FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50544
Plaintiff-Appellee,
v. D.C. No.
8:08-cr-00174-AG-1
RONALD WEBSTER HENDERSON,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted
December 8, 2010—Pasadena, California
Filed April 29, 2011
Before: Betty B. Fletcher, Marsha S. Berzon, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge B. Fletcher;
Concurrence by Judge Berzon;
Concurrence by Judge Callahan
5597
5600 UNITED STATES v. HENDERSON
COUNSEL
Sean K. Kennedy, Federal Public Defender, and James H.
Locklin, Deputy Federal Public Defender, Los Angeles, Cali-
fornia, for the defendant-appellant.
Andre Bitotte Jr., United States Attorney, Denisse D. Willett,
Assistant United States Attorney, and Anne C. Gannon,
Assistant United States Attorney, Santa Ana, California, for
the plaintiff-appellee.
OPINION
B. FLETCHER, Circuit Judge:
Ronald Henderson challenges the district court’s failure to
exercise the discretion accorded it in Kimbrough v. United
States, 552 U.S. 85 (2007), to vary from the Sentencing
Guidelines based on policy disagreements with them and not
simply based on an individualized determination that they
yield an excessive sentence in a particular case. Because it is
unclear whether the district judge recognized and exercised
his Kimbrough discretion, we reverse and remand for resen-
tencing.
UNITED STATES v. HENDERSON 5601
BACKGROUND
An FBI agent, working undercover, used the peer-to-peer
network software “Limewire” to view lists of images and vid-
eos located on Ronald Henderson’s computer and available
for downloading. The agent downloaded approximately 15
files containing child pornography from Henderson’s com-
puter. Agents then executed a search warrant at Henderson’s
residence. The agents seized four computers and various other
digital storage devices. The file sharing function was enabled
on Henderson’s laptop computer that contained the
“Limewire” software.
At the time of the search, Henderson made numerous state-
ments to the agents. Henderson stated that he had child por-
nography and that he was the one who put it on his laptop
computer. He said he understood that possession of child por-
nography is a crime. He revealed that he is bipolar but that he
was not then taking medication. He also told the agents that
he is obsessed with completing collections—for example, he
collects recordings by the Rolling Stones, as well as coins.
Henderson further stated that he had been collecting child
pornography for about two years. He catalogued his collection
and saved the child pornography files on numerous CDs,
some of which contained over a thousand images. His prefer-
ence was for female teenagers between 13 and 15 years old.
Henderson also stated that he knew that he was sharing his
files and, in fact, noticed people downloading child pornogra-
phy from his computer. In total, the files that Henderson
offered for sharing consisted of 8,765 video and image files,
of which approximately 80 were of identified victims. Eleven
of those files were video files, some of them depicting prepu-
bescent girls engaged in sexual acts.
During the search, the agents also discovered two photo-
graphs in an envelope. They were pictures of two girls under
the age of 18 whom Henderson admitted to having picked up
5602 UNITED STATES v. HENDERSON
in Oregon some ten years before. Henderson brought them
with him to his apartment in Huntington Beach, California.
Although Henderson wanted to have sex with them, he was,
he said, “a gentleman”— apparently meaning that he did not
have sex with them. When the girls did not do housework,
Henderson bought them bus tickets and sent them back to
Oregon, some two weeks after he had picked them up.
Henderson pled guilty to the single count in the indictment,
possession of child pornography in violation of 18 U.S.C.
§ 2252(a)(5)(B). In preparation for sentencing, the United
States Probation Office prepared a presentence investigation
report (PSR). Using the child pornography Guideline,
U.S.S.G. § 2G2.2, the PSR calculated the offense level at 18.
The PSR added two levels because Henderson’s files con-
tained at least one prepubescent minor, pursuant to
§ 2G2.2(b)(2); two levels because the offense involved distri-
bution, pursuant to § 2G2.2(b)(3); four levels because the
offense involved material that portrays sadistic or masochistic
conduct or other depictions of violence, that is, vaginal pene-
tration of prepubescent minors, pursuant to § 2G2.2(b)(4);
two levels because the offense involved the use of a com-
puter, pursuant to § 2G2.2(b)(6); and five levels because the
offense involved 600 or more images, pursuant to
§ 2G2.2(b)(7). The PSR deducted three levels for acceptance
of responsibility, resulting in a total offense level of 30.
Henderson had three criminal-history points based on two
drug-related convictions, placing him in criminal history cate-
gory II.
Based on a total offense level of 30 and a criminal history
II, the PSR calculated Henderson’s sentencing range to be 108
to 120 months, with the high end limited by the 10-year statu-
tory maximum.
The probation officer recommended that Henderson be sen-
tenced to 70 months imprisonment followed by a lifetime
UNITED STATES v. HENDERSON 5603
term of supervised release. The probation officer relied heav-
ily for her recommendation on Henderson’s significant his-
tory of physical and sexual abuse and neglect, and on the role
that his mental health disorder played in the offense. She
explained that after the death of his father following a car
accident in which he was a passenger, Henderson was first
raped when he was five years old, by an adult male, while on
a religious retreat. When he was seven, Henderson was physi-
cally and sexually abused by his mother’s boyfriend. The man
forced Henderson into bed naked and forced him to attempt
to have sex with his mother. Later, as a teen, Henderson was
molested by a group of older female teens. After his mother
was deemed unfit to raise him, Henderson was placed in a
series of foster homes. In one of those homes, Henderson was
sexually molested by his foster mother when he was between
16 and 18 years old.
The probation officer also noted that Henderson was hospi-
talized for manic episodes twice in 1995, as well as twice in
1997. During that time, he was diagnosed with bipolar disor-
der I (the most extreme form) and prescribed psychiatric med-
ication. Between 2003, when he was released from jail, and
2008, when he was placed on pretrial supervision for the
instant offense, Henderson did not have access to medication.
The probation officer reported that Henderson also has sec-
ondary symptoms of obsessive compulsive disorder, that
caused Henderson to search out, collect, and catalogue entire
sets of documents, memorabilia, and information. The officer
explained that it is unknown the exact degree to which Hen-
derson’s obsessive compulsive disorder contributed to his
offense, but that it may have resulted in his accumulating
more and more diverse types of child pornography than he
may have otherwise acquired. The probation officer opined
that this factor distinguished Henderson from other defen-
dants.
In its sentencing memorandum, the government requested
that the district court sentence Henderson to a low-end Guide-
5604 UNITED STATES v. HENDERSON
lines sentence of 108 months and a lifetime term of super-
vised release.
Henderson requested that he be sentenced to 36 months
imprisonment followed by a seven-year term of supervised
release. Citing Kimbrough v. United States, 552 U.S. 85
(2007), he argued that the child pornography Guideline,
U.S.S.G. § 2G2.2, should be given little weight because it was
not developed following an empirical approach but in
response to Congressional directives, and does not comport
with 18 U.S.C. § 3553(a) even in a mine-run case. Henderson
also argued that the § 3553(a) factors warranted a reduced
sentence because of his childhood abuse and history of mental
illness.
The government responded that § 2G2.2 was properly
based on Congressional directives that sentencing courts are
not free to ignore.
At the sentencing hearing, the district court judge stated it
was the first time he had encountered the Kimbrough argu-
ment. He said:
I’m going to need direction from the Ninth Circuit
before I accept those other arguments, so perhaps
you can include this in the appeal. I’m not accepting
the argument you made along those lines, but I am
going to vary and looking at the chart and looking at
my past conduct in similar cases I believe a three-
level downward variance is in order, giving us a
range of 78 to 97 months, and I will pick the low end
of that which is 78 months, which is a three-level
variance, a variance that tends to be relatively high
compared to my usual practices in these cases but I
think is justified particularly by the history and char-
acteristics of the defendant here.
The district court imposed a 78-month sentence followed by
a lifetime term of supervised release.
UNITED STATES v. HENDERSON 5605
Henderson argues that his sentence is procedurally errone-
ous due to the district court’s refusal to accept his Kimbrough
argument absent guidance from this court. He also argues that
the sentence is substantively unreasonable.
STANDARD OF REVIEW
Our review of sentencing decisions is limited to determin-
ing whether they are reasonable. Gall v. United States, 552
U.S. 38, 46 (2007). Only a procedurally erroneous or substan-
tively unreasonable sentence will be set aside. United States
v. Apodaca, No. 09-50372, ___ F.3d ___, 2011 WL 1365794,
at *2-3 (9th Cir. April 12, 2011); United States v. Carty, 520
F.3d 984, 993 (9th Cir 2008).
In reviewing sentences for reasonableness, we “must first
ensure that the district court committed no significant proce-
dural error, such as . . . treating the Guidelines as mandatory
. . . .” Gall, 552 U.S. at 51. Assuming that the district court’s
sentencing decision is procedurally sound, we then consider
the substantive reasonableness of the sentence imposed under
an abuse-of-discretion standard. Id.
In applying this standard, we review the district court’s
interpretation of the Sentencing Guidelines de novo, its appli-
cation of the Guidelines to the facts for abuse of discretion,
and its factual findings for clear error. United States v. Garro,
517 F.3d 1163, 1167 (9th Cir. 2008).
DISCUSSION
I. Kimbrough Sentencing Discretion
In Kimbrough v. United States, 552 U.S. 85 (2007), the
Supreme Court considered whether district courts have
authority to consider the disparity between the Sentencing
Guidelines’ treatment of crack and powder cocaine offenses
when deciding on a sentence. Id. at 91. In its analysis, the
5606 UNITED STATES v. HENDERSON
Court emphasized that while the Sentencing Guidelines are
advisory, the Sentencing Commission continues to hold a key
role in the criminal system. Id. at 108. Sentencing courts must
treat the Guidelines as the “ ‘starting point and the initial
benchmark.’ ” Id. at 108 (quoting Gall, 552 U.S. at 49). Con-
gress established the Commission to formulate and constantly
refine national sentencing standards. Id. Carrying out its
charge, the Commission “fills an important institutional role:
It has the capacity courts lack to base its determinations on
empirical data and national experience, guided by a profes-
sional staff with appropriate expertise.” Id. at 108-09 (internal
quotations omitted). Therefore, “in the ordinary case, the
Commission’s recommendation of a sentencing range will
‘reflect a rough approximation of sentences that might
achieve § 3553(a)’s objectives.’ ” Id. at 109 (quoting Rita v.
United States, 551 U.S. 338, 350 (2007)). The Court nonethe-
less recognized that sentencing judges have “greater familiar-
ity with . . . the individual case and the individual defendant
before him than the Commission or the appeals court.” Id.
(quoting Rita, 551 U.S. at 357-58). In light of these “discrete
institutional strengths,” the Court held that different levels of
deference are due a sentencing court’s decision to vary from
the Guidelines based on its reason for doing so:
[A] district court’s decision to vary from the advi-
sory Guidelines may attract greatest respect when
the sentencing judge finds a particular case “outside
the ‘heartland’ to which the Commission intends
individual Guidelines to apply.” Rita, 551 U.S., at
351, 127 S. Ct., at 2465. On the other hand, while
the Guidelines are no longer binding, closer review
may be in order when the sentencing judge varies
from the Guidelines based solely on the judge’s view
that the Guidelines range “fails properly to reflect
§ 3553(a) considerations” even in a mine-run case.
Ibid. . . .
Id. at 109.
UNITED STATES v. HENDERSON 5607
The Court held, however, that the crack-cocaine Guidelines
“present no occasion for elaborative discussion of this matter
because those Guidelines do not exemplify the Commission’s
exercise of its characteristic institutional role.” Id. In formu-
lating the Guideline ranges for crack cocaine offenses, the
Commission looked to the mandatory minimum sentences for
cocaine offenses, which adopted a ratio that treated every
gram of crack cocaine as the equivalent of 100 grams of pow-
der cocaine, and did not take account of empirical data and
national experience. Id. Yet the Commission itself has
reported that the crack/powder disparity produces dispropor-
tionately harsh sanctions, i.e., sentences for crack cocaine
offenses “greater than necessary” in light of the purposes of
sentencing set forth in § 3553(a). Id. at 110. The Court there-
fore held that “it would not be an abuse of discretion for a dis-
trict court to conclude when sentencing a particular defendant
that the crack/powder disparity yields a sentence ‘greater than
necessary’ to achieve § 3553(a)’s purposes, even in a mine-
run case.” Id.
[1] In Spears v. United States, 555 U.S. 261, 129 S. Ct.
840 (2009), the Court clarified that “Kimbrough . . . holds that
with respect to the crack cocaine Guidelines, a categorical dis-
agreement with and variance from the Guidelines is not sus-
pect.” Id. at 843. The Court emphatically stated: “That was
indeed the point of Kimbrough: a recognition of 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.” Id. at 842-43.
[2] Kimbrough’s rationale is not limited to the crack-
cocaine Guidelines. See United States v. Mitchell, 624 F.3d
1023, 1030 (9th Cir. 2010) (“As the Supreme Court through
Booker, Kimbrough, and Spears has instructed, and as other
circuits that have confronted the crack/powder variance in the
sentence of a career offender have accepted and clarified in
their circuit law, sentencing judges can reject any Sentencing
5608 UNITED STATES v. HENDERSON
Guideline, provided that the sentence imposed is reason-
able.”) (emphasis in original). See also United States v. Cor-
ner, 598 F.3d 411, 415 (7th Cir. 2010) (“We understand
Kimbrough and Spears to mean that district judges are at lib-
erty to reject any Guideline on policy grounds—though they
must act reasonably when using that power.”) (emphasis in
original). Moreover, as we will now explain, the history of the
child pornography Guidelines reveals that, like the crack-
cocaine Guidelines at issue in Kimbrough, the child pornogra-
phy Guidelines were not developed in a manner “exemplify-
[ing] the [Sentencing] Commission’s exercise of its
characteristic institutional role.” Kimbrough, 552 U.S. at 109,
so district judges must enjoy the same liberty to depart from
them based on reasonable policy disagreement as they do
from the crack-cocaine Guidelines discussed in Kimbrough.
II. The History of the Child Pornography Guidelines
“Much like policymaking in the area of drug trafficking,
Congress has used a mix of mandatory minimum penalty
increases and directives to the Commission to change sentenc-
ing policy for sex offenses.” U.S. Sentencing Comm’n, Fif-
teen Years of Guidelines Sentencing: An Assessment of How
Well the Federal Criminal Justice System is Achieving the
Goals of Sentencing Reform 72 (2004) (“Fifteen-Year Assess-
ment”), http://www.ussc.gov/15_year/15_year_study_full.pdf.
At the inception of the Guidelines, simple possession of
child pornography was not a crime and the relevant Guideline,
§ 2G2.2, was limited to “transporting, receiving, or traffick-
ing” offenses. See U.S.S.G. § 2G2.2 (1987). The base offense
level for these crimes was 13. See id. The crimes of posses-
sion and possession with intent to sell were added in 1990.
See Crime Control Act of 1990, Pub. L. 101-647, § 323, 104
Stat. 4789, 4818-19 (1990).
The Commission responded by adding a new Guideline at
§ 2G2.4 to address receipt or possession of child pornogra-
UNITED STATES v. HENDERSON 5609
phy, while trafficking continued to be covered by § 2G2.2. U.
S. Sentencing Comm’n, The History of the Child Pornogra-
phy Guidelines 18-19 (2009) (“Child Porn. History Rep’t”),
http://www.ussc.gov/full.pdf. Following those amendments,
the base offense level for trafficking offenses was 13, to be
increased by two levels if the material involved a prepubes-
cent minor or a minor under the age of twelve years; by up
to five levels if the offense involved distribution; and by four
levels if the material portrayed sadistic or masochistic conduct
or other depictions of violence. See U.S.S.G. App. C, amend.
372 (Nov. 1, 1991). The base offense level for receipt or pos-
session was 10 and there was a two-level enhancement if the
material involved a prepubescent minor or a minor under the
age of twelve. See id.
In 1991, over the objection of the Commission, see Child
Porn. History Rep’t at 20-21, Congress directed the Commis-
sion to increase penalties for child pornography offenses. See
Treasury, Postal Service and General Government Appropria-
tions Act, 1992, Pub. L. No. 102-141, § 632, 105 Stat 834,
876 (1991). Among other things, Congress explicitly ordered
the Commission to include receiving pornography in the
Guidelines section that governed trafficking and transporting;
to increase the base offense level for receiving, transporting,
and trafficking to at least 15, and to add a five-level enhance-
ment for such offenses for patterns of activity involving the
sexual abuse or exploitation of a minor; and to increase the
base offense level for possession to at least 13 and to add to
this offense enhancements for the number of items possessed.
See Child Porn. History Rep’t at 23-24; General Government
Appropriations Act § 632.
In response to these congressional directives, the Commis-
sion amended § 2G2.2 by providing that receipt offenses were
to be sentenced under § 2G2.2, raising the base offense level
from 13 to 15, and adding a five-level pattern of activity
enhancement. U.S.S.G. App. C, amend. 435 (Nov. 27, 1991).
The Commission also amended § 2G2.4 by limiting it to pos-
5610 UNITED STATES v. HENDERSON
session of child pornography, raising the base offense level
from 10 to 13, and adding a two-level enhancement for pos-
session of more than 10 items. Id. amend. 436.
In 1995, Congress again directed the Commission to
increase penalties for child pornography crimes by increasing
the base offense levels by two levels and adding a two-level
enhancement for use of a computer. See Sex Crimes Against
Children Prevention Act of 1995, Pub. L. No. 104-71 §§ 2-3,
109 Stat. 774 (1995). Congress also directed the Commission
to prepare a report and analysis of sex offenses against chil-
dren and child pornography for submission to Congress. Id.
§ 6.
The Commission carried out Congress’s directive by
increasing the base offense levels from 15 to 17 for trafficking
offenses and from 13 to 15 for possession, and by adding a
two-level enhancement for use of a computer. See U.S.S.G.
App. C., amend. 537 (Nov. 1, 1996).
In its report to Congress, the Commission explained that its
analysis supported an enhancement for use of a computer to
solicit participation in production of child pornography, but
otherwise criticized the two-level computer enhancement
because it failed to distinguish serious commercial distribu-
tors from more run-of-the-mill users. U.S. Sentencing
Comm’n, Sex Offenses Against Children: Findings and Rec-
ommendations Regarding Federal Penalties 25-30, 37-38
(1996), http://ftp.ussc.gov/r_congress/SCAC.PDF. The Com-
mission recommended that Congress increase statutory maxi-
mum sentences for production of child pornography and
double the statutory maximum for offenders with prior con-
victions for sex abuse crimes. Id., Executive Summary at ii.
The Commission informed the Congress that it was consider-
ing consolidating § 2G2.4 and § 2G2.2, to remedy the dispar-
ity between receipt and possession offenses. Id. at 41.
Congress responded with legislation that directed the Com-
mission to add enhancements for the use of a computer to per-
UNITED STATES v. HENDERSON 5611
suade, induce, entice, coerce or facilitate the transport of a
child; to increase penalties in any case in which the defendant
engaged in a pattern of activity; and to clarify that distribution
included distribution for nonpecuniary gain. See Protection of
Children from Sexual Predators Act of 1998, Pub. L. No. 105-
314 §§ 503, 505-507, 112 Stat. 2974 (1998).
In 2000, the Commission passed an amendment consistent
with the 1998 Sexual Predators Act. The amendment revised
the distribution enhancement in § 2G2.2 by detailing varying
levels of enhancement, ranging from a general two-level
enhancement to a seven-level enhancement for those who dis-
tributed child pornography to a minor to persuade him or her
to engage in sexual conduct. See U.S.S.G. App. C, amend.
592 (Nov. 1, 2000); Child Porn. History Rep’t at 35-36. Sec-
tion 2G2.4 remained unchanged. See id.1
In 2003, Congress enacted the Prosecutorial Remedies and
Other Tools to End the Exploitation of Children Today Act
(the “PROTECT Act”), which established a five-year manda-
tory minimum sentence for trafficking/receipt offenses,
increased the statutory maximum from 15 to 20 years for traf-
ficking/receipt offenses, and increased the statutory maximum
for possession offenses from five to ten years. See PROTECT
Act, Pub. L. No. 108-21 § 103, 117 Stat. 650, 653 (2003). In
the PROTECT Act, Congress—for the first time and the only
time to date—made direct amendments to the Guidelines.
Child Porn. History Rep’t at 38. The Congress added to
§ 2G2.4 an enhancement of four levels for possession of
images of sadistic or masochistic conduct. See PROTECT Act
§ 401(i); U.S.S.G. App. C, amend. 649 (April 30, 2003). It
also amended both § 2G2.2 and § 2G2.4 by adding an
enhancement varying between two and five levels based on
the number of the child pornographic images. Id.
1
The Commission responded to its concerns about patterns of activity
enhancement and those in the Sexual Predators Act in 2001 by enacting
a new guideline at § 4B1.5 (Repeat and Dangerous Sex Offender Against
Minors). See U.S.S.G. App. C, amend. 615 (Nov. 1, 2001).
5612 UNITED STATES v. HENDERSON
To conform to the new mandatory minimum sentences and
higher statutory maxima introduced by the PROTECT Act,
the Commission raised the base offense levels for traffick-
ing/receipt offenses from 18 to 22 and the base offense levels
for possession from 15 to 18. U.S.S.G. App. C, amend. 664
(Nov. 1, 2004); Child Porn. History Rep’t at 46. The Com-
mission also consolidated § 2G2.4 into § 2G2.2. See U.S.S.G.
App. C, amend. 664. The Commission added a two-level
decrease for offenders whose offenses were limited to receipt
or solicitation of child pornography and who did not intend to
distribute or traffic in such material.2 Id.
[3] In sum, the child pornography Guidelines have been
substantively revised nine times during their 23 years of exis-
tence. Child Porn. History Rep’t at 54. Most of the revisions
were Congressionally-mandated and not the result of an
empirical study. As the Commission itself has explained,
“The frequent mandatory minimum legislation and specific
directives to the Commission to amend the [G]uidelines make
it difficult to gauge the effectiveness of any particular policy
change, or to disentangle the influences of the Commission
from those of Congress.” Fifteen-Year Assessment at 73. The
Commission has also noted that “[s]entencing courts have . . .
expressed comment on the perceived severity of the child por-
nography [G]uidelines through increased below-guidelines
variance and downward departure rates.” Child Porn. History
Rep’t at 54. The Commission therefore has established a
review of the child pornography Guidelines as one of its pri-
orities. Id.
2
There have been no more amendments to § 2G2.2 relevant to the issue
under consideration here. The Guideline, however, now covers a newly-
created offense making it unlawful to produce or distribute “morphed
images” of an identifiable minor. See PROTECT Act § 304; Child Porn.
History Rep’t at 50.
UNITED STATES v. HENDERSON 5613
III. Kimbrough Sentencing Discretion in Child
Pornography Cases
[4] During oral argument, the government recognized that
district courts have authority to disagree with the child por-
nography Guidelines. As the history and the Commission’s
own reports and assessments of these Guidelines demonstrate,
the child pornography Guidelines are, to a large extent, not
the result of the Commission’s “exercise of its characteristic
institutional role,” which requires that it base its determina-
tions on “empirical data and national experience,” but of fre-
quent mandatory minimum legislation and specific
congressional directives to the Commission to amend the Guide-
lines.3 Kimbrough, 552 U.S. at 109. We therefore hold that,
similar to the crack cocaine Guidelines, district courts may
vary from the child pornography Guidelines, § 2G2.2, based
on policy disagreement with them, and not simply based on
an individualized determination that they yield an excessive
sentence in a particular case.4 See Spears, 129 S. Ct. at 843;
3
That Congress has the authority to issue sentencing directives to the
Commission is established beyond peradventure. See United States v.
LaBonte, 520 U.S. 751, 757 (1997) (“Congress has delegated to the Com-
mission significant discretion in formulating guidelines for sentencing
convicted federal offenders. . . . Broad as that discretion may be, however,
it must bow to the specific directives of Congress.”) (internal quotations
omitted). See also 28 U.S.C. § 994(a) (Commission must promulgate
Guidelines that are “consistent with all pertinent provisions of any Federal
statute. . . .”). As Kimbrough makes clear, however, the fact that the
Guidelines conform to Congressional directives does not insulate them
from a Kimbrough challenge.
4
In so holding, we join several of our sister circuits. See United States
v. Dorvee, 616 F.3d 174, 184-86 (2d Cir. 2010) (holding that § 2G2.2 is
“fundamentally different” from other Guidelines and, unless it is “applied
with great care, can lead to unreasonable sentences that are inconsistent
with what § 3553 requires”); United States v. Grober, 624 F.3d 592, 608-
09 (3d Cir. 2010) (§ 2G2.2 was not developed pursuant to the Commis-
sion’s characteristic institutional role and district courts may, but are not
obligated to vary on policy basis from it); United States v. Stone, 575 F.3d
83, 90 (1st Cir. 2009) (accepting defendant’s argument that the child por-
nography Guidelines are based on congressional directives, and not on the
Commission’s empirical approach; district courts may therefore disagree
5614 UNITED STATES v. HENDERSON
Kimbrough, 552 U.S. at 109-10.5
[5] We emphasize that we do not hold that application of
§ 2G2.2 will always result in an unreasonable sentence and
with the Guidelines). See also United States v. Pape, 601 F.3d 743, 749
(7th Cir. 2010) (district courts “are at liberty to reject any Guideline on
policy grounds—though they must act reasonably when using that
power.”) (internal quotations omitted). But see United States v. Pugh, 515
F.3d 1179, 1201 n.15 (11th Cir. 2008) (child pornography Guidelines “do
not exhibit the deficiencies the Supreme Court identified in Kimbrough”).
5
Our holding that Kimbrough allows district courts to vary from the
Guidelines based on disagreements with Congressional policies expressed
in directives to the Commission is also consistent with this court’s juris-
prudence, see Mitchell, 624 F.3d at 1028-30 (holding that, under Kim-
brough, courts may reject the career offender Guidelines, § 4B1.1, based
on policy disagreement with them), and that of several of our circuits. See
Stone, 575 F.3d at 89 (Kimbrough supplies district courts with authority
to vary from the Guidelines on a policy basis even where a Guidelines
provision is a direct reflection of a Congressional directive); Grober, 624
F.3d at 608 (same); United States v. Corner, 598 F.3d 411, 415-16 (7th
Cir. 2010) (en banc) (same).
We note that Mitchell and, by extension, our holding today are not
inconsistent with United States v. Gonzalez-Zotelo, 556 F.3d 736 (9th Cir.
2009). Gonzalez-Zotelo held that a district judge may not justify a down-
ward departure from the Guideline range as an “unwarranted disparity”
within the meaning of 18 U.S.C. § 3553(a)(6), where the disparity was the
result of a Congressionally-authorized sentencing policy. We had
explained in an earlier case, United States v. Marcial-Santiago, 447 F.3d
715 (9th Cir. 2006), that such disparities could not be unwarranted
because Congress had, by statute, required the Commission to promulgate
a Guideline providing for a downward departure for defendants in the fast-
track program and so had concluded that resulting disparities were not
unwarranted within the meaning of § 3553(a)(6). See id. at 717-19.
Gonzalez-Zotelo held only that Kimbrough was not inconsistent with
Marcial-Santiago and therefore Marcial-Santiago remained precedential
law. See Gonzalez-Zotelo, 556 F.3d at 379-41. Mitchell, by contrast, held
that Kimbrough authorized departures from the Guidelines based not on
perceived unwarranted disparities within the meaning of § 3553(a)(6) with
Guidelines applied in other cases, but based on policy disagreements with
the Guidelines used to calculate the sentence of the defendant before the
court. See Mitchell, 624 F.3d at 1027-29.
UNITED STATES v. HENDERSON 5615
that sentencing courts must continue to consider the applica-
ble Guidelines range as “the starting point and the initial
benchmark,” Gall, 552 U.S. at 49. See Kimbrough, 552 U.S.
at 110 (noting that despite its policy disagreement with the
crack cocaine Guidelines, the district court “began by prop-
erly calculating and considering the advisory Guidelines
range.”). Sentencing courts must also continue to consider all
of the § 3553(a) factors in deciding upon the sentence. See id.
at 110-11 (describing approvingly the district court’s discus-
sion of the relevant § 3553(a) factors and stating that the “ulti-
mate question” is whether the sentence was reasonable).
Finally, sentencing courts must continue to adequately explain
their choice of the sentence, including their policy disagree-
ment with § 2G2.2, to allow for meaningful appellate review
and to promote the perception of fair sentencing. Gall, 552
U.S. at 50.
[6] We further emphasize that district courts are not obli-
gated to vary from the child pornography Guidelines on pol-
icy grounds if they do not have, in fact, a policy disagreement
with them. See Stone, 575 F.3d at 93 (“the district court’s
broad discretion includes the power to agree with the [child
pornography] [G]uidelines”); Grober, 624 F.3d at 609 (“if a
district court does not in fact have a policy disagreement with
§ 2G2.2, it is not obligated to vary on this basis”); Pape, 601
F.3d at 749 (affirming sentence where district court under-
stood its Kimbrough discretion, but declined to exercise it).
This observation does not mean that a district court presented
with a Kimbrough argument is free to ignore it. On the con-
trary, a district court commits procedural error when it fails
to appreciate its Kimbrough discretion to vary from the child
pornography Guidelines based on a categorical policy dis-
agreement with them. United States v. Tutty, 612 F.3d 128,
131 (2d Cir. 2010); United States v. Stone, 575 F.3d 83, 89
(1st Cir. 2009). Only when we are satisfied that the district
court appreciated its Kimbrough discretion will we consider
the substantive reasonableness of the sentence imposed.
5616 UNITED STATES v. HENDERSON
CONCLUSION
[7] The district judge in Henderson’s case was squarely
presented with the question of whether Kimbrough discretion
applies. His ruling on the issue, however, is unclear. While he
stated that he needed guidance from this court and suggested
that Henderson raise the argument in his appeal, he also indi-
cated that he was not accepting the argument that he must
exercise Kimbrough discretion. Thus, we are unable to ascer-
tain whether the district court committed procedural error by
failing to appreciate its Kimbrough discretion to vary from the
child pornography Guidelines, § 2G2.2, on policy grounds, or
whether it recognized, but declined to exercise that discretion.
We therefore remand to the district court to resentence exer-
cising its Kimbrough discretion.
REVERSED and REMANDED.
BERZON, Circuit Judge, concurring:
I fully concur in Judge Fletcher’s opinion for the court. I
write only to emphasize that unjust and sometimes bizarre
results will follow if § 2G2.2 is applied by district courts
without a special awareness of the Guideline’s anomalous his-
tory, chronicled in the court’s opinion and elsewhere. See
Troy Stabenow, Deconstructing the Myth of Careful Study: A
Primer on the Flawed Progression of the Child Pornography
Guidelines, Jan. 1 2009 (unpublished comment).1 I briefly
draw attention to two of the odd features of § 2G2.2, both of
which were discussed at greater length in the Second Circuit’s
opinion in United States v. Dorvee, 616 F.3d 174 (2d Cir.
2010). See id. at 186-88.
1
Available at http://www.fd.org/pdf_lib/child%20porn%20july%20
revision.pdf (last visited Apr. 19, 2011).
UNITED STATES v. HENDERSON 5617
First, an unduly deferential application of § 2G2.2 will lead
to the vast majority of offenders being sentenced to near the
maximum statutory term. Because of the history of Congres-
sional involvement, the base offense level for possession of
child pornography is already a relatively high 18 (compared
to 10 for the same offense in 1991). Enhancements for the use
of a computer, depictions of prepubescent minors, portrayal of
sadistic or masochistic conduct and the involvement of over
600 images—all of which apply in a majority of cases and
some of which apply in more than 90% of them—add up to
create an effective base offense level of 31. See United States
Sentencing Commission, Use of Guidelines and Specific
Offense Characteristics Fiscal Year 2009.2 As a result, absent
a reduction for acceptance of responsibility, an ordinary first-
time offender could easily face a guideline range of 108 to
135 months—in other words, a guideline range at, and
extending beyond, the extreme upper edge of the statutory
range. (The statutory maximum is ten years, with no manda-
tory minimum. See 18 U.S.C. § 2252(b)(2)). Cf. Dorvee, 616
F.3d at 186-87. Such a concentration of nearly all offenders
near the statutory maximum stands in significant tension with
a sentencing judge’s duties “to consider every convicted per-
son as an individual,” Gall v. United States, 552 U.S. 38, 52
(2007) (quotation omitted), and to impose a sentence no
“greater than necessary” to achieve § 3553(a)’s objectives.
See 18 U.S.C. § 3553(a); see also Gall, 552 U.S. at 55 (noting
“the need to avoid unwarranted similarities among [defen-
dants] who were not similarly situated”).
Second, as the Second Circuit explained, § 2G2.2 often rec-
ommends longer sentences for those who receive or distribute
images of minors than the applicable Guidelines recommend
for those who actually engage in sexual conduct with minors.
See Dorvee, 616 F.3d at 187. Such a result is particularly
illogical, given that one of the frequently advanced justifica-
2
Available at http://ftp.ussc.gov/gl_freq/09_glinexgline.pdf (last visited
Apr. 19, 2011).
5618 UNITED STATES v. HENDERSON
tions for harshly penalizing those who distribute or possess
child pornography is the concern that such individuals could,
if not restrained and deterred, later sexually abuse children—
one would think, a much more serious offense. See, e.g., 149
Cong. Rec. S5114 (daily ed. Apr. 10, 2003) (statement of Sen.
Orrin Hatch) (“Congress has long recognized that child por-
nography produces three distinct, disturbing, and lasting
harms to our children. First, child pornography whets the
appetites of pedophiles and prompts them to act out their per-
verse sexual fantasies on real children. Second, it is a tool
used by pedophiles to break down the inhibitions of children.
Third, child pornography creates an immeasurable and indel-
ible harm on the children who are abused to manufacture it.”).
For better or worse, we must live with § 2G2.2: it is on the
books and so must be the “ ‘starting point and initial bench-
mark’ ” for district judges sentencing those convicted of child
pornography offenses. Kimbrough v. United States, 552 U.S.
85, 108 (2007) (quoting Gall, 552 U.S. at 49). But, like any
Guideline, § 2G2.2 is merely advisory. District judges who,
after having considered § 2G2.2, conclude that it constitutes
bad advice should be encouraged to reject it as such. See Kim-
brough, 552 U.S. at 113 (Scalia J., concurring) (emphasizing
that “the district court is free to make its own reasonable
application of the § 3553(a) factors, and to reject (after due
consideration) the advice of the Guidelines”).
CALLAHAN, Circuit Judge, concurring in the result:
I agree with my colleagues that because the district judge’s
ruling on the extent to which he could exercise his discretion
in departing from the Guidelines for child pornography was
not clear, a remand is appropriate. I write separately because
I disagree with the majority’s suggestion that the district court
is free to disagree with the Guidelines for child pornography
on policy grounds without explaining its disagreement. I dis-
UNITED STATES v. HENDERSON 5619
agree because I do not find that the Guidelines for child por-
nography are similar to the crack cocaine Guideline
considered by the Supreme Court in Kimbrough v. United
States, 552 U.S. 85 (2007) and Spears v. United States, 555
U.S. 261 (2009).
As noted by the majority, the Supreme Court in United
States v. LaBonte, 520 U.S. 751, 757 (1997), recognized that
the ultimate authority for establishing sentences and guide-
lines rests with Congress and even when Congress delegates
its authority to the Sentencing Commission, that discretion
“must bow to the specific directives of Congress.” As a gen-
eral principle, a district court is not free to disregard a sen-
tence or Guideline, established by Congress either directly or
through the Commission solely because the court disagrees
with the sentence or Guideline. Rather, as the Supreme Court
has made clear, a sentencing court in determining the appro-
priate sentence may consider a Guideline’s nature and lin-
eage, but must set forth its reasons for the imposition of the
sentence in the individual case.1 Without such an explanation,
neither we nor the public will be able to determine whether
the sentence was constitutionally reasonable.
The Supreme Court has allowed something of an exception
to this general approach for the Guideline for crack cocaine.
See Kimbrough v. United States, 552 U.S. 85 (2007) and
Spears v. United States, 555 U.S. 261 (2009). However,
Guideline § 2G2.2 for possession of child pornography is not
sufficiently similar to the crack cocaine Guideline, in its
nature or lineage, to fit comfortably within this exception. The
1
In Gall v. United States, 522 U.S. 38, 46 (2007), the Supreme Court
stated that following United States v. Booker, 543 U.S. 220, 260-62
(2005), “the Guidelines are now advisory, and appellate review of sentenc-
ing decisions is limited to determining whether they are ‘reasonable.’ ”
The Court further stated that “a district judge must give serious consider-
ation to the extent of any departure from the Guidelines and must explain
his conclusion that an unusually lenient or an unusually harsh sentence is
appropriate in a particular case with sufficient justifications.” Id.
5620 UNITED STATES v. HENDERSON
crack cocaine Guideline “employed a 100-to-1 ratio that
yields sentences for crack offenses three to six times longer
than those offenses involving equal amounts of [cocaine]
powder.” Kimbrough, 552 U.S. at 86. Moreover, the Commis-
sion over a number of years consistently opposed the use of
this ratio. Id.
In contrast, the Guidelines for convictions for possessing
child pornography are considerably more nuanced than the
100-to-1 ratio for crack cocaine.2Furthermore, as may be
gleaned from the majority’s opinion, the Commission has for
2
United States Sentencing Guideline § 2G2.2 provided:
Trafficking in Material Involving the Sexual Exploitation of a
Minor; Receiving, Transporting, Shipping, Soliciting, or Adver-
tising Material Involving the Sexual Exploitation of a Minor;
Possessing Material Involving the Sexual Exploitation of a Minor
with Intent to Traffic; Possessing Material Involving the Sexual
Exploitation of a Minor
(a) Base Offense Level:
(1) 18, if the defendant is convicted of 18 U.S.C. § 1466A(b),
§ 2252(a)(4), § 2252A(a)(5), or § 2252A(a)(7).
(2) 22, otherwise.
(b) Specific Offense Characteristics
(1) If (A) subsection (a)(2) applies; (B) the defendant’s conduct
was limited to the receipt or solicitation of material involving the
sexual exploitation of a minor; and (C) the defendant did not
intend to traffic in, or distribute, such material, decrease by 2
levels.
(2) If the material involved a prepubescent minor or a minor who
had not attained the age of 12 years, increase by 2 levels.
(3) (Apply the greatest) If the offense involved:
(A) Distribution for pecuniary gain, increase by the number of
levels from the table in § 2B1.1 (Theft, Property Destruction, and
Fraud) corresponding to the retail value of the material, but by
not less than 5 levels.
(B) Distribution for the receipt, or expectation of receipt, of a
thing of value, but not for pecuniary gain, increase by 5 levels.
UNITED STATES v. HENDERSON 5621
the most part agreed with, or at least gone along with, Con-
gress’s decisions to increase the sentences for possession of
child pornography.
(C) Distribution to a minor, increase by 5 levels.
(D) Distribution to a minor that was intended to persuade, induce,
entice, or coerce the minor to engage in any illegal activity, other
than illegal activity covered under subdivision (E), increase by 6
levels.
(E) Distribution to a minor that was intended to persuade, induce,
entice, coerce, or facilitate the travel of, the minor to engage in
prohibited sexual conduct, increase by 7 levels.
(F) Distribution other than distribution described in subdivisions
(A) through (E), increase by 2 levels.
(4) If the offense involved material that portrays sadistic or mas-
ochistic conduct or other depictions of violence, increase by 4
levels.
(5) If the defendant engaged in a pattern of activity involving the
sexual abuse or exploitation of a minor, increase by 5 levels.
(6) If the offense involved the use of a computer or an interactive
computer service for the possession, transmission, receipt, or dis-
tribution of the material, or for accessing with intent to view the
material, increase by 2 levels.
(7) If the offense involved—
(A) at least 10 images, but fewer than 150, increase by 2 levels;
(B) at least 150 images, but fewer than 300, increase by 3 levels;
(C) at least 300 images, but fewer than 600, increase by 4 levels;
and
(D) 600 or more images, increase by 5 levels.
(c) Cross Reference
(1) If the offense involved causing, transporting, permitting, or
offering or seeking by notice or advertisement, a minor to engage
in sexually explicit conduct for the purpose of producing a visual
depiction of such conduct or for the purpose of transmitting a live
visual depiction of such conduct, apply § 2G2.1 (Sexually
Exploiting a Minor by Production of Sexually Explicit Visual or
Printed Material; Custodian Permitting Minor to Engage in Sexu-
ally Explicit Conduct; Advertisement for Minors to Engage in
Production), if the resulting offense level is greater than that
determined above.
5622 UNITED STATES v. HENDERSON
It follows that a sentencing court may not simply state that
it disagrees with the child pornography Guidelines on policy
grounds. At a minimum, some further explanation is neces-
sary. The sentencing court should indicate, for example,
whether it disagrees with “the two-level computer enhance-
ment,” “the seven-level enhancement for those who distribute
child pornography to a minor to persuade him or her to
engage in sexual conduct,” “an enhancement of four levels for
possession of images of sadistic or masochistic conduct,” or
“an enhancement varying between two and five levels based
on the number of child pornographic images.” See majority
opinion pp.5609-11. Although the Commission may have
expressed some concern with the first of these enhancements,
it is not clear that it has any concerns with any of the other
enhancements.
This is not to suggest that the sentencing court may not dis-
agree with a particular aspect of a sentencing Guideline on
policy grounds. The Supreme Court has recently explained:
To be sure, we have recognized that the Commission
post-Booker continues to “fil[l] an important institu-
tional role” because “[i]t has the capacity courts lack
to base its determinations on empirical data and
national experience, guided by a professional staff
with appropriate expertise.” Kimbrough, 552 U.S. at
109, . . . (internal quotation marks omitted). Accord-
ingly, we have instructed that district courts must
still give “respectful consideration” to the now-
advisory Guidelines (and their accompanying policy
statements). Id. at 101, . . . . As amicus acknowl-
edges, however, our post-Booker decisions make
clear that a district court may in appropriate cases
impose a non-Guidelines sentence based on a dis-
agreement with the Commission’s views. See id. at
109-110, . . . . That is particularly true where, as
here, the Commission’s views rest on wholly uncon-
UNITED STATES v. HENDERSON 5623
vincing policy rationales not reflected in the sentenc-
ing statutes Congress enacted.
Pepper v. United States, 131 S. Ct. 1229, 1247 (2011) (paral-
lel citations omitted).
However, the implicit limitations in this statement are made
clear by Justice Breyer when he emphasizes in his concurring
opinion in Pepper:
the law permits the court to disregard the Guide-
lines only where it is “reasonable” for a court to
do so. Booker, supra, at 261-262, . . . ; Gall v.
United States, 552 U.S. 38, 51-52, . . . (2007); Kim-
brough v. United States, 552 U.S. 85, 109, . . .
(2007). And an appellate court must be guided by the
basic sentencing objectives of the statutes that create
the Guidelines in determining whether, in disregard-
ing the Guidelines, the sentencing court has acted
unreasonably.
131 S. Ct. at 1252 (emphasis added) (parallel citations omit-
ted). A sentencing court may “impose a non-Guidelines sen-
tence based on a disagreement with the Commission’s views”
only “in appropriate cases” where “the Commission’s views
rest on wholly unconvincing policy rationales not reflected in
the sentencing statutes Congress enacted.”
These statements inform our understanding of the Supreme
Court’s explanation in Spears, that Kimbrough authorized a
sentencing court “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.” 555 U.S. at __, 129
S. Ct. at 843 (italics in original). The Supreme Court appears
to be stating that a court need not link its policy disagreement
with the 100-to-1 ratio to the individual characteristics of the
particular defendant. However, the Court did not state that the
5624 UNITED STATES v. HENDERSON
district court does not have to set forth its policy disagree-
ment. Without such a statement how can an appellate court
determine, even under the deferential standard of review,
whether the sentence is reasonable? An explanation of the
policy disagreement is particularly important when the sen-
tencing court disagrees with a Commission Guideline other
than the 100-to-1 ratio, as the court may “disregard the Guide-
lines only where it is ‘reasonable’ for a court to do so.” Pep-
per, 131 S.Ct. at 1252 (Justice Breyer concurring).
Unlike the simple 100-to-1 ratio at issue in Kimbrough, the
Guidelines for convictions for possession of child pornogra-
phy contain a mixture of provisions based on legislation and
Commission action, some of which the Commission has ques-
tioned and others which the Commission has endorsed or
acceded to, but none of which have been held by the Supreme
Court to be “wholly unconvincing policy rationales not
reflected in the sentencing statutes Congress enacted.” Id. at
1247. Without a statement of the sentencing court’s reasons
for its imposition of a sentence that does not follow the appli-
cable Guidelines, we cannot determine whether the sentence
is reasonable.
I would adopt a procedure along the lines set forth by the
Third Circuit in United States v. Grober, 624 F.3d 592, 600
(3rd Cir. 2010):
the Guidelines reflect the Sentencing Commission’s
“rough approximation of sentences that might
achieve § 3553(a)’s objectives.” [Rita v. United
States, 551 U.S. 348] at 350 [(2007)] . . . . If a dis-
trict court concludes that those objectives are not
achieved by a sentence within the . . . Guideline
range, and that belief is driven by a policy disagree-
ment with the [particular Guidelines] provision, then
the court must explain why its policy judgment
would serve the § 3553(a) sentencing goals better
than the Sentencing Commission’s judgments. In
UNITED STATES v. HENDERSON 5625
doing so, he should take into account all of the sen-
tencing factors, not just one or two of them in isola-
tion. We require this explanation so that, on appeal,
we can determine whether the court’s disagreement
is valid in terms of the § 3553 factors, the Sentenc-
ing Guidelines, and the perception of fair sentencing.
Id.
Accordingly, while I agree that the matter should be
remanded to the district court for resentencing, I cannot agree
that the majority’s suggestion that the Guidelines for posses-
sion of child pornography inherently come within the “Kim-
brough discretion.”