United States Court of Appeals
For the First Circuit
No. 08-1459
UNITED STATES OF AMERICA,
Appellee,
v.
ADAM A. STONE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, U.S. District Judge]
Before
Torruella, and Selya, Circuit Judges,
and Tashima,* Senior Circuit Judge.
Charles W. Rankin, with whom Jonathan Harwell, Kerry Haberlin,
and Rankin & Sultan, were on brief for appellant.
Mysti Dawn Degani, Criminal Division, Appellate Section, with
whom Paula D. Silsby, United States Attorney, and F. Todd Lowell,
Assistant United States Attorney, were on brief for appellee.
August 5, 2009
*
Of the Ninth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Adam A. Stone appeals his
sentence of 17.5 years in federal prison on one count of knowingly
transporting and shipping child pornography in interstate or
foreign commerce, in violation of 18 U.S.C. §§ 2252A(a)(1) and
2256(8)(A). After careful review of the record, we affirm.
I. Background
We draw the facts from the presentence investigation
report ("PSR"), the evidence presented in anticipation of the
sentencing hearing, and the transcript of the sentencing hearing.
United States v. Torres-Velázquez, 480 F.3d 100, 102 (1st Cir.
2007); United States v. Santos, 357 F.3d 136, 138 (1st Cir. 2004).
Illinois police created a Yahoo! internet account in the
name of "brownhairedgirl_1." The publicly available profile stated
that "brownhairedgirl_1" was a fifteen year-old girl. On
February 10, 2005, Stone, acting under the username "adamstone78,"
contacted "brownhairedgirl_1" and asked if she had any "girl pics"
to share. The police detective sent Stone a picture of a fully
clothed girl. Stone asked "brownhairedgirl_1" if she had ever
seen a man naked, as well as if she had ever masturbated or watched
a man do so.
On February 16, 2005, Stone contacted "brownhairedgirl_1"
again and asked her if she had "any pics of other girls." Stone
asked "brownhairedgirl_1" to view his photo album, which contained
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241 images, including dozens of images that the police detective
believed were minors engaged in sexually explicit conduct.
The next day, Stone contacted "brownhairedgirl_1" again.
He asked her about her sexual history, bra size, and for more
pictures of herself. Stone also transmitted a web camera picture
of himself, which the police detective used in confirming Stone's
identity.
On March 4, 2005, during another conversation, Stone
provided a link to an online photo album. The album contained
dozens of images of minors engaged in sexually explicit conduct.
After several other shorter communications from Stone, on
April 1, 2005, Stone sent "brownhairedgirl_1" a message stating,
"I added 2 albums between yesterday and today, check em out." The
detective viewed the two new albums, which included many images of
minors engaged in sexually explicit conduct.
On April 29, 2005, Stone again contacted
"brownhairedgirl_1" and offered to masturbate in front of his web
camera. The detective then observed Stone masturbating.
After federal officers executed a search warrant at
Stone's residence in June 2005, Stone admitted that he had
downloaded child pornography from the Internet and had shared that
pornography in online photo albums. His computer was seized, and
it was found to contain many images, including images of children
under twelve and images involving sadistic and masochistic conduct.
-3-
More than two years later, on January 9, 2008, the
government filed a one-count information charging Stone with
violating 18 U.S.C. §§ 2252A(a)(1) and 2256(8)(A).2 That same day,
Stone waived the indictment and pled guilty to the information.
A PSR was prepared. It recommended a base offense level
of 22. The PSR recommended applying a two-level enhancement
because the material involved a prepubescent minor, see U.S.S.G.
§ 2G2.2(b)(2); a five-level enhancement because Stone distributed
the material to someone he believed to be a minor, see id.
§ 2G2.2(b)(3)(C);3 a four-level enhancement because the material
included images of sadistic or masochistic conduct, see id.
§ 2G2.2(b)(4); a two-level enhancement because the offense involved
the use of a computer, see id. § 2G2.2(b)(6); and a five-level
enhancement because the offense involved more than 600 images, see
2
Section 2252A(a)(1) imposes criminal liability on any person who
"knowingly mails, or transports or ships using any means or
facility of interstate or foreign commerce or in or affecting
interstate or foreign commerce by any means, including by computer,
any child pornography." Section 2256 defines terms and provides,
in part, that child pornography is "any visual depiction, including
any photograph, film, video, picture, or computer or
computer-generated image or picture, whether made or produced by
electronic, mechanical, or other means, of sexually explicit
conduct, where . . . the production of such visual depiction
involves the use of a minor engaging in sexually explicit conduct."
3
This enhancement applies to distribution to a "minor," but the
application notes define "minor" to include a law enforcement
officer posing as a minor. U.S.S.G. § 2G2.2 cmt. n.1.
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id. § 2G2.2(b)(7)(D).4 Crediting Stone with a three-level
reduction for acceptance of responsibility, the PSR computed
Stone's total offense level at 37. Given Stone's criminal history
category of I, the advisory guidelines range was 210 to 240 months
of imprisonment.5
Stone did not object to these computations, but asked the
district court to impose a below-guidelines sentence. First, Stone
challenged the guideline range itself as unreasonable by arguing
that the current version of U.S.S.G. § 2G2.2, which governed his
offense, was shaped in part by congressional directives to the
Sentencing Commission. Stone asserted that U.S.S.G. § 2G2.2 is
flawed because this congressional input preempted the Commission's
ability "to do the job for which it was created." He challenged,
categorically, the rationale for the computer enhancement. He also
noted that his guideline range exceeded that for second degree
murder, and observed that it was not reasonable to sentence first-
time offenders at a level near the statutory maximum.
Second, Stone argued that a guideline sentence was
unreasonably harsh in his case. He argued that he downloaded
4
For purposes of this enhancement, each video is counted as 75
images. U.S.S.G. § 2G2.2 cmt. n.4 (defining "the number of
images").
5
The guidelines called for a range of 210 to 262 months of
imprisonment. However, the statutory maximum sentence is 20 years
of imprisonment, 18 U.S.C. § 2252A(b)(1), reducing the guidelines
range to 210 to 240 months.
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pornography indiscriminately, had only a few sadistic or
masochistic images, and did not seek them out. He noted that he
had not physically harmed anyone, and was not shown to have
distributed to any actual minors. Stone argued that in the two and
a half years between his arrest and sentencing, he had sought
employment, maintained a relationship with his fiancee, and
renounced his prior actions. Stone argued that he posed no risk to
anyone.
The government admitted that the guideline range was
"extremely harsh," but argued that a sentence at the low end of the
guideline range would be appropriate, considering the facts that
led to the enhancements.
The district court adopted the PSR's calculations. Early
in the hearing, the district court recognized it could impose a
non-guideline sentence when it said it had "to determine whether to
sentence [Stone] within the guidelines or outside the guidelines."
The district court later considered Stone's challenge to the
guidelines themselves:
But the defendant's argument that the
guidelines -- that because the guidelines are
a direct response to congressional mandates
that somehow that diminishes their impact is
not an argument that the court can accept. In
many ways, the fact that the guidelines are a
direct reflection of a congressional
expression of popular will is an argument in
favor, not against the imposition of a
guideline sentence.
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Congress is, after all, the elected
representatives of the people of this country,
and they -- it has made policy choices about
this type of crime, and those choices are
reflected in the guideline range. It is not
this court's constitutional role to second-
guess congressional policy decisions simply
because they're expressed in the guidelines,
and it is this court's constitutional role to
express the will of the people of this country
as expressed by Congress. On this crime, the
will of the people is, I must say, exceedingly
clear.
Although the court recognized that "an argument can be made that
Congress has been particularly punitive," it concluded that Stone's
actions warranted severe punishment since he contributed to the
market for child pornography and because of his conduct with
"brownhairedgirl_1." The court then proceeded to discuss the
guidelines further:
I want to be clear. I'm not suggesting that I
feel I am bound by the guidelines. I have the
authority under Booker and under Jiménez-
Beltre to go outside the guidelines. But in
doing so, I am required to consider the
guidelines themselves, the policies underlying
the guidelines, and the need to avoid
unwarranted sentencing disparities, and the
policies themselves, as reflected by
congressional directives, seem especially
clear here.
The district court then analyzed the case, starting with
the offender. It noted Stone's lack of criminal history, intact
family background, and the absence of any substance abuse problem.
It commented that "there's nothing in this defendant's history or
background that would predict he would be standing in front of this
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court facing a prison term of over 17 years." The court later also
noted Stone's rehabilitative efforts.
The court turned to the offense. The court found Stone
possessed a "staggering" volume of child pornography. The court
noted exemplars of the child pornography that Stone possessed:
The two exemplars that were attached to the
prosecution version, which the defendant
admitted to, are abhorrent. There's one in
particular that shows a very young girl, maybe
5 years old or so, engaged in sex with an
adult male. The picture depicts her placing
her hands over her eyes as if to block out
what was happening to her. The digital image
is simply haunting, and that image calls force
-- forth in any adult an overwhelming need to
protect that little girl. She is young, and
she's defenseless, and the adults who should
be protecting her are violating her. So the
court has considered the need to protect
victims like that young girl in imposing a
sentence today.
The district court also found that Stone encouraged the
distribution of child pornography through his online sharing of
albums, and found "disturbing" Stone's conduct with
"brownhairedgirl_1." The court had earlier described this conduct
as "abuse" that endangered a minor.
The court weighed the factors:
This combination of circumstances requires, in
the court's view, a long term in prison. The
factors include the age of the victims, the
volume of the images, the defendant's sharing
of the images with others, the defendant's
sexual chat with a person he believed was 15
years old, and finally, the defendant's
engaging in actual sexual activity and
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transmitting that activity to a person he
believed was 15.
With all these factors that militate in favor
of a severe punishment, the court also notes
there's no allegation the defendant actually
sexually abused any minor. He has no history
of sexual abuse. His inappropriate conduct was
wholly Internet-based.
The court expressed its hope that a better way could be found to
deal with similar crimes in the future, but that "for right now,
the congressional directive is very, very clear, as are the
guidelines, and if you've done what you have done, the guidelines
advise a very, very harsh sentence." "[W]ith some reservations,"
the court imposed a sentence at the bottom of the guideline range,
210 months.
Stone filed a timely notice of appeal.
II. Discussion
"We review the substantive reasonableness of a sentence
for abuse of discretion, but we first consider whether the court
below committed a 'significant procedural error, such as . . .
treating the Guidelines as mandatory.'" United States v.
DeCologero, 530 F.3d 36, 70 (1st Cir. 2008) (quoting Gall v. United
States, 128 S. Ct. 586, 597 (2007)). Accordingly, we will first
address Stone's argument that the district court did not properly
understand its sentencing discretion under Kimbrough v. United
States, 128 S. Ct. 558 (2007). Then we will consider whether the
sentence the district court imposed was unreasonable.
-9-
A. Kimbrough Sentencing Discretion
1. Reviewing Kimbrough error
We review for abuse of discretion, and "procedural errors
amounting to an abuse of discretion might include 'failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the 18
U.S.C. § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.'" United States v. Innarelli, 524 F.3d 286, 292 (1st
Cir. 2008) (quoting United States v. Politano, 522 F.3d 69, 72 (1st
Cir. 2008)).
Kimbrough "makes manifest that sentencing courts possess
sufficient discretion under section 3553(a) to consider requests
for variant sentences premised on disagreements with the manner in
which the sentencing guidelines operate." United States v.
Rodríguez, 527 F.3d 221, 231 (1st Cir. 2008) (reversing, in light
of Kimbrough, our prior precedent forbidding district courts from
constructing variant sentences to take account of disparities
attributable to the fast-track program). As the Supreme Court has
emphasized, the point of Kimbrough is to recognize "district
courts' authority to vary from the crack cocaine Guidelines based
on policy disagreement with them, and not simply based on an
individualized determination that they yield an excessive sentence
in a particular case." Spears v. United States, 129 S. Ct. 840,
-10-
843 (2009). And our precedent has interpreted Kimbrough as
supplying this power even where a guideline provision is a direct
reflection of a congressional directive. Rodríguez, 527 F.3d at
230 (rejecting the government's arguments that district courts were
forbidden from disagreeing with the disparity attributable to fast
track programs since Congress had specifically approved such
programs, and concluding that "Kimbrough had opened the door for
sentencing courts to deviate from the guidelines in individual
cases notwithstanding Congress's competing policy
pronouncements").6
Thus, after Kimbrough, a district court makes a
procedural error when it fails to recognize its discretion to vary
from the guideline range based on a categorical policy disagreement
with a guideline. United States v. Gibbons, 553 F.3d 40, 46 (1st
Cir. 2009); United States v. Boardman, 528 F.3d 86, 87 (1st Cir.
2008) (using Kimbrough to vacate and remand a sentence where a
district court concluded it was bound by certain career offender
guidelines); Rodríguez, 527 F.3d at 231. We have interpreted
Kimbrough as giving district courts discretion to disagree with
many guidelines, not just the crack cocaine guidelines at issue in
Kimbrough. United States v. Vanvliet, 542 F.3d 259, 271 (1st Cir.
6
But see United States v. González-Zotelo, 556 F.3d 736, 741 (9th
Cir. 2009) (criticizing Rodríguez and concluding "[w]hile Kimbrough
permits a district court to consider its policy disagreements with
the Guidelines, it does not authorize a district judge to take into
account his disagreements with congressional policy").
-11-
2008) (remanding where a district court refused to impose a variant
sentence based on its policy disagreement with a sentencing
enhancement relating to the use of a computer); Boardman, 528 F.3d
at 87; Rodríguez, 527 F.3d at 231.
2. Stone's Kimbrough argument
Stone argues that the district court erred in failing to
recognize its discretion to disagree with the guidelines covering
child pornography crimes, particularly the high base offense level,
the computer enhancement, and the high overall offense level
resulting from the combined imposition of the various enhancements.
In particular, Stone argues that Kimbrough indicated that one
ground for a district court to disagree with a guideline provision
would be that the guideline was based on something other than the
Sentencing Commission's ordinary empirical approach. See Kimbrough,
128 S. Ct. at 574-75.
Stone makes a detailed historical argument, explaining
that the child pornography guidelines are based on congressional
directives, and not on the Commission's empirical approach. He
notes that since U.S.S.G. § 2G2.2 was adopted on April 13, 1987,
the base offense level has increased from thirteen to twenty-two
and the enhancements applicable to a defendant in Stone's position
from two to eighteen.7 Stone also notes that a number of district
7
Compare U.S.S.G. § 2G2.2 (1987) with U.S.S.G. § 2G2.2 (2008);
see also Crime Control Act of 1990, Pub. L. No. 101-647, §§ 321-23,
101 Stat. 4789, 4817-18 (1990) (criminalizing the possession of
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courts have exercised their Kimbrough discretion to give the child
pornography guideline range less deference.8
3. Appraising the district court's actions
The government does not challenge Stone's argument that
a sentencing judge has the discretion to reject the child
pornography guidelines on this basis. Rather, the government
argues that the district court understood its discretion and simply
was not persuaded to use its Kimbrough power in this case. And, as
child pornography and directing the Sentencing Commission to
increase penalties if it deemed it appropriate); Treasury, Postal
Service and General Government Appropriations Act of 1992, Pub. L.
No. 102-141, § 632, 105 Stat. 834, 876 (1991) (enacting, apparently
over Commission objection, a bill requiring the Commission to
increase the base offense level to "not less than 15" and to
provide at least a 5 level" enhancement for "sexual abuse or
exploitation of a minor"); Sex Crimes Against Children Prevention
Act of 1995, Pub. L. No. 104-71, §§ 2-3, 109 Stat. 774, 774 (1995)
(increasing the base offense level and creating a two-level
enhancement for the use of a computer); Protection of Children from
Sexual Predators Act of 1998, Pub. L. No. 105-314, §§ 501-07, 112
Stat. 2974, 2980-82 (1998) (directing the Commission to adopt
various enhancements); Prosecutorial Remedies and Other Tools to
end the Exploitation of Children Today Act of 2003 (PROTECT Act),
Pub. L. No. 108-21, §§ 103, 401, 117 Stat. 650, 652-53, 667-76
(2003) (adopting a five-year mandatory minimum and a twenty-year
statutory maximum sentence and directing the Commission to add
additional enhancements based on the number of images distributed
or possessed and to expand the sadistic and masochistic conduct
enhancement); U.S.S.G. app. C., amend. 664 (raising the relevant
base offense level from 17 to 22 and explicitly explaining that the
increase was to calibrate with the new mandatory minimum).
8
See, e.g., United States v. Johnson, 588 F. Supp. 2d 997 (S.D.
Iowa 2008); United States v. Noxon, No. 07-40152-01-RDR, 2008 WL
4758583 (D. Kan. Oct. 28, 2008) (unpublished); United States v.
Grinbergs, No. 8:05CR232, 2008 WL 4191145 (D. Neb. Sept. 8, 2008)
(unpublished); United States v. Hanson, 561 F. Supp. 2d 1004 (E.D.
Wis. 2008).
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is clear, the district court's broad discretion obviously includes
the power to agree with the guidelines. Gibbons, 553 F.3d at 46
(quoting United States v. Díaz-Fontánez, 317 F. App'x 9, 11 (1st
Cir. 2008) (unpublished)).
Thus, the issue for us to resolve is simply whether the
district court failed to appreciate its Kimbrough discretion or
whether it understood but declined to use it. Stone argues that
the district court explicitly held that it lacked the discretion to
disagree with the applicable guidelines. Stone points to the
sentencing hearing where the court said that Stone's argument "is
not an argument that the court can accept" and that it was "not
this court's constitutional role to second-guess congressional
policy decisions simply because they're expressed in the
guidelines, and it is this court's constitutional role to express
the will of the people of this country as expressed by Congress."
The government counters that the district court
explicitly and repeatedly recognized that it was not bound by the
guidelines. The government characterizes the above two comments as
substantive rejections of Stone's request to afford less deference
to the guidelines since they were based on congressional policy.
As to the first comment, the government argues that the sentencing
court used the phrase "I cannot accept that" to mean "I reject
that." And the government notes another case where we have
recognized this exact verbal distinction. See DeCologero, 530 F.3d
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at 70 (considering "the sentencing record as a whole" to conclude
that when the court said it "cannot give credit" for a prior
sentence, it nonetheless "recognized its discretion" but simply
indicated its decision not to take the prior sentence into
account). The government explains away the second comment by
reasoning that the sentencing court was not saying that it was
required to follow congressional will, but only that it found
persuasive the argument that it should follow such policy. In sum,
the government argues that the sentencing judge made a permissible
determination that he would value guidelines which reflected the
will of the people, acting through Congress.
This is a closer case than others where we have been
called upon to examine alleged Kimbrough error. The district court
did not explicitly acknowledge its Kimbrough power. On the other
hand, the district court never lamented its lack of discretion to
categorically disagree with the guidelines. In the cases Stone
relies upon, where we have remanded for resentencing in light of
Kimbrough error, the sentencing court clearly expressed a belief
that it lacked discretion. Vanvliet, 542 F.3d at 264, 271
(vacating where the district court expressed a disagreement with an
enhancement and expressed its belief it could not disagree with its
application); Boardman, 528 F.3d at 87 (vacating where a district
court followed a guideline, as interpreted by this court, though it
disagreed with it, since the district court did not, before
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Kimbrough, believe it had the power to disagree); Rodríguez, 527
F.3d at 224 (vacating where the district court said it "had no
authority to 'disregard the advisory guideline sentencing range on
this ground'"); see also United States v. Rivera, 311 F. App'x 371,
372 (1st Cir. 2009) (per curiam) (unpublished) (vacating where the
district judge repeatedly criticized the sentence as too long but
nonetheless imposed it because, before Kimbrough, it "believed that
it could not vary below the already reduced guideline range without
creating an unwarranted sentencing disparity").
In the absence of a clear statement showing Kimbrough
error, we must review the "record as a whole" to assess the
district court's sentencing process. See DeCologero, 530 F.3d at
70. This review yields several conclusions. First, at the
district court, Stone squarely made his argument that the
guidelines were bad policy. The district court's response was not
to reject the argument out of hand, but rather to engage it. The
district court considered the severity of the crime, the harshness
of the sentence, and the benefit of guidelines that reflected
democratic will. It was in discussing these concerns that the
court said that Stone's argument was not one it "can accept." This
context indicates that the court fully considered the argument and
decided not to accept it.9 Thus, on the whole, the following facts
9
We also agree with the government that the district court used
a similar construct earlier in the sentencing hearing to indicate
that it "can't accept" the defendant's suggestion that Stone might
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all suggest the absence of Kimbrough error: at the time of the
sentencing Kimbrough had been on the books for four months;10 a
Kimbrough argument was clearly made; the district court did not
indicate that it believed it lacked discretion; but rather, it
analyzed the argument.
Second, the district court clearly understood that it
could impose a variant sentence under the advisory guidelines. Of
course, it did not specifically state that it could vary based on
a categorical disagreement with the guidelines. And it is true
that a district court's understanding that the guidelines are
advisory does not necessarily demonstrate that the court understood
its Kimbrough discretion. Boardman, 528 F.3d at 87 (rejecting the
government's argument that the district court's variant sentence,
under United States v. Booker, 543 U.S. 220 (2005), could be
affirmed against a charge of Kimbrough error, reasoning "the
question is discretion to deviate on what grounds, and we think the
not have known that "brownhairedgirl_1" was 15. While inferential
reasoning based on a judge's speaking patterns are not the
strongest support for affirming a sentence, it does reinforce our
conclusion in this case.
10
And we note that this very district court judge had, less than
two months before Stone's hearing, handed down a decision invoking
its Kimbrough power. United States v. Horta, 534 F. Supp. 2d 164,
166-68 (D. Me. 2008) (finding a "counterintuitive jump" in the drug
equivalency tables, and using Kimbrough power to vary from the
resulting guideline range out of a belief that doing so was more
consistent with the underlying statute).
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district court (without the benefit of Kimbrough's clarification)
underestimated what it was entitled to do" (emphasis in original)).
Nonetheless, both the district court's recognition of its
power to impose a variant sentence and its rejection of the
proposed ground for such a variance are relevant. Though the
district court knew it could vary from the guidelines, it saw no
reason to do so as it ultimately concluded that the harsh sentence
fit the severe crime. See, e.g., United States v. Saunders, 553
F.3d 81, 84 n.1 (1st Cir. 2009) (rejecting a Kimbrough argument
based on "a fair reading of the sentencing transcript" where "it
[was] evident from the judge's overall comments that he was aware
of his ability to fashion a sentence that differed from the
guideline range, and that, in his view, it was not appropriate to
deviate from the guidelines in this case given the extent of the
marijuana distribution operation"); United States v. Olivero, 552
F.3d 34, 42 (1st Cir. 2009) (finding no Kimbrough error where the
court "concluded there was no reason to depart from the
Guidelines"). To be sure, Kimbrough authorizes categorical
disagreements, but it also contemplates judges making these policy
disagreements tied to the facts of a specific case. 128 S. Ct. at
564.
Here, the district court's decision not to vary in light
of its recognition that the guidelines were advisory makes it
apparent that the district court did not believe that a guideline
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sentence was excessive as applied to Stone. Rather, the court felt
that the "combination of circumstances requires, in the court's
view, a long term in prison." So, the record shows the district
court was not struggling against the guidelines in a way that it
very likely would have if it had believed it could not
categorically depart, regardless of whether the guidelines'
application was too harsh. This conclusion is consistent with, and
therefore bolsters our conclusion that the sentencing court simply
did not accept Stone's argument that it should disagree with the
guidelines.
This leads to a third point. Stone argues that if we
affirm we must stretch to interpret the district court's statement
that it is "not this court's constitutional role to second-guess
congressional policy decisions simply because they're expressed in
the guidelines" as saying "though it is this court's role to
second-guess such policy decisions, I chose not to." But the
matter is more nuanced. As we have noted above, a district court
is free to agree with the guidelines (or, at least, some particular
guideline). Part of this freedom must be a freedom to agree with
the guidelines because the sentencing court believes that the
guidelines express some societal wisdom beyond what an entirely
unrestricted sentencing judge might possess. Thus, part of the
sentencing court's broad discretion must be the discretion to
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conclude that guidelines are convincing for various reasons,
including that they reflect popular will.
Stone argues that this conclusion is inconsistent with
Kimbrough, which 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. But the converse of this proposition is not
true. Even though a guideline is affected by congressional
adjustment, a sentencing court may rely on it. See Gibbons, 553
F.3d at 46. We see no reason why it would be somehow invalid for
a district court, in its broad sentencing discretion, to conclude
that its reason for rejecting a Kimbrough variance is that it
values congressional input. If these results seem inconsistent, it
is only because a sentencing court's discretion is so broad. After
Kimbrough, the law allows one judge to find that congressional
input makes a sentence less empirical, and so less appropriate,
while another judge may reasonably find such input makes the
sentence more reflective of democratic judgments of culpability,
and so more reasonable. Kimbrough itself specifically acknowledged
the disparity the broad discretion it confers would create. See
Rivera, 311 F. App'x at 372 ("In particular, the Kimbrough Court
expressly recognized that its holding might create sentencing
disparity between similarly situated defendants, depending on
individual judges' differing policy views, but characterized any
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such disparity as 'a necessary cost of the remedy . . . .'"
(quoting Kimbrough, 128 S. Ct. at 574)).11
We conclude that the district court's statements here are
best understood as expressing the view that it continues to value
congressional policy statements in sentencing. For example, when
making the statements that Stone highlights, the court also said,
"In many ways, the fact that the guidelines are a direct reflection
of a congressional expression of popular will is an argument in
favor, not against the imposition of a guideline sentence." The
court continued by observing that Congress had made policy choices,
reflected in the guidelines, about this type of crime. These
additional remarks show that the court was expressing its decision
to agree with Congress, not any belief that it was required to
defer to Congress. Specifically, the court's use of the phrase
"argument in favor" shows that it was open to considering
categorical arguments for and against applying the guidelines. In
sum, the district court certainly saw the guideline sentence as
harsh, even "punitive." But the court also observed that the
offense was severe. Though the district court knew it could impose
a variant sentence, it decided not to do so. Rather than conclude
that the guidelines were too "punitive," the district court
believed that there was value in deferring to Congress's
11
For this reason, Stone gets no ultimate assistance from the
decisions of other district courts that adopted arguments like the
one Stone advances.
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calibration of severe penalty for serious offense. And, as we have
explained, this is a determination it could make under its broad
discretion.
In conclusion, though Stone can point to some quotes
which appear to support his position, a review of the entire record
has convinced us otherwise. The sentencing court considered
Stone's Kimbrough argument, did not explicitly doubt its own
Kimbrough power, was not offended by the harsh sentence, but rather
expressed a preference for using guidelines based on congressional
policy choices in the context of evaluating the level of
culpability equating a serious crime with a severe punishment.
Thus, there was no procedural error.
B. Substantive Reasonableness
We turn to Stone's challenge to the substantive
reasonableness of his sentence.
1. Standard of review
The Supreme Court has given guidance on how a district
court should arrive at a sentence: the court must compute the
guidelines, which are the "starting point and the initial
benchmark," but which may not be presumed reasonable. Gall, 128 S.
Ct. at 596-97. Then, the court considers the parties' arguments,
after which it makes an "individualized assessment based on the
facts presented," considering all of the factors under 18 U.S.C.
§ 3553(a). Id. at 597. The court must explain the sentence, and
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any "major departure should be supported by a more significant
justification than a minor one." Id.
In reviewing this ultimate determination, "we examine the
district court's contemporaneous oral explanation of the sentence,
its near-contemporaneous written statement of reasons, and what
fairly can be gleaned by comparing what was argued by the parties
or proffered in the PSI Report with what the sentencing court
ultimately did." United States v. Martin, 520 F.3d 87, 92-93 (1st
Cir. 2008) (citations omitted). We "review the substantive
reasonableness of the sentence, taking into account the totality of
the circumstances." Id. at 92. "On abuse-of-discretion review,
the Court of Appeals [should give] due deference to the District
Court's reasoned and reasonable decision that the § 3553(a)
factors, on the whole, justified the sentence." Gall, 128 S. Ct.
at 602. "[I]t is not a basis for reversal that we, if sitting as
a court of first instance, would have sentenced the defendant
differently." Martin, 520 F.3d at 92 (rejecting a government
argument that a below-guideline sentence was unreasonable). This
deference reflects the district court's "superior coign of vantage,
greater familiarity with the individual case, the opportunity to
see and hear the principals and the testimony at first hand, and
the cumulative experience garnered through the sheer number of
district court sentencing proceedings that take place day by day."
Id. There are "a range of reasonable sentences," and we may not
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vacate unless the sentence falls outside that range. Id. Thus,
sentencing is a "judgment call" "'based on a complex of factors
whose interplay and precise weight cannot even be precisely
described.'" Id. (quoting United States v. Vega-Santiago, 519 F.3d
1, 4 (1st Cir. 2008) (en banc)). The "linchpin" of our review of
that judgment call is a "plausible sentencing rationale and a
defensible result." Id. at 96.
This substantive reasonableness review also applies to
within-guidelines sentences. United States v. Van Anh, 523 F.3d
43, 59 (1st Cir. 2008); see also Gall, 128 S. Ct. at 591 ("[W]hile
the extent of the difference between a particular sentence and the
recommended Guidelines range is surely relevant, courts of appeals
must review all sentences—whether inside, just outside, or
significantly outside the Guidelines range—under a deferential
abuse-of-discretion standard."). In this circuit, a within-
guidelines sentence is not presumed to be reasonable, yet "'a
defendant who attempts to brand a within-the-range sentence as
unreasonable must carry a heavy burden.'" Van Anh, 523 F.3d at 59
(quoting United States v. Pelletier, 469 F.3d 194, 204 (1st Cir.
2006)). In specifying this burden, we have said that a defendant
challenging a within-guideline sentence must "'adduce fairly
powerful mitigating reasons and persuade us that the district judge
was unreasonable in balancing pros and cons despite the latitude
implicit in saying that a sentence must be reasonable.'" United
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States v. Beatty, 538 F.3d 8, 17 (1st Cir. 2008) (quoting United
States v. Navedo-Concepción, 450 F.3d 54, 59 (1st Cir. 2006)).
2. Discussion
Here, we see a "plausible rationale" and a "defensible
result." We start with the rationale. Our review of the
sentencing transcript reveals that the district court considered
the advisory guidelines, weighed the relevant factors, and
explained why it thought a harsh sentence was appropriate. First,
as is proper, the court computed the guideline range and heard
Stone's argument on how to value the guidelines' advice. The court
discussed Stone's background and noted that it revealed no
explanation for his conduct. The court acknowledged Stone's post-
offense efforts. The court also considered the circumstances of
the crime, observing that it was troubled by Stone's conduct with
"brownhairedgirl_1." Though it recognized there was no allegation
of actual abuse of a minor, it saw Stone's actions towards
"brownhairedgirl_1" as abusive. Stone's maintenance of online
albums further "encouraged the distribution of child pornography to
others." The court especially noted one exemplar of a "very young
girl" was "simply haunting" and called forth an "overwhelming need
to protect" the victim. Considering that need, and that Stone's
actions encouraged distribution, the district court concluded that
a long term was necessary. The court recognized that the
enhancements led to a guideline range that was a "very, very severe
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punishment." Again noting the "congressional directive," the
court, "with some reservations," decided to impose a sentence at
the bottom end of the guideline range.
As discussed above, the record thus reveals that the
district court fully acknowledged the harshness of the sentence.
Yet, Stone's conduct with "brownhairedgirl_1" and the nature and
volume of his collection of pornography caused the district court
to conclude that the guideline punishment reasonably fit the crime.
It does appear that the district court drew some degree of comfort
in this finding by placing value in the fact that Congress had also
deemed Stone's crime serious. But, as we have explained above, a
district court may look to such sources to help inform its weighing
of crime and punishment. The district court also considered and
was unmoved by possible mitigating factors. Cf. United States v.
Olhovsky, 562 F.3d 530, 550 (3d Cir. 2009) (finding a below
guideline sentence for child pornography to be unreasonably high,
considering that the district court did not adequately consider
mitigating factors and "was so offended by the nature of Olhovsky's
conduct that it sentenced the offense at the expense of determining
an appropriate sentence for the offender"). Thus, the district
court here reasonably found that the guideline punishment was
appropriate for the grave offense.
Though there can be no question that the result is stern,
it is defensible. Stone's high guideline range resulted from the
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many enhancements applied. Each of these enhancements captured an
independent aspect of the wrongfulness of Stone's actions. First,
the material he possessed involved victims who were particularly
young. Second, he distributed the material to someone he believed
to be a minor. Third, the material he possessed contained sadistic
images that the sentencing court could reasonably find to be more
dangerous to society because of the suffering caused by their
production. Fourth, he possessed a large volume of images. And
finally, he used a computer. Though Stone challenges the fairness
of this computer enhancement, we have explained that the district
court has discretion to follow the guidelines. Were we to find the
computer enhancement unreasonable on these facts, we would
essentially be holding that district courts must always reject that
enhancement. This we will not do. Thus, in this case, the
sentencing enhancements fairly captured different dimensions of
Stone's conduct. And, beyond the facts underlying the
enhancements, Stone's conduct was not limited to simple
distribution, but rather entailed probing sexual questions and a
lewd performance for someone he believed to be a minor. The
combination of harms caused by Stone's conduct, as measured along
these many dimensions, could reasonably lead a sentencing judge to
find a need to impose a 17.5 year sentence.
Stone's attack on this result fails to rise to the level
of "fairly powerful mitigating reasons" showing unreasonableness.
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First, Stone argues that the district court gave undue weight to
the guidelines. See, e.g., United States v. Schmitt, 495 F.3d 860,
865 (7th Cir. 2007) (vacating a sentence where a district court
felt a "guideline range deserved more weight in the calculus
because [a defendant's] crime involved child pornography," but
recognizing that there is "a difference between weighing the
seriousness of a particular offense more heavily under § 3553(a),
and feeling compelled to impose a guideline sentence for a
particular class of crimes"). Our discussion of the district
court's rationale dispatches this argument. The district court
never indicated that it felt compelled to impose a guideline
sentence. Rather, as we explained above, the district court
evaluated the relevant factors and decided to agree with the
guidelines, after having recognized that it had an obligation "to
determine whether to sentence [Stone] within the guidelines or
outside the guidelines."
Second, Stone again attacks the guidelines as
unreasonable. Stone observes that he is a first-time offender who
fully accepted responsibility, but received a guideline range that
would have exceeded the statutory maximum. He notes that his
guideline range exceeds that for a child rapist or a second degree
murderer. See U.S.S.G. § 2A3.1 (specifying a base offense level of
38 for criminal sexual abuse); id. § 2A1.2 (specifying a base
offense level of 38 for second degree murder). We reject this
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argument. First, those offenses are also subject to enhancements,
which could increase the total offense level beyond that applicable
to Stone. See id. § 2A3.1(b); id. § 3A1.1-3A1.4. Second, for the
reasons explained above, the district court could find Stone's
conduct serious and warranting severe punishment. Using its
discretion to look to guidance provided by Congress through the
guidelines, the court could reasonably conclude that Stone's
actions represent a wrong of comparable magnitude to those charged
with physical sexual abuse.
Stone also argues that his guideline range, which
originally exceeded the statutory maximum, is unreasonably high as
it will deter pleas and leave no room for punishing more serious
offenders. Cf. United States v. Ofray-Campos, 534 F.3d 1, 44 (1st
Cir. 2008) ("By imposing the maximum sentence on López-Soto, the
district court left us little room to distinguish between him and
more culpable narcotics conspirators who occupy the role of
enforcer within a drug ring." (internal quotation marks omitted)).
But, certain repeat child pornography offenders are subject to even
higher statutory minimums and maximums, 18 U.S.C. § 2252A(b)(1),
and the district court could find that Stone's aggravating conduct,
especially with "brownhairedgirl_1," made him more culpable than
many other first-time offenders.
So, we conclude that Stone's sentence is based on a
plausible rationale and represents a defensible result. Stone has
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not met his "heavy burden" in showing the sentence was outside the
range of what is reasonable. Put another way, we are not left
"with a definite and firm conviction that the district court
committed a clear error of judgment." United States v. Autery, 555
F.3d 864, 879 (9th Cir. 2009) (Tashima, J., dissenting) (internal
quotation marks omitted).
III. Conclusion
For the reasons stated, Stone's sentence is affirmed.
We add a coda. Sentencing is primarily the prerogative
of the district court, and the sentence imposed in this case is
within permissible limits. There is no error of law and no abuse
of discretion. That said -- and mindful that we have faithfully
applied the applicable standards of review -- we wish to express
our view that the sentencing guidelines at issue are in our
judgment harsher than necessary. As described in the body of this
opinion, first-offender sentences of this duration are usually
reserved for crimes of violence and the like. Were we collectively
sitting as the district court, we would have used our Kimbrough
power to impose a somewhat lower sentence.
Affirmed.
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