circumstances and took them into

account.” Id. at 441 (quoting United States v. Gapinski, 561 F.3d 467 , 474 (6th Cir. 2009)). Here,

by contrast, the court discussed the report at some length, specifically mentioning the report’s

admitted limitations as well as its methodology. The court explained that it felt the “report was

1 The court is required to make factual findings on controverted matters, or to find that no finding is necessary. Fed. R. Crim. P. 32(i)(3)(B). Here, the government agreed that the psychosexual report “was very well done,” and did not seek to controvert any of its factual findings.

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No. 20-5085, United States v. Majors

very thorough” and highlighted that the report “describes in some detail what goes into

determining that the defendant falls within the moderate risk to reoffend.” This lengthy discussion

of the contents of the psychosexual report demonstrates that the court “considered [Majors’]

arguments and ha[d] a reasoned basis for exercising [its] own legal decisionmaking authority.”

Rita v. United States, 551 U.S. 338 , 356 (2007).

Majors next asserts that the court committed error by not allowing him to call Dr. Adler as

an expert witness to further explain the findings in the report.2 The district court has “broad

discretion to place limits” on testimony “to prevent delay, waste of time, and needless presentation

of cumulative evidence.” Sutkiewicz v. Monroe Cnty. Sheriff, 110 F.3d 352 , 361 (6th Cir. 1997).

In United States v. Surratt, the government sought to admit expert testimony about whether the

defendant was a predatory pedophile. 87 F.3d 814 , 817 (6th Cir. 1996). The court did not allow

further expert testimony when it had “already concluded from psychiatric evidence submitted by

the government that the defendant is, in fact, a predatory pedophile.” Id. Here, the findings of the

psychosexual report were undisputed, and the court had clearly read the report very carefully. The

court even specifically asked whether Dr. Adler would add anything that was not already outlined

in the report and was told by Majors’ counsel that he would not. It was therefore not an abuse of

discretion to determine that there was no need for Dr. Adler to simply reiterate the conclusions

that were already outlined in the report.3

2 The government suggests that because Majors did not specifically object to the limitation on testimony at sentencing, we should review for plain error. However, Majors did object to the court giving undue weight to some factors over others, which could be construed as encompassing the court’s refusal to hear further elaboration on the factors analyzed in the report. Out of an abundance of caution, we therefore proceed under the more defendant-friendly abuse of discretion standard. 3 While “admitting both the report and the testimony would have been the better practice,” we are not reviewing for whether the court engaged in best practices, we are reviewing for an abuse of discretion. See Pritchard, 392 F. App’x. at 438.

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No. 20-5085, United States v. Majors

Majors also contends that the district court procedurally abused its discretion when it

offered its own conclusion that Majors posed a serious risk to the community, suggesting that this

was erroneous fact-finding since this conclusion arguably contradicts the psychosexual report.

Specifically, when addressing the need to protect the public the court stated that it “thinks that the

risks here are much greater because this defendant has demonstrated he can manipulate others, he

can deceive others, and he’s been able to successfully commit these acts over a time period through

deceit and concealment.”4 Majors argues that this finding directly contradicts the conclusions of

the psychosexual risk assessment and that the court abused its discretion in relying on its own

conclusion rather than the conclusion of the report. His arguments fail for several reasons.

First, the risk assessment concluded that Majors was at moderate risk for reoffending. The

district court’s findings do not contradict this conclusion. Second, judges are “not only entitled to

draw upon [their] experience when sentencing defendants, but should be encouraged to do so.”

United States v. Ford, 889 F.2d 1570 , 1572 (6th Cir. 1989); see also 18 U.S.C. § 3553(a)(2)(C)

(requiring judges at sentencing to independently assess a defendant’s risk to the public). In United

States v. Cunningham, the defendant cited evidence that indicated his chance of recidivism was

6.2%. 669 F.3d 723 , 730 (6th Cir. 2012). The court then relied primarily on its own assessment

that the defendant posed a much greater risk to the community than that statistic encapsulated. Id.

at 728. This court affirmed the district court’s consideration as “just the sort of consideration

required by § 3553(a).” Id. at 731. However, in United States v. Adams, this court found

procedural error where the district court had relied on an unsubstantiated claim by the government

that it took at least eighteen months for the brain to “reset” from substance addiction. 873 F.3d

4 The government correctly points out that Majors did not object to this statement at trial and contends therefore that plain error review applies. However, at the end of trial, Majors specifically objected that the court did not take into account “Mr. Majors’ history and characteristics, moderate level of risk to reoffend, and high amenability to treatment.” We will therefore proceed with abuse of discretion review.

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No. 20-5085, United States v. Majors

512, 519 (6th Cir. 2017). We remanded because the district court had explicitly relied upon “an

unsubstantiated assertion that has the veneer of accuracy due to its supposed status as a product of

scientific research.” Id. Unlike in Adams, the court here was not relying on unsubstantiated

scientific evidence, but rather was relying on its own assessment that the nature of the defendant’s

conduct (i.e., manipulation and deceit) demonstrated that Majors posed a risk. This is precisely

the type of consideration this court lauded in Cunningham and cannot be said to be an abuse of

discretion here.

B. The district court did not procedurally err when it did not sentence Majors based on his potential life expectancy.

Majors asserts that the district court abused its discretion by basing the length of his

sentence off its recollection of the Social Security tables’ estimate of his life expectancy. The

Social Security actuarial table posted on its website indicates that Majors’ life expectancy is

approximately 78 years, not the “83” or “85” years the court seemed to think it was. Actuarial

Life Table (2016), available at https://www.ssa.gov/oact/STATS/table4c6.html. Thus, Majors

argues, the court abused its discretion because it relied upon “erroneous findings of fact” when it

calculated his sentence, which is a form of procedural error. Moore, 582 F.3d at 644 (internal

quotation marks omitted).

Though the district court did reference Majors’ life expectancy throughout the proceedings,

it did not do so at all when explaining the reasoning behind its sentence. The context of the court’s

statements regarding the Social Security tables reveals that it was merely responding to Majors’

assertion that “360 months would constitute a life sentence.” Additionally, the sentence imposed

by the district court exceeds its own erroneous estimation of Majors’ life expectancy, suggesting

that it was not relying on this estimate to calculate his sentence. Furthermore, when Majors told

the court that the life expectancy for white males in prison is lower than for those in the general

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No. 20-5085, United States v. Majors

population, the court explicitly accepted the assertion, stating “I’ll take your word for it.” This

suggests that the district court rejected the information from the Social Security tables and thus did

not rely on the information Majors now contends was erroneous. His argument therefore fails on

its face.

C. The court adequately explained its rationale for imposing the sentences consecutively.

A challenge to the court’s explanation of its decision to impose consecutive sentences

attacks the procedural reasonableness of the sentence and is therefore ordinarily reviewed for an

abuse of discretion. United States v. King, 914 F.3d 1021 , 1024 (6th Cir. 2019). Here, however,

while Majors did object to the substantive reasonableness of the consecutive sentences, he did not

specifically object to the adequacy of the court’s explanation at sentencing, and we therefore

review the court’s explanation for plain error. Id.

Here, the court provided an adequate explanation for its decision to impose consecutive

terms of imprisonment. A court may explain its reasons for sentencing consecutively “either

expressly or by reference to a discussion of relevant considerations contained elsewhere.” United

States v. Cochrane, 702 F.3d 334 , 346 (6th Cir. 2012). The court discussed in great detail its

reasoning for rejecting Majors’ request for a downward variance, then later explicitly referenced

that discussion when it imposed the consecutive sentences. “[W]hen the same reasons for rejecting

a downward variance also support the decision for a consecutive sentence” there is no need for the

court to repeat its analysis. United States v. Berry, 565 F.3d 332 , 343 (6th Cir. 2009). In this case,

the court explained that it would not vary downwards because of the “seriousness of the offense,”

the need to deter this type of conduct, and “to protect the public from future crimes of the

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No. 20-5085, United States v. Majors

defendant.” These same reasons adequately explain the district court’s imposition of consecutive

rather than concurrent sentences. Thus, the district court did not commit plain error.

D. The sentence was substantively reasonable.

The court reviews the substantive reasonableness of a sentence for an abuse of discretion.

Gall v. United States, 552 U.S. 38 , 51 (2007); United States v. Perez-Rodriguez, 960 F.3d 748 ,

753 (6th Cir. 2020). In evaluating whether a sentence is substantively reasonable, we ask whether

the district court imposed a sentence that is “greater than necessary” in light of the § 3553(a)

factors. Holguin Hernandez v. United States, 140 S. Ct. 762 , 766–67 (2020); Perez-Rodriguez,

960 F.3d at 753 . Our review is “highly deferential” and sentences that fall within the guidelines

range, as is the case here, are presumed reasonable. Rayyan, 885 F.3d at 442 ; United States v.

Lynde, 926 F.3d 275 , 279 (6th Cir. 2019).

Majors first argues that this sentence was substantively unreasonable because he did not

receive any real benefit for pleading guilty. While he did receive a three-level reduction for

acceptance of responsibility, Majors’ reduced offense level was still above the guidelines’

maximum offense level. As a result, his guidelines range was not affected. Though Majors argues

that this demonstrates his sentence is inherently substantively unreasonable, he cites no law for

this proposition. Majors also ignores the other benefits that may arise from pleading guilty, such

as avoiding putting himself and his family through “the agony” of a trial. Brady v. United States,

397 U.S. 742 , 750 (1970). This argument therefore is unavailing.

Majors next argues that the court lacked a rational basis for imposing the sentences for the

two counts consecutively rather than concurrently. We must bear in mind that an “evaluation of

the substantive reasonableness of a decision to impose a consecutive sentence depends heavily

upon an evaluation of the procedural reasonableness.” United States v. Barahona-Sales, 524 F.

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App’x 235, 239 (6th Cir. 2013) (quoting Berry, 565 F.3d at 342 ). Having already determined that

the decision was procedurally reasonable, we now consider whether it was substantively

reasonable as well.

Here, contrary to what Majors asserts, the court actually did rely on a rational basis for its

decision, demonstrated by its statement that it viewed “the seriousness of the offense” as the most

important factor in sentencing. After “[c]onsidering the Section 3553 factors as well as the

guidelines” the court then concluded that a within-guidelines sentence of 600 months was

appropriate. Given the heinous nature of the crime, the level of deceit and manipulation Majors

employed by hiding the sex toys and instructing his daughter not to tell anyone about the abuse,

and the court’s finding that “[i]t’s hard to imagine an adult committing a more serious offense than

what we have here,” it is perfectly logical that the court would impose the maximum sentence

allowed.

Majors also contends that the sentence is substantively unreasonable because it exceeds his

actual life expectancy. Majors once again cites no case for the proposition that his actual life

expectancy is a relevant consideration. Where there are multiple convictions and the guidelines

range is greater than the statutory maximum, the guidelines recommend imposing the sentence on

the second count consecutively to the first count “to the extent necessary to produce a combined

sentence equal to the total punishment.” U.S.S.G. § 5G1.2(d). Majors argues that this calculation

must be based on a numerical equivalent of life. But by this logic Majors’ guidelines range should

depend heavily upon his age at the time of sentencing, which stands in direct contradiction to

Congress’ mandate that the guidelines “avoid[] unwarranted sentencing disparities among

defendants with similar records who have been found guilty of similar criminal conduct.” 28

U.S.C. § 991(b)(1)(B); see, e.g., United States v. Herrick, 512 F. App’x 534, 539 (6th Cir. 2013)

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No. 20-5085, United States v. Majors

(upholding a sentence of 1,140 months’ imprisonment, where the statutory maximum for the

defendant’s offenses was less than the guidelines range of life because “§ 5G1.2(d) permits the

court to impose consecutive sentences where the statutory maximum is less than the total

punishment.”) We find that the district court did not abuse its discretion in determining that the

sentences should run consecutively in order to achieve the total punishment suggested by the

guidelines.

III. CONCLUSION

Because Majors has failed to demonstrate that his within-guidelines sentence was

procedurally or substantively unreasonable we AFFIRM the sentence given by the district court.

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NOT RECOMMENDED FOR PUBLICATION File Name: 21a0203n.06

No. 20-5085

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

) FILED UNITED STATES OF AMERICA, Apr 20, 2021 ) Plaintiff-Appellee, DEBORAH S. HUNT, Clerk ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT BRAD ANTHONY MAJORS, ) COURT FOR THE EASTERN Defendant-Appellant. ) DISTRICT OF TENNESSEE ) )

BEFORE: SUHRHEINRICH, SILER, and SUTTON, Circuit Judges.

SUHRHEINRICH, Circuit Judge.

I. BACKGROUND

In November of 2018 Brad Majors’ eight-year-old biological daughter told her mother that

her father had been showing her pornography and engaging in sexual acts with her for about a

year. She showed her mother a box of sex toys that Majors had hidden in a crawl space in her

bedroom and explained that her father had been using them on her, at which point her mother

contacted the police and removed her daughter from the family home. The child explained to

authorities that her father had made her perform numerous sex acts, including using the sex toys

on herself, oral sex, vaginal penetration, and that one time he had made her pee into his mouth.

She stated that he would offer to buy her toys if she performed sexual acts on him and that he had

told her she would get in trouble if she told anyone about what they were doing. She also revealed

No. 20-5085, United States v. Majors

that her father had taken pictures and videos of several instances of the abuse and shared it on an

“app.”

When confronted by the police, Majors told the officers that he “assume[d] everything she

told you is the truth.” He confessed in detail to many instances of abuse, though he denied ever

penetrating her, instead asserting that “his penis was just inside the lips of his daughter’s vagina,

but not inside the vagina.” Majors also admitted that he made videos or took pictures of the abuse

“about every time,” and that he had shared two of those videos and two of those photographs

online. A search of Majors’ cellphone revealed four videos of Majors’ abusing his daughter, as

well as over a dozen videos and over 50 images of child pornography.

In May of 2019 Majors pleaded guilty to sexually exploiting a child for the production of

child pornography in violation of 18 U.S.C. § 2251(a), and to possessing child pornography in

violation of 18 U.S.C. § 2252A(a)(5)(B). The production count has a statutory sentencing range

of a minimum imprisonment term of fifteen years and maximum of thirty years, and the possession

count carries a penalty range of zero to twenty years’ imprisonment. See 18 U.S.C. § 2251(e); 18

U.S.C. § 2252A(b)(2).

Majors’ presentence report calculated that his combined offense level was 44 after

accounting for a three-level reduction for acceptance of responsibility. Because the maximum

offense level under the sentencing guidelines is 43, the report used this as his final offense level

and calculated Majors’ criminal history category as I. The resulting guidelines term was life in

prison. Because the guidelines sentence exceeded the statutorily authorized maximum, the

effective guidelines range became 600 months.

Because there were multiple convictions and a guidelines range greater than the statutory

maximum, the district court imposed consecutive sentences, pursuant to U.S.S.G. § 5G1.2(d), in

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No. 20-5085, United States v. Majors

order to achieve the guidelines effectively proscribed sentence of 600 months’ imprisonment.

Majors did not object to this calculation, but did move for a downward variance, specifically asking

the court to impose the sentences concurrently rather than consecutively. In support of the motion,

Majors filed a psychosexual risk assessment, which calculated his recidivism risk to be low to

moderate and suggested that Majors was amenable to sexual-offender treatment, positing that such

treatment could lower Majors’ risk of recidivism. The government opposed the motion for a

downward variance and proposed assigning Majors a sentence of the full 600 months.

At sentencing, Majors asked to call the author of the psychosexual risk assessment, Dr.

Adler, to further explain his findings. The court asked Majors’ counsel whether Dr. Adler would

add anything that was not already in the written report. Counsel told the court that Dr. Adler did

not have anything “additional to go [in]to the report” but wanted to further explain the report’s

findings. The court stated that it had “spent a lot of time” reviewing the report, then denied the

request to call Dr. Adler as a witness “[u]nless he has something in addition to what’s in the report

to add.”

Majors argued that the sentences for the two counts should run concurrently, stating that

he believed the statutory maximum of count one (360 months) encapsulated the totality of the

indictment and could reasonably be used as an approximation of the guidelines sentence of life

imprisonment. The court suggested that 360 months was a somewhat arbitrary approximation of

a life sentence and posited that an alternative method of calculation would be to consult the Social

Security life expectancy tables. The court stated that based on its recollection of the life

expectancy tables, Majors could expect to live roughly another 46 years from the time of

sentencing.

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No. 20-5085, United States v. Majors

The district court denied Majors’ request for a downward variance. It reiterated the

egregiousness of Majors’ conduct, saying, “[i]t’s hard to imagine an adult committing a more

serious offense than what we have here.” The court further noted that Majors had engaged in

manipulation and deception to enable him to continue committing the abuse. The court weighed

the § 3553(a) sentencing factors, finding that the most important consideration was that the

sentence must reflect the seriousness of the offense, and that deterrence was also an important

factor to be weighed. Majors again pointed out that the proper numerical expression of a life

sentence had not been fully determined. The child’s mother then read a victim impact statement

written by Majors’ daughter, as well as some of her own statement. The court sentenced Majors

to the adjusted guidelines sentence of 600 months’ imprisonment to be followed by fifteen years

of supervised release.

At the conclusion of sentencing, Majors objected to the sentence as “both substantively

and procedurally unreasonable.” He asserted that the court failed to properly account for some of

the § 3553(a) factors, “such as Mr. Majors’ history and characteristics, moderate level of risk to

reoffend, and high amenability to treatment” and that it “potentially also . . . bas[ed] the sentence

on some facts not contained in the record.” He argued that the court did not give enough weight

to the characteristics mentioned above and “gave undue weight” to other sentencing factors. He

now brings both procedural and substantive reasonableness challenges on appeal.

II. ANALYSIS

A. The district court did not procedurally err in its consideration of the psychosexual risk assessment.

Majors raises three procedural issues concerning the psychosexual risk assessment report

and the court’s decision not to allow Dr. Adler to testify further about the report’s contents. We

review the procedural reasonableness of a sentence for abuse of discretion. United States v.

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No. 20-5085, United States v. Majors

Vowell, 516 F.3d 503 , 509 (6th Cir. 2008). This includes the review of a district court’s limitation

on expert testimony. Decker v. GE Healthcare Inc., 770 F.3d 378 , 391 (6th Cir. 2015). “A district

court abuses its discretion when it applies the incorrect legal standard, misapplies the correct legal

standard, or relies upon clearly erroneous findings of fact.” United States v. Moore, 582 F.3d 641 ,

644 (6th Cir. 2009) (internal quotation marks omitted). This is a deferential standard of review,

where “factual findings will stand unless clearly erroneous and legal conclusions will stand unless

our fresh review leads to a contrary conclusion.” United States v. Rayyan, 885 F.3d 436 , 440 (6th

Cir. 2018).

Majors first argues that the district court procedurally erred by failing to make proper

factual findings regarding the psychosexual risk report, pointing out that the court did not comment

on the report’s conclusion that Majors was not predatory and was highly amenable to treatment.1

Majors suggests that this conduct is similar to what happened in United States v. Pritchard, where

this court found that the district court had procedurally erred when it failed to “make any findings

regarding the psychologist’s testimony, and therefore fail[ed] to address Defendant’s arguments

that he is not a pedophile and is unlikely to re-offend.” 392 F. App’x. 433, 442 (6th Cir. 2010).

But the case before us is meaningfully distinguishable. In Pritchard, we found that the there was

“no evidence in the record that the district court ‘listened to each argument, considered the

supporting evidence, was fully aware of the defendant’s circumstances and took them into

account.” Id. at 441 (quoting United States v. Gapinski, 561 F.3d 467 , 474 (6th Cir. 2009)). Here,

by contrast, the court discussed the report at some length, specifically mentioning the report’s

admitted limitations as well as its methodology. The court explained that it felt the “report was

1 The court is required to make factual findings on controverted matters, or to find that no finding is necessary. Fed. R. Crim. P. 32(i)(3)(B). Here, the government agreed that the psychosexual report “was very well done,” and did not seek to controvert any of its factual findings.

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No. 20-5085, United States v. Majors

very thorough” and highlighted that the report “describes in some detail what goes into

determining that the defendant falls within the moderate risk to reoffend.” This lengthy discussion

of the contents of the psychosexual report demonstrates that the court “considered [Majors’]

arguments and ha[d] a reasoned basis for exercising [its] own legal decisionmaking authority.”

Rita v. United States, 551 U.S. 338 , 356 (2007).

Majors next asserts that the court committed error by not allowing him to call Dr. Adler as

an expert witness to further explain the findings in the report.2 The district court has “broad

discretion to place limits” on testimony “to prevent delay, waste of time, and needless presentation

of cumulative evidence.” Sutkiewicz v. Monroe Cnty. Sheriff, 110 F.3d 352 , 361 (6th Cir. 1997).

In United States v. Surratt, the government sought to admit expert testimony about whether the

defendant was a predatory pedophile. 87 F.3d 814 , 817 (6th Cir. 1996). The court did not allow

further expert testimony when it had “already concluded from psychiatric evidence submitted by

the government that the defendant is, in fact, a predatory pedophile.” Id. Here, the findings of the

psychosexual report were undisputed, and the court had clearly read the report very carefully. The

court even specifically asked whether Dr. Adler would add anything that was not already outlined

in the report and was told by Majors’ counsel that he would not. It was therefore not an abuse of

discretion to determine that there was no need for Dr. Adler to simply reiterate the conclusions

that were already outlined in the report.3

2 The government suggests that because Majors did not specifically object to the limitation on testimony at sentencing, we should review for plain error. However, Majors did object to the court giving undue weight to some factors over others, which could be construed as encompassing the court’s refusal to hear further elaboration on the factors analyzed in the report. Out of an abundance of caution, we therefore proceed under the more defendant-friendly abuse of discretion standard. 3 While “admitting both the report and the testimony would have been the better practice,” we are not reviewing for whether the court engaged in best practices, we are reviewing for an abuse of discretion. See Pritchard, 392 F. App’x. at 438.

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No. 20-5085, United States v. Majors

Majors also contends that the district court procedurally abused its discretion when it

offered its own conclusion that Majors posed a serious risk to the community, suggesting that this

was erroneous fact-finding since this conclusion arguably contradicts the psychosexual report.

Specifically, when addressing the need to protect the public the court stated that it “thinks that the

risks here are much greater because this defendant has demonstrated he can manipulate others, he

can deceive others, and he’s been able to successfully commit these acts over a time period through

deceit and concealment.”4 Majors argues that this finding directly contradicts the conclusions of

the psychosexual risk assessment and that the court abused its discretion in relying on its own

conclusion rather than the conclusion of the report. His arguments fail for several reasons.

First, the risk assessment concluded that Majors was at moderate risk for reoffending. The

district court’s findings do not contradict this conclusion. Second, judges are “not only entitled to

draw upon [their] experience when sentencing defendants, but should be encouraged to do so.”

United States v. Ford, 889 F.2d 1570 , 1572 (6th Cir. 1989); see also 18 U.S.C. § 3553(a)(2)(C)

(requiring judges at sentencing to independently assess a defendant’s risk to the public). In United

States v. Cunningham, the defendant cited evidence that indicated his chance of recidivism was

6.2%. 669 F.3d 723 , 730 (6th Cir. 2012). The court then relied primarily on its own assessment

that the defendant posed a much greater risk to the community than that statistic encapsulated. Id.

at 728. This court affirmed the district court’s consideration as “just the sort of consideration

required by § 3553(a).” Id. at 731. However, in United States v. Adams, this court found

procedural error where the district court had relied on an unsubstantiated claim by the government

that it took at least eighteen months for the brain to “reset” from substance addiction. 873 F.3d

4 The government correctly points out that Majors did not object to this statement at trial and contends therefore that plain error review applies. However, at the end of trial, Majors specifically objected that the court did not take into account “Mr. Majors’ history and characteristics, moderate level of risk to reoffend, and high amenability to treatment.” We will therefore proceed with abuse of discretion review.

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No. 20-5085, United States v. Majors

512, 519 (6th Cir. 2017). We remanded because the district court had explicitly relied upon “an

unsubstantiated assertion that has the veneer of accuracy due to its supposed status as a product of

scientific research.” Id. Unlike in Adams, the court here was not relying on unsubstantiated

scientific evidence, but rather was relying on its own assessment that the nature of the defendant’s

conduct (i.e., manipulation and deceit) demonstrated that Majors posed a risk. This is precisely

the type of consideration this court lauded in Cunningham and cannot be said to be an abuse of

discretion here.

B. The district court did not procedurally err when it did not sentence Majors based on his potential life expectancy.

Majors asserts that the district court abused its discretion by basing the length of his

sentence off its recollection of the Social Security tables’ estimate of his life expectancy. The

Social Security actuarial table posted on its website indicates that Majors’ life expectancy is

approximately 78 years, not the “83” or “85” years the court seemed to think it was. Actuarial

Life Table (2016), available at https://www.ssa.gov/oact/STATS/table4c6.html. Thus, Majors

argues, the court abused its discretion because it relied upon “erroneous findings of fact” when it

calculated his sentence, which is a form of procedural error. Moore, 582 F.3d at 644 (internal

quotation marks omitted).

Though the district court did reference Majors’ life expectancy throughout the proceedings,

it did not do so at all when explaining the reasoning behind its sentence. The context of the court’s

statements regarding the Social Security tables reveals that it was merely responding to Majors’

assertion that “360 months would constitute a life sentence.” Additionally, the sentence imposed

by the district court exceeds its own erroneous estimation of Majors’ life expectancy, suggesting

that it was not relying on this estimate to calculate his sentence. Furthermore, when Majors told

the court that the life expectancy for white males in prison is lower than for those in the general

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No. 20-5085, United States v. Majors

population, the court explicitly accepted the assertion, stating “I’ll take your word for it.” This

suggests that the district court rejected the information from the Social Security tables and thus did

not rely on the information Majors now contends was erroneous. His argument therefore fails on

its face.

C. The court adequately explained its rationale for imposing the sentences consecutively.

A challenge to the court’s explanation of its decision to impose consecutive sentences

attacks the procedural reasonableness of the sentence and is therefore ordinarily reviewed for an

abuse of discretion. United States v. King, 914 F.3d 1021 , 1024 (6th Cir. 2019). Here, however,

while Majors did object to the substantive reasonableness of the consecutive sentences, he did not

specifically object to the adequacy of the court’s explanation at sentencing, and we therefore

review the court’s explanation for plain error. Id.

Here, the court provided an adequate explanation for its decision to impose consecutive

terms of imprisonment. A court may explain its reasons for sentencing consecutively “either

expressly or by reference to a discussion of relevant considerations contained elsewhere.” United

States v. Cochrane, 702 F.3d 334 , 346 (6th Cir. 2012). The court discussed in great detail its

reasoning for rejecting Majors’ request for a downward variance, then later explicitly referenced

that discussion when it imposed the consecutive sentences. “[W]hen the same reasons for rejecting

a downward variance also support the decision for a consecutive sentence” there is no need for the

court to repeat its analysis. United States v. Berry, 565 F.3d 332 , 343 (6th Cir. 2009). In this case,

the court explained that it would not vary downwards because of the “seriousness of the offense,”

the need to deter this type of conduct, and “to protect the public from future crimes of the

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No. 20-5085, United States v. Majors

defendant.” These same reasons adequately explain the district court’s imposition of consecutive

rather than concurrent sentences. Thus, the district court did not commit plain error.

D. The sentence was substantively reasonable.

The court reviews the substantive reasonableness of a sentence for an abuse of discretion.

Gall v. United States, 552 U.S. 38 , 51 (2007); United States v. Perez-Rodriguez, 960 F.3d 748 ,

753 (6th Cir. 2020). In evaluating whether a sentence is substantively reasonable, we ask whether

the district court imposed a sentence that is “greater than necessary” in light of the § 3553(a)

factors. Holguin Hernandez v. United States, 140 S. Ct. 762 , 766–67 (2020); Perez-Rodriguez,

960 F.3d at 753 . Our review is “highly deferential” and sentences that fall within the guidelines

range, as is the case here, are presumed reasonable. Rayyan, 885 F.3d at 442 ; United States v.

Lynde, 926 F.3d 275 , 279 (6th Cir. 2019).

Majors first argues that this sentence was substantively unreasonable because he did not

receive any real benefit for pleading guilty. While he did receive a three-level reduction for

acceptance of responsibility, Majors’ reduced offense level was still above the guidelines’

maximum offense level. As a result, his guidelines range was not affected. Though Majors argues

that this demonstrates his sentence is inherently substantively unreasonable, he cites no law for

this proposition. Majors also ignores the other benefits that may arise from pleading guilty, such

as avoiding putting himself and his family through “the agony” of a trial. Brady v. United States,

397 U.S. 742 , 750 (1970). This argument therefore is unavailing.

Majors next argues that the court lacked a rational basis for imposing the sentences for the

two counts consecutively rather than concurrently. We must bear in mind that an “evaluation of

the substantive reasonableness of a decision to impose a consecutive sentence depends heavily

upon an evaluation of the procedural reasonableness.” United States v. Barahona-Sales, 524 F.

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App’x 235, 239 (6th Cir. 2013) (quoting Berry, 565 F.3d at 342 ). Having already determined that

the decision was procedurally reasonable, we now consider whether it was substantively

reasonable as well.

Here, contrary to what Majors asserts, the court actually did rely on a rational basis for its

decision, demonstrated by its statement that it viewed “the seriousness of the offense” as the most

important factor in sentencing. After “[c]onsidering the Section 3553 factors as well as the

guidelines” the court then concluded that a within-guidelines sentence of 600 months was

appropriate. Given the heinous nature of the crime, the level of deceit and manipulation Majors

employed by hiding the sex toys and instructing his daughter not to tell anyone about the abuse,

and the court’s finding that “[i]t’s hard to imagine an adult committing a more serious offense than

what we have here,” it is perfectly logical that the court would impose the maximum sentence

allowed.

Majors also contends that the sentence is substantively unreasonable because it exceeds his

actual life expectancy. Majors once again cites no case for the proposition that his actual life

expectancy is a relevant consideration. Where there are multiple convictions and the guidelines

range is greater than the statutory maximum, the guidelines recommend imposing the sentence on

the second count consecutively to the first count “to the extent necessary to produce a combined

sentence equal to the total punishment.” U.S.S.G. § 5G1.2(d). Majors argues that this calculation

must be based on a numerical equivalent of life. But by this logic Majors’ guidelines range should

depend heavily upon his age at the time of sentencing, which stands in direct contradiction to

Congress’ mandate that the guidelines “avoid[] unwarranted sentencing disparities among

defendants with similar records who have been found guilty of similar criminal conduct.” 28

U.S.C. § 991(b)(1)(B); see, e.g., United States v. Herrick, 512 F. App’x 534, 539 (6th Cir. 2013)

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No. 20-5085, United States v. Majors

(upholding a sentence of 1,140 months’ imprisonment, where the statutory maximum for the

defendant’s offenses was less than the guidelines range of life because “§ 5G1.2(d) permits the

court to impose consecutive sentences where the statutory maximum is less than the total

punishment.”) We find that the district court did not abuse its discretion in determining that the

sentences should run consecutively in order to achieve the total punishment suggested by the

guidelines.

III. CONCLUSION

Because Majors has failed to demonstrate that his within-guidelines sentence was

procedurally or substantively unreasonable we AFFIRM the sentence given by the district court.

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