In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-3366
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERNEST A. NEWSOM,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP-03-26-CR-01 M/F—Larry J. McKinney, Chief Judge.
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SUBMITTED SEPTEMBER 20, 2005—DECIDED NOVEMBER 2, 2005
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Before BAUER, POSNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. After a trial, Ernest A. Newsom
was convicted of one count of production of child pornogra-
phy, 22 counts of receiving child pornography, and one
count of possession of child pornography. His victims
included his own daughter and his ex-girlfriend’s daughter,
who feature prominently in the images Newsom created, as
well as unidentified children in hundreds of other pictures
found on his computer. Our earlier opinion in Newsom’s
case rejected his Fourth Amendment argument seeking to
suppress evidence recovered from his home and computer.
See United States v. Newsom, 402 F.3d 780 (7th Cir. 2005)
(Newsom I).
2 No. 03-3366
The district court sentenced Newsom to 324 months in
prison. Under the applicable statutes, Newsom faced
between 10 and 20 years in prison for his conviction for
producing pornography; up to 15 years in prison for each of
his 22 counts of receiving child pornography; and up to five
years in prison for his possession conviction. We concluded
in Newsom I that the district court properly calculated the
final sentencing range of 292-365 months under the now-
advisory Sentencing Guidelines, although we disagreed
with it about exactly how to group the offenses to reach that
result. Id. at 784-86.
Since Newsom challenges the reasonableness of his
sentence, we briefly recount the manner in which that
range was calculated. Newsom had a criminal history
category of I. His offenses, we found, should be organized
into three groups—one for all the counts of receiving
pornography, one for production of child pornography, and
one for possession of child pornography. Of the three
groups, production produced the highest offense level, 37,
once enhancements were included. That included enhance-
ments for involving a victim under the age of 12, involving
a victim under Newsom’s care and supervision, obstruction
of justice for failing to appear for a plea hearing, and
abusing a vulnerable victim who was asleep. Three more
levels were added pursuant to the multiple count adjust-
ment of U.S.S.G. § 3D1.4, creating a total offense level of
40. This resulted in the Guidelines range of 292 through
365 months, from which the district court picked a sentence
of 324 months.
We ordered a limited remand so that the district court
could inform us whether it considered the sentence to be
appropriate, given that the Guidelines are no longer
mandatory. See United States v. Booker, 125 S. Ct. 738
(2005); United States v. Paladino, 401 F.3d 471 (7th Cir.
2005). As this court held in Paladino, if the district court
indicates that it would impose the same sentence, that
No. 03-3366 3
sentence will be affirmed against a plain-error challenge so
long as it is reasonable. 401 F.3d at 484. Our review is
deferential to the district court’s judgment; “the question is
not . . . what sentence we ourselves might ultimately have
decided to impose on the defendant.” United States
v. Williams, No. 03-4091, *5 (7th Cir. Oct. 6, 2005). Fur-
thermore, if a sentence is within the properly calculated
Guidelines range, it is presumptively reasonable. See
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005).
In this case, the district court has informed us that
it would impose the same sentence under the advisory
Guidelines. By way of explanation, the district court pointed
to Newsom’s flight from the jurisdiction before trial, to the
harm he inflicted on his victims, and to the protection of the
rights of the children involved. As the district court noted,
“Each receipt of an item of child pornography is as harmful
as the next. Each receipt of child pornography provides
another opportunity to profit from the intrusion into a
child’s privacy and development, operates to create relation-
ships between various pornography manufacturers, and
further extends the market for child pornography.” The
district court emphasized the importance of providing
punishment that reflects the seriousness of the offense and
affords adequate deterrence. The court’s analysis addressed
some but not all of the factors listed in 18 U.S.C. § 3553(a),
including the “nature and circumstances of the offense,” §
3553(a)(1), “the need . . . to reflect the seriousness of the
offense,” § 3553(a)(2)(A), deterrence, § 3553(a)(2)(B), and
protecting the public, § 3553(a)(2)(C).
After receiving the district court’s statement, this court
invited both the government and Newsom to file any
arguments concerning the disposition of this appeal; only
Newsom responded. He challenges his sentence of 324
months as unreasonable on two grounds. First, he contends
that the district court failed to consider his personal history
4 No. 03-3366
and characteristics, as required by 18 U.S.C. § 3553(a)(1);
second, he argues that the sentence is not reasonable
because others who committed more heinous crimes were
sentenced to shorter prison terms, which is inconsistent
with § 3553(a)(6). Before Booker, the § 3553(a) factors could
be considered only in limited circumstances; now the
district courts must always consider these factors to
determine if the advisory Guidelines range is appropriate.
As we noted above, however, our role is not that of the
sentencing court. “The question is not how we ourselves
would have resolved the factors identified as relevant by
section 3553(a).” Williams, No. 03-4091, at *5. Furthermore,
given the presumptive reasonableness of sentences within
the Guidelines range, we have observed that it will be the
rare sentence within the Guidelines range that “stands out
as unreasonable.” Id. For the reasons detailed below, we
reject each of Newsom’s arguments.
We look first at his assertion that the court failed prop-
erly to take his individual circumstances into account,
including particularly his depression, alcohol abuse, and
work history, as required by 18 U.S.C. § 3553(a)(1). He
reads this court’s decision in United States v. Dean, 414
F.3d 725 (7th Cir. 2005), as holding that the court must
address the defendant’s personal characteristics if they
are “decisive” to the sentence imposed. That is not quite
what Dean said, however. Its exact language, insofar as it
applies to Newsom’s case, was as follows:
[T]he sentencing judge can discuss the application of
the statutory factors to the defendant not in checklist
fashion but instead in the form of an adequate state-
ment of the judge’s reasons, consistent with section
3553(a), for thinking the sentence that he has selected
is indeed appropriate for the particular defendant.
Id. at 729. The opinion went on to say that explicit
fact findings were required “if, though only if, contested
No. 03-3366 5
facts are material to the judge’s sentencing decision.” Id.
at 730.
In Newsom’s case, we see no indication that there was
a contested issue of fact relating to the personal characteris-
tics Newsom has highlighted. It is unfortunate that the
court did not mention these points in its order, since
Newsom had relied heavily on them on remand, but the
court must have thought this unnecessary because the
government did not take issue with any of them. It is
their significance that was contested. In our view, the
only reasonable way to read the court’s memorandum is
as an indication of which facts the court did find mate-
rial: Newsom’s flight, his relationship of trust with and
authority over two of his victims, and the seriousness of the
offense. The Guidelines, which take those factors into
account, normally should point the way toward a reasonable
sentence consistent with § 3553(a). See Mykytiuk, 415 F.3d
at 607.
Dean also held that the district court’s obligation to
explain the sentence it chose becomes greater “the farther
the judge’s sentence departs from the guidelines sentence.”
414 F.3d at 729 (emphasis added). “When the judge exer-
cises her discretion to impose a sentence within the Guide-
line range and states for the record that she is doing so,
little explanation is required.” Id. at 730 (quoting United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005)). Thus, to
summarize, the district courts must resolve disputed
material issues of fact that relate to particular § 3553(a)
factors that a defendant brings to the court’s attention; they
must explain the conclusions they draw with respect to
“decisive” characteristics; and, to the extent that they are
departing from the sentence recommended by the Guide-
lines, they must set forth the justification for doing so. In
this case, the district judge selected a sentence at the center
of the Guidelines range and explained in his order on
remand why he thought this was appropriate. We add for
6 No. 03-3366
the sake of completeness that we too see nothing in
Newsom’s personal history that shakes our confidence in
this conclusion.
Newsom’s other argument is that his sentence was
unreasonable because it violated the command of
§ 3553(a)(6) to take into account “the need to avoid unwar-
ranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.”
While we find this a closer call, we conclude that the
district court’s weighing of the facts of Newsom’s case
against those of other cases is entitled to deference.
Prior to Booker, disparities resulting from the proper
application of the Guidelines were not a permissible reason
for a departure from a properly calculated sentencing range.
See United States v. Meza, 127 F.3d 545, 549-50 (7th Cir.
1996). Now that the district court is obliged directly to
confront all of the § 3553(a) factors, however, comparison of
sentences has become a permissible part of the overall
sentencing determination. Both before the district court and
before this court, Newsom has attempted to rely on our
earlier expressed concern about marginal deterrence. In
affirming the district court’s application of the Guidelines,
we noted that the length of Newsom’s overall sentence, 324
months or 27 years, was troubling in light of theories of
marginal deterrence, which provide that the harshest
sentences should be reserved for the most heinous behavior.
Newsom I, 402 F.3d at 785-86. What, we asked, of the
defendant who does something even worse than Newsom?
The district court was aware of our concerns about
marginal deterrence, but it found nevertheless that this
long sentence is appropriate given all of the particulars of
Newsom’s case. It recalled that Newsom had abused the
trust of his own daughter and his ex-girlfriend’s daughter,
that he had fled from prosecution, the fact that he was
convicted on 22 counts of receiving child pornography in
No. 03-3366 7
addition to manufacturing it, and the need to deter similar
crimes. In considering this argument, we begin with the
observation that § 3553(a) does not ban all disparities; its
concern is only with unwarranted disparities.
Arguing by analogy from other cases, Newsom urges
that his sentence was far longer than sentences imposed on
other defendants whose crimes were worse than his own. In
United States v. Cunningham, 405 F.3d 497 (7th Cir. 2005),
for example, the defendant seduced a 14-year-old using the
Internet, had sexual intercourse with her, and took pic-
tures. For all this, he was convicted of one count of produc-
ing child pornography and, after an upward departure,
received a sentence of 210 months in prison. United States
v. Schmeilski, 408 F.3d 917 (7th Cir. 2005), was even closer
to Newsom’s situation on its facts. There the defendant
used his digital camera to produce pornographic pictures of
his three teen-aged stepdaughters and downloaded more
than a thousand other such images from the Internet. In
that case, the defendant pleaded guilty to production of
child pornography, possession of child pornography, and
criminal forfeiture, but he received a sentence of only 213
months in prison. Finally, in United States v. Snyder, 189
F.3d 640 (7th Cir. 1999), the defendant was convicted of
producing, receiving, and distributing child pornography, as
well as possessing child pornography with intent to sell,
after a co-conspirator brought an 11-year-old to his house
where the defendant engaged in sexual activities with him,
some of which were recorded and distributed on the
Internet. That defendant was sentenced to 168 months.
Newsom argues, not without reason, that his crimes were
not as serious as any of these three, yet his sentence was
111 months longer than even Schmeilski’s (114 months
longer than Cunningham’s, and 156 months longer than
Snyder’s).
While comparisons are appropriate, it is important in
the first instance to recall that the Guidelines were in-
8 No. 03-3366
tended to create national uniformity, and that this goal
remains important post-Booker. It is not enough for a
defendant to argue that a few cases from any particular
circuit seem to cast doubt on his sentence. In addition, one
needs to know more than the crime of conviction and the
total length of the sentence to evaluate disparities; the
specific facts of the crimes and the defendant’s individual
characteristics are also pertinent. The district court
was entitled to conclude that the differences in the facts
of each of the cases Newsom cited justified the more
severe sentence for Newsom. For example, in Cunningham,
the defendant was convicted of a single crime involving a
single victim, not 23 crimes involving two children in his
own home as well as the many others depicted in pictures
found on his computer. In Schmeilski, the defendant
pleaded guilty, thereby giving some reason to think that he
recognized his wrongdoing and thus was worth the risk of
a lower sentence. In Snyder, the defendant was not in a
position of authority or trust relative to the victim; in
addition, his convictions were based upon actions with only
one victim, although what happened to that victim was
particularly egregious. In none of these cases was the
defendant’s sentence enhanced for obstructing justice.
Newsom has only himself to blame for the increase attribut-
able to his flight from the jurisdiction.
Other cases also suggest that Newsom’s sentence is not as
extreme as it may appear at first blush. For example, in
United States v. Ohlinger, 377 F.3d 785 (7th Cir. 2004), the
defendant was sentenced to 360 months in prison after
pleading guilty to one count of transporting in interstate
commerce a visual depiction of a minor engaged in sexually
explicit conduct. The district court based the sentence in
that case on the defendant’s lengthy criminal history
related to sexual crimes involving children as well as the
danger to society from the defendant who was “still ex-
tremely interested in sex with children.” When the district
No. 03-3366 9
court in Ohlinger indicated on a Paladino limited remand
that it would still impose the same sentence knowing that
the Guidelines are advisory, this court held that the
sentence was reasonable. See also United States v. Danser,
270 F.3d 451 (7th Cir. 2001) (sentence of 370 months for
child pornography-related charges arising from defendant’s
improper relationship with his daughter).
Newsom also argues that the fact that he at one point
entered into a tentative plea agreement under which the
Guidelines range would have been between 121 and 151
months demonstrates that the 324-month sentence is
unreasonable. But Newsom did not get the benefit of that
plea agreement for a very simple reason: instead of pleading
guilty, he skipped off to Florida and started living under an
assumed name. There is really nothing more to say about
this argument.
We note finally that under both the applicable statutes
and the advisory Guidelines, Newsom could have re-
ceived an even longer sentence. As we noted earlier, his
Guidelines range was 292 to 365 months; his sentence fell
in the middle of that range. Although it might have been
useful if the court had said a little more about the appar-
ently exceptional severity of Newsom’s sentence, our
examination of this question has satisfied us that it was not
great enough to require a finding of unreasonableness for a
sentence that falls within a properly calculated Guidelines
range. See Mykytiuk, 415 F.3d at 608. We therefore find
that Newsom’s sentence was not the result of plain error.
The district court’s conclusion that this was a reasonable
sentence under all the circumstances is AFFIRMED.
10 No. 03-3366
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-2-05