United States v. Larkin

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 09-2619

UNITED STATES OF AMERICA

v.

ANGELA LARKIN,
Appellant

Appeal from the United States District Court
for the Middle District of Pennsylvania
(No. 4:04-cr-0071-001)
The Honorable John E. Jones, III, District Judge

Submitted Under Third Circuit LAR 34.1(a)
February 23, 2010
 Before: SCIRICA and CHAGARES, Circuit Judges,
and RODRIGUEZ,* District Judge

(Opinion filed: December 10, 2010 )

Anne C. Shapiro, Esquire
Shapiro & Becker, P.C.
114 Market Street
Lewisburg, PA 17837
Attorney for Appellant

Dennis C. Pfannenschmidt , Esquire
United States Attorney
Middle District of Pennsylvania

Frederick E. Martin, Esquire
Assistant United States Attorney
Herman T. Schneebeli Building
240 West Third Street, Suite 316
Williamsport, PA 17707-6465
Attorneys for Appellee

*
The Honorable Joseph H. Rodriguez, Senior United States
District Judge for the District of New Jersey, sitting by
designation.

2
 OPINION OF THE COURT

RODRIGUEZ, Senior District Judge

I. INTRODUCTION

Pursuant to a plea agreement, appellant Angela Larkin 1
entered a plea of guilty to a violation of 18 U.S.C. § 2251(a) for
producing child pornography. Larkin’s criminal conduct
involved, inter alia, the trading of photographs which contained
visual depictions of her daughters, then ages two and five, over
the internet to known pedophiles.2 The District Court sentenced
Larkin to the statutory maximum term of incarceration of three
hundred sixty months, to be followed by a life term of
supervised release. Larkin appeals her sentence arguing that: (1)
the District Court erroneously concluded that visual depictions
of B.L. rendered her a “second victim” meriting a two-level
sentencing enhancem ent pursuant to U .S.S.G . §
2G2.1(c)(1)(2003); (2) the government violated the terms of the
plea agreement; (3) the District Court’s application of a five

1
Larkin is also known as “Angela McCullen,” “Martina
McCullen,” and “Angela J. Main.” As a matter of convenience,
we will refer to her as either “Larkin” or “Appellant.”
2
We will refer to the two year old daughter as “M.M.” and
the five year old daughter as “B.L.”

3
level upward departure under U.S.S.G. § 5K2.0 violates the ex
post facto clause; and (4) the sentence was unreasonable.

For the reasons we discuss below, we will affirm the final
judgment of sentence of the District Court.

II. BACKGROUND

The investigation that led to the arrest and prosecution of
Angela Larkin began in Waco, Texas, where authorities
discovered a sexually explicit video of a minor on the computer
of Phillip Roberts. The video contained close up shots of the
child’s genitalia and pubic regions and was titled “Peanut,”
which is a nickname Larkin called M.M. In addition, “chat”
history logged on the computer revealed that certain pictures
were sent to Mr. Roberts by an individual, later identified as
Larkin, who used the screen name “neon-angeleyes.” Larkin
sent sexually explicit photographs to Mr. Roberts and indicated
that the depictions were of her daughter and that she had
received a sum of money from him for their production.

The origin of the video file was traced to Cameron
County, Pennsylvania. The Pennsylvania State Police were
contacted and began an investigation jointly with agents from
the Federal Bureau of Investigation. Angela Larkin was arrested
by the Pennsylvania State Police and the Federal Bureau of
Investigation for trafficking pictures of her daughter in violation
of 18 U.S.C. § 2251(a). A two count indictment charging
violations of 18 U.S.C. §§ 2251(a) (production of a sexually
explicit visual depiction of a minor) and 2251(b) (production of

4
a sexually explicit visual depiction of a minor that was produced
using materials shipped through interstate commerce) followed,
to which Larkin entered not guilty pleas. The grand jury
subsequently returned a superceding indictment, which charged
Larkin with traveling through interstate commerce with co-
defendant Richard King 3 with the intent to engage in a sex act
with M.M., in violation of 18 U.S.C. §§ 2 and 2241(c).

Pursuant to a plea agreement, Larkin entered a plea of
guilty to only the production charge, a violation of 18 U.S.C. §
2251(a). The plea agreement required Larkin to assist in the
investigation and prosecution of the unlawful activities of others
and, in exchange for her promised assistance, the government
would consider filing a Motion for Downward Departure
pursuant to U.S.S.G. § 5K1.1 on her behalf. Notwithstanding
this possibility, the plea agreement contemplated a sentencing
guideline range between 121 and 151 months, if the mandatory
minimum of 180 months was inapplicable.

The Pre-Sentence Report prepared on May 17, 2006 also
calculated Larkin’s guideline range based upon an offense level
of 34 and a criminal history category of II, which differed from

3
King, who was sentenced prior to Larkin, received the same
sentence as Larkin, which included three hundred sixty (360)
months imprisonment.

5
the calculations in the plea agreement.4 The Probation Office
calculation included the fact that B.L. was a second victim as
well as a possible enhancement for the use of a computer in the
commission of the offense, pursuant to U.S.S.G § 2G2.1(b)(3).
The resulting guideline range was 168-210 months
imprisonment.

Larkin advanced several objections to the Pre-Sentence
Report including the propriety of categorizing B.L. as a second
victim, w hether the enhancement pursuant to §
2G2.1(b)(3)(B)(1) was applicable, and the inclusion of the
mental health evaluations of her minor children. Larkin also
alleged that the government violated the plea agreement by
briefing some of these issues. On October 6, 2006, the District
Court ruled on Larkin’s objections to the Pre-Sentence Report
and found no violation of the plea agreement by the government.
With respect to the objections, the District Court concluded that
the photographs of B.L. rendered her a second victim and that
it could consider the mental evaluations of the minor victims for
sentencing purposes. But, the District Court found that the
enhancement pursuant to § 2G2.1(b)(3)(B)(1) was inapplicable.

In the meantime, Larkin provided assistance to the
government in the prosecution of other sex offenders. As a
result, on January 21, 2009, the government filed a Motion for

4
The plea agreement stated Larkin’s criminal history fell in
Category I, but the Probation Office’s calculation placed her
criminal history in Category II.

6
Downward Departure pursuant to U.S.S.G. § 5K1.1 and 18
U.S.C. § 3553(b). The parties submitted additional sentencing
memoranda in March 2009, and, at the direction of the District
Court, filed supplemental briefs addressing, inter alia, possible
upward departures. The District Court not only rejected the
government’s recommendation for a downward departure, in an
opinion issued on May 11, 2009, it also advised the parties of its
intention to depart upward.

Larkin’s sentencing hearing took place on May 22, 2009,
at which time representatives for her two minor daughters
presented testimony. The District Court sentenced Larkin to the
maximum term of confinement of 360 months imprisonment.
Larkin timely appealed.

III. JURISDICTION

The District Court exercised jurisdiction pursuant to 18
U.S.C. § 3231. A final judgment of sentence was entered on
May 22, 2009. We have appellate jurisdiction pursuant to 18
U.S.C. § 3742(a), as well as 28 U.S.C. § 1291.

IV. DISCUSSION

A. Whether the Photographs of B.L. Qualify as
Pornographic Under 18 U.S.C. § 2256(2)(B)(iii)

Larkin pleaded guilty to a violation of 18 U.S.C. §
2251(a), which criminalizes the use of a minor to engage in
sexually explicit conduct for the purpose of producing visual
depictions of that conduct for distribution in interstate

7
commerce through the use of a computer. Larkin’s charged
offense conduct relates to photographs of M.M., her then two-
year-old daughter. Of the several images generated by Larkin
in the commission of this offense, there are five relevant to this
appeal. The question presented is whether photographs of B.L.,
Larkin’s then five-year-old daughter, were appropriately
characterized by the District Court as “sexually explicit” so as
to warrant considering B.L. as a second victim for purposes of
calculating Larkin’s sentencing guideline range.

The District Court examined these photographs and
answered the question affirmatively. While any factual
determinations made by the District Court are reviewed for clear
error, Kosiba v. Merck & Co., 384 F.3d 58, 64 (3d Cir. 2004),
the question of whether the photographs of B.L. depict
lascivious conduct is one of statutory interpretation subject to de
novo review. United States v. Knox, 32 F.3d 733, 744, 753 (3d
Cir. 1994).

The definition of the term “sexually explicit” conduct is
set forth in 18 U.S.C. § 2256(2)(B) and includes:

(i) graphic sexual intercourse, including
genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same or
opposite sex, or lascivious simulated sexual
intercourse where the genitals, breast, or pubic
area of any person is exhibited;

(ii) graphic or lascivious simulated;

8
 (I) bestiality;
(II) masturbation; or
(III) sadistic or masochistic abuse; or

(iii) graphic or simulated lascivious exhibition of
the genitals or pubic area of any person.

18 U.S.C. § 2256(2)(B)(i)-(iii). The parties agree that the
photographs before us potentially implicate only subsection (iii).
A determination of whether these photographs depict lascivious
conduct as defined by the statute is guided by a number of
considerations, including, but not limited to, the six factors
identified in United States v. Dost, 636 F. Supp. 828, 832 (S.D.
Cal. 1986), which we formally adopted in United States v.
Villard, 885 F.2d 117, 122 (3d Cir. 1989). Under this test, we
consider:

1) whether the focal point of the visual depiction
is on the child's genitalia or pubic area;

2) whether the setting of the visual depiction is
sexually suggestive, i.e., in a place or pose
generally associated with sexual activity;

3) whether the child is depicted in an unnatural
pose, or in inappropriate attire, considering the
age of the child;

4) whether the child is fully or partially clothed,
or nude;

9
 5) whether the visual depiction suggests sexual
coyness or a willingness to engage in sexual
activity;

6) whether the visual depiction is intended or
designed to elicit a sexual response in the viewer.

Id. Considered generally, these are the hallmarks of lascivious
conduct. But the Dost factors are not dispositive and serve only
as a guide. See Doe v. Chamberlin, 299 F.3d 192, 196 (3d Cir.
2002) (citing Knox, 32 F.3d at 746 n.10 (stating that the list of
considerations outlined in Dost is not exhaustive)).

In addition to the considerations detailed in Dost, we are
guided by Black’s Law Dictionary, which defines “lascivious
exhibition” as “a depiction which displays or brings forth to
view in order to attract notice to the genitals and pubic area of
children, in order to excite lustfulness or sexual simulation in the
viewer.” Knox, 32 F.3d at 745 (citing Black’s Law Dictionary
882 (6th ed. 1990)). We may also consider “any other relevant
factors given the particularities of the case.” Id. at 746 (citing
Villard, 855 F.2d at 122). With these considerations in mind,
we begin our review of the five photographs of B.L.5

5
Importantly, the District Court concluded that Larkin was
the photographer of the five images of B.L. We review this
determination for clear error. Kosiba, 384 F.3d at 64. While
our review of the record does not reveal any definitive statement
by Larkin admitting to taking these photographs, there is enough

10
 The first photograph depicts M.M. and B.L. sitting on a
couch. The girls are fully clothed in age-appropriate, loose
fitting dresses. Both girls have their right hands positioned near
their crotch area. B.L.’s right hand appears to be resting on her
right upper thigh, while M.M.’s hand is placed between her legs.
Their skirts are gathered between their legs, but only enough to
expose the skin just above their knees. As to their countenance,
B.L. is smiling while M.M. looks anxious. We will refer to this
photograph as the “couch photograph.”

The second photograph depicts B.L. stepping into the tub,
while M.M. looks on. Both girls are nude and the buttocks of
M.M. are in the foreground. The faces of the girls are not
captured in this photograph. The third photograph depicts both
girls naked and in a bathtub. B.L. is sitting in the tub and her
attention is focused on an object that she is manipulating with

evidence in the record related to her involvement with the
photographs that could have provided the basis for the District
Court’s conclusion that she was in fact, the photographer.
Specifically, the Pre-Sentence Report notes that Larkin admitted
to the FBI that she had taken photographs of her daughter to sell
to interested pedophiles over the internet. Also, in the course of
her cooperation with the government, she never identified
anyone else as the photographer who captured the images of her
daughters who were the subject of her plea agreement. Based
on these facts, the District Court’s conclusion that Larkin took
the photographs is not clearly erroneous.

11
her hands. M.M. is looking directly into the camera and is
crouching down, appearing to be in the act of sitting. We will
refer to these photographs collectively as the “bathtub
photographs.”

In the last two photographs, B.L. is alone, naked, and
looking directly into the camera. Photograph number four is
taken with the camera turned at a ninety degree angle producing
a full length and close-up body depiction of her entire nude
body. In photograph number five, B.L.’s head is in the upper
right corner of the picture with her feet in the bottom left corner
producing a diagonal frame of the image. We will refer to these
pictures as “photograph number four” and “photograph number
five,” respectively.

In analyzing the photographs for the tell-tale markers of
pornography, we apply the Dost factors. Our analysis begins
with photograph number five, which depicts B.L. standing in the
bathtub, leaning up against a shower wall. It depicts the
presence of all but one of the Dost factors, because the
photograph does not focus on B.L.’s genitalia.

Next, the setting of the photograph is a shower and is
arguably sexually suggestive in this case, marking the presence
of factor two. B.L. does not appear to be in the act of bathing,
there is no water in the bathtub, and she does not appear wet.
Standing alone, the setting is not commonly associated with
sexual activity. But showers and bathtubs are frequent hosts to
fantasy sexual encounters as portrayed on television and in film.

12
It is potentially as much of a setting for fantasy sexual activity
as is an adult’s bedroom. See Villard, 885 F.2d at 124 (noting
that a bed or a mattress is often associated with sex, but on its
own is not suggestive of sexual activity). Here, the fact that
B.L. is standing in the tub coupled with her unnatural pose and
the angle of the photograph suggests that the bathtub/shower, in
this instance, was meant to convey to the intended viewer that
the shower is a location for a potential sexual encounter with
B.L. Cf., Doe v. Chamberlin, 299 F.3d 192 (no sexually
suggestive setting in photographs of teenage girls showering
after a day on the beach that did not include depictions of
unclothed genitals).

Factors three (pose), four (nudity), and five (sexual
coyness), are considered simultaneously because they overlap.
Here, B.L.’s pose is unnatural for a child of her age and it gives
us pause. The positioning of her head as resting on her
shrugged shoulders as she attempts a smile appears to be at the
direction of the photographer rather than a natural pose for a
child of her age. Also, the diagonal framing of this photograph
is unusual and adds to the sexual suggestiveness of the pose.
This angle conflicts with what one would normally expect in a
photograph taken by a parent for the purpose of capturing
innocent candid shots of their child during bath-time; instead, it
is more akin to a professional “photo shoot” where the “model”
poses for the photographer. In addition, B.L. is completely
nude, although this is not unusual given that she is in a bathtub.

The depiction in photograph number five presents a close

13
call. Standing alone, the presence of Dost factors two, three,
four, and five may not support a finding of lasciviousness in this
photograph. However, considered together, these factors take
this picture out of the normal catalog compiled by parents of
young children. Ultimately, it is Dost factor six that tips the
balance on the side of qualifying the photograph as exhibiting
lascivious conduct. Larkin trafficked this photograph over the
internet to an interested pedophile, whom she acknowledged
“would find them sexually stimulating because of his
predilection for young children.” Appellant’s Brief at 18. This
conduct distinguishes Larkin’s case from the facts underpinning
our decision in Chamberlin, because Larkin designed the image
depicted in this photograph to arouse. 299 F.3d 192 (citing
United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987)
(A photograph that is intended to elicit a sexual response is one
that is “presented by the photographer as to arouse or satisfy the
sexual cravings of a voyeur.”)).

We caution that “lasciviousness is not a characteristic of
the child photographed but of the exhibition which the
photographer sets up for an audience that consists of himself or
like minded pedophiles.” Wiegand, 812 F.2d at 1244. Villard
instructs that the focus must be on the intended effect, rather that
the actual effect, on the viewer. 885 F.2d at 125.

Child pornography is not created when the
pedophile derives sexual enjoyment from an
otherwise innocent photo. As the Ninth Circuit
stated, “Private fantasies are not within the

14
 statute’s ambit.” [United States v. Wiegand,] 812
F.2d at 1245. When a picture does not constitute
child pornography, even though it displays nudity,
it does not become child pornography because it
is placed in the hands of a pedophile, or in a
forum where pedophiles might enjoy it. Faloona
v. Hustler Magazine, Inc., 607 F. Supp. 1341
(N.D.Tex. 1985) (nude pictures of children did
not constitute child pornography when published
in “legitimate” Sex Atlas or in “raunchy” Hustler
magazine, because they did not depict children
engaged in sexual conduct).

Villard, 885 F.2d at 125.

Larkin engineered photograph number five for the
purpose of eliciting a sexual response.6 We hold that the
depiction in photograph number five meets the definition of
“lascivious” as defined by 18 U.S.C. § 2251(2)(B)(iii).

6
We reject Larkin’s allegation that the “more likely scenario
is that [she] already possessed these pictures of her daughters
and later discovered that they would be sexually exciting to
pedophiles.” Appellant’s Brief at 18-19. Larkin admittedly
traded pictures over the internet to entice men for sex and for
her own pecuniary gain. She was aware of her patrons’
preferences and she catered to them. Supplemental Appendix
(“Supp. App.”) at 78-79. The image in photograph number five
is engineered to achieve those goals.

15
 We now turn to photograph number four, which captures
B.L. standing at close range against what appears to be a wall.
Nothing but B.L.’s entire nude body, with an emphasis on her
breasts, is depicted in this photograph. Although the genitals are
visible because the child is naked, factor one is not present
because the focus is not on the genitalia. Likewise, factor two
is not helpful because the setting cannot be discerned, as the
image of the child fills the frame of the photograph.

We are concerned with the pose of the child. This does
not appear to be a candid shot given that it is a full length close
up depiction of a naked child who is standing with her arms at
her side. B.L.’s pose appears unnatural; she is sheepishly
looking into the camera, her shoulders slightly shrugged, and
she appears to be pushing her arms against her sides to give the
impression that she has developing breasts. Contrary to Larkin’s
contention, photograph number four is not the type traditionally
taken by parents eager to preserve memories of their child. As
to factor four, B.L. is completely nude. Factor five is not
present as B.L.’s expression is unremarkable and cannot be
characterized as portraying sexual coyness, or a willingness to
engage in sexual activity.

We have the same concern with this photograph as we
expressed in our analysis of photograph number five; standing
alone, none of the identified Dost factors sufficiently
demonstrate lasciviousness. But “given the particularities of the
case,” the presence of the sixth factor, which when coupled with
the other factors, tips the scale in favor of categorizing the

16
image as lascivious. Knox, 32 F.3d at 746 (citation omitted).

Photograph number four was sent over the internet by
Larkin to known pedophiles, including Thomas Redeker, with
the title of “[B.L.’s] Boobies.” Supp. App. at 78-79. The
image in photograph number four is intended to elicit a sexual
response by making it appear that B.L. has developing breasts
within the same image as her unclothed genitals. Redeker
confirmed that Larkin knew his preferences and was certain that
Larkin sent him the image in photograph number four for his
sexual pleasure. He also told agents from the Federal Bureau of
Investigation that Larkin courted him by stating “I know what
you like” and “[s]ee what you are missing.” Id.

We are careful to note that our holding with respect to
this image should not be construed to broaden the definition of
“sexually explicit” to include images of a minor’s breasts.
Instead, consistent with our holding in Knox, “‘lascivious
exhibition of the genitals or pubic area’ of a minor necessarily
requires only that the material depict some ‘sexually explicit
conduct’ by the minor subject which appeals to the lascivious
interest of the intended audience.” 32 F.3d at 747 (emphasis
added). Here, the close-up image of B.L. standing in a manner
that accentuates and calls attention to her breasts while nude
sufficiently depicts lascivious conduct because its intent was to
elicit a sexual response from Redeker.

Considered together, factors three, four, and six
demonstrate the presence of conduct that would appeal to the

17
lascivious interest of an audience of pedophiles and, in
particular, Redeker. Id. We hold that photograph number four
depicts “lasciviousness” as defined by 18 U.S.C. §
2251(2)(B)(iii).

In sum, we find that the depictions contained in
photograph number five and photograph number four meet the
definition of lascivious conduct as defined in 18 U.S.C. §
2251(2)(B)(iii). As a result, we hold that the District Court
properly considered B.L. as a second victim in calculating
Larkin’s guidelines.7

B. Whether the Government’s Conduct Violated the
Terms of the Plea Agreement

Larkin’s contention that the government violated the plea
agreement presents a question of law subject to plenary review.8

7
Whether the images contained in the first three photographs
depict “sexually explicit conduct” is questionable. Because we
hold that the visual depictions of B.L. contained in photographs
four and five satisfy the definition contained in 18 U.S.C. §
2251(2)(B)(iii), it is unnecessary to determine whether the
conduct captured in the first three photographs also falls within
the statute’s ambit.
8
During the first Pre-Sentence Conference, the government
agreed with the Probation Office’s qualification of Larkin’s
criminal history as Category II, essentially stating that the

18
United States v. Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir.
1989) (citing United States v. Miller, 565 F.2d 1273 (3d Cir.
1977)).

Strict compliance with the terms of a plea agreement is
not only vital to the efficient function of our criminal justice
system, but also required to preserve the integrity of our
constitutional rights. Santobello v. New York, 404 U.S. 257,
262-63 (1971).

This phase of the process of criminal justice, and
the adjudicative element inherent in accepting a
plea of guilty, must be attended by safeguards to
insure the defendant what is reasonably due in the
circumstances. Those circumstances will vary,
but a constant factor is that when a plea
agreement rests in any significant degree on a
promise or agreement of the prosecutor, so that it

Category I qualification in the plea agreement was erroneous.
Appendix Volume II (“App. Vol. II”) at 139 (“we were wrong
about that too.”). On appeal, the government states that Larkin
failed to object to this statement. To the extent that the
government is implying that Larkin waived appellate review of
this issue by failing to object, Larkin’s reticence does not
constitute waiver. See Moscahlaidis, 868 F.2d at 1360 (“Even
if we agree that appellant did not properly object to the plea
agreement violation at the sentencing hearing, such a failure
does not constitute a waiver.”) (citations omitted).

19
 can be said to be part of the inducement or
consideration, such promise must be fulfilled.

Id. In applying Santobello, we strive to find a balance between
the constitutional rights of a defendant and the integrity of the
plea agreement. “Because the defendant, by entering into the
plea, surrenders a number of her constitutional rights, ‘courts are
compelled to scrutinize closely the promise made by the
government in order to determine whether it has been
performed.’” United States v. Nolan-Cooper, 155 F.3d 221, 236
(3d Cir. 1998) (quoting United States v. Hayes, 946 F.2d 230,
233 (3d Cir. 1991)).

It is well settled that an analysis of whether there is a
violation of the plea agreement proceeds under contract law
standards. Nolan-Cooper, 155 F.3d at 236. In considering
whether the government kept its promise, “we will not permit
the government to rely upon a ‘rigidly literal’ approach to the
construction of the terms of the plea agreement.” United States
v. Badaracco, 954 F.2d 928, 939 (3d Cir. 1992) (quoting
Moscahlaidis, 868 F.2d at 1361). Rather, our consideration here
is whether the government’s conduct falls within the range of
expectations reasonably understood by Larkin when she entered
her plea of guilty. See Badaracco, 954 F.2d at 939 (Courts are
to consider “whether the government’s conduct is inconsistent
with what was reasonably understood by the defendant when
entering the plea of guilty.”).

We undertake our review in three steps. Moscahlaidis,

20
868 F.2d at 1360; see also Nolan-Cooper, 155 F.3d at 235.
First, we consider the relevant paragraphs from the plea
agreement and a description of the alleged improper conduct of
the government. Id. Second, we evaluate the conduct and
determine whether it violates the government’s obligations
under the plea agreement. Id. If it is determined that the
government breached its duty under the plea agreement, our
third and final step is to fashion the appropriate remedy. Id.

The relevant portions of the plea agreement are as
follows. Paragraph 11 includes a contemplated application of
the United States Sentencing Guidelines (“guidelines”) to
Larkin’s conduct which results in a guideline range between 121
and 151 months imprisonment. This assessment determines that
§ 2G2.1(b)(3)(B)(I), an enhancement for the use of a computer
in the commission of the crime, does not apply to Larkin’s
sentencing conduct. Also contemplated is the applicability of
certain enhancements totaling eight levels and the possibility of
an adjustment under U.S.S.G. § 2G2.1(c) for a second victim.9

9
These enhancements include a 4 level age enhancement §
2G2.1(b)(1), a 2 level enhancement for parental relationship, §
2G2.1(b)(2), and a 2 level adjustment for obstruction of justice
§ 3C1.1. There is no disagreement between the parties that
these recommendations were contained in the plea agreement;
however, Larkin contends that the government was bound to
recommend the guideline calculation contained in Paragraph 11
of the plea agreement, which calls for a total offense level of 32

21
Paragraph 11 further states:

The defendant understands that none of these
recommendations is binding upon either the
United States Probation Office, which may make
different findings as to the application of the
United States Sentencing Commission Sentencing
Guidelines to the defendant’s conduct. The
defendant further understands that the United
States will provide the Court and the United
States Probation Office all the information in its
possession which it deems relevant to the
application of the United States Sentencing
Commission Sentencing Guidelines to the
defendant’s conduct.

App. Vol. II at 112-13, ¶11 (emphasis added).

Paragraph 27 of the plea agreement states:

Nothing in this agreement shall restrict or limit
the nature or content of the United States’s
motions or responses to any motions filed on
behalf of the defendant. Nor does this agreement
in any way restrict the Government in responding
to any request by the court for briefing, argument
or presentation of evidence regarding the

with the possible applicability of § 2G2.1(c), for involvement of
a second victim, Larkin’s then five year old daughter.

22
 application of the Sentencing Guidelines to the
defendant’s conduct, including but not limited to,
requests for information concerning possible
sentencing departures.

Id. at 121, ¶27 (emphasis added).

Paragraph 15 provides:

The defendant also understands that the United
States will provide to the United States Probation
Office all information in its possession which the
United States deems relevant regarding the
Defendant’s background, character, cooperation,
if any, and involvement in this or other offenses.

Id. at 115, ¶ 15.

Paragraph 18 provides:

At the sentencing, the United States will be
permitted to bring to the Court’s attention, and the
Court will be permitted to consider, all relevant
information with respect to the defendant’s
background, character and conduct, including the
conduct that is the subject of charges which the
United States has agreed to dismiss, and the
nature and extent of the defendant’s cooperation,
if any. The United States will be entitled to bring
to the Court’s attention and the Court will be
entitled to consider any failure by the defendant to

23
 fulfill any obligation under this agreement.

Id. at 116-17, ¶18.

According to Larkin, the government breached the plea
agreement in various stages of the proceedings in this case.
First, when it provided the United States Probation Office with
a letter from a psychologist which supported the Probation
Officer’s suggestion that an upward departure for severe
psychological injury may be applicable. Second, when it
provided argument in favor of the application of an
enhancement pursuant to U.S.S.G. § 2G2.1(b)(3) despite an
agreement that the enhancement was inapplicable. Finally, by
arguing in its Response to Defendant’s Objections to the Pre-
Sentence Report, Sentencing Memorandum and Supplemental
Sentencing Memorandum, that upward departures may be
warranted. We will address these allegations in turn.

1. The Letter of the Psychologist

Larkin contends that the government violated the terms
of the plea agreement by submitting a letter from a psychologist,
which supported the application of an upward departure based
upon the severe injury likely suffered by Larkin’s daughters as
a result of her conduct, to the United States Probation Officer
charged with preparing the Pre-Sentence Report.

The plea agreement plainly states that the government
may “provide the Court and the United States Probation Office
all information it deems relevant to the application of the United

24
States Sentencing Commission Sentencing Guidelines to the
defendant’s conduct.” Id. at 113, ¶ 11. A letter from a
psychologist detailing the impact of Defendant’s conduct on her
daughters’ mental health is relevant to Larkin’s conduct
assessment and application of the Guidelines. In addition, while
the government may be precluded from arguing in favor of an
enhancement based upon these facts, passing this information
along to the Probation Officer is within its obligations set forth
in Paragraph 17, which details the right of the victims to be
heard. See, e.g., United States v. Stemm, 847 F.2d 636, 639
(10th Cir. 1988) (“Disclosure of information as to the nature of
the offense and each defendant’s role is proper and within the
Government’s duty to provide, despite a promise that the
Government would make no recommendation as to sentence.”)
(citations omitted).

Paragraph 17(b) expressly permits the government to
consult with the victims and to make the views of the victims
“regarding sentencing known to the Court.” App. Vol. II at 116,
¶ 17. In addition, the record demonstrates that Larkin was
informed on several occasions that the government was not
precluded from providing the Court and/or the Probation Office
with relevant information and that Paragraph 17 meant “that the
victims . . . can present their views to the court through our
office.” Id. at 146 (Pre-Sentence Conference May 2006); Supp.
App. at 107 (Sentencing Memorandum); App. Vol. II at 216
(Sentencing Hearing May 2009). The conduct of the
government was permitted under a plain reading of the plea

25
agreement and should have been reasonably expected by Larkin.
Indeed, Larkin agreed that the government could present
evidence related to the impact her conduct had on her daughters.

THE COURT: Well, you always have the right to
object to it. And, you know, as it goes to a victim
impact statement, you know setting aside your
more technical argument that the United States
can’t present any testimony on potential
enhancements, which I think we’ve dealt with, I
don’t think you can argue that they can’t present
victim impact information.

MS. SHAPIRO: No, I don’t think I can.

Supp. App. at 72 (Pre-Sentence Conference August 25, 2008).

More importantly, the government never expressly
argued in favor of an enhancement on this ground, nor can its
actions fairly be construed as an implicit violation of the terms
of the plea agreement. As a result, we find that the government
did not breach the plea agreement by supplying the Probation
Office with the psychologist report.

2. The Enhancement Pursuant to U.S.S.G. § 2G2.1(b)(3)

Larkin next argues that the government violated the plea
agreement by supplying briefing on the applicability of the
sentencing enhancement pursuant to U.S.S.G. § 2G2.1(b)(3).
Paragraph 11 of the plea agreement specifically states that
U.S.S.G. § 2G2.1(b)(3) is inapplicable. Neither in the written

26
submissions filed with the District Court nor during the course
of any of the hearings does the record reflect that the
government advocated for the application of U.S.S.G. §
2G2.1(b)(3). However, at the behest of the District Court, the
government provided an assessment of the law and the relevant
facts that would support application of the enhancement.

On May 24, 2006, the District Court conducted a Pre-
Sentence Conference during which it considered several
objections, made by Larkin, to the Pre-Sentence Report,
including an objection to the Probation Office’s
recommendation that an enhancement was warranted under §
2G2.1(b)(3). As a result of Larkin’s objection, the following
exchange took place:

THE COURT: Well, I guess the point is, you
know, is the government going to - - is the
government going to contest the - - I understand
the criminal history area, but that’s different. I
mean, we can’t - - it is what it is. But as to this
particular enhancement, this two level
enhancement, having looked at it briefly, and only
briefly, it appears that there is substantial
unclarity in this area and I’m going to have to
resolve it. But I don’t have to resolve it if you
don’t want to fight it, because I think it’s purely a
judgment call.

THE GOVERNMENT: And that’s the problem.

27
 I think it’s so - - the lack of clarity, if the
Probation Office thinks it’s [the computer
enhancement] appropriate, we’ll explain their
views as to why it’s appropriate.

THE COURT: All right. Well, the bottom line is
it should be briefed and then we’ll allow you to do
that.

THE GOVERNMENT: I mean, if the Probation
Office, after this meeting, thinks it better to
withdraw that, that’s fine too. That’s their
position and we’ll explain to the court to the best
of our abilities their beliefs.

App. Vol. II at 140 (Pre-Sentence Conference May 24, 2006).

The government’s Sentencing Memorandum does not
request the application of the enhancement, but it does present
the correct legal standard and offers facts relevant to the
determination of whether U.S.S.G. § 2G2.1(b)(3) is applicable.
Paragraph 27 expressly permitted the government to respond to
the District Court’s request for briefing on any issue related to
the application of the guidelines to Larkin’s conduct, including
the relevancy of U.S.S.G. § 2G2.1(b)(3).

Larkin challenges this language as overly broad and
argues that it cannot be used in a manner to undermine the more
specific provisions in the agreement. See United States v.
Rivera, 357 F.3d 290, 295 (3d Cir. 2004) (citing Corbin on

28
Contracts § 24.23 (revised ed. 1998) (“If the apparent
consistency is between a clause that is general and broadly
inclusive in nature and one that is more limited and specific in
its coverage, the more specific should . . . be held to prevail over
the more general term”); see also Restatement (Second) of
Contracts § 203(c) (specific terms and exact terms are given
greater weight than general language)). In more specific terms,
Larkin submits that Paragraph 27 cannot be construed in a
manner that relieves the government of its burden to adhere to
the stipulation regarding U.S.S.G. § 2G2.1(b)(3).

We are not convinced that Paragraph 27 is overly broad
or was used in the manner described by Larkin. Importantly, the
government’s ability to provide information to the Court on
possible sentencing departures is contingent upon a request from
the District Court, and not the product of a catch-all provision
that allows the government to “take any position” as to
sentencing issues. This fact distinguishes the case sub judice
from the plea agreement in Rivera, relied upon by Larkin.

In Rivera, the inclusion of a general provision in the plea
agreement that “reserved the right to take any position with
respect to the appropriate sentence” did not permit the
government to argue in favor of a role enhancement where it had
stipulated to a specific Base Offense Level. 357 F.3d at 295.

Because the Offense Level was specifically
stipulated to, whereas the government’s right to
advocate a role enhancement was not, the

29
 government’s endorsement of an enhancement
that would raise the Offense Level above the
stipulated level contravened the plea agreement.
Moreover, to the extent there is ambiguity caused
by the “little bit of poor draftsmanship” conceded
by the prosecutor, we must construe the
agreement against the government as drafter.

Id.

Here, Paragraph 27 does not give the government the
same unfettered authority as the language in the Rivera plea
agreement. Nothing in Paragraph 27 permitted the government
to abandon specific stipulations in its response to the District
Court’s request for briefing; as a result, unlike Rivera, the
government could not take “any position.” Cf. id.

Parsing the language in a plea agreement is more than a
semantical exercise, as we have consistently recognized the fine,
but important, distinction between a promise to “take no
position” and a promise to “make no recommendation.” See
United States v. Hall, 515 F.3d 186, 198 (3d Cir. 2008); United
States v. Hayes, 946 F.2d 230, 234 (3d Cir. 1991). “The
difference between the two terms is elementary, for the promise
not to recommend is narrow, speaking only as to the sentence to
be imposed, whereas a promise to take no position speaks to no
attempt at all to influence the defendant’s sentence.” Miller,
565 F.2d at 1275. The government’s obligations here were not
impeded by a promise to “take no position.” Instead, the

30
government agreed to recommend a sentence within the
applicable guideline range and it was obligated to inform the
District Court of “all information in its possession which it
deems relevant” to sentencing. App. Vol. II at 113, ¶ 11. The
government fulfilled its obligation to recommend a sentence
within the guideline range and the plea agreement specifically
permitted the government to supply the District Court with the
information relevant to U.S.S.G. § 2G2.1(b)(3). See United
States v. Horsfall, 552 F.3d 1275, 1282 (3d Cir. 2008)
(“Because the agreement permitted the government to introduce
such information and the government did not explicitly oppose
a sentence within the guideline range, the government did not
violate the plea agreement.”) (citation omitted).

Although Paragraph 27 permits the government’s
response to the District Court’s inquiry, it does create a tension
between the District Court and the parties because it leaves open
the possibility that a stipulation can become the subject of
discussion at the request of the District Court, thereby creating
an opportunity for the government to circumvent the plea
agreement. Here, the oral argument and the brief submitted by
the government do not cross the line between providing an
analysis, which is expressly permitted by Paragraph 27, and
impermissibly advocating for application of the enhancement.
Cf., United States v. Hawley, 93 F.3d 682, 693 (10th Cir. 1996)
(Finding statements “that do more than merely state facts or
simply validate those facts found in the Pre-Sentence report [but
rather] . . . provide a legal ‘characterization’ of those facts, and

31
‘argue the effect’ of those facts to the sentencing judge” violated
the terms of the plea agreement.).

The brief sets forth the proper legal considerations in a
straightforward manner. See United States v. Svacina, 137 F.3d
1179, 1185 (10th Cir. 1998) (“The government cannot be
penalized for correctly stating the legal issue to be addressed by
th[e] court.”). In addition, the facts identified in the
government’s brief were well known to the District Court, as
they were a boiled down recapitulation of the facts detailed in
Larkin’s Pre-Sentence Report.10 Viewed against the entire
factual backdrop of the proceedings in front of the District
Court, the government’s submission does not constitute a thinly
veiled attempt to otherwise influence the District Court to apply
the enhancement and did not offend its obligations under the
plea agreement. To the contrary, the government expressly

10
We reject the government’s argument that because the
District Court ultimately did not apply the enhancement, any
hypothetical overstep by the government is excused. We have
consistently held that “the doctrine that the government must
adhere to its bargain in the plea agreement is so fundamental
that even though the government’s breach is inadvertent and the
breach probably did not influence the judge in the sentence
imposed, due process and equity require that the sentence be
vacated.” Nolan-Cooper, 155 F.3d at 237 (internal quotations
omitted).

32
advocated for a sentence within the guidelines at various stages
in the proceedings before the District Court. App. Vol. II at 142
(Pre-Sentence Conference May 24, 2006); Supp. App. at 56
(Pre-Sentence Conference July 25, 2007); Id. at 107 (Sentencing
Memorandum); App. Vol. II at 216 (Sentencing).

We also find that the government’s conduct falls within
the realm of actions Larkin would reasonably expect under the
plea agreement. The government’s written and oral responses
to the District Court’s inquiry related to U.S.S.G. § 2G2.1(b)(3)
were contemplated by Paragraph 27 and did not infringe on its
obligations pursuant to Paragraph 11. See, Hall, 515 F.3d 186.
The plea agreement expressly permitted the government to
introduce the information it provided to the District Court and
the government never argued, explicitly or implicitly, that
U.S.S.G. § 2G2.1(b)(3) should be applied.

In sum, nothing the government did can aptly be
characterized as impermissibly advocating for the application of
U.S.S.G. § 2G2.1(b)(3) or violating the “spirit” of the
agreement. See Badaracco, 954 F.2d at 940. The government’s
actions were permitted by the plea agreement and we find no
breach. See Horsfall, 552 F.3d at 1282 (citing United States v.
Levy, 374 F.3d 1023, 1030-32 (11th Cir. 2004) (finding no
breach where the government was permitted by the plea
agreement to introduce certain evidence and it upheld its
obligation to make a specific sentencing recommendation)).

3. Upward Departure Arguments

33
 Larkin’s final argument also implicates Paragraph 27 and
alleges that the government made an impermissible argument on
applicable upward departures in its Sentencing Memoranda.11
Although the parties each submitted two briefs to the District
Court, the record before us contains only the government’s
submissions, filed with the District Court on March 26, 2009
and April 17, 2009.

Larkin characterizes specific statements within these two
briefs as advocating for upward departures from the stipulated
guideline range. During its discussion on Larkin’s offense level,
the government’s brief informed the District Court that “other
pertinent details are not included in this assessment which are
worth noting when considering the seriousness of the offense
and the need to provide just punishment for the offense.” Supp.
App. at 14. The government then offered that “a factor not
considered by the guidelines but reflective of the seriousness of
the offense is its duration which spanned intermittently
approximately one year.” Id. at 15. Other examples in the brief
include the fact that Larkin sent the pictures for pecuniary gain
and that the victims of her crime suffered. Taken together,

11
Larkin also reiterates that Paragraph 27 is overly broad and,
therefore, cannot be invoked to undermine more specific
paragraphs. We dispose of Larkin’s argument regarding the
broad nature of Paragraph 27 for the reasons identified in our
analysis of the government’s conduct with respect to the
application of U.S.S.G. § 2G2.1(b)(3).

34
Larkin argues that the implicit message to the District Court was
that the applicable guideline range was inadequate.

All of these arguments were made with respect to the
non-guideline sentencing considerations set forth in 18 U.S.C.
§ 3553. See Gall v. United States, 552 U.S. 38, 49-50 (2007)
(directing that the sentencing of federal criminal defendants
must include detailed consideration of the factors set forth in 18
U.S.C. § 3553). While the plea agreement sets forth a
contemplated guideline range, the government never agreed to
recommend a specific sentence within that range. Thus, its
inclusion of other factors not considered by the guidelines is
consistent with its burdens under 18 U.S.C. § 3553(a) and can
fairly be construed as providing a factual basis for a sentence at
the higher end of the range. To the extent that these factors are
also the basis for upwardly departures, because the government
was responding to a request from the District Court consistent
with Paragraph 27, it did not step outside the bounds of the plea
agreement.12

Inasmuch as the government’s declarations do not

12
Larkin’s argument that the government provided this
argument under its own initiative is unpersuasive. While the
time line of the briefings initially appears to support Larkin’s
theory that there was no Paragraph 27 request by the District
Court, further review of the proceedings leads to the inevitable
conclusion that the government’s submissions were made in
response to a request by the District Court.

35
inherently violate its obligations under the plea agreement, the
fact that they were made in response to the District Court’s
request provides additional propriety for their inclusion in the
written submissions. Moreover, the government consistently
argued for a sentence within the applicable guideline range. For
all of these reasons, we find no breach of the plea agreement.

C. Whether the District Court Violated the Ex Post
Facto Clause of Article I of the United States
Constitution When it Upwardly Departed Five
Levels

The criminal conduct underlying Larkin’s indictment
occurred on September 15, 2003. Under the version of
U.S.S.G. § 2G2.1 (2002) in effect on the date of Larkin’s
criminal conduct, her base offense level totaled twenty seven
(27). Effective November 1, 2004, the United States Sentencing
Commission amended U.S.S.G. § 2G2.1, the sentencing
guideline that governs Larkin’s conduct, to include several bases
for enhancements.13 Direct application of the amended version

13
On April 30, 2003, prior to the date of Larkin’s offense
conduct, the Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003 (the “PROTECT
Act”), Pub. L. 108-21, was signed into law. The PROTECT Act
increased the mandatory minimum term of imprisonment for
violations of 18 U.S.C. § 2251 from ten to fifteen years. In part,
several amendments to the guidelines were in response to the
PROTECT Act and the perceived increase in the rate of

36
of U.S.S.G. § 2G2.1 (2009) results in a base offense level of
thirty two (32). Larkin was sentenced on May 22, 2009.14
Larkin claims that the District Court improperly relied upon the
2009 edition of the Guideline Manual in rendering its decision
to depart upward five levels pursuant to U.S.S.G. § 5K2.0 in
violation of the ex post facto clause of Article I of the United
States Constitution.15 We review this decision under a de novo

departures from the guidelines. United States v. Arrelucea-
Zamudio, 581 F.3d 142, 146 (3d Cir. 2009).
14
Generally, a sentencing court is required to apply the
guidelines in effect at the time of the defendant’s sentencing,
consistent with ex post facto considerations. See United States
v. Cherry, 10 F.3d 1003, 1014 (3d Cir. 1993); United States v.
Kopp, 951 F.2d 521, 526 (3d Cir. 1991); 18 U.S.C. §
3553(a)(4); U.S.S.G. § 1B1.11(a) (1993).
15
Pursuant to United States v. Koon, there are several
determinations that a sentencing court must make when
considering a departure pursuant to § 5K2.0. 518 U.S. 81, 96,
116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Namely:
1) What features of this case, potentially, take it
outside the Guidelines' ‘heartland’ and make of it
a special, or unusual, case?
2) Has the Commission forbidden departures
based on those features?
3) If not, has the Commission encouraged

37
standard.

Where an amendment to a section of the sentencing
guidelines occurs following the convicted offense conduct and
the amendment results in harsher penalties than were in effect at
the time of the conduct, the ex post facto clause and U.S.S.G. §
1B1.11(a) (1993) both require the District Court to apply the
sentencing guidelines in effect on the date that the offense of
conviction was committed. Miller v. Florida, 482 U.S. 423,
431-35, 107 S.Ct. 2446, 2451-54, 96 L.Ed.2d 351 (1987).
Because subsequent changes in the sentencing guidelines in
effect at the time of Larkin’s sentence would result in the
imposition of a harsher punishment, the District Court was
required to sentence Larkin according to the 2002 Guideline
Manual, which was in effect on the date of the charged offense
conduct on September 13, 2003.16 United States v. Menon, 24
F.3d 550, 566 (3d Cir. 1994); see also U.S.S.G. § 1B1.11(b)(1).

The District Court appropriately considered Larkin’s

departures based on those features?
4) If not, has the Commission discouraged
departures based on those features?
Id. (citing United States v. Rivera, 994 F.2d 942, 949 (1st Cir.
1993)).
16
However, the PROTECT Act, having been signed into law
prior to Larkin’s offense date of September 15, 2003, applies to
her sentence structure.

38
conduct under the 2002 edition of the Guideline Manual and
concluded that an upward departure was warranted pursuant to
U.S.S.G. § 5K2.0 on the ground that U.S.S.G. § 2G2.1 (2002)
did not adequately consider the severity of Larkin’s conduct.
Specifically, the applicable guideline did not account for the fact
that: 1) Larkin permitted pedophiles to have sexual contact with
M.M.; 2) Larkin distributed materials involving the exploitation
of a minor; 3) Larkin distributed these materials for pecuniary
gain; and 4) Larkin’s conduct was extreme.

In justifying the imposed sentencing enhancements, the
District Court relied upon, inter alia, the fact that the amended
version of U.S.S.G. § 2G2.1 (2009) specifically contemplated
enhancements for the identified conduct.17 We have consistently
held as improper the direct application of an amended guideline
to conduct that occurred prior to the amendment. See, e.g.,
United States v. Wood, 486 F.3d 781 (3d Cir. 2007).
Analogizing to an amended guideline, however, does not offend
the ex post facto clause.

We agree with the Seventh Circuit that a sentencing court
"may interpret the Commission's later addition of an aggravating

17
As amended, U.S.S.G. § 2G2.1 permits a two-level
enhancement “[i]f the offense involved the commission of a
sexual act or sexual contact” and a two level enhancement for
the distribution (Larkin was charged with possession) of
materials involving the exploitation of a minor. U.S.S.G. Supp.
to App. C, Amend 664.

39
element as a sentencing factor as evidence that a previous
version of the Guidelines did not adequately consider that factor
in the sentencing scheme" while cautioning that "subsequent
amendments are only to be used as tools in making a
well-reasoned, individualized determination of whether to
impose an upward departure in a particular case or to determine
the degree of departure that is warranted." See United States v.
Coe, 220 F.3d 573, 578 (7th Cir. 2000). We can find no better
evidence of the inadequacy of a sentencing guideline than a
subsequent amendment to that guideline to include and qualify
previously unmentioned components of the convicted offense.
For this reason, we recently joined the First, Fourth, and Seventh
Circuits in holding that reliance on Congress’s decision to
amend a guideline provision as evidence that the applicable
guideline is inadequate, is proper. United States v. King, 604
F.3d 125, 142 (3d Cir. 2010).

We are convinced, after a review of the record, that the
District Court’s sentence of Larkin did not improperly rely on an
amended version of § 2G2.1. See United States v. Kikumura,
918 F.2d 1084, 1113 (3d Cir. 1990) overruled on other grounds
by United States v. Fisher, 502 F.3d 293 (3d Cir. 2007)
(analogies to other guidelines is permissible). The District
Court’s analogy to the amendment to § 2G2.1 was proper and
did not violate the letter or the spirit of the ex post facto clause.

40
King, 604 F.3d 142.18

D. The Reasonableness of Larkin’s Sentence

Larkin’s final argument is that the imposed sentence of
thirty years imprisonment is unreasonable. In determining the
reasonableness of a sentence, we give great deference to “[t]he
sentencing judge [who] is in a superior position to find facts and
judge their import under § 3553(a) in the individual case. The
judge sees and hears the evidence, makes credibility
determinations, has full knowledge of the facts and gains
insights not conveyed by the record.” Gall, 552 U.S. at 51
(internal quotations and citations omitted); see also United
States v. Dragon, 471 F.3d 501, 506 (3d Cir. 2006) (we give
“deference to the District Court because it is in the best position
to determine the appropriate sentence in light of the particular
circumstances of the case.” (internal quotations and citations
omitted)). The reasonableness of the District Court’s sentence

18
At Sentencing, following its determination that an upward
departure was warranted, the District Court stated that “had I not
departed upward, under § 5K2.1, as I did in my prior order, I
would vary up to a sentence at the same level that I’m about to
give you.” App. Vol. II at 222. Having found no violation of
the ex post facto clause, we need not endeavor to determine
whether the District Court could have “varied up” to the
sentence it ultimately imposed. Therefore, we will not address
Larkin’s argument that the District Court failed to offer a basis
for a variance.

41
is reviewed under an abuse of discretion standard. United States
v. Jackson, 523 F.3d 234, 243 (3d Cir. 2008).

Consistent with our post-Booker19 precedent, District
Courts engage in a three step process when imposing a sentence.
United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006);
United States v. King, 454 F.3d 187 (3d Cir. 2006). First, as
was done in the pre-Booker era, the defendant’s guideline range
is calculated. See id. Second, the sentencing court must issue
formal rulings on any departure motions on the record and, to
the extent it grants a motion, it must then articulate “how that
departure affects the Guidelines calculations.” King, 454 F.3d
at 196. Third, the factors enumerated in 18 U.S.C. § 3553(a) are
considered “in setting the sentence they impose regardless
whether it varies from the sentence calculated under the
Guidelines.” Gunter, 462 F.3d at 247 (footnote omitted). The
§ 3553(a) factors are:

(1) the nature and circumstances of the offense
and the history and characteristics of the
defendant;

(2) the need for the sentence imposed-- (A) to
reflect the seriousness of the offense, to promote
respect for the law, and to provide just
punishment for the offense; (B) to afford adequate

19
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005).

42
 deterrence to criminal conduct; (C) to protect the
public from further crimes of the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care,
or other correctional treatment in the most
effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range
established for-- (A) the applicable category of
offense committed by the applicable category of
defendant as set forth in the guidelines . . .

(5) any pertinent policy statement . . .

(6) the need to avoid unwarranted sentence
disparities among defendants with similar records
who have been found guilty of similar conduct;
and

(7) the need to provide restitution to any victims
of the offense.

Although Larkin complains about the overall
reasonableness of the sentence, her chief allegation is that the
District Court failed to sufficiently account for the similarity in
the sentence between herself and her co-defendant, Richard
King. Both Larkin and King received the same sentence despite
the fact that Larkin provided substantial assistance to the
government, as set forth in the government’s § 5K1.1 motion for

43
downward departure.20 Thus, Larkin’s complaint implicates
both procedural and substantive error.

“[W]here a district court’s sentence is procedurally
sound, we will affirm it unless no reasonable sentencing court
would have imposed that same sentence on that particular
defendant for the reasons the district court provided.” United
States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009). In
deference to this principle, we will first address the procedural
argument.

Procedural errors include “failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)

20
Even in the post-Booker landscape, we have consistently
declined to review the discretionary decision of the District
Court not to depart, unless there is a claim of legal error. See
United States v. Cooper, 437 F.3d 324, 332-33 (3d Cir. 2006)
(surveying the relevant precedent both pre and post Booker).
Larkin makes no claim for legal error in the District Court’s
refusal to grant the government’s § 5K1.1 motion. To the extent
that she is alluding that the refusal to grant that motion is a
factor in the unreasonableness of the sentence, the propriety of
the District Court’s refusal is not properly before us and we
decline to address it. See United States v. Pellulo, 399 F.3d 197,
222 (3d Cir. 2005) (“It is well settled that an appellant’s failure
to identify or argue an issue in his opening brief constitutes
waiver of that issue on appeal.”).

44
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.” Gall,
552 U.S. at 51. Based on our review of the record, we find no
procedural error. At the sentencing hearing, the District Court
expressly considered the similarity of Larkin’s sentence to
King’s sentence as required by § 3553(a)(6).

Finally, I want to address the sixth factor under
section 3553(a), which is the need to avoid
unwarranted sentencing disparities for defendants
with similar records and in particular, Mr. King,
the co-defendant in this case. As we know, he
pled guilty to interstate travel with a minor under
12. And that’s an offense with which you were
also charged.

Mr. King’s relevant conduct included
physical contact with your daughter, prior abuse
of his own daughter, distribution of child
pornography and obstructing the investigation.
But you solicited the sexual contact that Mr. King
had with your daughter. You were present for and
a participant in nearly all of the abuse that Mr.
King perpetrated on your daughter. And you
abused the second victim; just like Mr. King also,
your own child. And you distributed
pornography. And you obstructed justice by
asking others to commit perjury. And you

45
 directed others to destroy or conceal evidence of
your offense. Your first words to the
investigating agent in this case, and I’m
paraphrasing, were how do I get myself out of
this. Well, you didn’t and you can’t.

You engaged in substantially similar conduct to
Mr. King. And I might agree with the contention
that your conduct was worse. I don’t know how
you could be subject to less severe punishment
under the circumstances, and you won’t be.

App. Vol. II at 221-22.

In addition, even though the sentence imposed was
outside the applicable guideline range, it was procedurally sound
and not unreasonable. See Gall, 552 U.S. at 51 (“[I]f the
sentence is outside the Guidelines range, the court may not apply
a presumption of unreasonableness. It may consider the extent
of the deviation, but must give due deference to the district
court's decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.”). Here, the District Court’s analysis of
factor (a)(6) consists of more than mere boiler-plate language
and demonstrates both thoughtful and meaningful consideration.
“The touchstone of ‘reasonableness’ is whether the record as a
whole reflects rational and meaningful consideration of the
factors enumerated in 18 U.S.C. § 3553(a).” United States v.
Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc).

We have long required that sentencing courts give

46
“meaningful consideration” to all of the § 3553(a) factors.
“Meaningful consideration” requires more than mere recitation
that the factors have been considered. United States v. Cooper,
437 F.3d 324, 329 (3d Cir. 2006). A review of the entire record
demonstrates that the District Court gave thoughtful and
“meaningful consideration” of all of the circumstances that
impacted Larkin’s sentence, including subsection (a)(6) of §
3553. Id. (noting that a sentencing court need not “discuss and
make findings as to each of the § 3553(a) factors if the record
makes clear the court took the factors into account in
sentencing.”) We conclude that the District Court laid the proper
foundation and appropriately applied the § 3553(a) factors in
formulating Larkin’s sentence.

I have considered all of the 3553 (a) factors
carefully, dispassionately, although this is a case
that triggers passion. I have given great
consideration to all of the circumstances that I
have before me in the voluminous submissions by
counsel. I will note that had I not departed
upward under 5K2.1, as I did in my prior order, I
would vary up to a sentence at the same level that
I’m about to give you.

I take no joy in this. This is the worst case. This
is the ugliest, most difficult case I have ever seen
in my seven years on the bench. And in fact,
other than homicides, wanton killings, this is the
worst case that I have seen not only in the seven

47
 years on the bench but in 22 years of lawyering
before that.

App. Vol. II at 222.

The District Court’s sentence was procedurally sound and
therefore entitled to a presumption of reasonableness. The
District Court was free to, and did, exercise its discretion in
imposing sentence. Whether, as argued, there was room here for
a lower sentence, we have considered that argument and
conclude that the sentence imposed was not unreasonable. Our
decision today is reinforced by Gall, which reminds us that
“[t]he fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Gall, 552
U.S. at 51. Therefore, we will affirm the sentence imposed by
the District Court.

V. CONCLUSION

We hold that the photographs of B.L. were sexually
explicit and, therefore, she was properly considered a second
victim in calculating Larkin’s sentence. We further hold that the
government did not breach the plea agreement by providing the
District Court with briefing on the applicability of §
2G2.1(b)(3)(B)(I). Finally, we hold that there was no violation
of the ex post facto clause by the District Court and that the
sentence imposed was reasonable.

For these reasons, we affirm the decision of the District

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Court.

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