United States of America v. Andrew Allen Meek

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0087p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW ALLEN MEEK,
Defendant-Appellant.
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No. 21-3588
Appeal from the United States District Court for the Northern District of Ohio at Youngstown.
No. 4:20-cr-00269-1—Sara E. Lioi, District Judge.
Decided and Filed: April 26, 2022
Before: GUY, THAPAR, and READLER, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Travis A. Rossman, ROSSMAN LAW, PLLC, Barbourville, Kentucky, for
Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for
Appellee.
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. Andrew Meek appeals his 87-month sentence for
two child pornography offenses. He says that the district court erred by withholding a two-level
reduction in his offense level under U.S.S.G. § 2G2.2(b)(1), and by imposing a $5,000 special
assessment for each count of conviction. We disagree and affirm Meek’s sentence.
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I.
Meek was fired from his job when “pictures of young girls in underwear, and clothed”
were discovered on his work computer. Losing his job, however, became the least of Meek’s
concerns. Upon receiving a tip from Meek’s former co-worker, FBI agents verified that Meek’s
email contained clothed and partially clothed images of girls ages five to fourteen. Agents also
found eight images and two videos of child pornography on Meek’s other electronic devices.
Meek admitted to viewing child pornography for nearly a decade. And he also confessed to
downloading child pornography from peer-to-peer file sharing networks such as LimeWire,
adding that he may have inadvertently shared and traded it too.
A federal grand jury indicted Meek for receiving and distributing child pornography in
violation of 18 U.S.C. § 2252(a)(2) and possessing child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). Meek pleaded guilty. At sentencing, he asserted that he should receive a
two-level reduction in his offense level pursuant to U.S.S.G. § 2G2.2(b)(1) because his conduct
was limited to receiving or soliciting child pornography. The district court disagreed and settled
on a Guidelines range of 97 to 121 months’ imprisonment. From there, the court varied
downwards, sentencing Meek to 87 months’ imprisonment. It also ordered Meek to pay two
mandatory $5,000 special assessments (one for each count of conviction) pursuant to the Justice
for Victims of Trafficking Act, 18 U.S.C. § 3014.
II.
Meek challenges his sentence on two grounds. One, that the district court should have
applied the § 2G2.2(b)(1) reduction. And two, that the district court erred by not considering his
ability to pay before imposing the $10,000 in special assessments.
Section 2G2.2(b)(1) Reduction. To qualify for § 2G2.2(b)(1)’s two-level reduction, a
defendant must make three showings, each by a preponderance of the evidence. United States v.
Shepard, 661 F. App’x 348, 351 (6th Cir. 2016). First, he must have a base offense level of 22.
U.S.S.G. § 2G2.2(b)(1)(A). Second, his conduct must have been limited to “receipt or
solicitation of material involving the sexual exploitation of a minor.” Id. § 2G2.2(b)(1)(B).
And third, he must not have “intend[ed] to traffic in, or distribute, such material.”

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Id. § 2G2.2(b)(1)(C). Although the district court’s ultimate Guidelines calculation is a legal
question we review de novo, we review the underlying factual findings for clear error. United
States v. Hodge, 805 F.3d 675, 678 (6th Cir. 2015). That latter manner of review is highly
deferential to the district court; we will reverse only if on the entire evidence we have “the
definite and firm conviction that a mistake has been committed.” United States v. Fleischer,
971 F.3d 559, 567 (6th Cir. 2020) (internal quotation marks omitted).
We see no error in the district court’s denial of the § 2G2.2(b)(1) reduction. While Meek
has a base offense level of 22, he fails to meet the second benchmark necessary for a
§ 2G2.2(b)(1) reduction. Three admissions from Meek permitted the district court to conclude
that Meek’s conduct was not limited to the “receipt or solicitation of material involving the
sexual exploitation of a minor.” During an interview with investigators, Meek admitted to using
LimeWire at one point to download child pornography during the ten-year period charged in the
indictment, an indication that Meek had the opportunity to distribute child pornography through
LimeWire. That admission alone customarily is sufficient to support the denial of a
§ 2G2.2(b)(1) reduction. See Shepard, 661 F. App’x at 354; United States v. Conner,
521 F. App’x 493, 500 (6th Cir. 2013); United States v. Bolton, 669 F.3d 780, 782–83 (6th
Cir. 2012) (per curiam); United States v. Pizzino, 419 F. App’x 579, 582 (6th Cir. 2011); United
States v. Darway, 255 F. App’x 68, 71–72 (6th Cir. 2007). Likewise, at his sentencing hearing,
Meek denied intending to distribute child pornography and claimed he had “made every attempt”
to “actively shut off” LimeWire’s “automatic sharing” to be “sure that [he] was not . . . sharing
it,” a tacit admission that sharing was possible at some point when he used LimeWire. And
Meek told investigators that he may have inadvertently shared or traded child pornography, a
hint that Meek may have made that pornography accessible to others. From this record, we have
no “definite and firm conviction” that the district court erred in determining that Meek’s conduct
was more extensive than the mere “receipt or solicitation” of child pornography. Fleischer,
971 F.3d at 567; U.S.S.G. § 2G2.2(b)(1).
Meek opposes this result on two grounds. Acknowledging that he used LimeWire to
download child pornography, Meek nonetheless contends that the government failed to introduce
specific evidence that he shared that illicit material. Meek’s admissions alone, however,

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permitted the district court to reject the reduction in offense level. Meek next argues that the
district court “implicitly recognized” that he did not distribute child pornography when it
sustained his objection to a distribution enhancement under § 2G2.2(b)(3)(F). True, it is
“somewhat unusual” for a district court to withhold a § 2G2.2(b)(1) reduction while also
declining to impose a § 2G2.2(b)(3) distribution enhancement. See Shepard, 661 F. App’x
at 351. Yet a defendant “is not necessarily entitled” to the former just because he did not
receive the latter. Id. at 353–54 (citing Hodge, 805 F.3d at 684; United States v. Fore, 507
F.3d 412, 415–16 (6th Cir. 2007)). The two provisions cover separate conduct, meaning denying
one does not require imposing the other. For today’s purposes, application of § 2G2.2(b)(1)
turns on whether Meek’s conduct was limited to mere receipt or solicitation of child pornography
as opposed to, say, distribution or production. And the application of § 2G2.2(b)(3)(F), on the
other hand, turns on whether he “knowingly engaged in distribution.” See also United States v.
Abbring, 788 F.3d 565, 567–68 (6th Cir. 2015). In other words, it is conceivable that a
defendant could unknowingly distribute child pornography, making him ineligible for both a
§ 2G2.2(b)(1) reduction and a § 2G2.2(b)(3)(F) enhancement. See Hodge, 805 F.3d at 684;
U.S.S.G. § 2G2.2 cmt. n.2. That was the district court’s conclusion here. We agree.
JVTA Special Assessment. Meek also claims that the district court erred in imposing a
$10,000 special assessment under 18 U.S.C. § 3014. As Meek did not challenge that assessment
before the district court, we review for plain error. See United States v. Wandahsega,
924 F.3d 868, 889 (6th Cir. 2019) (quoting United States v. Vonner, 516 F.3d 382, 385 (6th
Cir. 2008) (en banc)); see also Fed. R. Crim. P. 52(b). Doing so requires Meek to demonstrate
(1) an error that was (2) “obvious or clear,” (3) detrimental to his “substantial rights,” and
(4) “affected the fairness, integrity, or public reputation of the judicial proceedings.” Vonner,
516 F.3d at 386 (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).
Meek’s convictions arose under title 18, chapter 110 of the United States Code. See
18 U.S.C. §§ 2252(a)(2), 2252A(a)(5)(B). Section 3014 in turn requires district courts to impose
a $5,000 special assessment “on any non-indigent person . . . convicted of an offense” under
chapter 110. For a non-indigent defendant guilty of a qualifying offense, the assessment is

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mandatory. United States v. Shepherd, 922 F.3d 753, 757 (6th Cir. 2019). But the assessment
may not be levied against an indigent defendant. Id.
So how does a district court go about determining indigency? By considering both
(1) whether the defendant currently is impoverished and (2) whether the defendant has “the
means to provide for himself so that he will not always be impoverished[.]” Id. at 758. With
predicting the future an imperfect science, district courts should weigh several factors in deciding
whether a defendant “will not always be impoverished.” Id. They include: whether the
defendant has court-appointed counsel; the defendant’s educational and vocational training and
the associated earnings potential, including the ability to earn income while incarcerated; the
defendant’s expected age at release; the defendant’s potential years of employability after
release; and the length of time post-release that the defendant will have to pay the special
assessment. See id. at 759–60; Wandahsega, 924 F.3d at 889. A district court need not make an
“explicit finding” of non-indigency before imposing the assessment. Shepherd, 922 F.3d at 760.
It is enough that the “judge listened to each argument, considered the supporting evidence, was
fully aware of the defendant’s circumstances, and took them into account in sentencing him.” Id.
(cleaned up).
Application of these factors confirms that the district court properly imposed the § 3014
special assessment. At sentencing, the district court explained that it had reviewed Meek’s
financial situation as detailed in the presentence investigation report. That information suggested
that, at least in the short term, Meek would be challenged to pay the special assessments. He was
unemployed (due to his incarceration), had court-appointed counsel, no monthly income, a very
modest checking account, and personal liabilities including a $7,000 vehicular loan, $5,000 in
personal loans, and approximately $50,000 in student loan debt. But we must also consider
Meek’s long-term ability to support himself. See Shepherd, 922 F.3d at 758. On that score,
Meek is a college graduate who has worked in a number of fields, including as a certified armed
security guard and ordained minister, earning more than $2,000 per month before his arrest. As
the district court put it, Meek “is a hard worker” who “has been employed all of his adult life.”
With this strong track record, we expect that Meek will resume these efforts upon his projected
release in July 2026, when he will be 54. See Find An Inmate, Bureau of Prisons,

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No. 21-3588 United States v. Meek Page 6
https://www.bop.gov/mobile/find_inmate/byname.jsp#inmate_results (last accessed
Apr. 25, 2022) (search “Andrew Meek”). And because he was in good health when sentenced
and has no dependents, it is a fair assumption that Meek could pay the § 3014 assessment within
the 20-year statutory window, in part, through income earned while he is incarcerated. See
United States v. King, 466 F. App’x 484, 489–90 (6th Cir. 2012). Under any standard of review,
Meek fits comfortably within the realm of defendants whom we have deemed to be not indigent.
See United States v. Olmstead, No. 21-1051, 2021 WL 5014358, at *3 (6th Cir. Oct. 28, 2021)
(collecting cases).
Meek makes much of the district court’s decision to waive a separate fine because Meek
was unable to pay it. Doing so, however, “does not change our analysis.” See Shepherd,
922 F.3d at 759 n.1. If anything, the district court’s decision to waive a separate fine is
consistent with a current inability to pay and leaves Meek better positioned to pay the § 3014
assessments. The district court could have waived the fine precisely because it levied the § 3014
assessments. We are thus satisfied that the district court “was fully aware of [Meek’s]
circumstances and took them into account in sentencing him.” Id. at 760 (cleaned up).
Invoking United States v. Fowler, 956 F.3d 431, 438 (6th Cir. 2020), Meek lastly
contends that the district court committed plain error because it made no specific findings about
his indigency. But both Shepherd (on de novo review) and Wandahsega (on plain error review)
rejected the argument that a district court must specifically find the defendant not indigent before
imposing the § 3014 special assessment. Shepherd, 922 F.3d at 760; Wandahsega, 924 F.3d
at 888. Rather, we held that § 3014 “requires no such finding” when, as here, the record shows
that the district court considered the relevant facts and arguments. Shepherd, 922 F.3d at 760;
see also Wandahsega, 924 F.3d at 888.
After Shepherd and Wandahsega, we decided Fowler, the case Meek emphasizes.
Fowler, to its credit, began by acknowledging that Shepherd and Wandahsega “constitute
binding case law.” 956 F.3d at 439. From there, however, the opinion veered off on a course at
odds with those earlier cases. For example, Fowler instructed that a district court must “ensure
that the defendant is not indigent” even when the defendant does not challenge the § 3014 special
assessment, id., a conclusion that fails to honor “binding case law” holding that because the

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§ 3014 special assessment “is akin to a fine,” a defendant seeking to avoid the special assessment
bears the burden of proving his indigence, see Wandahsega, 924 F.3d at 889 (citing U.S.S.G.
§ 5E1.2). Likewise, Fowler found plain error in the fact that the district court there “fail[ed] to
make any findings on indigency or Fowler’s ability to pay,” 956 F.3d at 438, despite
Wandahsega’s instruction that factual findings as to non-indigence are unnecessary “where it can
be inferred that the district court considered the defendant’s ability to pay and other factors
required by law,” 924 F.3d at 888 (citation omitted). On these points, Fowler is not binding in
our Circuit. Our familiar practice in instances where “a later decision of this court conflicts with
one of our prior published decisions” is to leave our Court “bound by the holding of the earlier
case,” Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001), a conclusion we have
previously acknowledged is true as to the conflicts created by Fowler, see United States v.
Goodin, 815 F. App’x 860, 870 n.3 (6th Cir. 2020) (noting that “to the extent Fowler requires the
district court to make specific findings on the record as to the facts surrounding a defendant’s
indigency, it is at odds with our decisions in Shepherd and Wandahsega” and “those earlier
opinions are binding”). One panel of this Court, in other words, cannot overrule another, let
alone two others. See United States v. McKinnie, 24 F.4th 583, 589 (6th Cir. 2022).
Setting aside Fowler’s command that the district court make specific findings on
indigency, at most Fowler holds that a “district court plainly err[s] . . . by failing to address
[a defendant’s] finances and ability to pay before imposing the assessment.” See 956 F.3d
at 440. But courts must apply that language harmoniously with Wandahsega’s pronouncement
that “where it can be inferred that the district court considered the defendant’s ability to pay and
other factors required by law,” the district court may impose the special assessment even in the
absence of factual findings regarding non-indigence. 924 F.3d at 888 (citation omitted); see also
Shepherd, 922 F.3d at 760. And courts must similarly apply Wandahsega’s holding that the
burden of raising and establishing indigency falls squarely in the defendant’s lap. See 924 F.3d
at 889–90.
Read against the backdrop of Shepherd and Wandahsega, we conclude that Fowler’s
“failing to address” language refers to a case where the district court “completely” failed to
consider the defendant’s ability to pay. 956 F.3d at 438. Indeed, Fowler distinguished itself

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from both Shepherd and Wandahsega on the facts, noting that neither case had resolved whether
a district court plainly errs by “fail[ing] completely” to consider the defendant’s financial
circumstances. Id. at 439. Fowler arose in a unique setting, where the district court “did not
entertain arguments, consider evidence, or say anything to indicate that it took the defendant’s
circumstances into account” before imposing the assessment. Id. at 440. Nor was there any
mention in Fowler that the district court had reviewed the relevant financial information from the
defendant’s presentence report. See id. at 439–40.
As a practical matter, one would expect that cases like Fowler are few and far between.
A presentence report, after all, must include “the defendant’s financial condition.” Fed. R. Crim.
P. 32(d)(2)(A)(ii). And district courts customarily review the presentence report and frequently
adopt the report’s factual findings. That practice seemingly underlies our decisions in Shepherd
and Wandahsega, which inferred that the district court had considered the presentence report’s
factual account of the defendant’s finances. See Shepherd, 922 F.3d at 759–60; Wandahsega,
924 F.3d at 889. In the ordinary case, then, we ask, as we did in Shepherd and Wandahsega,
whether the district court has “done its duty” by familiarizing itself with the defendant’s financial
circumstances and “[taking] them into account.” See Shepherd, 922 F.3d at 760; see also
Wandahsega, 924 F.3d at 888. Here, the district court stated on the record that it had reviewed
the presentence report’s description of Meek’s financial situation and adopted those facts in the
statement of reasons attached to the judgment. We are satisfied that the district court was well
aware of Meek’s financial circumstances, and that its imposition of the special assessment is in
line with both Shepherd and Wandahsega.
All said, we see no plain error by the district court.
* * * * *
We affirm.

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