FILE D
United States Court of Appeals
Tenth Circuit
PUBLISH June 25, 2008
Elisabeth A. Shumaker
U N IT E D STA T E S C O U R T O F A PPE A L S Clerk of Court
T E N T H C IR C U IT
UNITED STATES OF AM ERICA ,
Plaintiff - Appellant ,
No. 07-3220
v.
SCOTT JAM ES HUCKINS ,
Defendant - Appellee .
A PPE A L FR O M T H E U N IT E D ST A T E S D IST R IC T C O U R T
FO R T H E D IST R IC T O F K A N SA S - W IC H IT A
(D .C . N o. 06-C R -10245-JT M )
Submitted on the briefs: *
Eric F. M elgren, United States Attorney; Alan G. M etzer, Assistant United States
Attorney, W ichita, Kansas, for Plaintiff - Appellant.
Charles A. O’Hara, O’Hara & O’Hara, W ichita, Kansas, for Defendant -
Appellee.
Before K E L L Y , H O L L O W A Y , and G O R SU C H , Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause therefore
is ordered submitted without oral argument.
K E L L Y , Circuit Judge.
Defendant-Appellee Scott James Huckins pleaded guilty to one count of
possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), and
one count of criminal forfeiture, 18 U.S.C. § 2253(a)(3). Although the applicable
United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) (2006) range
was 78 to 97 months, the district court, after weighing the factors set forth in 18
U.S.C. § 3553(a), sentenced M r. Huckins to 18 months’ imprisonment and 3
years’ supervised release, fined him $1,000, and required him to forfeit his
computer equipment. The government appeals, arguing that it was substantively
unreasonable for the district court to grant a downward variance. Our jurisdiction
arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b), and we affirm.
Background
On April 6, 2005, agents of the Federal Bureau of Investigation went to M r.
Huckins’s residence in W ichita, Kansas. M r. Huckins was not home but his
father was present. The agents informed M r. Huckins’s father that M r. Huckins’s
credit card had been used to purchase a membership to a website that hosted child
pornography. M r. Huckins’s father gave the agents verbal consent to search for
child pornography on M r. Huckins’s computer, which was located in M r.
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Huckins’s bedroom. M r. Huckins was contacted by telephone and gave the agents
verbal consent to search his computer.
The agents executed a “pre-search” computer utility program on M r.
Huckins’s computer and uncovered images of child pornography. The images
were of real children and had been shipped in interstate commerce via the
internet. M r. Huckins’s computer was seized and sent to the Heart of America
Regional Computer Forensics Laboratory for forensic examination. That
examination uncovered images of child pornography, pictures of known child
pornography victims, a file sharing program, and an internet history displaying
child pornography sites visited.
M r. Huckins was indicted for possession of child pornography and criminal
forfeiture on November 14, 2006. He pleaded guilty to both charges by way of a
plea agreement on M arch 7, 2007. Following M r. Huckins’s guilty plea, a
presentence investigation report (“PSR”) was prepared. The PSR calculated a
total offense level of 28, which included a base offense level of 18 pursuant to
U.S.S.G. § 2G2.2(a)(1), a 2-level enhancement pursuant to § 2G2.2(b)(2) because
the offense involved material containing prepubescent minors or minors who had
not attained the age of 12 years, a 4-level enhancement pursuant to § 2G2.2(b)(4)
because the offense involved material portraying sadistic or masochistic conduct,
a 2-level enhancement pursuant to § 2G2.2(b)(6) because a computer or
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interactive computer service was used for the possession, transmission, receipt or
distribution of the material, a 5-level enhancement pursuant to § 2G2.2(b)(7)(D)
because the offense involved over 600 images containing child pornography,
including 14 videos, a 2-level reduction pursuant to § 3E1.1(a) for acceptance of
responsibility, and a 1-level reduction pursuant to § 3E1.1(b) for entering a timely
guilty plea. The offense level of 28, together with a criminal history category of
I, resulted in a Guidelines imprisonment range of 78 to 97 months.
M r. Huckins initially objected to three of the PSR’s offense-level
enhancements but later withdrew those objections. He also filed a motion for a
downward variance pursuant to 18 U.S.C. § 3553(a). In his motion, M r. Huckins
argued that, among other things, he was 20 years old at the time of the crime and
22 at the time of sentencing, he had virtually no criminal record, had been
employed, cooperated with law enforcement and consented to the search, was not
indicted until a year and a half after the FBI seized his computer, he pleaded
guilty, immediately sought psychotherapy once charged, and made efforts to
correct his life, such as becoming involved in relationships and stopping
excessive drinking. He also noted that, as a result of pleading guilty, he will be a
registered sex offender for the remainder of his life.
The government opposed M r. Huckins’s motion, arguing that a sentence
within the Guidelines range was appropriate. The government explained that M r.
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Huckins’s age was irrelevant, his cooperation was already accounted for in the 3-
level reduction for his acceptance of responsibility and timely guilty plea, and he
did not seek medical treatment until after his unlawful activity was discovered.
At M r. Huckins’s sentencing, the district court initially indicated that it
intended to impose a sentence of 78 months, which represented the low end of the
Guidelines range, but then expressed concerns about the length of such a
sentence. Although the court recognized the nature and seriousness of the
offense, it found M r. Huckins’s case distinguishable from other child pornography
cases over which it had previously presided, and stated that it was considering a
downward variance to a range of 36 to 48 months. The government advised the
court that it would not oppose a downward variance down to 48 months. Aplt.
App. at 73.
The parties then presented their arguments, and M r. Huckins made his
allocution. After, the court responded that it was not ready to impose sentence.
The court discussed that it was troubled by this case because M r. Huckins did not
fit the characteristics of the typical defendant who possesses child pornography
and that he was not prosecuted until a year and a half after the seizure of his
computer. The court also noted that M r. Huckins was very cooperative with law
enforcement, and it referenced the letters it received on behalf of M r. Huckins.
W hile recognizing the nature and seriousness of the offense, the court explained
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that “the history and circumstances of the defendant seem to me to weigh every
bit as heavily as the nature and seriousness of the offense. I think that the
sentence, I would hope, if it’s to be a just sentence, has to fit not only the crime
but the offender.” Id. at 67. W ith that, the court continued sentencing for one
week.
W hen sentencing resumed, the court announced it intended to impose a
sentence of 18 months. The court began its explanation of M r. Huckins’s
sentence by indicating that it took a significant amount of time in deciding what
constituted an appropriate sentence in this case. As a starting point, the court
discussed that it recognized the nature and seriousness of possessing child
pornography as well as the serious penalties Congress has imposed for that
offense. The court expressed that it did not want to “downplay the significance of
the problem or Congressional action in anyway.” Id. at 69. Indeed, the court
expressly rejected a probationary sentence “given Congress’s clear statement
reflecting the attitudes of the people of this country with respect to possession of
child pornography.” Id. at 71. In so doing, the court noted that
there are over 100 children that are involved in these videos and stills
who have been victimized and whose lives have been wrecked
beyond almost anyone’s ability to find redemption. And that is what
Congress was concerned about in enacting the penalty provisions for
this law. The idea is if you can dry up the market, then there will not
be a need for the product, and perhaps the industry will dry up.
W hether that’s a wise course or not is not my call to make. It is
Congress’s, and it is what it’s done. I think that to put M r. Huckins
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on probation, given the offense, would minimize the significance of
the offense itself. So I don’t think that’s appropriate.
Id. at 71-72.
However, the court explained that once it got “past the offense itself and
the penalties that are possible, [i.e.,] the guidelines,” and examined the
“individual and the type of offense that he actually committed,” a different kind
of picture emerged. Id. at 69. The court stated that M r. Huckins had no real
criminal record; he was going through a difficult period in his life and
experiencing significant depression at the time he committed the offense; the
offense was committed over a short period of time and there had been no repeat
of the offense; during the time that the government waited to prosecute him, he
obtained licenses for employment and, through his own and his family’s efforts,
made significant improvements in his life; he did not occupy a position of trust
with children; and he displayed exceptional responsibility and remorse for his
actions. Balancing these findings against the seriousness of the offense, the court
imposed a sentence of 18 months’ imprisonment followed by 3 years’ supervised
release.
Final judgment was entered on July 2, 2007, and the government timely
appealed. On appeal, the government argues that the district court’s findings did
not justify granting M r. Huckins’s request for a downward variance and that the
sentence is substantively unreasonable.
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Discussion
After United States v. Booker, 543 U.S. 220 (2005), we review the
reasonableness of sentencing decisions, “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, 594 (2007). “A
district court abuses its discretion when it renders a judgment that is arbitrary,
capricious, whimsical, or manifestly unreasonable.” United States v. M uñoz-
Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (internal quotations omitted).
Reasonableness review is comprised of a procedural component and a substantive
component. United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008).
Procedural reasonableness addresses whether the district court incorrectly
calculated or failed to calculate the Guidelines sentence, treated the Guidelines as
mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous
facts, or failed to adequately explain the sentence. Gall, 128 S. Ct. at 597.
Relevant here,1 substantive reasonableness addresses “whether the length of the
sentence is reasonable given all the circumstances of the case in light of the
1
Neither the government nor M r. Huckins claims procedural error, and we
find none. The district court correctly calculated the applicable Guidelines range
and properly considered the § 3553(a) factors.
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factors set forth in 18 U.S.C. § 3553(a).” United States v. Verdin-Garcia, 516
F.3d 884, 895 (10th Cir. 2008) (internal quotations omitted).
Although sentences imposed within the correctly calculated Guidelines
range may be presumed reasonable on appeal, sentences imposed outside the
Guidelines range may not be presumed unreasonable. Gall, 128 S. Ct. at 597. In
reviewing a district court’s decision to deviate from the Guidelines, we “consider
the extent of the deviation” but give “due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. W e
cannot reverse simply because we might have reasonably arrived at a different
sentence. Id. W e afford the district court this level of deference because it has
an unquestionable institutional advantage over an appellate court to consider
whether the facts of an individual case justify a variance under § 3553(a). Id. at
597-98.
The district court is required to provide a “specific reason” for deviating
from the Guidelines. 18 U.S.C. § 3553(c)(2); United States v. Angel-Guzman,
506 F.3d 1007, 1016 (10th Cir. 2007). An adequate explanation of the chosen
sentence allows for meaningful appellate review and promotes the perception of
fair sentencing. Gall, 128 S. Ct. at 597. “[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
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appropriate in a particular case with sufficient justifications.” Id. at 594.
Although “a major departure should be supported by a more significant
justification than a minor one,” id. at 597, we no longer require that
“extraordinary” circumstances justify a sentence outside the Guidelines range nor
do we mathematically calculate the percentage variance from the Guidelines and
use that percentage “as the standard for determining the strength of the
justifications required,” id. at 595; see Smart, 518 F.3d at 807. As noted, the
parties do not claim the district court procedurally erred in its explanation, so we
proceed to qualitatively assess the substantive reasonableness of the sentence
under the totality of the circumstances. Gall, 128 S. Ct. at 597.
After calculating the Guidelines range of 78 to 97 months, the district court
initially indicated that the § 3553(a) factors justified a downward variance to a
range of 36 to 48 months, but ultimately imposed a sentence of 18 months. The
government challenges the substantive reasonableness of this sentence, arguing
that the district court’s justification for granting a downward variance of 60 to 79
months from the Guidelines range was not sufficiently compelling or supported by
extraordinary facts. W e disagree.
As an initial matter, the government conceded to the district court that
some variance was appropriate. At sentencing, the government advised the court
that it was unopposed to a downward variance to 48 months. Aplt. App. at 73.
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Therefore, despite the government’s argument on appeal that a variance of 60 to
79 months is inappropriate, a variance of 30 months separated the parties’
positions before the district court.
In addition, it is evident from the government’s argument that the
government filed its opening brief in this case before the United States Supreme
Court decided Gall v. United States, 128 S. Ct. 586 (2007), which we are bound
to apply. Notwithstanding having the opportunity to do so, the government did
not file a reply brief, request supplemental briefing, or file a Rule 28(j) letter
after Gall was decided. See Fed. R. App. P. 28(j) (party may file letter to court
addressing pertinent and significant authority that come to party’s attention after
briefs have been filed). The government primarily relies on United States v.
Cage, 451 F.3d 585, 594-96 (10th Cir. 2006), for the proposition that the district
court’s justification was not sufficiently compelling or dramatic, or supported by
extraordinary facts to warrant the extreme downward variance. See Aplt. Br. at 7-
9. After Gall, this standard of review no longer applies, and consequently, Cage
does not control this case. See Smart, 518 F.3d at 808; see also United States v.
Akers, 261 F. App’x 110, 114 (10th Cir. 2008) (unpublished) (explaining that
Cage has been overruled by Gall).
The government also argues that it was inappropriate for the district court
to justify its variance, in part, on the fact that M r. Huckins had no real criminal
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record since he had already been placed in a criminal history category of I. Even
if this were improper, we note that the court weighed a number of factors in
addition to M r. Huckins’s lack of a criminal record to arrive at its sentencing
decision. In any event, the court’s consideration of this factor was appropriate.
Although the Guidelines discourage granting a downward departure based upon
criminal history when the defendant has been placed in a criminal history category
of I, U.S.S.G. § 4A1.3(b)(2)(A), this is a not a departure case, it is a variance
case. See United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir. 2007)
(explaining deviation from recommended Guidelines range through application of
Chapters 4 or 5 of Guidelines is a “departure” while deviation through application
of § 3553(a) factors is a “variance”). And, after Gall and Kimbrough, a factor’s
disfavor by the Guidelines no longer excludes it from consideration under §
3553(a). M uñoz-Nava, 524 F.3d at 1148 & n.6; see Gall, 128 S. Ct. at 602;
Kimbrough v. United States, 128 S. Ct. 558, 575 (2007). Therefore, a district
court may weigh a defendant’s lack of a criminal record, even when the defendant
has been placed into a criminal history category of I, in its § 3553(a) analysis.
See M uñoz-Nava, 524 F.3d at 1142, 1148.
Applying the appropriate deferential standard of review announced in Gall
to this case, we hold that the district court did not abuse its discretion in granting
the downward variance and that M r. Huckins’s sentence was substantively
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reasonable. To reach its sentencing decision, the district court took significant
time to carefully balance the nature and seriousness of the offense, the need for
deterrence and the need to protect the public, with the history and characteristics
of the defendant. In so doing, the court clearly appreciated the nature and
seriousness of the offense, discussing Congress’s decision to enhance penalties
associated with possession of child pornography, and expressly rejecting a
probationary sentence. W e too recognize the importance of these factors and the
need for deterrence. See 18 U.S.C. § 3553(a)(2); United States v. Goldberg, 491
F.3d 668, 672 (7th Cir. 2007), cert. denied, 128 S. Ct. 666 (2007) (“The logic of
deterrence suggests that the lighter the punishment for downloading and
uploading child pornography, the greater the customer demand for it and so the
more will be produced.”). However, as the district court correctly understood, the
history and characteristics of the defendant must be factored into the final
sentencing calculus. See 18 U.S.C. § 3553(a)(1).
Here, the court considered a number of factors pertaining to the history and
characteristics of M r. Huckins that counterbalanced the nature and seriousness of
the offense, namely that he (1) had no real criminal record prior to these offenses;
(2) was going through a difficult time with significant depression when he
committed the offenses; (3) committed the offenses over a short period of time;
(4) has not repeated the offenses— the activity stopped without legal intervention;
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(5) obtained licenses for employment and maintained steady employment prior to
being charged; (6) has consistently improved his life through his own efforts and
those of his family; (7) did not occupy a position of trust with children; and (8)
has demonstrated repeated remorse and an exceptional understanding of how his
conduct has affected his life and the lives of his family. Aplt. App. at 69-72. The
court also considered the many letters of support it received on behalf of M r.
Huckins.
This approach is clearly consistent with Gall’s instruction 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
quotations omitted). It is also consistent with approaches approved by our sister
circuits in similar post-Gall cases, some of which involved larger downward
variances. See, e.g., United States v. Smith, No. 06-4885, 2008 W L 1816564, *4
(4th Cir. Apr. 23, 2008) (unpublished) (affirming downward variance to 24
months from Guidelines range of 78 to 97 months for 18 U.S.C. § 2252(a)
conviction because district court properly counterbalanced seriousness of offense
against defendant’s personal characteristics); see also United States v. Grossman,
513 F.3d 592, 598 (6th Cir. 2008) (affirming downward variance to 66 months
from recommended Guidelines sentence of 120 months for § 2252(a) conviction);
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United States v. W hite, 506 F.3d 635, 645-49 (8th Cir. 2007) (affirming
downward variance to 72 months from Guidelines range of 108 to 135 months for
two § 2252(a) convictions); but see United States v. Pugh, 515 F.3d 1179, 1194
(11th Cir. 2008) (vacating non-custodial sentence for §§ 2252(a), 2256(8)(A)
convictions where Guidelines range was 97 to 120 months).
That is not to say that deviations from the Guidelines do not require
appropriate justification. For example, sentences that vary from the Guidelines
“based solely on the judge’s view that the Guidelines range fails properly to
reflect § 3553(a) considerations” will require close scrutiny. See Kimbrough, 128
S. Ct. at 575 (internal quotations omitted). But where, as here, the court decides
to vary from the Guidelines after a careful, reasoned, and reasonable
consideration of the § 3553(a) factors, we cannot say the court abuses its
discretion.
Accordingly, while this court could conclude a different sentence was
reasonable, we cannot exercise the discretion of the district court and “decide de
novo whether the justification for a variance is sufficient or the sentence
reasonable.” Gall, 128 S. Ct. at 602; M uñoz-Nava, 524 F.3d at 1149. Affording
the district court due deference on its determination that the § 3553(a) factors, as
a whole, justify the variance, we find that the district court’s decision was
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“reasoned and reasonable,” not an abuse of discretion. Gall, 128 S. Ct. at 602;
M uñoz-Nava, 524 F.3d at 1149.
AFFIRM ED.
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07-3220, United States v. Huckins
G O R SU C H , Circuit Judge, concurring.
I write separately to emphasize the narrowness of our holding. As the court
explains, the government filed its opening brief in this appeal before Gall v.
United States, __ U.S. __, 128 S.Ct. 586 (2007), was decided. In its brief, the
government argued that, under our then-controlling precedent, the district court
was obliged, but failed, to offer “compelling reasons” for its sentence given how
far it varied from the advisory Guidelines range. Gall, however, repudiated the
sort of exacting appellate scrutiny advocated in the government’s opening brief
and once required by our case law. See United States v. Smart, 518 F.3d 800, 807
(10th Cir. 2008) (holding that, after Gall, “sentencing review may not be based on
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” (internal quotation omitted)). In his response brief, M r. Huckins seized
on this fact and argued that, under the more forgiving abuse of discretion standard
of review announced in Gall, we should affirm the district court. After that, the
government did, literally, nothing. It did not file a reply brief, it did not submit a
Rule 28(j) letter, it did not seek supplemental briefing. The government even
waived oral argument. As a result, the government has advanced before us no
argument why this case should be reversed under Gall, and the government’s
failure to contest this appeal under governing legal authority leaves us with no
choice but to affirm. See United States v. Int’l Bus. M achs. Corp., 517 U.S. 843,
855 (1996) (“It would be inappropriate for us to []examine . . . without the benefit
of the parties’ briefing,” matters that a party has chosen not to contest.); Sally
Beauty Co., Inc. v. Beautyco, Inc., 304 F.3d 964, 976 n.2 (10th Cir. 2002)
(concluding the court must reverse because the defendant did not contest
plaintiff’s argument or offer any other basis for the court to affirm). For this
same reason, we have no occasion to pass on the question whether, under Gall,
factors like those presented in this case would be sufficient to sustain a variance
of this magnitude in a contested appeal.
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United States v. Huckins
Court: Court of Appeals for the Tenth Circuit
Date filed: 2008-06-25
Citations: 529 F.3d 1312
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