In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3103
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ANDY M AULDING,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07-20063-001—Michael P. McCuskey, Chief Judge.
A RGUED N OVEMBER 9, 2010—D ECIDED N OVEMBER 30, 2010
Before P OSNER, T INDER, and H AMILTON , Circuit Judges.
P ER C URIAM. A jury found Randy Maulding guilty
on separate counts of receipt, possession, and distribu-
tion of child pornography. See 18 U.S.C. § 2252A(a)(2),
(a)(5)(B). The district court calculated an imprisonment
range of 324 to 405 months, and sentenced him below
that range to a total of 240 months followed by a life
term of supervised release. Maulding essentially argues
that 240 months is necessarily unreasonable because, in
2 No. 09-3103
his view, the Chapter 2 guideline on which it is based
is flawed. This contention has already been rejected in
a published opinion, and Maulding adds nothing new.
Accordingly, we affirm his sentence.
Random investigation led authorities to Maulding.
In March 2007 an investigator in the Illinois attorney
general’s office logged onto a peer-to-peer network
looking for users with child pornography available to
share. A computer in Maulding’s home, identifiable
by IP address, was connected to the network. The investi-
gator downloaded several files from the computer, and
after verifying that they contained child pornography,
turned the matter over to Special Agent Mike Mitchell
at Immigration and Customs Enforcement. Mitchell
executed a search warrant at Maulding’s home and
located 53 movie files containing child pornography on
his computer. The files had been downloaded on dif-
ferent occasions before the search and were available
for download from Maulding’s shared folder on the peer-
to-peer network.
The applicable Chapter 2 guideline, U.S.S.G. § 2G2.2,
provides for a base offense level of 22. Id. § 2G2.2(a).
The presentence investigation report prepared by the
probation officer added upward adjustments for material
involving prepubescent minors, id. § 2G2.2(b)(2); material
containing depictions of violence, id. § 2G2.2(b)(4); use
of a peer-to-peer network and file-sharing software,
id. § 2G2.2(b)(3)(F); use of a computer to possess,
transmit, receive, or distribute material, id. § 2G2.2(b)(6);
and possession of more than 600 images of child pornogra-
No. 09-3103 3
phy, id. § 2G2.2(b)(7)(D). These adjustments brought
Maulding’s total offense level to 37. The probation
officer calculated a criminal-history category of V after
assessing points for Maulding’s prior convictions for
possession of cocaine, theft, and driving without a
valid license, and because he committed the child pornog-
raphy crimes within two years of his release from
state prison.
At sentencing the district court adopted the guidelines
imprisonment range of 324 to 405 months from the
presentence report. The government did not object to the
presentence report and recommended a prison sentence
of 324 months. The statutory maximum for receipt and
distribution of child pornography is 240 months, 18 U.S.C.
§ 2252A(a)(2), (b)(1), so the government recommended
consecutive sentences to reach a total term of imprison-
ment within the guidelines range.
Maulding made several objections to the guidelines
calculations. He disputed the applicability of the upward
adjustment for distribution based only on the passive
file sharing that occurs in a peer-to-peer network, and
he argued that the upward adjustment for using a com-
puter was double counting. He also challenged the
denial of a downward adjustment for what he charac-
terized as his “minimal role” in the offense, see U.S.S.G.
§ 3B1.2. Maulding conceded that these arguments were
foreclosed by circuit precedent but wanted to preserve
them for appeal. He argued that 120 months would be
a reasonable sentence because his criminal-history
score included several points for traffic offenses, he had
4 No. 09-3103
no history of sexual misconduct, he did not engage in
any sexual acts with children, and he did not create
any child pornography.
The district court overruled Maulding’s objections to
the guidelines calculations and concluded that a sen-
tence of 240 months was reasonable in light of the
factors in 18 U.S.C. § 3553(a). The court agreed with
Maulding that a criminal-history category of V, though
properly calculated, overrepresented his criminal past.
The court noted that Maulding did not personally trade
child pornography and had no history of violence or sex
offenses. The court opined that Maulding did not
present a risk of recidivism but also noted that after
his arrest he had used an unmonitored computer in
violation of the conditions of his pretrial release. The
court found that Maulding failed to accept responsi-
bility for his actions, and decided that a serious sentence
was necessary to deter Maulding and others, and to
protect children.
Maulding concedes that the district court did not
commit any procedural misstep at sentencing, and he
acknowledges that the court applied the § 3553(a)
factors and took into account his arguments in mitiga-
tion. But even so, says Maulding, the court imposed a
substantively unreasonable sentence. And the reason,
Maulding essentially maintains, is that no sentence
derived from the guidelines for child pornography
could be reasonable because “the Sentencing Guidelines
on child pornography are overly harsh and result in
disproportionately high sentencing ranges regardless of
No. 09-3103 5
the individual characteristics of the defendant.” This
same contention has been considered and rejected previ-
ously by this circuit.
Maulding contends that applying the Chapter 2 guide-
line for child-pornography crimes, see U.S.S.G. § 2G2.2,
is likely to yield a prison sentence that is unreasonable
and inconsistent with the requirements of § 3553(a). As
evidence he cites United States v. Dorvee, 616 F.3d 174
(2d Cir. 2010), in which the appellate court overturned a
240-month sentence for distributing child pornography
because the district court had both misstated the
applicable imprisonment range and speculated that the
defendant was likely to sexually assault a child despite
the absence of evidence to support that conclusion. Id.
at 181, 183. In explaining its decision to remand,
the Second Circuit observed that § 2G2.2 is “funda-
mentally different from most” guidelines because the
Sentencing Commission, at the direction of Congress,
has repeatedly amended it to dictate higher ranges
rather than following the standard empirical approach
used to develop other Chapter 2 guidelines. Id. at 184.
The court cautioned that § 2G2.2 should be carefully
applied because otherwise the guideline “can lead to
unreasonable sentences that are inconsistent with what
§ 3553 requires.” Id. But the Second Circuit did not
hold, as Maulding wants us to conclude, that virtually
any application of § 2G2.2 will yield an unreasonable
sentence. Maulding also cites a recent survey where
70 percent of district judges opined that the sentencing
ranges for possession of child pornography are too
high, 69 percent thought the ranges for receipt of child
6 No. 09-3103
pornography are too high, and 30 percent viewed the
ranges for distribution as too high. See U.S. S ENTENCING
C OMM ’N, R ESULTS OF S URVEY OF U NITED S TATES D ISTRICT
JUDGES JANUARY 2010 THROUGH M ARCH 2010, at tbl.8 (2010),
http://www.ussc.gov/judge_survey/2010/judgesurvey_
201006.pdf.
Maulding’s premise rehashes the argument we
rejected in United States v. Huffstatler, 571 F.3d 620 (7th
Cir. 2009) (per curiam). In that appeal the defendant
argued that the child-pornography guidelines are so
flawed that sentencing courts must disagree with the
resulting imprisonment range, id. at 622, and here,
Maulding says that imposing a prison term anywhere
close to the guidelines range will result in an unrea-
sonable sentence. In Huffstatler we acknowledged an
article criticizing the child-pornography guidelines
as unreliable because they are not based on study and
empirical data. Id. at 622-23. We emphasized, however,
that while district courts perhaps are free to sentence
below the guidelines range based on a policy disagree-
ment with the child-pornography guidelines, the defen-
dant’s position that courts must do so was “untenable.”
Id. at 623-24. The same goes here. What matters is
whether the sentencing judge correctly calculated the
guidelines range and evaluated the § 3553(a) factors to
arrive at a reasonable sentence. Id. at 624. The district
court correctly calculated the guidelines range, acknowl-
edged that the guidelines are advisory, agreed with
Maulding that several mitigating factors favored him,
and then imposed a below-range sentence which the
court deemed warranted in light of the § 3553(a) factors.
No. 09-3103 7
Still, says Maulding, § 2G2.2 leaves no room to dif-
ferentiate between the least- and most-serious offenders
in child-pornography cases because the imprisonment
range will almost always be above the statutory maxi-
mum. He contends that the ranges are so high that
all sentences are concentrated at or near the statutory
maximum and that this result violates the principle that
defendants who are convicted of dissimilar conduct
should not receive similar sentences, see Gall v. United
States, 552 U.S. 38, 55 (2007). As an example, Maulding
cites a recent case where another defendant who
pleaded guilty to receiving child pornography was also
sentenced to 240 months’ imprisonment even though
the underlying facts were far more egregious. See United
States v. Nurek, 578 F.3d 618 (7th Cir. 2009). In Nurek,
the defendant was a school principal with thousands
of images of child pornography on his computer and a
history of sexually abusing students. Id. at 620-21. That
defendant also attempted to manipulate his victims to
obstruct the investigation. Id. at 622-23. In contrast,
Maulding emphasized at his sentencing that he never
engaged in sexual acts with children and did not create
any child pornography.
We have previously considered and rejected the argu-
ment that sentences at the statutory maximum in child-
pornography cases are more often unreasonable. In
United States v. Beier, 490 F.3d 572, 573 (7th Cir. 2007),
the defendant was sentenced at the bottom of the guide-
lines range, but at the statutory maximum, after
pleading guilty to production of child pornography. The
defendant argued that the high imprisonment ranges for
8 No. 09-3103
child-pornography crimes create arbitrary sentencing
disparities because less serious misconduct is punished
as heavily as more egregious misconduct. Id. He also
reasoned that his sentence was inconsistent with the
principle of marginal deterrence because it left no room
to punish him more severely if he had engaged in even
more serious misconduct. Id. We first noted that a defen-
dant who engages in more serious misconduct, such
as molesting a child, could be punished separately for
that additional conduct. Id. at 575. We also noted that
judges have discretion to give consecutive sentences to
punish offenders who are charged with multiple crimes.
Id. This is precisely the approach the government
favored when it recommended that Maulding receive
consecutive sentences to bring his sentence within the
guidelines range. The district court could have sen-
tenced Maulding to a longer term of imprisonment
but instead decided that a shorter sentence was war-
ranted on the facts of this case. The court could have
imposed an even lower sentence, if, in its discretion,
such a sentence was appropriate, but that is not a reason
to find the administered sentence unreasonable. See
United States v. Biggs, 491 F.3d 616, 624 (7th Cir. 2007);
United States v. Laufle, 433 F.3d 981, 988 (7th Cir. 2006).
Accordingly, we A FFIRM the judgment of the district
court.
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