FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT December 18, 2014
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. Nos. 13-3201
WILLIAM MORAIN, SR., (D.C. No. 2:12-CR-20074-CM-1)
(D. Kan.)
Defendant-Appellant.
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ORDER AND JUDGMENT*
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Before McHUGH, McKAY, and BALDOCK, Circuit Judges.
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Defendant William Morain, Sr., challenges his within-guideline sentence for
possession and distribution of child pornography. He mounts a two-prong attack on the
substantive reasonableness of his sentence. First, he argues his sentence is not entitled to
a presumption of reasonableness because U.S.S.G. § 2G2.2, the guideline used to
calculate his offense level, is flawed. Second, he contends, presumption or no, his
sentence is substantively unreasonable because it does not comport with 18 U.S.C.
§ 3553(a). Even disregarding the presumption of reasonableness, however, we cannot
say Defendant’s sentence rose to the level of an abuse of discretion. Therefore,
exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
*
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.
Defendant pled guilty to one count of distributing child pornography in violation
of 18 U.S.C. § 2252(a)(2) and was convicted after a bench trial of one count of
possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Defendant’s
child pornography collection, between his computer and other media devices, contained
592 images and 24 videos (totaling over 110 minutes). The collection included
depictions of prepubescent children being forced to perform oral sex or being penetrated
by an adult penis. One of the videos was a bondage rape video in which a young girl
struggles against an adult male who ties her up, forces her to perform oral sex, and then
rapes her. Defendant admitted to sharing some of this collection over Limewire and
actively trading from this collection using Yahoo! Messenger. The Presentence Report
(“PSR”) calculated Defendant’s offense level based on U.S.S.G. § 2G2.2. Based on the
PSR and an additional offense level reduction for acceptance of responsibility, the district
court found Defendant had a criminal history category of I and a total offense level of 34.
This yielded a guideline imprisonment range of 151 to 188 months. Defendant filed a
sentencing memorandum requesting a sentence of 60 months, the statutory minimum for
his distribution charge.1 See 18 U.S.C. § 2252(b)(1). The bulk of Defendant’s
memorandum attacked § 2G2.2, citing the Sentencing Commission’s own criticism of
that guideline in a 2012 report to Congress, and also asserted that a statutory minimum
sentence would satisfy the sentencing purposes outlined in 18 U.S.C. § 3553(a).
1
Defendant’s possession conviction did not trigger a statutory minimum prison sentence.
See 18 U.S.C. § 2252(b)(2).
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At sentencing, the court heard the parties’ arguments and analyzed Defendant’s
case in light of the § 3553(a) factors. The court then acknowledged that the Sentencing
Commission’s recommendations regarding the child pornography guidelines “appear to
be a current topic for Congress that they have not yet acted on,” but concluded that
“[what is] before the court now is the . . . sentencing guidelines that are in place.” As
such, the court pointed out that Defendant was “asking that the court vary from the
guideline range.” The court then acknowledged that “there’s some merit to defendant’s
arguments, and the court has considered that.” Nevertheless, based on the evidence and
the parties’ arguments, the court found “a sentence at the low end of the guideline range
. . . is appropriate.” Furthermore, the court found a sentence of 151 months for the
distribution offense was “sufficient but not greater than necessary” to satisfy the
sentencing purposes of § 3553(a)(2)(A), (B), and (C). The court then imposed a 151-
month sentence of imprisonment for the distribution charge and a concurrent 120-month
sentence for the possession conviction, as well as a five-year term of supervised release
to follow Defendant’s release from prison. Defendant timely appealed.
II.
On appeal, Defendant argues only that his sentence is substantively unreasonable
and that we should therefore vacate it and remand for resentencing consistent with 18
U.S.C. § 3553(a). When reviewing a sentence of imprisonment for reasonableness, we
typically “‘first ensure that the district court committed no significant procedural error,’”
such as “‘improperly calculating the Guidelines range[ or] failing to consider the
§ 3553(a) factors,’” before addressing whether the sentence is substantively reasonable.
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United States v. Kieffer, 681 F.3d 1143, 1165 (10th Cir. 2012), cert. denied, 133 S. Ct.
996 (2013) (alteration omitted) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
Moreover, Defendant’s sentencing argument “bears significant procedural stripes in that
he seems to allege that the district court did not properly consider the sentencing factors
of 18 U.S.C. § 3553(a)(2)” in light of the alleged flaws in § 2G2.2 and the parsimony
clause of § 3553(a).2 United States v. Palomino-Rodriguez, 301 F. App’x 822, 823 n.1
(10th Cir. 2008) (unpublished). Nevertheless, Defendant expressly disavowed, and
therefore waived, any procedural challenge to his sentence at oral argument. See United
States v. Turrietta, 696 F.3d 972, 974 n.2 (10th Cir. 2012) (“Whereas forfeiture is the
failure to make the timely assertion of a right, waiver is the intentional relinquishment or
abandonment of a known right.” (internal quotation marks omitted)). Because Defendant
waived any procedural error argument, and because we do not detect any ourselves, we
proceed directly to the substantive reasonableness of Defendant’s sentence.3
2
The parsimony clause of § 3553(a) states: “The court shall impose a sentence
sufficient, but not greater than necessary, to comply with the purposes set forth in
[§ 3553(a)(2)] . . . .”
3
Even were we to read Defendant’s brief as arguing the court committed a sort of
procedural error by deferring to what he believes is a flawed guideline, see Def’s Br. at
15–16, that challenge would fail. “[W]hile district courts perhaps have the freedom to
sentence below the child-pornography guidelines based on disagreement with the
guidelines . . . they are certainly not required to do so.” United States v. Huffstatler, 571
F.3d 620, 624 (7th Cir. 2009) (per curiam); see also United States v. Escobar-Aguirre,
409 F. App’x 209, 212 (10th Cir. 2010) (unpublished) (“Although a district court is
entitled to vary downward from the guidelines based on policy disagreement with the
guidelines, it is also entitled to defer to the policy judgment of the guidelines.” (internal
citations and quotation marks omitted)). Even in United States v. Dorvee, 616 F.3d 174
(2d Cir. 2010), on which Defendant relies heavily, the Second Circuit acknowledged that
“in light of the Sentencing Commission’s relative expertise, sentencing courts ‘must
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A.
Defendant attacks the substantive reasonableness of his sentence in two steps.
First, he asserts we should not apply any presumption of reasonableness to his within-
guideline sentence because of what he considers the “inherent flaws” in U.S.S.G.
§ 2G2.2. Second, he argues that, presumption or no, his sentence is substantively
unreasonable in light of the § 3553(a) factors.
We need not resolve Defendant’s first contention. We have held “a sentence that
is properly calculated under the Guidelines is entitled to a rebuttable presumption of
reasonableness,” and explained that a defendant may rebut this presumption “by
demonstrating that the sentence is unreasonable when viewed against the other factors
delineated in § 3553(a).” United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006);
cf. Gall, 552 U.S. at 51 (“If the sentence is within the Guidelines range, the appellate
court may, but is not required to, apply a presumption of reasonableness.” (emphasis
added)). But even assuming we could disregard this presumption based on a showing
that the guideline used to calculate Defendant’s sentencing range was indeed flawed,
under a substantive reasonableness analysis, Defendant must nevertheless show the
sentencing court abused its discretion by imposing the chosen sentence in light of the
§ 3553(a) factors. See, e.g., United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)
consult those Guidelines and take them into account when sentencing.’” Id. at 188
(quoting United States v. Booker, 543 U.S. 220, 245 (2005)). The district court here did
just that.
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(en banc) (declining to adopt a presumption of reasonableness for within-guideline
sentences, but noting that, regardless, “[t]he abuse of discretion standard applies to all
sentencing decisions, whether the sentence is inside the Guidelines range or outside of
it”); cf. United States v. Flores-Escobar, 397 F. App’x 479, 481 (10th Cir. 2010)
(unpublished) (“[W]e cannot conclude that a sentence is substantively unreasonable by
disagreeing with the Sentencing Guidelines in the abstract, rather than considering the
particular sentence in light of the facts and § 3553(a) factors.”). Defendant cannot make
such a showing on this record.
B.
Again, even disregarding arguendo the within-guideline-sentence presumption of
reasonableness, we still review the substantive reasonableness of Defendant’s sentence
under the deferential abuse-of-discretion standard. See, e.g., United States v. Gantt, 679
F.3d 1240, 1249–51 (10th Cir. 2012) (affirming on abuse-of-discretion review a 20-year
sentence—13 years higher than the guideline-recommended sentence of 7 years—as
substantively reasonable); see also Carty, 520 F.3d at 993. “A district court abuses its
discretion when it renders a judgment that is arbitrary, capricious, whimsical, or
manifestly unreasonable. We will reverse the district court’s determination only if the
court exceeded the bounds of permissible choice, given the facts and the applicable law
in the case at hand.” United States v. Regan, 627 F.3d 1348, 1352 (10th Cir. 2010)
(internal citations and quotation marks omitted). This is no easy hill to climb. Indeed,
“[t]he fact that the appellate court might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.” Gall, 552
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U.S. at 51. Such deference makes good sense. “A sentencing judge has greater
familiarity with the case and the defendant before it than this court or the Sentencing
Commission and is therefore ‘in a superior position to find facts and judge their import
under § 3553(a) in the individual case.’” United States v. Munoz-Nava, 524 F.3d 1137,
1148 (10th Cir. 2008) (quoting Gall, 552 U.S. at 51). Applying this standard to
Defendant’s case, we cannot say the district court abused its discretion by sentencing
Defendant to 151 months’ imprisonment for distributing child pornography.
In arguing the § 3553(a) factors, Defendant first argues that for purposes of “just
punishment,” see § 3553(a)(2)(A), his actions do not constitute an aggravated version of
distribution. Rather, Defendant maintains he is a “typical,” “small-scale distribution”
offender. Disregarding Defendant’s guideline sentencing range, his distribution offense
exposed him to a statutory sentencing range of 60 to 240 months (five to 20 years). 18
U.S.C. §2252(b)(1). His 151-month sentence falls almost squarely in the middle of that
statutory range. Regardless of whether sharing and actively trading online from a child
pornography collection of 592 photos and 24 videos could fairly be classified “small-
scale” distribution, and even assuming Defendant is merely a typical offender, we fail to
see how imposing a sentence in the middle of the statutory range on a typical offender is
unjust, let alone “exceeded the bounds of permissible choice, given the facts and the
applicable law in the case at hand.” Regan, 627 F.3d at 1352.
Next, Defendant argues “there is no reason to think” a statutory minimum
sentence of five years would be insufficient to meet the deterrence sentencing factor
under § 3553(a)(2)(B), and thus “the parsimony clause instructs that a five year sentence
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is appropriate here.” But this argument ignores the deferential standard by which we
review Defendant’s sentence. Again, “[t]he fact that [we] might reasonably have
concluded that a different sentence was appropriate is insufficient to justify reversal of
the district court.” Gall, 552 U.S. at 51; see also United States v. Nghiem, 432 F. App’x
753, 757 (10th Cir. 2011) (unpublished) (“Even if a lesser sentence may have been
reasonable in this case, so may a greater sentence. There will almost always be a range
of reasonable sentences.”). Distributing child pornography is a heinous crime, and the
images and videos Defendant possessed and distributed are some of the most heinous
imaginable. Imposing a 151-month sentence to deter Defendant and others from sharing
and actively trading this content does not strike us as arbitrary, capricious, whimsical, or
manifestly unreasonable, let alone outside the bounds of permissible choice.
Defendant also argues he poses little to no risk of recidivism and therefore there is
little to no need to protect the public under § 3553(a)(2)(C) from future crimes he might
commit. But the court below found the evidence mixed as to whether Defendant might
recidivate. Given this mixed recidivism evidence, we cannot say the sentencing court,
which was in a superior position to weigh the facts of Defendant’s case under § 3553(a),
exceeded the bounds of all permissible choice by imposing a sentence in the middle of
the statutory sentencing range as opposed to a statutory minimum sentence.4
4
Defendant also correctly points out that a sentencing court may not “lengthen[] a prison
term to promote an offender’s rehabilitation.” Tapia v. United States, 131 S. Ct. 2382,
2391 (2011). But we see no indication in the record that the court justified the sentence
imposed based on the need for rehabilitation under § 3553(a)(2)(D). Rather, the court
found at sentencing that a 151-month sentence satisfied the parsimony doctrine in light of
§§ 3553(a)(2)(A), (B), and (C). The court never mentioned § 3553(a)(2)(D).
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Finally, Defendant relies heavily on the need to avoid unwarranted sentencing
disparities under § 3553(a)(6). Importantly, Defendant does not argue the court failed to
consider or improperly considered possible unwarranted sentencing disparities. Indeed,
that would be a procedural argument—which Defendant expressly disavowed. Rather,
Defendant asks us to reconsider his sentencing disparity argument for purposes of
substantive reasonableness. The gist of his argument is that, given the alleged flaws in
§ 2G2.2, “by imposing a within-[guideline] sentence, the District Court was actually
causing an unwarranted sentencing disparity.” Defendant’s disparity argument relies on
the Second Circuit’s decision in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010),
and a finding in a 2012 Sentencing Commission report that “[b]elow range sentences
were imposed in nearly two-thirds” of non-production child pornography cases in 2011,
United States Sentencing Commission, Report to Congress: Federal Child Pornography
Offenses 317 (Dec. 2012), available at http://www.ussc.gov/sites/default/files/pdf/news/
congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornograph
y-offenses/Full_Report_to_Congress.pdf (last visited December 13, 2014).
Dorvee, for its part, is easily distinguishable. In Dorvee, the district court
committed procedural error in calculating the defendant’s sentence because it believed
the defendant’s guideline sentencing range for distribution of child pornography was 262
to 327 months, when in fact the guideline sentence was the statutory maximum of 240
months, less time served. See 616 F.3d at 180–82. Moreover, in concluding the
defendant’s sentence was also substantively unreasonable, the Second Circuit pointed out
that the district court, through its explanation of the sentence, appeared to have punished
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him “as though he already had, or would, sexually assault a child, despite medical
testimony to the contrary.” Id. at 185. The Second Circuit then went on to explain its
concern that Ҥ 2G2.2 sentencing enhancements cobbled together . . . routinely result in
Guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill
cases.” Id. at 186. As such, that court expressed concern that
[b]y concentrating all offenders at or near the statutory maximum, § 2G2.2
eviscerates the fundamental statutory requirement in § 3553(a) that district
courts consider ‘the nature and circumstances of the offense and the history
and characteristics of the defendant’ and violates the principle, reinforced in
Gall, that courts must guard against unwarranted similarities among
sentences for defendants who have been found guilty of dissimilar conduct.
Id. at 187.
Although his sentence was calculated under the same guideline, Defendant’s case
is a far cry from Dorvee. Defendant does not argue that the district court committed any
procedural error in calculating his sentence, nor that it appeared to punish him for actions
or tendencies not supported by the record. More importantly, Defendant’s 151-month
sentence is far below the statutory maximum of 240 months. As we explained above,
Defendant fancies himself a “typical” child pornography distribution offender, and he
received a sentence in the middle of the statutory sentencing range for that offense.
Dorvee, therefore, bears little weight on the substantive reasonableness of Defendant’s
particular sentence in light of the § 3553(a) factors.
Moreover, the Sentencing Commission’s findings prove too much for Defendant;
indeed, they show that in around one-third of all non-production child pornography cases
offenders like Defendant receive a within-guideline sentence. Even disregarding the
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presumption that generally attaches to within-guideline sentences, we cannot say that
imposing a sentence at the low end of a range the courts consider appropriate in around
one-third of all cases—on a concededly “typical” offender—created a sentencing
disparity so egregious that it “exceeds the bounds of permissible choice” available to the
sentencing court. Regan, 627 F.3d at 1352.
In sum, even having reviewed Defendant’s sentence in light of the § 3553(a)
factors without regard to the presumption of reasonableness that usually attaches to
within-guideline sentences, we still cannot say the sentencing court abused its discretion
by imposing a 151-month sentence in Defendant’s case.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
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