United States v. Grober

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 09-1318
____________

UNITED STATES OF AMERICA,
Appellant

v.

DAVID GROBER
____________

No. 09-2120
____________

UNITED STATES OF AMERICA

v.

DAVID GROBER,
Appellant
____________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. No. 2-06-cr-00880-001)
District Judge: Honorable Katharine S. Hayden
____________

Argued: June 29, 2010
____________

Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges

(Opinion Filed: October 26, 2010)
____________
George S. Leone, Esq.
Caroline A. Sadlowski, Esq. (Argued)
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102

Counsel for Appellant/Cross-Appellee

Peter Goldberger, Esq. (Argued)
50 Rittenhouse Place
Ardmore, PA 19003-2276

Counsel for Appellee/Cross-Appellant

____________

OPINION OF THE COURT
____________

BARRY, Circuit Judge

It is an unassailable proposition that “[c]hild pornography
harms and debases the most defenseless of our citizens.” United
States v. Williams, 553 U.S. 285, 307 (2008). We believe that,
and the District Court believed that. Nonetheless, the Court was
deeply concerned about the sentence the government said the
Court should impose on defendant David Grober under the child
pornography Guidelines. It recognized, on the one hand, the
tension between a mechanical application of those Guidelines
and the “outrageously high” sentence – indeed, the “truly
remarkable punishment” – of 235-293 months of imprisonment
they advised, and, on the other, a fair and reasonable sentence
that does justice. Determined to take a long and hard look at the
child pornography Guidelines in an effort to understand why
Congress and the Sentencing Commission did what they did and
whether it made sense both as an objective matter and as to the
defendant, the Court embarked on a careful study of how the
Guidelines range urged on it by the government came to be. It
took evidence over twelve days, heard extensive oral argument
and considered extensive written submissions, and rendered a
lengthy oral opinion at sentencing and a forty-six page written
opinion thereafter explaining in great detail how it arrived at
what it believed to be the correct sentence for this defendant.
All of this is to be much admired.

There is a flip side, however, when a district court
devotes such an extraordinary amount of time and attention to an
issue so clearly troubling it and so freely expresses its concerns
on the record, reaching out for whatever might assist it in
assuaging those concerns. The flip side is this: in the unusual
case, such as this, in which a district court arguably does too
much rather than too little, there is much more grist for the mill,
as here the government points to everything the District Court
did and did not do and everything it should and should not have
done. After this microscopic examination – but without ever
challenging the substantive reasonableness of the ultimate
sentence imposed – the government has found what it describes
as procedural error. We will affirm.

I. Background

In December 2005, acting on a tip from America Online
regarding child pornography attached to emails involving David
Grober’s account, law enforcement officers of the State of New
Jersey executed a search warrant at Grober’s home and
discovered what was eventually determined to be approximately
1500 images and 200 videos of child pornography among an
even larger collection of adult pornography. In October 2006, a
federal grand jury returned an indictment charging Grober with
one count of receiving and distributing child pornography and
one count of possessing child pornography. Grober was offered
a plea to possession only, and he declined, as he had also done
pre-indictment.

3
 In September 2007, two weeks before the scheduled trial
date and after plea negotiations had broken down, a superseding
indictment was returned, charging Grober with two counts of
transportation of child pornography, in violation of 18 U.S.C. §
2252A(a)(1); three counts of receipt of child pornography, in
violation of 18 U.S.C. § 2252A(a)(2)(A); and one count of
possessing material containing images of child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B). On October 4, 2007,
Grober pled guilty to all six counts without a plea agreement,
admitting that on July 9, 2005, he sent an email containing a
video of child pornography (Count One); on July 27, 2005, he
received an email containing an image of child pornography
(Count Two), and sent back an email containing approximately
seventeen images of child pornography (Count Three); on
August 16, 2005, he received two separate emails, each
containing an image of child pornography (Counts Four and
Five); and in December 2005, he collected images and videos
containing child pornography from the Internet and stored and
possessed this material on computer hard drives and compact
discs (Count Six).

Under U.S.S.G. § 2G2.2(a)(2), Grober’s base offense
level (after grouping) was 22, which, with a criminal history
category of I, resulted in a Guidelines range of 41-51 months
imprisonment. With the enhancements to § 2G2.2 that appeared
applicable, however, Grober’s offense level increased to 40.
The eighteen levels of enhancements were comprised of two
levels for material involving prepubescent minors or minors
under age twelve (§ 2G2.2(b)(2)); five levels for distributing
material to receive a thing of value, but not for pecuniary gain (§
2G2.2(b)(3)(B)); four levels for material portraying sadistic or
masochistic conduct or other depictions of violence (§
2G2.2(b)(4)); two levels for the use of a computer (§
2G2.2(b)(6)); and five levels for possessing more than six
hundred images of child pornography (§ 2G2.2(b)(7)(D)). After
a two-level downward adjustment for acceptance of
responsibility under § 3E1.1(a), Grober’s offense level became
38 and his advisory Guidelines range became 235-293 months

4
imprisonment, a range that it is undisputed was correctly
calculated and that even our dissenting colleague does not argue
was not “draconian.” (Dissent at 17, 21).

The District Court, clearly troubled by the sentence of
imprisonment that this Guidelines range produced, held hearings
over twelve days between July and December 2008. Numerous
witnesses testified – Special Agent Michell Chase, who
examined Grober’s child pornography collection; Professor
Douglas Berman, a law professor proffered by the defense as an
expert on the Guidelines over vigorous government objection;
several mental health professionals; and the mother of two boys
who had been sexually abused and featured in pornography
found in Grober’s collection. The Court also reviewed in open
court a selection of fourteen images and ten videos provided by
the government in support of the § 2G2.2 enhancements, as well
as victim impact statements.

On December 8, 2008, the District Court held the final
(thirteenth) day of hearings. Grober and his family and some
friends addressed the Court and the Court heard extensive
argument, after which it sentenced Grober to the mandatory
minimum sentence of five years imprisonment, as well as three
years of supervised release. The Court explained why it had
done what it did and subsequently issued a lengthy opinion in
support of the sentence, describing its efforts to “actively seek[]
some rationale for the harsh sentence” recommended by the
Guidelines and advocated by the government. United States v.
Grober, 595 F. Supp. 2d 382, 390 (D.N.J. 2008). It noted that
the government had declined to produce a witness, such as a
representative from the Sentencing Commission, to discuss the
basis for § 2G2.2, and that it found Professor Berman’s
testimony to be helpful. “It was through Professor Berman’s
testimony,” the Court explained, “that [it] initially gained an
understanding of the role Congress has played in the increased
penalties for child exploitation offenses and how intertwined the
guidelines for child exploitation offenses have become with
various pieces of legislation.” Id. at 391. The Court considered

5
as well a paper written by an assistant federal public defender,
Troy Stabenow, entitled Deconstructing the Myth of Careful
Study: A Primer on the Flawed Progression of the Child
Pornography Guidelines, that criticized § 2G2.2.

The District Court also examined a handful of district
court opinions that had expressed concern about the child
pornography Guidelines and had found that those Guidelines
were not based on empirical data. See United States v. Johnson,
588 F. Supp. 2d 997 (S.D. Iowa 2008); United States v. Baird,
580 F. Supp. 2d 889 (D. Neb. 2008); United States v. Hanson,
561 F. Supp. 2d 1004 (E.D. Wis. 2008); United States v. Shipley,
560 F. Supp. 2d 739 (S.D. Iowa 2008). The Court agreed with
those courts that Ҥ 2G2.2 leads to a sentence that is too severe
in a downloading case.” Grober, 595 F. Supp. 2d at 394. It
concluded:

To review, then, the Court has learned that actual
working judges have decided to give these child
pornography guidelines less weight in
downloading cases; an experienced law professor
with a widely used sentencing blog has been
unable to probe the Commission’s thinking why it
sentences downloaders this way; and an influential
article makes persuasive arguments against the
rationality of § 2G2.2 in downloading cases. Also,
reported cases demonstrate that bad people
involved with child pornography can get long
sentences without using § 2G2.2 as the basis.

Id. at 397.

The District Court discussed several additional reasons
why it believed § 2G2.2 to be flawed. First, it found that most
of the enhancements are essentially inherent in the crime and,
thus, apply in nearly every case. Special Agent Chase testified
that, of the 180 investigations she had conducted, every one
involved 600 or more images, the use of a computer, and a

6
prepubescent minor, and eighty percent had at least one image
depicting sado-masochistic conduct. When the enhancements
are added to the base offense level of 22 – increased from 17 in
2004 – the Guidelines, in the Court’s view, produced “an
outrageously high sentence.” Id. Second, the Court found that
the enhancements promote sentencing disparities. It stated that
in 2006, the median prison term for federal child pornography
offenses was sixty-three months imprisonment, indicating that
sentencing courts were imposing significant sentences, but not
as high as recommended by § 2G2.2. The Court expressed
concern that the government’s charging discretion and plea
negotiations unfairly affect defendants such as Grober who do
not initially plead guilty, and compared Grober to another
defendant it had sentenced to thirty months imprisonment for
possession of child pornography after he pled guilty without
delay and pursuant to a plea agreement. Because of intervening
changes to the Guidelines and Grober’s initial decision to go to
trial, Grober’s Guidelines range was over two hundred months
higher than the earlier defendant’s. Third, the Court described
how, given the nature of child pornography, it can be very
difficult for the defense to rebut the government’s
characterization of the egregiousness of a defendant’s conduct or
dispute the government’s evaluation of the defendant’s
collection compared to the collections of others, both of which
may bear on the applicability of § 2G2.2’s enhancements.

Thus, the District Court held that the sentencing range §
2G2.2 recommended for Grober would not be applied.
Although it recognized “the importance of the guidelines to a
rational sentencing protocol,” it was “convinced that for a
typical downloading case, which this one assuredly is, the
applicable guideline, § 2G2.2, cannot be given deference and
produces an unreasonable sentencing range even before
considering the sentencing factors in [18 U.S.C.] § 3553(a).” Id.
at 402. The Court found that “Grober’s case is squarely within
the heartland of downloading cases. Instead it is truer to say that

7
§ 2G2.2, the designated guideline for the typical downloading
case, is what falls outside of the heartland.” Id. at 403.1
The District Court then carefully considered the
sentencing factors set forth in 18 U.S.C. § 3553(a) as applied to
Grober. It first discussed the nature and circumstances of the
offense, finding that Grober’s core conduct was consumption of
child pornography and that there was no evidence that he had
engaged in any improper conduct with a child. The Court made
clear that it did not “minimize what David Grober did, or his
towering insensitivity to the underlying acts portrayed, or the
concept that voyeurs re-victimize the children in the images by
looking at them,” while also acknowledging that it “cannot make
Grober a surrogate for the monsters who prey on child victims
through actual contact.” Id. at 404. The Court was impressed by
Grober’s history and characteristics, noting the immense support
he had continuously received from his family, friends,
neighbors, and rabbi.

1

This is more than a “typical downloading case,” and we
understand the District Court to have been referring to it in that
manner as a form of shorthand. Grober’s shorthand for
“downloading” in terms of his case is somewhat more accurate:
a case “centering on personal possession of illicit images
obtained on line, and involving no production or distribution
other than noncommercial bartering.” (Grober’s Second-Step
Br. at 48.) Here, as our dissenting colleague recognizes, the
noncommercial bartering consisted of Grober sending and
receiving a handful of emails that contained depictions of child
pornography. While the Court recognized, as do we, that Grober
pled guilty to the offenses of receipt and transportation of child
pornography, which Congress has chosen to penalize more
severely than possession, Grober is not in any sense a large-scale
distributor of child pornography; indeed, the dissent references
Grober’s admission to “sending two e-mails containing eighteen
images.” (Dissent at 10).

8
 With respect to the seriousness of the offense, the District
Court considered the victim impact testimony given by the
mother of two boys abused in images that Grober possessed.
The Court found that a prison sentence of five years, the
mandatory minimum sentence, affords adequate specific and
general deterrence, as it would send a clear message about “how
catastrophic the consequences are to those who download child
pornography.” Id. at 409. It next concluded that, based on the
testimony of the mental health professionals, “Grober presents a
very low risk of harm to society” and there is no real risk that he
would physically abuse children in the future. Id. at 409-10.
The Court also noted that Grober appeared to have benefitted
greatly from therapy – therapy which addressed, among other
things, the fact that he had been sexually abused as a child. In
terms of avoiding sentencing disparities, the Court considered
average sentences imposed in other child pornography cases.
Finally, considering § 3553(a)’s admonition that sentences be
“sufficient but not greater than necessary,” the Court found, “as
a matter of conscience,” that any term of imprisonment above
the five-year mandatory minimum would be “unfair and
unreasonable.” Id. at 411-12.

The government appealed, and Grober cross-appealed.
The government argues that the District Court committed
procedural error by not adequately addressing its arguments
before rejecting the sentencing range § 2G2.2 recommended for
Grober. Importantly, the government does not argue that the
Court lacked the authority to disagree with § 2G2.2 on policy
grounds or that the sentence the Court imposed is substantively
unreasonable. Grober argues that the District Court incorrectly
believed that it was required to impose the statutory mandatory
minimum sentence.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742
and 28 U.S.C. § 1291.

9
 We review sentences for abuse of discretion, and review
them for both procedural and substantive reasonableness.
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en
banc). Where a claim of procedural unreasonableness has been
made, we must ensure “that the district court committed no
significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence – including an
explanation for any deviation from the Guidelines range.” Id.
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). For a
sentence to be procedurally reasonable, a district court must
demonstrate “meaningful consideration of the relevant statutory
factors and the exercise of independent judgment,” United States
v. Grier, 475 F.3d 556, 571-72 (3d Cir. 2007) (en banc), and
“respond to colorable arguments with a factual basis in the
record,” United States v. Merced, 603 F.3d 203, 224 (3d Cir.
2010). A major variance from the Guidelines requires a more
significant justification than a minor one. Gall, 552 U.S. at 50.
We will affirm a procedurally sound sentence as substantively
reasonable “unless no reasonable sentencing court would have
imposed the same sentence on that particular defendant for the
reasons the district court provided.” Tomko, 562 F.3d at 568.
“Our responsibility on appellate review of a criminal sentence is
limited yet important: we are to ensure that a substantively
reasonable sentence has been imposed in a procedurally fair
way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir.
2008).

The government does not challenge the District Court’s
authority to vary, as the Court did, from the advisory Guidelines
range based on its policy disagreement with § 2G2.2, nor does
the dissent. See Spears v. United States, -- U.S. --, 129 S. Ct.
840, 843 (2009) (per curiam); Kimbrough v. United States, 551

10
U.S. 85, 91, 101 (2007).2 When a district court does so,
however, it must provide “a reasoned, coherent, and sufficiently
compelling explanation of the basis for [its] disagreement.”
Merced, 603 F.3d at 220 (internal quotation marks and citation
omitted) (finding procedural error in the district court’s failure to
adequately explain its apparent policy disagreement with the
Guidelines’ career offender provision). We explained in Merced
that

[a] “sufficiently compelling” explanation is one
that is grounded in the § 3553(a) factors. The
authors of the Guidelines, no less than district
courts, have been tasked with ensuring that
criminal sentences meet the goals of sentencing set
forth in § 3553(a). Rita v. United States, 551 U.S.
338, 348 (2007) (explaining that “both the

2

Other courts of appeals have held that Kimbrough and
Spears apply to policy disagreements with Guidelines outside of
the crack cocaine context. See, e.g., United States v. Corner,
598 F.3d 411, 415 (7th Cir. 2010) (en banc) (“We understand
Kimbrough and Spears to mean that district judges are at liberty
to reject any Guideline on policy grounds – though they must act
reasonably when using that power.”); United States v. Engle,
592 F.3d 495, 502 (4th Cir. 2010) (“[D]istrict courts may ‘vary
from Guidelines ranges based solely on policy considerations,
including disagreements with the Guidelines’” (quoting
Kimbrough, 552 U.S. at 101)); United States v. Cavera, 550
F.3d 180, 191 (2d Cir. 2008) (en banc) (“As the Supreme Court
strongly suggested in Kimbrough, a district court may vary from
the Guidelines range based solely on a policy disagreement with
the Guidelines, even where that disagreement applies to a wide
class of offenders or offenses.”); United States v. Rodriguez, 527
F.3d 221, 227 (1st Cir. 2008) (“[Kimbrough] makes plain that a
sentencing court can deviate from the guidelines based on
general policy considerations.”).

11
 sentencing judge and the Commission . . . carry
out the same basic § 3553(a) objectives, the one, at
retail, the other at wholesale.”). Thus, the
Guidelines reflect the Sentencing Commission’s
“rough approximation of sentences that might
achieve § 3553(a)’s objectives.” Id. at 350. If a
district court concludes that those objectives are
not achieved by a sentence within the . . .
Guideline range, and that belief is driven by a
policy disagreement with the [particular
Guidelines] provision, then the court must explain
why its policy judgment would serve the § 3553(a)
sentencing goals better than the Sentencing
Commission’s judgments. In doing so, he should
take into account all of the sentencing factors, not
just one or two of them in isolation. We require
this explanation so that, on appeal, we can
determine whether the court’s disagreement is
valid in terms of the § 3553 factors, the Sentencing
Guidelines, and the perception of fair sentencing.

Id. at 221 (select internal quotation marks, citation, and
alterations omitted). The explanation must be “thorough” and
more than a “conclusory statement of personal belief.” Id.
(citations omitted); see also United States v. Lychock, 578 F.3d
214, 220 (3d Cir. 2009) (“To the extent that [the district court’s]
assertions reflect a policy disagreement with the Guidelines
recommendations, such a disagreement is permissible only if a
[d]istrict [c]ourt provides ‘sufficiently compelling’ reasons to
justify it.” (quoting Gall, 552 U.S. at 50)); United States v. Goff,
501 F.3d 250, 257 (3d Cir. 2007).

Additionally, the Supreme Court has indicated that
“closer review may be in order when the sentencing judge varies
from the Guidelines based solely on the judge’s view that the
Guidelines range fails properly to reflect § 3553(a)
considerations even in a mine-run case.” Kimbrough, 551 U.S.
at 109 (internal quotation marks and citation omitted); see also

12
Spears, 129 S. Ct. at 843 (stating that Kimbrough implies that an
“‘inside the heartland’ departure . . . may be entitled to less
respect”). Notably, the Kimbrough Court concluded that “closer
review” there was unnecessary because the crack cocaine
Guidelines at issue “do not exemplify the Commission’s
exercise of its characteristic institutional role.” 552 U.S. at
109.3 Similarly here, as we will describe, the Commission did
not do what “an exercise of its characteristic institutional role”
required – develop § 2G2.2 based on research and study rather
than reacting to changes adopted or directed by Congress.

III. Was Procedural Error Committed?

The government is explicit: it is not arguing substantive
reasonableness on this appeal, i.e., it does not oppose the
sentence itself – five years imprisonment. Rather, its argument
as to “the issue” before us is one of procedural error only:
“Whether the District Court committed numerous procedural
errors when it categorically rejected U.S.S.G. § 2G2.2 without
adequately addressing the government’s well-supported
arguments about the rationales of Congress and the Sentencing
Commission, which are embodied in the Guideline.”

3

In Kimbrough, the Supreme Court found that the Sentencing
Commission did not use its typical empirical approach in
developing the crack/powder cocaine Guidelines, but instead
modeled those Guidelines on the Anti-Drug Abuse Act of
1986’s ratio scheme that treated every gram of crack cocaine as
the equivalent of 100 grams of powder cocaine with respect to
mandatory minimum sentences. The Commission later
determined, “[b]ased on additional research and experience with
the 100-to-1 ratio,” that the disparity “fails to meet the
sentencing objectives set forth by Congress . . . .” Kimbrough,
552 U.S. at 97 (citation omitted).

13
(Government’s First-Step Br. at 1.)4 We will first discuss the
District Court’s recognition of the rationale behind the penalties
for child pornography offenses and its consideration of the
government’s arguments in support of § 2G2.2, and then
describe various court decisions and Sentencing Commission
reports that issued after the Court’s decision in this case and
support the Court’s analysis. As we will explain, we conclude
that the Court adequately considered the government’s
arguments and set forth a sufficiently compelling justification
for the sentence it imposed. We will then discuss some of the
specific procedural errors alleged by the government and echoed
by the dissent. While we agree that the Court erred in some
respects, we do not find any significant procedural error
warranting remand.

A. The District Court Adequately Addressed the
Government’s Arguments Regarding the Rationale
for § 2G2.2

It is clear, and the government does not argue otherwise,
that the District Court properly calculated the Guidelines range,
treated that range as advisory, fully considered the § 3553(a)
factors as applied to Grober, and did not base its sentence on any
clearly erroneous facts. See Gall, 552 U.S. at 51. The Court
explained at great length, both at sentencing and in its written
opinion, the reasons it was concerned about § 2G2.2 in general
and as applied to Grober in particular, and why it selected the
sentence it did.

4

Parenthetically, we do not understand the government to
mean by its use of the word “rejected” that the District Court did
not consider § 2G2.2. Rather, we understand the government to
be arguing that the Court rejected the sentencing range § 2G2.2
recommended for Grober without adequately addressing the
government’s arguments, an argument belied by a reading of the
record and the Court’s oral and written sentencing opinions.

14
 As its primary contention, the government faults the
District Court for not “adequately addressing” its arguments
about the rationale behind § 2G2.2, i.e., the rationale for the
penalties § 2G2.2 counseled, but clarifies that it “does not argue
that the District Court here was too terse, but instead that the
reasons it did provide were erroneous.” (Fed. R. App. P. 28(j)
letter, April 16, 2010.) And it tells us, in its briefing, that “every
single reason proffered by the Court for rejecting [§ 2G2.2’s
advisory sentencing range] was wrong” and “[t]herefore the
Court procedurally erred in declining to consider those
guidelines.” (Government’s Third-Step Br. at 2.) But if all of
the reasons were wrong, a fortiori the Court considered § 2G2.2
and the government simply disagrees with what the Court said.

That, it seems to us, does not fit neatly into a claim of
procedural unreasonableness. Indeed, to the extent there is such
a thing as a “typical” procedural unreasonableness challenge,
that challenge would be to a sentencing proceeding in which a
district court failed to explain its reasoning, certainly not the
case here. See, e.g., Merced, 603 F.3d at 211; Lychock, 578 F.3d
at 219; Goff, 501 F.3d at 262. Even accepting the government’s
characterization of the issue before us, the District Court did not
commit “significant procedural error.” Gall, 552 U.S. at 51.

While it is fair to say that the District Court could have
said more in direct response to the government’s arguments
highlighting the rationale behind the Guidelines, there can be no
doubt from the thousands of pages of transcript and briefing and
opinion that the Court considered these arguments.5 It clearly

5

Although the government criticizes the District Court for
quoting opinions where courts had “been unable to locate any
particular rationale for [§ 2G2.2’s enhancements] beyond the
general revulsion that is associated with child exploitation-
related offenses,” the Court did not itself find that there was no
rationale supporting the Guidelines. See Grober, 595 F. Supp.
15
recognized the concept that abused children are re-victimized
whenever the records of their abuse are viewed, Grober, 595 F.
Supp. 2d at 404, and described the statements of the mother who
testified that “her children become ‘victims again’” every time
the images of their abuse are viewed, id. at 408. The Court also
explicitly noted that Congress established the mandatory
minimum sentence for receipt and transportation of child
pornography “on the basis that the exchanging through trading
images contributes to the growth of child pornography and
harms increasing numbers of children.” Id. at 404. Thus, the
government’s suggestion at oral argument before us that the
Court failed to acknowledge that Congress increased penalties
“because the market for child pornography, as it increases,
creates more harm to children by creating more images of child
pornography” (Oral Arg. Tr. at 25), or, stated differently, that
increased penalties for those who receive and transport child
pornography will decrease the demand for and, thus, the
production of child pornography, is directly belied by the
Court’s opinion in this case. The Court also noted an additional
harm, albeit one not at issue in this case, that “[C]ongress sought
to punish: the seduction and blandishment of children into being
victimized by using computer images.” Grober, 595 F. Supp. 2d
at 404. The Court understood and adequately acknowledged the
rationale behind the child pornography penalties and does not, as
the government urges, need to “start from scratch.” (Oral Arg.
Tr. at 10.)6

2d at 392 (quoting Shipley, 560 F. Supp. 2d at 744); id. at 393
(quoting Johnson, 588 F. Supp. 2d at 1003).
6

We have previously described the unspeakable harm
suffered by the children featured in these images and the
perpetuation of this harm caused by the distribution of the
permanent record of their abuse. Goff, 501 F.3d at 259-60.
Unlike Goff, this is not a case where the District Court failed to
appreciate the seriousness of the offense.

16
B. Subsequent to Sentencing in this Case, the Sentencing
Commission Has Issued Reports and Other Courts
Have Issued Opinions that Support the District
Court’s Decision

It must be remembered that between the time of Grober’s
plea of guilty in October 2007 and his sentencing in December
2008, the District Court was proceeding in largely uncharted
territory. There was very little out there, in large part because
district courts were just beginning to see how the then-recent
and dramatically escalating features of the Guidelines
calculations in child pornography cases would play out in the
cases before them, particularly given the fact that, as a result of
United States v. Booker, 543 U.S. 220, 245 (2005), the
Guidelines were no longer mandatory. And so the Court
reached out to wherever and whomever it believed could provide
the information it needed to sentence Grober appropriately.

The District Court considered, for one thing, the
Stabenow paper, which appeared in mid-2008, and Professor
Berman’s testimony as to it, which confirmed, in the Court’s
view, the reliability of Stabenow’s research. That paper –
Deconstructing the Myth of Careful Study: A Primer on the
Flawed Progression of the Child Pornography Guidelines –
comprehensively traced the history of § 2G2.2 and supported,
with a fair amount of research, Stabenow’s conclusion that §
2G2.2 was seriously flawed, and why. District courts fairly
quickly began to seize upon what Stabenow had found because
they now had reason to believe that their concerns about § 2G2.2
had some basis in fact. And by December 2008, when sentence
was imposed on Grober, district courts were increasingly citing
the paper and it had become, as the Court described it,
“influential.” Grober, 595 F. Supp. 2d at 397. Were Stabenow
to be an unobjective source, as the government claims that he is,
we would not place much, if any, reliance on his paper. We

17
cannot, however, fault the Court for doing so because of the
paucity of material available to it at the time.7

Since then, not only have numerous district courts across
the country similarly found § 2G2.2 flawed, see, e.g., United
States v. Diaz, -- F. Supp. 2d --, 2010 WL 2640630 (E.D. Wis.
2010) (collecting cases); United States v. Riley, 655 F. Supp. 2d
1298 (S.D. Fla. 2009); United States v. McElheney, 630 F. Supp.
2d 886 (E.D. Tenn. 2009); United States v. Beiermann, 599 F.
Supp. 2d 1087 (N.D. Iowa 2009); United States v. Phinney, 599
F. Supp. 2d 1037 (E.D. Wis. 2009),8 but so, too, has the Court
of Appeals for the Second Circuit, United States v. Dorvee, --
F.3d --, 2010 WL 3023799 (2d Cir. 2010), reh’g en banc denied
(2d Cir. Aug. 31, 2010). Also supporting the District Court’s
conclusions is, among other reports, the recently issued
Sentencing Commission’s Report on the history of the child
pornography Guidelines, an extensive and extraordinarily
thorough study, indeed. Were any of this available at the time of
Grober’s sentencing, the Court could even more “adequately”
have addressed and disposed of “the government’s well-

7

It is unnecessary for purposes of this Opinion to parse
Stabenow’s paper and determine if the government is correct as
to the inaccuracies to which it points. Although our dissenting
colleague disagrees that such analysis is unnecessary, he does
not point to any inaccuracies in the paper. We also note that the
Court of Appeals for the Second Circuit has recently cited
Stabenow’s paper in its opinion critiquing § 2G2.2. United
States v. Dorvee, -- F.3d --, 2010 WL 3023799, at *9 (2d Cir.
2010), reh’g en banc denied (2d Cir. Aug. 31, 2010)..
8

But see United States v. Cunningham, 680 F. Supp. 2d 844
(N.D. Ohio 2010) (discussing the history of § 2G2.2 and the
Stabenow paper and rejecting the notion that § 2G2.2 should not
be afforded deference).

18
supported arguments” and, likely, would not have needed to
consider Stabenow’s research or permit the defense to call
Professor Berman.9

1. The Sentencing Commission’s Reports and
Data

The Sentencing Commission’s Report on the history of
the child pornography Guidelines – issued in October 2009,
almost a year after sentence was imposed in this case – supports
the District Court’s decision by highlighting Congress’s role in
developing § 2G2.2 and its laser-like focus on the child
pornography Guidelines, particularly in the last several years.
See United States Sentencing Commission, The History of the
Child Pornography Guidelines (Oct. 2009), available at
http://www.ussc.gov/general/20091030_History_Child_Pornogr

9

An illustration makes the point rather clearly. In one of the
first district court opinions to discuss Stabenow’s paper, Judge
Lynn Adelman relied almost exclusively on the paper to find
that “given all of the flaws in the guideline,” and particularly the
numerous enhancements the defendant faced, he could not, after
considering the § 3553(a) factors, conclude that the guideline
range of 210-262 months for a plea to transporting child
pornography deserved deference – it was “far greater than
necessary to satisfy the purposes of sentencing in this case.”
Hanson, 561 F. Supp. 2d at 1005. In one of the most recent
district court opinions, Judge Adelman did not even mention the
Stabenow paper, given that he now had, as we describe in text,
the 2009 Sentencing Commission’s Report on the history of the
child pornography Guidelines, the Second Circuit’s opinion in
Dorvee, and a virtual string citation to opinions by judges across
the country who have “recogniz[ed] the flaws” in § 2G2.2 and
“have declined to impose sentence within the range it
recommends.” Diaz, -- F. Supp. 2d at --, 2010 WL 2640630, at
*3.

19
aphy_Guidelines.pdf. The Report describes the development of
the child pornography Guidelines, which have been
substantively amended nine times since 1987, and repeatedly
highlights the role that Congress has played. For example, the
Report states that

Congress has demonstrated its continued interest
in deterring and punishing child pornography
offenses, prompting the Commission to respond to
multiple public laws that created new child
pornography offenses, increased criminal
penalties, directly (and uniquely) amended the
child pornography guidelines, and required the
Commission to consider offender and offense
characteristics for the child pornography
guidelines.

Id. at 54; see also id. at 1 (“Congress has been particularly active
over the last decade creating new offenses, increasing penalties,
and issuing directives to the Commission regarding child
pornography offenses.”); id. at 6 (“Through creating new
offenses, enacting new mandatory minimums, increasing
statutory maximums, and providing directives to the
Commission, Congress has repeatedly expressed its will
regarding appropriate penalties for child pornography
offenders.”). The Report states that, in the Commission’s effort
to “to implement congressional intent,” it “reviewed sentencing
data, considered public comment on proposed amendments,
conducted public hearings on proposed amendments, studied
relevant literature, and considered pertinent legislative history.”
Id. at 7. It is clear from the Report, however, that the
Commission was constantly reacting to Congress’s repeated
directives, and the penalties for child pornography offenses that
were steadily, and often dramatically, increasing. The result is a
Guidelines provision where, as the Commission found, if the
base offense level was any higher, the typical offender sentenced
for receipt of child pornography would face a higher Guidelines

20
range than the typical offender convicted of conspiracy to
commit murder and kidnapping. Id. at 47-48.

We will briefly recount some of the history set forth in
the Report. When § 2G2.2 was first promulgated by the
Commission in 1987, it had a base offense level of 13 – nine
levels lower than it is today for transportation, distribution, and
receipt offenses – and contained only two enhancements, one for
material depicting a child less than twelve years old (two levels)
and one for the retail value of the material distributed (at least
five levels). The Commission promulgated § 2G2.4 in 1991 to
address the then-recently federalized crime of possession, and
proposed to set the base offense level at 10 – eight levels lower
than it is today – and included only a two-level enhancement for
material depicting a prepubescent minor or child under the age
of twelve. Members of Congress were vocal in expressing their
concern that the Guidelines ranges were not high enough for
child pornography offenders – these were “smut peddlers” and
“pedophiles” – but the Commission defended the Guidelines,
noting that they “continue to require substantially tougher
penalties than typically were imposed under pre-guidelines
practice” and that data suggested that judges and prosecutors
thought “that the offense level for the least serious forms of
conduct under § 2G2.2 was too severe.” Id. at 21. Congress
specifically directed the Commission, however, to make a
variety of changes to § 2G2.2 and § 2G2.4, including raising the
base offense levels to at least 15 and 13, respectively.

In 1995, Congress again specifically directed the
Commission to raise the base offense level for child
pornography offenses by at least two levels and include at least a
two-level enhancement if a computer was used to transport the
child pornography. The Commission complied, but expressed
concern that the computer enhancement would apply broadly,
and without any distinction between offenders who used a
computer to widely disseminate child pornography and those
who “email[ed] images to a single voluntary recipient.” United
States Sentencing Commission, Report to the Congress: Sex

21
Offenses Against Children at 30 (June 1996), available at
http://www.ussc.gov/r_congress/SCAC.pdf. This Report to
Congress also noted significant downward departure rates (for
reasons other than substantial assistance) for sentences imposed
under the child pornography Guidelines: 23% under § 2G2.2 and
13% under § 2G2.4.

In 2003, Congress, apparently without seeking any input
from the Commission, which, of course, it was not required to
do, passed the Prosecutorial Remedies and Other Tools to End
the Exploitation of Children Today Act (“PROTECT Act”),
which resulted in several significant changes to the child
pornography statutes and Guidelines, including “the first and
only time to date [Congress] directly amended the guidelines.”
The History of the Child Pornography Guidelines at 38. As the
Second Circuit recently noted, the former United States Attorney
for the Eastern District of New York described this statute as
“the most significant effort to marginalize the role of the
Sentencing Commission in the federal sentencing process since
the Commission was created by Congress.” Dorvee, -- F.3d --,
2010 WL 3023799, at *9 (quoting Alan Vinegrad, The New
Federal Sentencing Law, 15 Fed. Sent’g Rep. 310, 315 (June
2003)).

The PROTECT Act added the “image table” to both §
2G2.2 and § 2G2.4 which raised the offense level based on the
number of images at issue, ranging from a two-level increase for
at least ten images to a five-level increase for 600 or more
images. It additionally added to § 2G2.4 a four-level increase
for material portraying sadistic or masochistic conduct or other
depictions of violence (which the Commission included in §
2G2.2 in 1990). The Act also added a five-year mandatory
minimum sentence for receipt and trafficking, and raised the
statutory maximum from fifteen to twenty years for receipt and
trafficking and from five to ten years for possession. The Act
included general directives to the Commission to review the
Guidelines, and in response, the Commission conducted several
studies. The Commission concluded, for example, that the new

22
amendments would more than double the average sentences
under § 2G2.2 (from 42.8 months to 88.8 months) and nearly
double the average sentences under § 2G2.4 (from 28 months to
54 months).

Effective November 1, 2004, the Commission again
amended the Guidelines, consolidating § 2G2.4 into § 2G2.2. In
response to the new minimum and maximum penalties set by
Congress, the Commission set higher base offense levels for
possession (increased from 15 to 18) and trafficking/distribution
(increased from 17 to 22). The Report indicates that these
offense levels were set below the mandatory minimum because
“a majority of offenders sentenced under § 2G2.2 were subject
to specific offense characteristics that increased their offense
level.” The History of the Child Pornography Guidelines at 46
(citing the enhancements for computer use and material
involving a prepubescent child, to which, at the time, 89.4% and
91.4% of offenders, respectively, were subject).10 The
Commission was “concerned that setting the base offense level
any higher than 22 for trafficking and receipt offenses would
affect the proportionality of other guidelines,” and, could, for
example, call for a higher penalty than that typically imposed on
a defendant convicted of conspiracy to commit murder and
kidnapping. Id. at 47-48.

Importantly, the 2009 Report notes that the Commission
has identified a review of the child pornography Guidelines as a
policy priority, and that “[f]or the past several years, § 2G2.2
has had a high and increasing rate of downward departures and
below-guideline variances.” Id. at 8, 54. Sentencing data bears

10

These percentages have only increased. In 2009, 97.2% of
offenders sentenced under § 2G2.2 were subject to the computer
enhancement and 94.8% were subject to the prepubescent
material enhancement. Dorvee, -- F.3d at --, 2010 WL 3023799,
at *10.

23
out this observation. In fiscal year 2008, 35.7% of § 2G2.2
sentences were non-government-sponsored below-Guidelines
sentences, compared to 13.4% of such sentences for all
offenders. Id. at 8 n.33. In fiscal year 2009, the percentage is
even higher: 43.03% of § 2G2.2 sentences were non-
government-sponsored below-Guidelines sentences, compared
to 15.9% of such sentences for all offenders. United States
Sentencing Commission, 2009 Sourcebook of Federal
Sentencing Statistics, Tables 28 & N, available at
http://www.ussc.gov/ANNRPT/2009/SBTOC09.htm. It bears
mention, as well, that the Commission recently surveyed federal
district court judges regarding their experience with, and
opinions of, inter alia, the child pornography Guidelines, and
found widespread dissatisfaction with § 2G2.2. United States
Sentencing Commission, Results of Survey of United States
District Judges January 2010 through March 2010 (June 2010),
available at
ttp://www.ussc.gov/Judge_Survey/2010/JudgeSurvey_201006.p
df. Seventy percent of responding judges – and only judges who
had sentenced defendants after Kimbrough and Gall were to
respond to the questions with respect to § 2G2.2 – reported that
the Guidelines range for possession was too high, 69% said that
the range for receipt was too high, and 30% believed that the
range for distribution was too high.

2. The Second Circuit’s Decision in United States
v. Dorvee

We return to United States v. Dorvee, a recent and
important decision albeit one not addressed by the dissent, in
which the Second Circuit concluded that § 2G2.2 is
“fundamentally different” from other Guidelines and, unless it is
“applied with great care, can lead to unreasonable sentences that
are inconsistent with what § 3553 requires.” -- F.3d at --, 2010
WL 3023799, at *9. Holding that a 233-month within-
Guidelines sentence for the distribution of child pornography
was both procedurally unreasonable (on grounds not relevant
here) and substantively unreasonable because it was “manifestly

24
unjust,” id. at 98, the Court largely echoed the District Court
here. It found that the Commission did not use an empirical
approach to develop § 2G2.2, but instead amended it repeatedly
at the direction of Congress, sometimes reluctantly. Id. at 95-96
(noting the Commission’s criticism of the two-level
enhancement for use of a computer and its general statement that
“specific directives to the Commission to amend the guidelines
make it difficult to gauge the effectiveness of any particular
policy change, or to disentangle the influences of the
Commission from those of Congress” (quoting United States
Sentencing Commission, Fifteen Years of Guidelines
Sentencing: An Assessment of How Well the Federal Criminal
Justice System is Achieving the Goals of Sentencing Reform at
73 (2004), available at
http://www.ussc.gov/15_year/chap2.pdf).

The enhancements “cobbled together through this process
routinely result in Guidelines projections near or exceeding the
statutory maximum, even in run-of-the-mill cases.” Dorvee, --
F.3d at --, 2010 WL 3023799, at *10. The Dorvee Court noted,
as did the District Court here, that many of these enhancements
apply in almost all cases. See id. (noting that, of all the § 2G2.2
sentences imposed in 2009, 94.8% involved an image of a
prepubescent minor, 97.2% involved a computer, 73.4%
involved an image of sadistic, masochistic, or otherwise violent
conduct, and 63.1% involved 600 or more images); see also
United States v. Tutty, 612 F.3d 128, 132 (2d Cir. 2010) (noting
that 96.6% of offenders sentenced under § 2G2.2 in 2009
received an enhancement based on the number of images
possessed). Thus, “[a]n ordinary first-time offender is therefore
likely to qualify for a sentence of at least 168 to 210 months,
rapidly approaching the statutory maximum, based solely on
sentencing enhancements that are all but inherent to the crime of
conviction.” Dorvee, -- F.3d at --, 2010 WL 3023799, at *10.
Because the Guidelines do not distinguish between these “run-
of-the-mill” offenders and the most dangerous offenders, the
“result is fundamentally incompatible with § 3553(a).” Id. The
Dorvee Court further cited as proof of the “irrationality” of §

25
2G2.2 that a defendant who actually engages in sexual conduct
with a minor may be subject to a lower Guidelines range than
one who distributes child pornography. Id.

For these reasons, the Second Circuit concluded that this
“eccentric Guideline of highly unusual provenance” is not
worthy of the weight afforded to other Guidelines. Id. at *12;
see also Tutty, 612 F.3d at 133 (vacating 168-month within-
Guidelines sentence for receipt of child pornography and
directing district court on remand to consider the policy
considerations identified in Dorvee); United States v. Stone, 575
F.3d 83, 97 (1st Cir. 2009) (“[W]e wish to express our view that
[§ 2G2.2 is] in our judgment harsher than necessary. . . . [F]irst-
offender sentences of this duration are usually reserved for
crimes of violence and the like.”).

C. Section 2G2.2 Was Not Developed Pursuant to the
Sentencing Commission’s Characteristic Institutional
Role

We have recognized that “a Guideline is likely to reflect a
rough approximation of sentences that might achieve §
3553(a)’s objectives only when it is the product of empirical
data and national experience, guided by a professional staff with
appropriate expertise.” United States v. Arrelucea-Zamudio,
581 F.3d 142, 155 n.12 (3d Cir. 2009) (internal quotation marks
and citations omitted) (concluding that Sentencing Commission
implemented Guideline authorizing departure for “fast track”
programs in illegal reentry cases at congressional direction and
not based on empirical data and national experience). In
Kimbrough, the Supreme Court analyzed the crack cocaine
Guidelines, and held that they were based on statutory
mandatory minimum sentences rather than “empirical data and
national experience” and, thus, the Commission had not
exercised its “characteristic institutional role” in developing
them. 552 U.S. at 109 (citation omitted). A district court would
not, therefore, abuse its discretion by concluding that a within-
Guidelines sentence would not meet the sentencing purposes set

26
out in § 3553(a), even in a typical case. See Stone, 575 F.3d at
93 (noting that Kimbrough “recognized the fact that the crack
cocaine guidelines were based on congressional policy, rather
than empirical study by the Commission, as one ground
permitting a variant sentence”).

As described in the Commission’s 2009 Report, and as
discussed by the Second Circuit in Dorvee, and, by now,
numerous district courts, § 2G2.2 was not developed pursuant to
the Commission’s institutional role and based on empirical data
and national experience, but instead was developed largely
pursuant to congressional directives. See Dorvee, -- F.3d at --,
2010 WL 3023799, at *11 (concluding that § 2G2.2 does not
“exemplify the Commission’s exercise of its characteristic
institutional role” (quoting Kimbrough, 552 U.S. at 109-10));
United States v. Huffstatler, 571 F.3d 620, 622-23 (7th Cir.
2009) (“[P]erhaps for good reason, the government did not take
issue with [the] premise that the child-exploitation guidelines
lack an empirical basis” since the Commission acknowledged
that Congress has used a combination of mandatory minimum
increases and directives to the Commission to change child
pornography sentencing policy.).11 As one district court put it,
“the Commission probably did the best it could under difficult
circumstances, but to say that the final product is the result of
Commission data, study, and expertise simply ignores the facts.”
Diaz, -- F. Supp. 2d at --, 2010 WL 2640630, at *7.

Congress, of course, has retained the ultimate authority
over the Guidelines, and may enact directives to the
Commission which the Commission is obliged to implement.
Nonetheless, Kimbrough permits district courts to vary “even
where a guideline provision is a direct reflection of a

11

But see United States v. Pugh, 515 F.3d 1179, 1201 n.15
(11th Cir. 2008) (stating that § 2G2.2 does not “exhibit the
deficiencies the Supreme Court identified in Kimbrough”).

27
congressional directive.” Arrelucea-Zamudio, 581 F.3d at 150
(quoting Stone, 575 F.3d at 89); see also id. at 151 (“In sum, a
Guideline is not a statute. If Congress does not want district
courts to exercise their judicial function to sentence defendants
based on the facts and circumstances of each case under the
guidance of the § 3553(a) factors, then it has the power to amend
the pertinent statute.”).

D. The District Court Provided a Sufficiently Compelling
Justification for Not Applying the Sentencing Range
Recommended by § 2G2.2

Nonetheless, the Sentencing Guidelines “deserve careful
consideration in each case,” and because “they have been
produced at Congress’s direction, they cannot be ignored.”
Goff, 501 F.3d at 257. Here, after extensive consideration of §
2G2.2 and the § 3553(a) factors, the District Court determined
not to apply the Guidelines range recommended by § 2G2.2.
This was not an abuse of its discretion. The Court set forth an
explanation that we find to be sufficiently compelling, and well-
grounded in the § 3553(a) factors, to justify its decision. It
adequately explained why it found § 2G2.2 flawed and why it
varied from the recommended sentencing range to the ultimate
sentence it imposed, which, it bears repeating, the government
does not challenge. We also conclude that with the wealth of
resources that have become available since the sentencing in this
case, the Court’s decision now stands on even stronger ground.
Finally, although the government does challenge the Court’s
broad conclusions about § 2G2.2, it does not and cannot argue
that the Court did not adequately consider the § 3553(a) factors
as applied to Grober, as surely the Court did. (Oral Arg. Tr. at
54 (government stating that it does “not challenge the procedural
reasonableness of the Court’s examination of Grober’s personal
factors”)).12

12

Although our dissenting colleague criticizes the District
Court’s consideration of the nature and circumstances of the
28
 We emphasize that we do not hold that § 2G2.2 will
always recommend an unreasonable sentence, and district courts
must, of course, continue to consider the applicable Guidelines
range. See 18 U.S.C. § 3553(a)(4); Gall, 552 U.S. at 49 (“As a
matter of administration and to secure nationwide consistency,
the Guidelines should be the starting point and the initial
benchmark.”). Moreover, if a district court does not in fact have
a policy disagreement with § 2G2.2, it is not obligated to vary
on this basis. See Arrelucea-Zamudio, 581 F.3d at 148-49
(citing United States v. Gunter, 462 F.3d 237, 249 (3d Cir.
2006)).

offense, 18 U.S.C. § 3553(a)(1), the government does not
challenge the procedural or substantive reasonableness of this
analysis as it applies to Grober.

29
 Specific Allegations of Procedural Error

We nonetheless agree with the government and the
dissent that, at least in certain respects, the District Court
procedurally erred. Where we disagree is whether these errors,
singly or collectively, are significant enough to warrant remand.
We are convinced that they are not. For example, the Court
improperly faulted the government for not presenting a live
witness, such as a representative from the Sentencing
Commission, essentially to defend the child pornography
Guidelines. Even aside from the government’s argument that
this type of inquiry is legally impermissible, as a practical
matter, it is unworkable. Additionally, Professor Berman did
not demonstrate any particular expertise as to § 2G2.2, as
opposed to the Guidelines in general, as to which, we note, the
Court found his testimony helpful. In any event, the Federal
Rules of Evidence – including those governing the admission of
expert testimony – do not apply in sentencing proceedings,
Grier, 475 F.3d at 570 n.9; Fed. R. Evid. 1101(d)(3); see also
U.S.S.G. § 6A1.3(a), and it is surely not apparent that any harm
came as the result of this testimony. Indeed, our dissenting
colleague would not find reversible procedural error on this
ground alone. As we said at the outset, the Court sought to
engage in a “dialogue” with the Sentencing Commission and
defense witnesses about the history of and rationale for § 2G2.2
and considered Stabenow’s paper because there was so little out
there. That does not mean, however, that the Court did not also
rely on the extensive briefing provided by the parties and other
available resources, as clearly it did.

The government also challenges the District Court’s
characterization of Grober as a typical defendant sentenced
under § 2G2.2. It argues, first, that, because many child
pornography-related cases are for various reasons not prosecuted
federally, the typicality of a child pornography offender cannot
be determined by looking only at those charged federally. The
Court properly focused, however, on defendants sentenced under
§ 2G2.2 and did not purport to undertake an exhaustive analysis

30
of offenders who are charged in state court or never charged at
all. While, as we observed above at note 1, we agree with the
government and the dissent that the Court’s description of
Grober as a “downloading defendant” does not fully encapsulate
the crimes of receipt and transportation of child pornography to
which he pled guilty, the Court clearly comprehended the nature
of Grober’s conduct, and sufficiently addressed the distinct
harms caused by his trading images of child pornography.

Finally, we reach what, in the dissent’s view, is the “most
egregious” error – the District Court’s “frontal assault on the
plea bargaining system” and, indeed, its “rejection” of that
system. (Dissent at 5, 6, 8). The Court did no such thing. In
light of the fact that Grober twice had the opportunity to plead
guilty to only a possession count and did not do so, his case, to
be sure, is distinguishable from that of the “earlier defendant”
referenced, perhaps inappropriately, by the Court – the
defendant who quickly pled guilty to possession of child
pornography. However, insofar as the Court was alarmed by the
escalating offense levels implemented between the earlier
defendant’s guilty plea and Grober’s guilty plea, the comparison
is apt and illustrates in rather dramatic fashion why the Court
was concerned. That having been said, to the extent that the
dissent criticizes the Court for “penalizing the Government for
its role in the plea bargaining system” (Dissent at 7), it is unclear
what “penalty” the Court imposed, except the ultimate sentence
which neither the government nor the dissent argues was
substantively unreasonable.

Accordingly, we conclude that the District Court did not
commit any significant procedural error requiring remand.

IV. The Cross-Appeal

Grober’s cross-appeal need not detain us long. He
argues, first, that all six counts of conviction must merge into a
single continuing offense of possession to avoid violating the
Double Jeopardy Clause, see United States v. Miller, 527 F.3d

31
54, 72 (3d Cir. 2008), and, because the possession crime does
not carry a mandatory minimum sentence of imprisonment, that
he may be re-sentenced without regard to the five-year minimum
required for the other counts of conviction. Even if this
argument was not waived by his plea of guilty to all six counts
in the superseding indictment, see United States v. Broce, 488
U.S. 563, 570 (1989); United States v. Pollen, 978 F.2d 78, 84
(3d Cir. 1992), it surely cannot, under the circumstances of this
case, survive plain error review.

Grober argues, next, that a district court is not obligated
to impose a mandatory minimum sentence that it concludes is
greater than necessary to comport with the purposes of
sentencing, unless the applicable statutory provision specifically
provides that the Sentencing Reform Act does not apply. See 18
U.S.C. §§ 3551(a), 3553(a). We have previously rejected this
argument in analogous circumstances. See United States v.
Walker, 473 F.3d 71, 85 (3d Cir. 2007); United States v. Kellum,
356 F.3d 285, 289 (3d Cir. 2004). Accordingly, the District
Court properly recognized that it was statutorily bound to
impose a sentence of at least five years imprisonment in this
case.

V. Conclusion

As we have described, the District Court set forth, in a
thoughtful and carefully considered albeit at points imperfect
opinion, a sufficiently compelling explanation for its policy
concerns about § 2G2.2 and its justification for imposing a
sentence outside the range § 2G2.2 recommended. Because the
Court did not abuse its discretion in sentencing David Grober to
a term of five years imprisonment, we will affirm.

32
United States v. Grober, Nos. 09-1318, 09-2120
HARDIMAN, dissenting in part

I join my colleagues in recognizing the diligence and
seriousness of purpose shown by the District Court in sentencing
David Grober. I join them also in recognizing that the District
Court “erred in some respects.” Maj. Op. at 15. Because I am
convinced that the procedural errors committed by the District
Court are material, however, I must respectfully dissent.1

I.

After pleading guilty to six federal crimes, Grober’s
statutory imprisonment range was 60-240 months. His base
offense level was 22 and his criminal history category was I,
yielding an initial imprisonment range of 41-51 months under
the United States Sentencing Guidelines (USSG). Because he
qualified for five sentencing enhancements pursuant to USSG
§2G2.2, however, Grober’s base offense level rose to 40. After
a two-level downward adjustment for acceptance of
responsibility, Grober’s final Guidelines range was 235-293
months imprisonment, which was capped at 240 months by
virtue of the statutory maximum.

Despite the fact that Grober’s Guidelines range was
aligned with the statutory maximum, he was sentenced to the
statutory minimum of 60 months imprisonment. A variance of
this magnitude requires us to “consider the extent of the
deviation and ensure that the justification is sufficiently

1
I agree with my colleagues that the cross-appeal is
unmeritorious. Therefore, this dissent is limited to the
procedural reasonableness of Grober’s sentence.
compelling to support the degree of the variance.” United States
v. Merced, 603 F.3d 203, 216 (3d Cir. 2010) (quoting Gall v.
United States, 552 U.S. 38, 50 (2007)).

“The freedom to vary from the . . . Guidelines . . . is not
free. Its price is a reasoned, coherent, and sufficiently
compelling explanation of the basis for the court’s
disagreement.” Merced, 603 F.3d at 219-20 (quoting United
States v. Lychock, 578 F.3d 214, 220 (3d Cir. 2009)). “A
‘sufficiently compelling’ explanation is one that is grounded in
the 3553(a) factors.” Id. at 221. Because the Sentencing
Commission is charged with effectuating the objectives of §
3553(a), the District Court, in categorically rejecting § 2G2.2,
“must explain why its policy judgment would serve the §
3553(a) sentencing goals better than the Sentencing
Commission’s judgments. In doing so, [the court] should take
into account all of the sentencing factors, not just one or two of
them in isolation.” Id.

Since the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), district judges have wrestled with
the scope of their sentencing discretion. Although statutory
ranges established by Congress still circumscribe this discretion,
in many cases (like this one) those ranges are so broad that the
potential for unwarranted sentencing disparities looms large.
Accordingly, Booker and its progeny reflect the Supreme
Court’s ongoing support for the Guidelines as a critical starting
point and frame of reference as judges discharge their most
solemn duty: imposing criminal sentences. See, e.g., United
States v. Kimbrough, 552 U.S. 85, 108 (2007) (“While rendering
the Sentencing Guidelines advisory, we have nevertheless
preserved a key role for the Sentencing Commission.”); Gall,

2
552 U.S. at 49 (“As a matter of administration and to secure
nationwide consistency, the Guidelines should be the starting
point and the initial benchmark.”); cf. Booker, 543 U.S. at 311
(Scalia, J., dissenting) (“The worst feature of the scheme is that
no one knows--and perhaps no one is meant to know--how
advisory Guidelines and ‘unreasonableness’ review will
function in practice.”).

In view of the Supreme Court’s continuing support for
the Guidelines, we must ensure that district courts do not
evaluate the sentencing factors of 18 U.S.C. § 3553(a) in a way
that renders the Guidelines irrelevant. At least two reasons
animate this imperative. First, fidelity to Booker and its progeny
demands it. Second, should the courts of appeals fail to police
wildly disparate sentences, I fear that Congress will respond to
the evisceration of the Guidelines by prescribing statutory
sentencing ranges that will, in their detail, rival the 282 laws of
the Code of Hammurabi about which the District Court in this
case expressed such consternation.

II.

In Kimbrough v. United States, 552 U.S. 85, 91 (2007),
the Supreme Court held USSG § 2D1.1, like all other
Guidelines, to be advisory. In light of the uncertainty
surrounding the authority possessed by district courts to alter or
disregard the 100 to 1 crack/powder ratio, the Court in Spears v.
United States, 129 S. Ct. 840 (2009), “clarif[ied] that district
courts are entitled to reject and vary categorically from the
crack-cocaine Guidelines based on a policy disagreement with
those Guidelines.” Id. at 844. Apparently in light of Spears, in
this appeal the Government has conceded that district courts

3
may categorically reject USSG § 2G2.2.2 Nevertheless, the
District Court committed several missteps on its way toward
categorically rejecting § 2G2.2, and its wholesale rejection of
that Guideline rendered Grober’s sentence procedurally
unreasonable.

The Majority candidly acknowledges the District Court’s
errors in: (1) faulting the Government for not presenting a live
witness at sentencing to defend § 2G2.2; (2) taking testimony
from Professor Douglas Berman who, though an authority on
sentencing law and policy, conceded a lack of expertise with

2
The Government’s concession here is consistent with
Merced, where we observed that the notion that a Guideline
driven by Congressional mandate is not subject to categorical
rejection on policy grounds has fallen out of favor. Merced, 603
F.3d at 226. Although the Supreme Court endorsed such a
categorical rejection of the crack cocaine Guidelines (Spears),
I am not convinced the Supreme Court would so hold in respect
to the child pornography Guidelines. The storied history of the
100 to 1 crack/powder ratio is sui generis in my view. See
United States v. Pugh, 515 F.3d 1179, 1201 (11th Cir. 2008)
(“The [child pornography] Guidelines involved in Pugh’s case,
however, do not exhibit the deficiencies the Supreme Court
identified in Kimbrough.”). Rather than blithely assuming that
the Supreme Court would permit the categorical rejection of all
Guidelines as it did with USSG § 2D1.1, the better practice
would be for district courts to consider each Guideline and
enhancement on its peculiar merits (or demerits). This approach
maintains the best of Booker (allowing district courts to do
justice) without facilitating such wildly disparate sentences as to
invite a Congressional “fix.”
4
respect to § 2G2.2; (3) describing Grober as a “downloading
defendant”; and (4) comparing Grober to a dissimilar defendant
who was sentenced pursuant to a plea agreement. Maj. Op. at
31-32. After briefly explaining away each of these errors, the
Majority concludes “that the District Court did not commit any
significant procedural error requiring remand.” Id. at 33.

If the only error committed by the District Court had
been to hear testimony from Professor Berman, I would agree
with my colleagues. If the District Court had committed only
the first, or the third, or the fourth error noted above, we would
be presented with a closer case. But when the foregoing errors
are considered in the aggregate, as they must be, the District
Court committed reversible error.

A.

I begin with the fourth error cited by the Majority
because I find it the most egregious. In support of its decision
to disregard § 2G2.2, the District Court adverted to “its own
experience about the problematic nature of charging discretion
and plea arrangements” and likened Grober to an unnamed
“earlier defendant” who had pleaded guilty to one count of
possession pursuant to a plea agreement. Grober, 595 F. Supp.
2d 382, 399 (D.N.J. 2008).

Although much remains unknown about this “earlier
defendant,” we do know that his crime of conviction was
materially different than Grober’s. The “earlier defendant”
pleaded guilty to one count of possession. Grober, on the other
hand, pleaded guilty to six counts (one for possession, three for
receipt or distribution, and two for transportation) after rejecting

5
the Government’s first two plea offers, which included the
dismissal of the receipt and distribution charges. By contrasting
the Guidelines range Grober faced with the range faced by the
“earlier defendant,” the District Court concluded that applying
the enhancements recommended by the Probation Office and
advocated by the Government would result in sentencing
disparities.

But the disparities caused by, to use the District Court’s
words, “charging discretion and plea arrangements,” Grober,
595 F. Supp. 2d at 399, are endemic to all Guidelines and have
nothing to do with § 2G2.2 in particular.3 By rebuking the
Government for obtaining a superseding indictment after Grober
twice rejected the Government’s offers, the District Court
launched a frontal assault on the plea bargaining system.
Irrespective of the subject matter—whether it be child
pornography, drugs, securities fraud, or countless other federal
crimes—it is unremarkable that the Government tries to cajole
the guilty to fess up promptly. And those who do so are
rewarded with fewer or less significant charges, thereby earning
them more lenient sentences than those who are convicted after
a trial or an eleventh-hour plea. This is the essence of an
imperfect, but long-tenured system that has been endorsed by
the Supreme Court. See, e.g., Santobello v. New York, 404 U.S.

3
In United States v. Arrelucea-Zamudio, 581 F.3d 142
(3d Cir. 2009), we recognized that defendants who accept plea
offers are often subject to lower sentences than those who do
not. Id. at 157. Unlike the court in Arrelucea, which was
concerned with reducing sentencing disparities among like
defendants, here the District Court increased disparity by
treating defendants convicted of different offenses similarly.
6
257, 260 (1971) (finding that courts have long considered plea
bargaining to be “an essential component of the administration
of justice,” and if “properly administered, [the procedure
should] be encouraged”); Brady v. United States, 397 U.S. 742,
752 (1970) (describing the “mutuality of advantage” for both the
State and the defendant to plea bargain: “For a defendant who
sees slight possibility of acquittal, the advantages of pleading
guilty and limiting the probable penalty are obvious -- his
exposure is reduced, the correctional processes can begin
immediately, and the practical burdens of a trial are eliminated.
For the State there are also advantages -- the more promptly
imposed punishment after an admission of guilt may more
effectively attain the objectives of punishment; and with the
avoidance of trial, scarce judicial and prosecutorial resources are
conserved for those cases in which there is a substantial issue of
the defendant’s guilt or in which there is substantial doubt that
the State can sustain its burden of proof.”); see also GEORGE
FISHER, PLEA BARGAINING’S TRIUMPH: A HISTORY OF PLEA
BARGAINING IN AMERICA (Stanford University Press 2003)
(finding that plea bargains were commonplace in criminal trials
in the United States as early as 1800); MILTON HEUMANN, PLEA
BARGAINING: THE EXPERIENCES OF PROSECUTORS, JUDGES, AND
DEFENSE ATTORNEYS (University of Chicago Press 1978)
(describing strong support for plea bargaining among
prosecutors, defense attorneys, and judges familiar with the
system).

In sum, by comparing Grober to the “earlier defendant”
who accepted a plea agreement, the District Court impermissibly
penalized the Government for its role in the plea bargaining
system. This was reversible error.

7
 B.

In addition to the District Court’s rejection of the plea
bargaining system, a significant evidentiary error tainted the
sentencing hearing. The District Court challenged the
Government to proffer a witness from the Sentencing
Commission to justify § 2G2.2 and to counter testimony from
Professor Berman regarding federal defender Troy Stabenow’s
paper: Deconstructing the Myth of Careful Study: A Primer on
the Flawed Progression of the Child Pornography Guidelines
(hereinafter Stabenow). In the words of the District Court:
“[I]insofar as the government might have established a dialogue
between Professor Berman and the Commission on the
Stabenow research or any other issue Professor Berman testified
about, it took a pass. So did the Commission . . . . Hence,
despite the Court’s invitation and many opportunities, the
testimony of Professor Berman is unrebutted by live testimony.”
Grober, 595 F. Supp. 2d at 391. As the Majority correctly
noted: “Even aside from the government’s argument that this
type of inquiry is legally impermissible, as a practical matter, it
is unworkable.” Maj. Op. at 32.

The Government was right to decline the Court’s
unorthodox invitation. It would have been no more proper for
the Government to have proffered a member of the Sentencing
Commission to opine regarding the history and purpose of §
2G2.2 than it would have been to proffer a Senator or
Representative to testify regarding the legislative history of the
child pornography laws. The Guideline promulgation process
is not subject to “discovery.” See, e.g., United States v. Leroy,
984 F.2d 1095, 1098 (10th Cir. 1993). The Commission so
advised the District Court in a letter attached as Appendix A to

8
the Court’s opinion, which stated:

The Act provides, in 18 U.S.C. § 3553(b)(1), that
in determining whether a circumstance was
adequately taken into consideration by the
Commission in formulating the guidelines, “the
court shall consider only the sentencing
guidelines, policy statements, and official
commentary of the Sentencing Commission.”
The legislative history of this provision makes
clear that Congress limited the court’s
consideration in this regard to preclude the
possibility of legal process directed at the
Commission, individual commissioners, or staff
in an effort to look beyond the sources specified.
See 133 Cong. Rec. 31,946 (1987) (statement of
Rep. Conyers) (“The purpose of the amendment
is to ensure that members of the Sentencing
Commission, as well as its records, are not subject
to subpoena at the sentencing of a convicted
defendant.”); 133 Cong. Rec. 33,110 (1987)
(statement of Sen. Thurmond) (“There was some
concern that failure to specifically designate the
materials that may be used . . . could result in
members of the Commission, or their notes or
other internal work products, being subpoenaed.
This was never intended by Congress.”).

Grober, 595 F. Supp. 2d at 412, app. A.

9
 While the Government did not present live testimony to
rebut Berman or Stabenow, it did argue in its briefs that the
reasons supporting the creation and evolution of § 2G2.2 were
discernible. Although the Majority concludes that the District
Court “clearly” relied upon the briefs in this regard, Maj. Op. at
32, I find no record support for this conclusion. Accordingly, I
do not share the Majority’s view that the District Court truly
evaluated and rejected the Government’s arguments after due
consideration. Indeed, the District Court’s pejorative
characterization that both the Government and the Commission
“took a pass” suggests that the District Court placed nothing on
the Government’s side of the scale. And something outweighs
nothing every day of the week.

In its search for something, the District Court relied
extensively on Stabenow, which criticizes § 2G2.2 on several
levels. Regarding the District Court’s reliance on Stabenow,
the Majority states: “It is unnecessary for purposes of this
Opinion to parse the paper and determine if the government is
correct as to the inaccuracies to which it points.” Maj. Op. at 19
n.7. I disagree. Because Stabenow was foundational to the
District Court’s decision to disregard § 2G2.2, the Majority
should be obliged to engage the Government’s arguments to
ensure that Stabenow is, in fact, “sufficiently compelling” to
justify the Court’s divergence from the Guideline.

After the District Court knocked down its straw
man—i.e., the Government’s failure to provide a testimonial
defense of § 2G2.2—the only “evidence” that remained was
Stabenow, which offered an advocate’s blueprint for rejecting §
2G2.2 and the “unrebutted” testimony of Professor Berman. In
my view, this procedural error was sufficient to warrant vacatur.

10
 C.

Next, I turn to the District Court’s repeated
mischaracterization of Grober’s crime as a typical
“downloading” offense. In declining to apply any of the
detailed enhancements found in § 2G2.2, the Court was
“convinced that for a typical downloading case, which this one
assuredly is, the applicable guideline . . . cannot be given
deference.” Grober, 595 F. Supp. 2d at 402. As the Majority
notes, however, “this is more than a ‘typical downloading
case.’” Maj. Op. at 9 n.1. Grober admitted sending two e-mails
containing eighteen images. This conduct formed the basis for
Counts One and Three at which Grober pleaded guilty to
transportation of child pornography, in violation of 18 U.S.C. §
2252A(a)(1). These two offenses—as distinguished from the
three counts of receipt of child pornography in violation of 18
U.S.C. § 2252A(a)(2)(A) and one count of possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), which
can properly be deemed “typical downloading” offenses—are
properly classified as transportation counts.4

4
Because Grober pleaded guilty to transportation
offenses, the Majority’s reference to the 2009 survey of United
States District Court Judges, which found that 70% of judges
found the Guidelines for receipt and possession of child
pornography too harsh, is inapt. The relevant statistic from this
study (assuming its validity) is its finding that 30% of judges
think the Guidelines punish distributors too severely. According
to this study, the percentage of judges who find that the
Guidelines punish the distribution of child pornography too
severely is smaller than the percentage of judges who find the
Guidelines too severe for: heroin, crack cocaine,
11
 Congress considers the transportation of child
pornography a particularly egregious crime, and in recent years
has expressed its concern that “the development of the Internet
and the digital image . . . ha[s] permitted child pornographers to
disseminate their product exponentially, not only across
America, but around the world, with a few simple strokes of a
keyboard.” 151 Cong. Rec. 4236 (Feb. 24, 2003); see also 151
Cong. Rec. 20221 (2005) (finding that “a substantial interstate
market in child pornography exists, including not only a
multimillion dollar industry, but also a nationwide network of
individuals . . . [who] distribute child pornography with the
expectation of receiving other child pornography in return.”).
As the District Court recognized, Congress imposed a
mandatory minimum for transportation offenses based on its
finding that “the exchanging through trading images contributes
to the growth of child pornography and harms increasing
numbers of children.” Grober, 595 F. Supp. 2d at 404. Given
the Court’s acknowledgment of the policy reasons supporting
Congress’s distinction between distributors and possessors, its
repeated characterization of Grober as a “typical downloader”
whose crimes were those of “consumption” was inexplicably
dismissive of Congress’s substantial concerns.

The District Court’s mischaracterization of this case as a
“typical downloading case” is also troubling given the
Sentencing Commission’s historically dissimilar treatment of
possession and distribution offenses.5 The distinction between

methamphetamine, marijuana, and illegal entry offenses.
5
In stark contrast to Kimbrough—where the Commission
found that “the crack/powder sentencing disparity is generally
12
“simple receipt” and distribution offenses can be traced to the
Commission’s first set of Guidelines, promulgated in 1987,
which included a five-level enhancement for distribution for
monetary gain. USSC, The History of the Child Pornography
Guidelines, 11 (Oct. 2009) [History of the Guidelines].6 After
Congress criminalized possession of child pornography in 1991
and the Commission in response thereto proposed USSG §
2G2.4, which grouped together receipt and possession offenses,
the Chair of the Sentencing Commission assured Congress that
“defendants who peddle child pornography will be sentenced as
traffickers even if they successfully negotiate a plea to the lesser
offense of simple possession of child pornography.” Stabenow
at 7 (citing 137 Cong. Rec. H6736-02, Appendix B). The
Chairman’s letter stated that this difference in the severity of the
crimes “parallels the manner in which illegal drugs (or firearms)
receipt and possession are treated similarly under the guidelines,
while drug (or firearms) distribution or trafficking are treated
more severely.”7 Id.

unwarranted,” 552 U.S. at 97—here, the Commission’s finding
that distribution is a more severe offense than possession mirrors
Congressional findings.
6
Notably, even Stabenow acknowledges that in these
“first three years of the Guidelines regime [1987-1990], the
provisions of § 2G2.2 were the result of study at the
Commission, without obvious outside interference.” Stabenow
at 3 (2008).
7
Moreover, although a 1991 Congressional amendment,
which Stabenow discusses in depth, directed the Commission to
treat “simple receipt” as a crime to be sentenced under § 2G2.2,
rather than § 2G2.4, the amendment made no change to the §
13
 The Commission’s inclusion of noncommercial bartering
of child pornography in its 2000 definition of distribution
followed a series of studies confirming the prevalence of
bartering, and its harm to children. In its 1990 Report to
Congress, the Commission noted that all the trafficking offenses
prosecuted up to that date had involved defendants who traded
images for pleasure, rather than for pecuniary gain. USSC,
Revised Report of the Working Group on Child Pornography
and Obscenity Offenses and Hate Crime, 17 (1990); see also
USSC, Sex Offenses Against Children: Findings and
Recommendations Regarding Federal Penalties, 10 (1996)
(“Many cases sentenced under this guideline involve trading
clubs or other barter types of exchanges.”). The Commission’s
proposed amendment was published in 1999 and included a
five-level enhancement for the distribution of child pornography
in exchange for a “thing of value.”8 It received only one
substantive public comment: The Federal Public and
Community Defenders recognized that “child pornographic

2G2.2 distribution enhancement. There is also no evidence that
the Commission’s eventual consolidation of § 2G2.2 and §
2G2.4 reflected any Commission opposition to the additional
distribution penalty, but rather addressed the Commission’s
concern that an “unwarranted disparity in sentences” existed for
the similar offenses of “simple receipt” and “simple possession.”
USSC, Sex Offenses Against Children: Findings and
Recommendations Regarding Federal Penalties at 34 (1996).
8
A “thing of value” is anything of valuable
consideration, e.g., child pornographic material received in
exchange for other child pornographic material bartered in
consideration for the material received. See § 2G2.2, cmt. 1.
14
material is a ‘thing of value’ and if received in a bartered
exchange for other child pornographic material, an enhancement
should apply.” History of the Guidelines at 34.

Thus, the Commission’s harsher treatment of trafficking,
and in particular non-pecuniary bartering such as the trading at
issue in this case, was the product of careful study and public
commentary, activities well within the “exercise of [the
Commission’s] institutional role.” Grober, 595 F. Supp. 2d at
393 (citing United States v. Shipley, 560 F. Supp. 2d 739, 745-
46 (S.D. Iowa 2008)). By failing to characterize Grober
properly as a distributor of child pornography, the District Court
gave little, if any, credence to the institutional expertise of the
Commission in developing Guidelines that treat distributors
more severely than mere possessors or receivers of child
pornography.

Moreover, the Commission’s adoption of higher penalties
for distribution offenses should be accorded no less deference
simply because of the ease with which files can now be traded
via e-mail or file sharing networks. Just as we do not treat less
severely the use of a firearm during the commission of a robbery
or the targeting of an elderly victim, both of which facilitate the
crime, so too should we not turn a blind eye to the devastating
effect of electronic distribution on the lives of abused children
merely because the distributor can inflict his injury by
transferring hundreds of files with the stroke of a key. See
United States v. Cunningham, 680 F. Supp. 2d 844, 853 (N.D.
Ohio 2010). In fact, the harsher penalties for online bartering
were adopted in part to target at-home traders who contribute
considerably to the electronic market for child pornography,
believing there to be little chance of detection from law

15
enforcement.

In both its extensive oral decision and its written opinion,
the District Court repeatedly referred to this as a “downloading
case.” Although the District Court referred intermittently to
Grober’s convictions for transporting child pornography, the
record belies any appreciation for the fact that these offenses are
qualitatively different and more severe than mere possession.
See Grober, 595 F. Supp. 2d at 382 (“The crime of conviction
in this case is David Grober’s downloading of child
pornography from the internet.”); id. at 391 (“The Court denied
the government’s motion to exclude and later to strike Professor
Berman’s testimony, because the Court believes it is vital to
gain some perspective on the operation of the sentencing
guidelines in these downloading cases.”); id. at 393 (“The
Stabenow chart is a one-page devastating commentary on
guidelines sentencing in downloading cases.”); id. (“The Court
agrees with the reasoning of Judge Pratt and Judge Adelman that
§ 2G2.2 leads to a sentence that is too severe in a downloading
case.”); id. at 391 (“[A]s the recent cases show, judges are
varying from the guidelines in typical downloading cases when
they measure the guidelines against the § 3553(a) factors.”); id.
at 402 (“The Court arrives at this point in the sentencing
analysis convinced that for a typical downloading case, which
this one assuredly is, the applicable guideline, § 2G2.2, cannot
be given deference and produces an unreasonable sentencing
range even before considering the sentencing factors in §
3553(a).”); id. (“[T]he Court finds that David Grober’s case is
squarely within the heartland of downloading cases.”); id. at 410
(“As indicated above, the government’s publication ‘Federal
Prosecution of Child Sex Exploitation Offenders, 2006’ states
that as of December 2007, the average sentence for the

16
downloading defendant is 63 months. From this same report
comes the information that David Grober is a very typical
downloading defendant.”).

The foregoing quotations demonstrate that the District
Court’s references to “downloading” were not merely a “form
a shorthand,” Maj. Op. at 9 fn.2. Rather, they evidence a
fundamental misapprehension of Grober’s crimes. This
constitutes reversible error. 9

D.

Finally, the District Court’s wholesale rejection of §
2G2.2 throws the wheat out with the chaff. I have no quarrel
with the concerns expressed by the District Court regarding the
draconian nature of Grober’s Guidelines range and the fact that
the enhancements for use of a computer (USSG § 2G2.2(b)(6))
and pre-pubescent minors (USSG § 2G2.2(b)(2)) would put
Grober into a category with 95% of those convicted of child
pornography offenses. But the District Court was wrong to
ignore: (1) the fact that Grober’s collection contained material
portraying sadistic and masochistic conduct (USSG §
2G2.2(b)(4)); (2) that Grober distributed child pornography for
the receipt, or expectation of receipt, of a thing of value (USSG

9
Although the Majority correctly notes that “Grober is
not in any sense a large-scale distributor,” Maj. Op. at 9 fn.2,
it points to no evidence that Congress intended receipt and
transportation crimes to apply only to large-scale enterprises.
Rather, Congress intended the increased penalties associated
with these crimes to apply to small-scale, home-based
distributors such as Grober. 151 Cong. Rec. 20221 (2005).
17
§ 2G2.2(b)(3)(B); and (3) that Grober possessed well over 600
images (USSG § 2G2.2(b)(7)(D)). While the District Court was
free to evaluate these facts pursuant to 18 U.S.C. § 3553(a), it
was not permitted to disregard them entirely.

At least three of our sister courts of appeals have noted
the trend towards granting downward variances in cases
involving § 2G2.2. See, e.g., U.S. v. Morace, 594 F.3d 340,
346-47 (4th Cir. 2010); U.S. v. Stall, 581 F.3d 276, 284 n.2 (6th
Cir. 2009); U.S. v. Huffstatler, 571 F.3d 620, 622-23 (7th Cir.
2009). Grober’s sentence is problematic, however, because
instead of assessing all of the relevant facts of Grober’s case as
part of its § 3553(a) analysis—including those facts that happen
to be embodied in § 2G2.2 enhancements—the District Court
rejected § 2G2.2 in toto. Having unmoored itself entirely from
this Guideline, the District Court begins (and ends) its
evaluation of the § 3553(a) factors by fixating on the five-year
statutory minimum. Consequently, the District Court’s variance
was both inadequately justified and, at least in part, based on
clearly erroneous facts, to wit: Grober was a “typical
downloader,” his collection was not “egregiously large,” and
Agent Chase was not qualified “to distinguish between ‘bad’
child pornography and ‘really bad’ child pornography,” Grober,
595 F. Supp. 2d at 401. See Gall v. United States, 552 U.S. 38,
51 (2007).

A survey of other district courts that have evaluated §
2G2.2 demonstrates the nature of the District Court’s error here.
While it is true that district courts have varied downward from
the Guidelines range—and sometimes substantially so—they
still considered case-specific facts underlying § 2G2.2
enhancements; they did not entirely disregard those facts along

18
with the Guideline. See, e.g., United States v. Beiermann, 599
F. Supp. 2d 1087, 1107 (N.D. Iowa 2009) (“[A] reasoned
alternative to the flawed guideline is for the sentencing judge to
begin with the base offense level, which reflects the mandatory
minimum statutory sentence, U.S.S.G. § 2G2.2(a), and then to
consider appropriately identified factors, such as those in §
2G2.2(b)(1), (3), (4), and (5), but to give those factors more
appropriate weight in the determination of a particular
defendant’s sentence. Such ‘cherry picking’ and reweighing of
factors from the guideline is appropriate—indeed, totally
consistent with the exercise of my discretion to apply the 18
U.S.C. § 3553(a) factors.”); United States v. Jacob, 631 F. Supp.
2d 1099, 1108 (N.D. Iowa 2009) (“While I reject the extent of
the enhancements based on these considerations [of specific
aggravating factors] in § 2G2.2 and § 2G2.1, I find that some
enhancement of the defendant Jacob’s non-guideline sentence
above the mandatory minimum is appropriate based on these
considerations.”); cf. United States v. Burns, 2009 WL 3617448,
*7–*8 (N.D. Ill. 2009) (“Here, the court declines to disregard
the Guidelines entirely and instead adapts them by beginning
with the base offense level (as it reflects a statutory minimum)
and then rejecting enhancements that the court determines exact
punishment that is duplicative of the underlying offense, or do
not otherwise effectively serve to distinguish less from more
culpable conduct. On the other hand, the court will apply an
enhancement or downward adjustment where it finds such an
adjustment appropriate based on Burns’s relevant individual
characteristics or other factors outlined in 18 U.S.C. §
3553(a).”).

Each of the aforementioned courts determined that
certain § 2G2.2 factors—e.g., the number of the images, the

19
sadism or masochism depicted in the images, the defendant’s
distributing activities—warranted a sentence above the statutory
minimum. See Burns, 2009 WL 3617448 at *13, *16
(incorporating a five-point “pattern of . . . exploitation”
enhancement as basis for a 72-month sentence); Beiermann, 599
F. Supp. 2d at 1107, 1117–18 (sentencing defendant to 90
months after “reweighing” and “cherry picking” Guidelines
factors); Jacob, 631 F. Supp. 2d at 1108 (reweighing the
sadistic, masochistic, or violent content and the distribution
factors as a basis for a 78-month sentence on transportation
count); see also United States v. Cunningham, 680 F. Supp. 2d
844, 853, 862 (N.D. Ohio 2010) (accepting § 2G2.2 and
imposing a within-Guidelines range sentence of 121 months);
United States v. McElheney, 630 F. Supp. 2d 886, 904 (E.D.
Tenn. 2009) (imposing a 78-month sentence because based on
the size and sadistic nature of the defendant’s collection and the
prepubescent victims, “the Court cannot conclude he is among
the least culpable of child pornography offenders”); United
States v. Noe, 2009 WL 3836707, *7 (D. Neb. 2009) (granting
variance but imposing an 84 month sentence rather than
statutory minimum); United States v. Johnson, 588 F. Supp. 2d
997, 1005 (S.D. Iowa 2008) (considering the “number and
nature of the underlying photographs” as basis for an 84-month
sentence); United States v. Noxon, 2008 WL 4758583, *3 (D.
Kan. 2008) (considering, in part, the defendant’s distribution
activities as basis for a 144-month sentence).

The two judges most heavily cited by the District Court
followed the procedure I just outlined. Judge Adelman in
United States v. Hanson considered the facts relevant to § 2G2.2
enhancements in arriving at a 72-month sentence for
transportation and receipt of child pornography, stating: “In

20
order to acknowledge some of the aggravating factors in this
case, such as number and type of images, and to insure just
punishment, I did not impose a sentence at the minimum, as
defendant requested. The minimum should be reserved for the
most mitigated of cases.” 561 F. Supp. 2d 1004, 1012 (E.D.
Wis. 2008). Likewise, Judge Pratt in United States v. Shipley
accounted for the “horrific nature of some of the images” as well
as the defendant’s role as a distributor in “actively and
consistently perpetuating the market for this material” as bases
for a 90-month sentence for receipt of child pornography. 560
F. Supp. 2d 739, 745-46 (S.D. Iowa 2008).

The District Court’s wholesale rejection of all things
related to § 2G2.2—including even the legitimate concerns at
the heart of each enhancement—is quite atypical. In cases like
Grober’s, most courts that have imposed substantial downward
variances have given some weight to those aggravating factors
enunciated in § 2G2.2 as part of their § 3553(a) analyses.
Regardless of the validity of the District Court’s general policy
argument against § 2G2.2 enhancements as they fit within the
Guidelines scheme, the Court in this case erred in its § 3553(a)
analysis by minimizing and sidestepping significant facts about
Grober’s crime, seemingly in protest of the draconian nature of
§ 2G2.2 as a whole. See Arrelucea, 581 F.3d at 151, 156
(noting that it is a “judicial function to sentence defendants
based on the facts and circumstances of each case under the
guidance of the § 3553(a) factors”).

The District Court’s nullification of § 2G2.2 influenced
its curt discussion of the “nature and circumstances of the
offense,” which comprises a mere three paragraphs, in contrast
to its ten-paragraph discussion of the “history and characteristics

21
of the defendant.” Grober, 595 F. Supp. 2d at 404-408. Within
the “nature and circumstances of the offense” discussion, the
District Court brushes aside the size and content of Grober’s
child pornography collection (over 1500 pictures and 200
videos) without any mention of Special Agent Chase’s
testimony that this was the second largest collection out of 180
she had analyzed in her four-year career and that it included
“more children . . . involved in actual sexual activity, as opposed
to posing, than appeared in other collections she analyzed.” Id.
at 400, 404.10 Even if the § 2G2.2 enhancements for 600
images, prepubescent children, and masochistic content apply in
most cases and are therefore deserving of less weight than that
which the Guidelines affix to them, surely the enormity and
offensive nature of Grober’s collection is relevant enough to the
“nature and circumstances of the offense” to deserve more than
two dismissive sentences.11 See id. at 404 (“The Court also is

10
Like the District Court, the Majority minimizes
Grober’s transportation crimes by noting the small number of
images he distributed. Conversely, they fail to consider the
quantity and nature of the images in Grober’s collection in
their analyses of the nature and circumstances of his crime of
possession.
11
The Majority asserts that because “many of [§ 2G2.2’s]
enhancements apply in almost all cases,” these enhancements
are in fact built-in to the original offense. See Majority Op. at
19 (citing United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010)
(noting that 97.2% of child pornography cases in 2009 involved
images of prepubescent minors and 97.2% involved the use of
a computer)). But the Majority does not justify the District
Court’s disregard for those enhancements that apply only 73.4%
22
not convinced that Grober’s child pornography collection is
egregiously large. He viewed a large amount of pornography
over three years, he hoarded images, and he kept his images
sloppily mixed in with other, legal files.”).

The District Court’s similarly dismissive treatment of
Grober’s status as a distributor rather than a mere possessor has
already been discussed at length, but warrants mention again
here because this mischaracterization further tainted the Court’s
§ 3553(a) analysis of the nature of the crime. See id. (“The
nature and circumstances of his offense are at the core related to
consumption.”).

In sum, even if it were proper to accept in its entirety the
District Court’s policy disagreement with § 2G2.2, the extent to
which it failed to account for significant facts that underlie §
2G2.2 enhancements reflects a deeply flawed analysis of the §
3553(a) factors. This “fail[ure] to adequately explain the chosen
sentence” and reliance on a number of “clearly erroneous facts”
requires vacatur and remand.

and 63.1% of the time (offenses involving images of sadistic,
masochistic, or otherwise violent conduct, and offenses
involving over 600 images, respectively). Given that 26.6% of
cases do not involve images of violence and 36.9% involve
fewer than 600 images, the fact that Grober’s collection was
both greater than 600 and included violent images demonstrates
beyond peradventure that his was not one of the “most mitigated
of cases.” See United States v. Hanson, 561 F.Supp.2d at 1012.
23
 III.

As I noted at the outset, the District Court labored
mightily to impose a just sentence upon David Grober. That
effort was animated by a candid fear that Congress’s zeal to
address the proliferation of child pornography has resulted in
penalties grossly disproportionate to the culpability attendant to
this type of crime. Even accepting that premise, it is still wrong
for a sentencing court to: (1) categorically reject the validity of
a Guideline by impugning generally the plea bargaining system;
(2) punish a party for failing to present “evidence” it never
should have presented in the first place; (3) mischaracterize a
defendant’s crimes of conviction; and (4) use a categorical
rejection of a Guideline as a proxy for ignoring some of the
relevant § 3553(a) factors. Because each of these errors is
manifest on this record, I would vacate Grober’s judgment of
sentence and remand for a new sentencing hearing.

24