In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3097
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ENNIS G ARTHUS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 441-1—William J. Hibbler, Judge.
A RGUED JUNE 14, 2011—D ECIDED JULY 14, 2011
Before P OSNER, R OVNER, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. The defendant pleaded guilty to
federal crimes of transporting, receiving, and possessing
child pornography and was sentenced to 360 months
in prison. 18 U.S.C. §§ 2252A(a)(1), (a)(2)(A), (a)(5)(B).
The guidelines sentencing range was 360 months to life;
the statutory minimum sentence was 180 months; he
was 44 years old when sentenced. His appeal challenges
his sentence on several grounds, of which the one most
2 No. 10-3097
emphasized by defense counsel is that the district court
improperly failed to consider her argument that the
defendant had had “diminished capacity” to avoid com-
mitting the crimes, a ground recognized by the sen-
tencing guidelines as a possible justification for a lower
sentence. U.S.S.G. § 5K2.13; United States v. Miranda, 505
F.3d 785, 792 (7th Cir. 2007); United States v. Cunningham,
429 F.3d 673, 679 (7th Cir. 2005); United States v. Utlaut,
497 F.3d 843, 845 (8th Cir. 2007).
When arrested, the defendant had in his posses-
sion some 2000 downloaded photographs and videos
of prepubescent girls, most between 4 and 9 years old,
engaged in sexual activities; many of the photographs
and videos depicted violent sexual assaults on the chil-
dren. Ten years earlier he’d been convicted in an Illinois
state court, and served a year in prison, for an offense
involving child pornography—and more: he had made
a video of himself cutting off a 14-year-old girl’s panties
and touching her vagina. He had been molesting her
since she was 10.
The defendant’s sexual interests focus on prepubescent
girls wearing panties (his screen name was Pantielover);
he is also attracted to adult women, at least when they
are wearing pantyhose, but he has never had a girlfriend
or, apparently, any adult sexual relationship. He has
been diagnosed with “pedophilia, sexually attracted to
females, nonexclusive type.”
Diminished capacity in federal sentencing law refers
to cognitive or psychological limitations that fall short
of insanity, severe mental retardation, or dementia but
No. 10-3097 3
contributed in one of two ways (or both) to the
crime for which the defendant is being sentenced: by re-
ducing—though not eliminating—his ability to ap-
preciate the wrongfulness of his acts, or by reducing his
ability to avoid committing them. U.S.S.G. § 5K2.13
Application Note 1; United States v. Roach, 296 F.3d 565,
568 (7th Cir. 2002). It is thus an attenuated version of
the standard insanity defense.
Why diminished capacity in this sense (or senses)
should be a mitigating factor in sentencing is obscure.
The diminution makes a defendant more likely to
repeat his crime when he is released from prison. That
is especially so when the crime involves compulsive
behavior, such as behavior driven by sexual desire.
United States v. Rogers, 587 F.3d 816, 821 (7th Cir. 2009);
United States v. Cunningham, 103 F.3d 553, 556 (7th Cir.
1996); Doe v. Sex Offender Registry Board, 857 N.E.2d 473,
482-83 (Mass. 2006); People v. Earle, 91 Cal. Rptr. 3d 261,
282-83 and n. 16 (App. 2009). Such behavior requires
active resistance by the person tempted to engage in it, if
it is to be avoided; and diminished capacity weakens
the ability to resist. One of the defendant’s experts
opined that the defendant’s ability to resist could be
strengthened substantially with medication and therapy.
But both defense experts believed, and defense counsel
argued, that he wouldn’t get proper treatment in prison.
That is very damaging to the argument that he won’t
recidivate, since by virtue of the statutory minimum he
will spend many years in prison and when released may
be unable to resist his criminal impulses because his
condition will not have been treated effectively in prison.
4 No. 10-3097
From a “just deserts” standpoint, diminished capacity
argues for a lighter sentence, but from the standpoint
of preventing recidivism it argues for a heavier one.
The heavier sentence may not deter a criminal from
repeating his crime when he is released (that is implied
by saying he has diminished capacity), but it will reduce
his lifetime criminal activity by incapacitating him for
a longer time than if he received a lighter sentence.
How to choose? The sentencing guidelines do not
embody a coherent penal philosophy. United States v.
Blarek, 7 F. Supp. 2d 192, 203-04 (E.D.N.Y. 1998); Paul J.
Hofer & Mark H. Allenbaugh, “The Reason behind the
Rules: Finding and Using the Philosophy of the Federal
Sentencing Guidelines,” 40 Am. Crim. L. Rev. 19, 26-36
(2003). “The [Sentencing] Commission’s conclusion can
be summarized thus: since people disagree over the
aims of sentencing, it is best to have no rationale at all.”
Andrew von Hirsch, “Federal Sentencing Guidelines:
Do They Provide Principled Guidance?,” 27 Am. Crim. L.
Rev. 367, 371 (1989). In the case of diminished capacity
the guidelines have embraced a just-deserts theory;
but why it has done so—why it has in this instance ele-
vated just-deserts considerations over the interest in
preventing recidivism—is not explained. In any event,
under the Booker regime a sentencing judge can adopt
his own penal philosophy. United States v. Corner, 598
F.3d 411, 416 (7th Cir. 2010) (en banc); United States v.
Herrera-Zuniga, 571 F.3d 568, 585 (6th Cir. 2009). And so
he can disregard the guidelines’ classification of dimin-
ished capacity as a mitigating factor, regard it as an
aggravating factor, or regard it as a wash.
No. 10-3097 5
The defendant argues that the district judge ignored
the issue of diminished capacity. In response to a
harangue by defense counsel and a detailed response to
it by the prosecutor, all the judge said was that “the
Court was struck with Mr. Garthus’ somewhat
troubled upbringing. There are many persons in our
society who have struggles . . . . Certainly the Court
takes note that there may be issues which have not
been properly addressed with regards to Mr. Garthus.
The Court is aware of his physical ailments . . . . [Defense
counsel is] convinced that Mr. Garthus with the proper
treatment will not reoffend . . . but the Court does not
share it. I don’t think there is any guarantee that
anyone can give that this urge which Mr. Garthus has
will not reemerge once he is given the opportunity to do
so . . . . The Court believe[s] that the Guidelines are rea-
sonable under the circumstances. And the Court can find
no justification to depart from the recommended guide-
lines.” (The judge’s mention of “physical ailments” was
in reference to a different mitigation argument made
by defense counsel.)
Ordinarily a sentencing judge’s failure to address the
defendant’s principal argument for lenience would be a
reversible error. United States v. Villegas-Miranda, 579
F.3d 798, 801-02 (7th Cir. 2009); United States v.
Cunningham, supra, 429 F.3d at 679; United States v.
Olhovsky, 562 F.3d 530, 547, 552 (3d Cir. 2009); see
generally Rita v. United States, 551 U.S. 338, 356-57
(2007). But diminished capacity was not argued by
defense counsel at the sentencing hearing; the term was
not even mentioned, though the defendant’s cognitive
6 No. 10-3097
and psychiatric deficiencies were; and it is unsubstanti-
ated.
The defendant suffers from attention-deficit disorder/
hyperactivity disorder, dyslexia, depression, and anxiety.
He also, according to one of the defense experts, suffers
from “chronic and persistent intellectual or cognitive
limitations.” He has an IQ of 83. Mean IQ is of course 100,
and the standard deviation is 15. This means that two-
thirds of the population have an IQ between 85 and 115,
and 16.67 percent (one-half of one-third) have an IQ
under 85. A person with an IQ of 83 is not bright, though
he is not intellectually disabled either. But neither
defense expert, nor defense counsel in either her sen-
tencing memorandum or her lengthy remarks at the
sentencing hearing, mentioned any evidence that the
defendant’s mental condition had impaired his ability
either to have appreciated the wrongfulness of what he
was doing or to have refrained from doing it. The experts
opined that the defendant’s cognitive and psychiatric
problems might have contributed to his pedophilia, for
example by making him too shy to form a sexual relation-
ship with an adult—although it was never explained why
that would generate a desire for child pornography rather
than adult pornography. But they didn’t say those prob-
lems had impaired his understanding of the wrongful-
ness of his behavior or made it more difficult for him
than for a person without his cognitive and psychiatric
problems to control his desire to collect illegal porno-
graphic images.
At the sentencing hearing, where as we said no one
mentioned “diminished capacity,” defense counsel went
No. 10-3097 7
off in other directions, some distinctly unpromising, as
when she repeatedly referred to her client as being the
“victim.” At one point she called him “a victim in the
most extreme sense.” As a child he had been beaten
and called stupid by his father, and his mental problems
had never been treated or even diagnosed before his
arrest. He also has a heart condition. But he has never
been sexually abused and his “victimization” is hardly
comparable to that of the children in the pornography
that he downloaded or of the girl whom he had molested.
Relying mainly on the psychiatric expert’s report (the
other expert was a psychologist), defense counsel further
argued that her client, despite his molestation of a girl,
was not a “predator,” defined by the lawyer as one who
commits “hands-on child abuse or some sort of actual
contact.” She said that he is shy, and she pointed out that
his victim had been a relative, and she argued that he
would never approach a girl who was not a relative.
She noted that the psychiatrist had termed the defendant
“a low risk for breaking the law in the future” because
he showed “good judgment” during the interview by the
psychiatrist and expressed empathy for the “plight” of the
children whose images he had collected. These are
gossamer-thin grounds for a prediction about his future
sexual behavior. The lawyer didn’t mention the psychia-
trist’s further statement that the defendant’s “pedophilic
fantasies are chronic and not likely to change over time,
even with continued therapy.” Nor did she mention that
almost the entire emphasis of his report, so far as the
likelihood of recidivism was concerned, was that the
defendant was “not likely to act out [his pedophilic]
8 No. 10-3097
fantasies by sexually approaching underage females.” So
just as in United States v. Coopman, 602 F.3d 814, 818 (7th
Cir. 2010), the expert “undermined the relevance of
his testimony” by focusing exclusively on the likelihood
that a child-pornography offender would commit a
“hands-on” offense and ignoring the likelihood that he
would commit future child-pornography offenses.
At the sentencing hearing defense counsel’s main
argument was that the defendant was unlikely to
commit further sex crimes if released after 180 months,
when he would be almost 60 years old. (Actually, if
sentenced to 180 months, he would be released after 157
months—a little over 13 years, not 15—if he behaved
himself in prison. See 18 U.S.C. § 3624(b); Barber v.
Thomas, 130 S. Ct. 2499, 2502-03 (2010).) That’s a different
argument from diminished capacity, and indeed, as
we said earlier, in tension with it and unsubstantiated
to boot.
The judge was unpersuaded that the defendant
would forgo criminal activity after release from prison,
and given the absence of contrary evidence he was not
required to do more than register his disagreement. That
the defendant is shy and his one “hands-on” victim a
relative and that he exhibited “good judgment” and
“empathy” in his interview by the psychiatrist do not
ensure that he won’t find another “hands-on” victim
when he is released from prison, or resume collecting
and disseminating child pornography.
We need evidence-driven law just as we need evidence-
driven medicine. Statistical analysis of sex crimes has
No. 10-3097 9
shown that the best predictor of recidivism is not deport-
ment at an interview but sexual interest in children. R.
Karl Hanson, Kelley E. Morton & Andrew J.R. Harris,
“Sexual Offender Recidivism Risk: What We Know and
What We Need to Know,” 989 Annals of the N.Y. Academy of
Sciences 154, 157 (2003) (tab. 1). Some studies show a
high rate of recidivism among pedophilic sex offenders
generally, ranging from 10 percent to 50 percent. Ryan
C.W. Hall & Richard C.W. Hall, “A Profile of Pedophilia:
Definition, Characteristics of Offenders, Recidivism,
Treatment Outcomes, and Forensic Issues,” 82 Mayo Clinic
Proceedings 457, 467 (2007). Another study found that only
6.8 percent of consumers of child pornography had been
charged with a new child-pornography offense within
4 years but that the percentage rose to 9.5 percent
within 6 years. Angela W. Eke, Michael C. Seto & Jennette
Williams, “Examining the Criminal History and Future
Offending of Child Pornography Offenders: An Extended
Prospective Follow-up Study,” Law & Human Behavior,
Nov. 19, 2010 (tab. 1), www.springerlink.com/content/
h4616862621x8616/ (visited June 23, 2011).
It’s a mistake to lump together different types of sex
offender. Lisa L. Sample & Timothy M. Bray, “Are Sex
Offenders Different? An Examination of Rearrest Pat-
terns,” 17 Crim. Justice Policy Rev. 83, 93-97 (2006).
This defendant’s characteristics suggest that he is more
dangerous than the average consumer of child pornogra-
phy. A pedophilic sex offender who has committed both
a child-pornography offense and a hands-on sex crime
is more likely to commit a future crime, including
another hands-on offense, than a defendant who has
10 No. 10-3097
committed only a child-pornography offense. Drew A.
Kingston et al., “Pornography Use and Sexual Aggression:
The Impact of Frequency and Type of Pornography Use
on Recidivism Among Sexual Offenders,” 34 Aggressive
Behavior 1, 9 (2008); Michael C. Seto & Angela W. Eke,
“The Criminal Histories and Later Offending of Child
Pornography Offenders,” 17 Sexual Abuse 201, 207
(2005) (tab. 3). The sadistic nature of much of the child
pornography consumed by the defendant is another
reason to worry about his being on the loose.
The psychiatrist mentioned none of the relevant scientific
literature in assessing the risk of recidivism, see United
States v. McIlrath, 512 F.3d 421, 424 (7th Cir. 2008), and
defense counsel did not suggest that the defendant
might be civilly committed, as a continuing menace to
society, after completion of his prison term.
The judge’s sentencing remarks were cryptic. But the
tension we noted earlier between diminished capacity as
a mitigating and as an aggravating factor in sentencing
makes it difficult for a judge to do more than this judge
did, which is to choose. It was an unavoidable choice
between incommensurables. United States v. Gammicchia,
498 F.3d 467, 469 (7th Cir. 2007). He made clear that he
was more concerned with the risk of the defendant’s
repeating his crimes when released from prison than
with the defendant’s “issues,” which is to say the argu-
ments pressed by defense counsel for lenience.
The judge wanted a “guarantee”; that is, he wanted
to minimize the risk of recidivism. He was entitled to
put incapacitation and specific deterrence ahead of
just deserts.
No. 10-3097 11
“The more obvious the reasons for the sentence, the less
the need to announce them.” United States v. Middagh, 594
F.3d 1291, 1296 (10th Cir. 2010); see also Rita v. United
States, supra, 551 U.S. at 356. Defense counsel presented
scanty evidence and feeble arguments that the de-
fendant would be harmless when released from prison.
There wasn’t much more for the judge to say in the face
of so one-sided a record.
The defendant’s final argument is that the provisions
of the sentencing guidelines relating to sexual offenses
are empirically unsupported, vindictive, and excessively
harsh. E.g., United States v. Grober, 624 F.3d 592, 603-09
(3d Cir. 2010); United States v. Dorvee, 616 F.3d 174, 184-
88 (2d Cir. 2010); Troy Stabenow, “Deconstructing the
Myth of Careful Study: A Primer on the Flawed Progres-
sion of the Child Pornography Guidelines” (2009),
www.fd.org/pdf_lib/child%20porn%20july%20revision.pdf
(visited June 23, 2011). The argument is more properly
addressed to the Sentencing Commission, or to Congress,
which has greatly influenced the child-pornography
guidelines, United States v. McNerney, 636 F.3d 772, 775-78
(6th Cir. 2011), than to an individual district judge in a
sentencing hearing. See United States v. Pape, 601 F.3d 743,
748-49 (7th Cir. 2010); United States v. Aguilar-Huerta, 576
F.3d 365, 367-68 (7th Cir. 2009); United States v. Lopez-
Reyes, 589 F.3d 667, 671 (3d Cir. 2009). A sentencing
judge is not required to “delve into the history of a guide-
line” in order to satisfy himself that “the process that
produced it was adequate”; “sentencing hearings [would]
become unmanageable, as the focus shifted from the
defendant’s conduct to the ‘legislative’ history of the
12 No. 10-3097
guidelines.” United States v. Aguilar-Huerta, supra, 576
F.3d at 368. Judge Hibbler was entitled to limit his con-
sideration to the particular applicable guidelines, which
he judged to be appropriate to the defendant’s conduct.
See United States v. Maulding, 627 F.3d 285, 287-88 (7th
Cir. 2010); United States v. Pape, supra, 601 F.3d at 748-49;
United States v. Huffstatler, 571 F.3d 620, 624 (7th Cir. 2009).
We don’t read his remark about the guidelines’ being
“reasonable” to mean that he was giving them presump-
tive force, which would be improper. Rita v. United States,
supra, 551 U.S. at 351. He is presumed to know the law
(a realistic presumption, given how large sentencing
looms in the work of district judges nowadays). He doubt-
less thought he was giving the defendant the right sen-
tence, not a sentence that he disagreed with and was
imposing merely because it was consistent with a
guideline that could not be thought unreasonable in
general.
The gravity of the defendant’s offense should not be
denigrated. This case is like United States v. Goldberg, 491
F.3d 668, 669, 672 (7th Cir. 2007), where “young children
were raped in order to enable the production of the
pornography that the defendant both downloaded and
uploaded—both consumed himself and disseminated to
others. [Over a period of some 18 months, Goldberg had
downloaded hundreds of pornographic photographic
images, some depicting children as young as 2 or 3 being
vaginally penetrated by adult males. He offered these
images to other subscribers to the web site to induce
them to send similar images in return.] The greater the
No. 10-3097 13
customer demand for child pornography, the more that
will be produced . . . . The logic of deterrence suggests
that the lighter the punishment for downloading and
uploading child pornography, the greater the customer
demand for it and so the more will be produced.” Defense
counsel could not have picked a less auspicious vehicle
for mounting a broad assault on the guideline provisions
relating to child pornography.
A FFIRMED.
7-14-11