UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4885
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
JOHN HENRY SMITH,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (3:05-cr-01153-MJP)
Submitted: April 22, 2008 Decided: April 23, 2008
Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and Irene
M. KEELEY, United States District Judge for the Northern District
of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Reginald I. Lloyd, United States Attorney, Dean A. Eichelberger,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellant. John F.
Hardaway, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Henry Smith, a sixty-four year old man with no prior
criminal record, pleaded guilty to one count of possession of child
pornography in violation of 18 U.S.C.A. § 2252A(a)(5)(B) (West 2000
& Supp. 2006). Although Smith’s Guidelines range under the U.S.
Sentencing Guidelines called for 78-97 months imprisonment, the
district court imposed a variance sentence of 24 months
imprisonment, two years of supervised release, and a $10,000 fine.
The Government appeals and, for the reasons that follow, we affirm.
I.
On May 4, 2005, an undercover agent with the Federal Bureau of
Investigation (“FBI”) used a P2P program,1 Limewire, to download
images of child pornography from a remote computer. Through
further investigation, the agent was able to identify Smith’s
computer as the source for the images. Acting on this information,
1
A peer-to-peer (or “P2P", or, rarely, "PtP") computer
network:
[U]ses diverse connectivity between participants in a
network and the cumulative bandwidth of network
participants rather than conventional centralized
resources where a relatively low number of servers
provide the core value to a service or application.
Peer-to-peer networks are typically used for connecting
nodes via largely ad hoc connections. Such networks are
useful for many purposes. Sharing content files (see file
sharing) containing audio, video, data or anything in
digital format is very common, and realtime data, such as
telephony traffic, is also passed using P2P technology.
Wikipedia, Peer-to-peer, http://en.wikipedia.org/wiki/Peer-to-peer
(last visited March 27, 2008).
2
the FBI served a warrant on Smith’s residence in Columbia, South
Carolina, on July 20, 2005. The search of Smith’s home yielded a
home computer with 1431 images and 262 movies depicting child
pornography. In addition, the search uncovered VHS tapes with over
1000 images of child pornography. Several of the images recovered
from Smith’s home had file names suggesting violence.
On November 2, 2005, a federal grand jury sitting in the
District of South Carolina indicted Smith for distribution of child
pornography in violation of 18 U.S.C.A. § 2252A(a)(1) (West 2000 &
Supp. 2006) and possession of child pornography in violation of 18
U.S.C.A. § 2252A(a)(5)(B). On April 18, 2006, Smith pleaded guilty
to Count II (the possession count).
Prior to Smith’s sentencing, a probation officer prepared
Smith’s Pre-Sentence Report (“PSR”) using the Sentencing
Guidelines. The PSR concluded that Smith’s criminal history
category was I. The PSR ascertained Smith’s offense level as
follows:
Item Offense Level Guideline
Base offense level 18 § 2G2.2(a)(1)
Offense included material +2 § 2G2.2(b)(2)
involving a prepubescent
child or child under 12 years
of age
Offense involved materials +4 § 2G2.2(b)(4)
portraying sadistic or
masochistic conduct or other
depictions of violence
3
Offense involved the use of a +2 § 2G2.2(b)(6)
computer or interactive
computer service for the
possession, transmission,
receipt, or distribution of
the material
Offense involved more than +5 § 2G2.2(b)(7)(D)
600 images of child
pornography
Acceptance of Responsibility -3 § 3E1.1(a)&(b)
Total Offense Level 28
With an offense level of 28 and a criminal history category of
I, the PSR calculated Smith’s advisory Guidelines range as 78-97
months imprisonment.
The district court conducted Smith’s sentencing hearing on
July 24, 2006. Neither party objected to the PSR’s calculations,
but Smith argued that he was entitled to a downward variance to 24
months imprisonment.
In support of this argument, Smith presented testimony from
his wife, his sister, his pastor, and Dr. Thomas Martin, a forensic
psychiatrist. Smith’s family members and pastor testified to
Smith’s character and his important role in the community. Dr.
Martin testified that Smith did not suffer from a major mental
illness; did not suffer from paraphilia; was not a pedophile; had
no inappropriate contact with any child; had a productive work
history; had no criminal history or alcohol or substance abuse; was
not a sexually violent predator; had a low risk of recidivism given
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his age and lack of mental illness; and would benefit from
counseling.
In contrast, the Government argued that the Guidelines range
was a correct reflection of the seriousness of Smith’s offense,
noting that Smith had progressed from adult pornography to child
pornography and was viewed masturbating to child pornography when
federal agents executed a search on his home. The Government also
provided a letter from the mother of one of the young girls
featured in several of the images recovered in Smith’s home
describing the effects of Smith’s conduct on her daughter.
In sentencing Smith, the district court, adopting the PSR,
calculated Smith’s advisory Guidelines range as 78-97 months
imprisonment. It then varied downward and imposed a sentence of 24
months imprisonment, two years of supervised release, and a $10,000
fine. In providing a statement of reasons for the downward
variance, the district court began with the “truism that the actual
Sentencing Guidelines that are appropriate in this case is that of
a total offense level of 28 and a criminal history category of I.”
(J.A. at 84.) It recognized that the “beginning point” for the
sentence was the Guidelines range of 78 months to 97 months, (J.A.
at 91), but that it was also required to rely on the factors
provided in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006) in
imposing a sentence. (J.A. at 94.)
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In varying downward, the district court relied on the
following facts: Smith was 64 years of age and had “avoided
violations of the law” up until “this point in his life”; Smith
“has not been accused of having violated or molested any person
under the age of 18”; Smith “does not suffer under any mental
illness”; there was an “absence of any risk that he will involve
himself in similar conduct in the future”; Smith was “involved in
a treatment program . . . aimed and directed at this type of
activity”; Smith had “lived an exemplary life to this point”; Smith
had a life full of “noteworthy activities”; and Smith had “strong
family ties.” (J.A. at 96-97.) The district court counterbalanced
this discussion by noting “that the offense charged is considered
by the Congress of the United States as a very serious offense.”
(J.A. at 96.)
Reiterating that its sentencing decision began with the
Guidelines range and “also considered the relevant statutory
sentencing factors [of § 3553(a)],” the district court then entered
the aforementioned sentence of 24 months imprisonment. (J.A. at
97.) Judgment was entered August 1, 2006, and the Government noted
a timely appeal on August 18, 2006. We possess jurisdiction to
hear the Government’s appeal by virtue of 18 U.S.C.A. § 3742(b)
(West 2000).
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II.
On appeal, the Government challenges the district court’s
decision to issue a variance sentence and the extent of the
variance. We review all federal sentences, “whether inside, just
outside, or significantly outside the Guidelines range” under a
“deferential abuse-of-discretion standard.” Gall v. United States,
128 S. Ct. 586, 591 (2007). In United States v. Booker, 543 U.S.
220 (2005), the United States Sentencing Guidelines were rendered
advisory in order to comply with the Sixth Amendment. Although
advisory, however, it remains “clear that a district judge must
give serious consideration to the extent of any departure from the
Guidelines and must explain his conclusion that an unusually
lenient or an unusually harsh sentence is appropriate in a
particular case with sufficient justifications.” Gall, 128 S. Ct.
at 594.
The Gall Court created a two-step process for appellate review
of sentencing decisions. First, a reviewing court should “ensure
that the district court committed no significant procedural error.”
Gall, 128 S. Ct. at 597. Significant procedural errors might
include failure to calculate a proper Guidelines range, or failure
to consider the § 3553(a) factors. If the district court’s
decision was procedurally sound, “the appellate court should then
consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard” by looking to the “totality
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of the circumstances, including the extent of any variance from the
Guidelines range.” Id. If the “sentence is within the Guidelines
range, the appellate court may, but is not required to, apply a
presumption of reasonableness.” Id.
In reviewing sentences outside the Guidelines range, the
appellate court “may not apply a presumption of unreasonableness.”
Id. In addition, while an appellate court “may consider the extent
of the deviation,” it “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify
the extent of the variance.” Id. Accordingly, the Gall Court
rejected (1) “an appellate rule that requires ‘extraordinary’
circumstances to justify a sentence outside the Guidelines range;”
and (2) “the use of a rigid mathematical formula that uses the
percentage of a departure as the standard for determining the
strength of the justifications required for a specific sentence.”
Id. at 595.
In this case, the district court granted a downward variance,
sentencing Smith to 24 months imprisonment although his Guidelines
range was 78 months to 97 months. Our review for abuse of
discretion first must consider whether the district court made any
procedural errors. The answer is clearly no. The district court
correctly ascertained the applicable offense level and Guidelines
8
range and considered numerous factors listed in § 3553(a) in
imposing the sentence.2 Neither party contests otherwise.
Thus, we must next engage in our substantive reasonableness
review. While we cannot say we would have varied Smith’s sentence
to 24 months imprisonment, we also cannot say that the district
court abused its discretion in so doing. In the wake of Gall, the
Government’s principal argument is that the district court failed
to take into account the seriousness with which Congress views
sexual crimes involving children. The district court’s statement
of reasons, however, expressly acknowledged the seriousness of the
offense charged in computing the sentence. See J.A. at 96
(explaining that Congress considered Smith’s crime “a very serious
offense” and that the district court “was treating it as such”).
In addition, the district court noted during the sentencing hearing
that “Congress has indicated its abhorrence of the offense or
offenses relating to child pornography.” (J.A. at 92.)
The district court simply counterbalanced the seriousness of
the offense factor under § 3553(a) against its findings regarding
Smith’s personal characteristics, namely his age, lack of criminal
history, low risk of recidivism, and positive role in his family
2
And, although the district court did not enter a lengthy
statement of reasons, length is not a requirement for upholding a
sentence. See Rita v. United States, 127 S. Ct. 2456, 2469 (2007)
(noting that “where . . . the record makes clear that the
sentencing judge considered the evidence and arguments, we do not
believe the law requires the judge to write more extensively”).
9
and his community. In particular, the district court stressed that
defendant had no inappropriate contact with any child. Such an
approach is consistent with the Gall Court’s admonition that
district courts should “consider every convicted person as an
individual and every case as a unique study in the human failings
that sometimes mitigate, sometimes magnify, the crime and the
punishment to ensue.” Gall, 128 S. Ct. at 598 (internal quotation
marks omitted).
In the circumstances of this case, where the district court
took care to weigh the factors enunciated in § 3553(a), and, ever
mindful of our “deferential abuse-of-discretion” standard, Gall,
128 S. Ct. at 591, we therefore affirm Smith’s sentence even though
we “might reasonably have concluded that a different sentence was
appropriate,” id. at 597. See also United States v. Martin, ---
F.3d ----, 2008 WL 748104 at *5 (1st Cir. 2008) (“[B]ecause we
cannot desultorily substitute our judgment for that of the
sentencing court, it is not a basis for reversal that we, if
sitting as a court of first instance, would have sentenced the
defendant differently.”).
III.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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