In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1393
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JEREMY GOLDBERG,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 922—Joan B. Gottschall, Judge.
____________
SUBMITTED MAY 29, 2007—DECIDED JUNE 27, 2007
____________
Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The government appeals from
the imposition of a sentence of one day in prison, time
served, for a violation of the Child Pornography Preven-
tion Act of 1996. The specific section of the Act that the
defendant violated, 18 U.S.C. § 2252A(a)(5)(B), authorizes,
so far as bears on this case, the imposition of a maximum
prison sentence of 10 years on anyone who “knowingly
possesses any book, magazine, periodical, film, videotape,
computer disk, or any other material that contains an
image of child pornography that has been mailed, or
shipped or transported in interstate or foreign commerce
2 No. 07-1393
by any means, including by computer.” For the defendant’s
particular offense, the federal guidelines sentence range
was at least 63 to 78 months—“at least” because, as noted
at the end of this opinion, it appears to have been mis-
calculated in the defendant’s favor.
The judge imposed a nominal prison sentence, though
her preference was to impose no prison sentence at all,
because without imposing a prison sentence she could not
have imposed supervised release. The statute that autho-
rizes supervised release, 18 U.S.C. § 3583(a), states that “the
court, in imposing a sentence to a term of imprisonment
for a felony or a misdemeanor, may include as a part of
the sentence a requirement that the defendant be placed
on a term of supervised release after imprisonment.” The
Sentencing Commission understands supervised release to
presuppose a prison sentence. See U.S.S.G. ch. 7, pt. A,
§ 2(b); see also United States v. Sanchez-Estrada, 62 F.3d 981,
994 (7th Cir. 1995).
The defendant, who is now 23 years old, is the son of a
prosperous couple in the wealthy Chicago suburb of
Highland Park. He downloaded file-sharing software
that gave him access to a web site called “#100%
PreTeenGirlPics.” Over a period of some 18 months, he
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. He masturbated while
viewing the pornographic images. He has a history of
drug abuse. His lawyers describe him as a “normal young
adult.”
The district judge justified the remarkably light sen-
tence that she gave the defendant as follows:
No. 07-1393 3
It’s a very, very difficult case, but I have concluded
that I’m going to begin with a lengthy period of super-
vision rather than a period of incarceration, with the
idea that it’s going to be very intensive, and if there is
a problem, Mr. Goldberg is going to go away for a very
long time.
But the way I look at this case, . . . I think that if
I sent Mr. Goldberg away for 63 months or anything
close to it with the hope that he gets sex offender
treatment in prison, we’re pretty much guaranteeing
his life will be ruined. And I think there’s some possi-
bility here that his life can go in a different way, and
I’d like to try that, but I’m very worried, because
what’s gone on here is very, very difficult for me to
deal with. I mean, these pictures, I can’t even bear to
look at them they’re so horrible. And what spiraling
downward does to you so that you can stand looking
at pictures like that I don’t know, but it’s spiraling
pretty far downward.
The guidelines allow me to place Mr. Goldberg,
and I’m going to . . . I don’t know what our current
word is . . . deviate from the guidelines under 3553,
and I’m going to impose a period . . . as I said, the
supervised release can be any years up to life. I’m
going to impose a ten-year period of supervised
release.
It’s more supervised release than I have ever im-
posed before, but I really think that given the psychiat-
ric reports and given what transpired here, that the
period of supervision has to be long enough to ensure
that if Mr. Goldberg turns his life in a different direc-
tion he does it for a long time.
4 No. 07-1393
I also want to make sure that if there is
further . . . any evidence of further problem, that the
Court retains a handle over Mr. Goldberg for a long
time.
Now, during that period of supervision, I really
need a little help in figuring out . . . and I have been
trying to get the lawyers to give it to me, but I don’t
know that I’ve gotten it yet. Maybe it depends on what
kind of financial commitment people are able to make,
I don’t know, but I need to have close supervision in
both the drug area and in the therapy area to make
sure that we’re not having a problem here. And I know
that . . . I think Ms. Cohen is the one who suggested
some kind of periodic polygraph examinations, and
I think that should be an important part of this.
.* * *
I think I better now talk about why under Section
3553 I deviated from the guidelines. My reason in this
case is less . . . well, it’s this: It’s considering the history
and characteristics of the defendant I think that there’s
a substantial likelihood . . . and also considering the
psychiatric reports, that this offense was committed
out of boredom and stupidity and not because Mr.
Goldberg has a real problem with the kind of deviance
that these cases usually suggest. I believe that if that
is correct, and if he is sent to prison for a lengthy
period, anything of any consequence at all, I think it’s
going to ruin his life in many ways.
I think that sex offender treatment within the Bureau
of Prisons is going to expose him to people who are
dangerous to him. I think any substantial period of
incarceration is going to ensure that he’s not able to
No. 07-1393 5
take advantage of his education and get a good job, and
I think all of this will reinforce whatever negative
things he’s done in the past rather than pushing him
in a positive direction.
I recognize that the viewing of child pornography
over the Internet destroys the lives of young children,
but I also recognize that the life that I’m concerned
with here, the life that I can affect, is Mr. Goldberg’s
life, and I don’t want to destroy his life in the hope that
maybe in some very indirect way it’s going to help
somebody else’s life. I don’t think it is. And I would
like, if I can, to support him in putting his life on a
positive direction rather than in destroying it.
The reason for the long period of supervision and the
close supervision that I believe I’ve required is to make
sure that if he indeed represents a threat, and if I’m
wrong in my assessment of what went on here, that we
are able to catch it before any damage is done.
This is kind of an odd balancing of factors under
3553, but I think I do have the discretion in an unusual
case like this one to choose not to incarcerate and to
choose close supervision to see what transpires over
the next few years.
There is also a brief “statement of reasons” appended to
the original judgment that the judge entered. But it is
omitted from the amended judgment (entered because the
original judgment was discovered to contain clerical errors)
and is not in the appellate record, although the defendant’s
counsel quotes from it in his brief and the clerk of the
district court has found a copy for us. In the oral statement,
which we just quoted, the grounds on which the judge
justified the sentence were that the defendant was not a
real deviant because he had committed the crime out of
6 No. 07-1393
“boredom and stupidity,” that it would ruin his life to be
imprisoned because he would be exposed to “people
who are dangerous to him,” and that his life, rather than
the lives of the small children who had been raped in
order to enable the creation of sadistic child pornography
to assist the defendant in masturbating, was the only “life
that I can affect.” The written statement of reasons is
similar. In it the judge attributes the defendant’s porno-
graphic activity to boredom resulting from his being
confined at home as a result of being convicted of a drug
offense and states that he “has normal sexual interests
and is not a pedophile, internet or otherwise.” She states
that “no one argues that any actual children are at risk
from any conduct of [the defendant] (other than the harm
to children who are used to make images used on the
internet),” but she assigns no weight to that harm—the
harm to the children—consistent with her oral statement
that the only life she can affect by her sentence is the
defendant’s. The written statement assigns weight to the
fact that if the defendant is sent to prison, “his educa-
tion will be interrupted.”
These grounds, and the passages we quoted in which
they appear, do not comply with the requirement that the
sentencing judge conscientiously consider the factors set
forth in 18 U.S.C. § 3553(a) to guide sentencing. Those
factors, so far as pertain to this case, are
(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
No. 07-1393 7
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
* * *
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have
been found guilty of similar conduct.
A prison sentence of one day for a crime that Congress
and the American public consider grave, in circumstances
that enhance the gravity (we refer to the character of
some of the images), committed by a convicted drug
offender, does not give due weight to the “nature and
circumstances of the offense” and the “history and charac-
teristics of the defendant.” It does not “reflect the serious-
ness of the offense,” “promote respect for the law,” or
“provide just punishment for the offense.” It does not
“afford adequate deterrence to criminal conduct.” And it
creates an unwarranted sentence disparity, since similarly
situated defendants are punished with substantial prison
sentences. See, e.g., United States v. Lange, 445 F.3d 983
(7th Cir. 2006); United States v. Grigg, 442 F.3d 560 (7th
Cir. 2006); United States v. Baker, 445 F.3d 987 (7th Cir.
2006); United States v. Perez, No. 06-50041, 2007 WL 1065784
(5th Cir. Apr. 11, 2007); United States v. Nikonova, 480 F.3d
371 (5th Cir. 2007); United States v. Rolfsema, 468 F.3d 75 (1st
Cir. 2006); United States v. Branson, 463 F.3d 1110 (10th Cir.
2006). United States v. Grinbergs, 470 F.3d 758 (8th Cir. 2006),
reversed a sentence of a year and a day (a sentence 366
times longer than the sentence imposed by the district
judge in this case) imposed on a defendant who had
pleaded guilty to one count of possessing child pornogra-
phy and faced a guidelines sentence of 46 to 57 months in
8 No. 07-1393
prison, lower than our defendant’s guidelines sentencing
range.
It is true as the defendant points out that the statute
under which he was convicted contains no mandatory
minimum. But it does not follow that Congress envisaged
no prison time for violators. The absence of a mandatory
minimum sentence may signify no more than that the
legislature did not want to take the time to try to determine
what the minimum sentence should be or did not think it
could anticipate unusual cases in which a light sentence
might be appropriate. We can imagine a case, involving
the downloading of a handful of images none showing
any prepubescent child or depicting any sexual activity,
yet still constituting child pornography (the statute de-
fines “child” as any minor and “pornography” as including
besides actual sexual activity “lascivious exhibition of
the genitals or pubic area,” 18 U.S.C. §§ 2256(1), (2)(A)(v)),
in which a permissible sentence might be light. The
hundreds of images in this case include as we have noted
images of prepubescent children being penetrated by
adults.
The district judge was influenced by the erroneous be-
lief that a sentence affects only the life of the criminal and
not the lives of his victims. 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. The greater
the customer demand for child pornography, the more that
will be produced. E.g., Osborne v. Ohio, 495 U.S. 103, 109-11
(1990); United States v. Barevich, 445 F.3d 956, 959 (7th Cir.
2006); United States v. Richardson, 238 F.3d 837, 839 (7th Cir.
2001); United States v. Angle, 234 F.3d 326, 337-38 (7th Cir.
2000). Sentences influence behavior, or so at least Congress
No. 07-1393 9
thought when in 18 U.S.C. § 3553(a) it made deterrence a
statutory sentencing factor. The logic of deterrence sug-
gests 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.
Why the fact that the defendant committed the offense
out of “boredom and stupidity,” if it were a fact, should
be thought a mitigating factor escapes us and was not
explained by the judge. Anyway it is not a fact; the defen-
dant obtained sexual gratification from the pornographic
images that he so sedulously collected. It is also inconsis-
tent with the 10-year term of supervised release that the
judge imposed, which includes conditions that require
the defendant’s participation in programs for the psycho-
logical treatment of sex offenders.
The judge’s suggestion that the defendant does not
have “a real problem” could be interpreted to mean that
she disparages Congress’s decision to criminalize the
consumption and distribution of child pornography,
perhaps because she thinks that only people who actually
molest children, rather than watching them being mo-
lested, have “a real problem.” This interpretation is
reinforced by her statement elsewhere in the transcript of
the sentencing hearing that the defendant’s crime was
just “a kind of mischief.” This characterization cannot be
reconciled with the judge’s having fully credited (as she
said she did) the report of a psychologist who stated
that the defendant has been using pornography for more
than a decade, that he “believed he was smart enough not
to get caught and if he were caught he believed he would
not have any consequences,” that he has “little knowledge,
understanding or empathy for the little girls depicted in
the images,” that “he began using pornography when he
10 No. 07-1393
was 12-13 and continues to fantasize about the same age
girls he looked at then,” that he has “persistent sexual
interest in adolescent males and females,” that he is a
“pedophile,” that he “has admitted to other deviant
behaviors, namely voyeurism, scatological phone calls
and the stealing of a 14 year old girl’s panties,” that he
has “sociopathic traits,” that “he doesn’t think of the
consequences of his behavior,” that “he has had two
convictions within two years,” and that “he has little
respect for the law or social conventions.”
The district judge’s assertion “that sex offender treatment
within the Bureau of Prisons is going to expose [the
defendant] to people who are dangerous to him” is ill
informed. Sex-offender treatment in federal prisons is
voluntary. Statement of Andres E. Hernandez, Director
of the Sex Offender Treatment Program Federal Correc-
tional Institution Butner, N.C., Concerning “Sexual Ex-
ploitation of Children Over the Internet: The Face of a
Child Predator and Other Issues,” Before the H. Subcomm.
on Oversight and Investigations of the H. Comm. on
Energy and Commerce, 152 Cong. Rec. D1035-01, D1038
(Sept. 26, 2006), http://projectsafechildhood.gov/
HernandezTestimonyCongress.pdf, p. 2 (visited June 1,
2007). And “the vast majority” of sex offenders in the
program are individuals convicted of “Possession, Receipt,
Distribution, and Transportation of Child Pornography,”
like the defendant. Id. at 3. The judge gave no explana-
tion for why she thought a prison sentence would be
more ruinous for the defendant than for any other impris-
oned criminal other than her mistaken belief that he
would be thrown in with violent sexual offenders.
The judge’s balancing of the section 3553(a) sentencing
factors was indeed “odd,” as she acknowledged, but, more
No. 07-1393 11
to the point, it was unreasonable. United States v. Roberson,
474 F.3d 432, 435 (7th Cir. 2007); United States v. Repking,
467 F.3d 1091, 1094 (7th Cir. 2006) (per curiam); United
States v. Walker, 447 F.3d 999, 1007 (7th Cir. 2006). When the
guidelines, drafted by a respected public body with access
to the best knowledge and practices of penology, recom-
mend that a defendant be sentenced to a number of years
in prison, a sentence involving no (or, as in this case,
nominal) imprisonment can be justified only by a careful,
impartial weighing of the statutory sentencing factors. It
may not be based on idiosyncratic penological views
(such as that the severity of criminal punishment has no
significance for the victims of crime, but only for the
criminals), disagreement with congressional policy, or
weighting criminals’ interests more heavily than those of
victims and potential victims. See, e.g., United States v.
Grinbergs, supra, 470 F.3d at 759; United States v. Davis, 458
F.3d 491, 498-500 (6th Cir. 2006); United States v. Martin, 455
F.3d 1227, 1239-42 (11th Cir. 2006); United States v. Crisp,
454 F.3d 1285 (11th Cir. 2006); United States v. Robinson,
454 F.3d 839 (8th Cir. 2006); United States v. Cage, 451 F.3d
585, 595-96 (10th Cir. 2006). The judge neglected con-
siderations of deterrence and desert, which dominate the
federal criminal code, in favor of undue emphasis on
rehabilitation, and seemed even to think that any prison
sentence, however short, is inconsistent with rehabilitation.
That is not the theory of either the criminal code or the
Sentencing Reform Act, which actually downplays the
significance of rehabilitation as a penological goal by
rejecting imprisonment as a means of promoting it. 28
U.S.C. § 994(k); Mistretta v. United States, 488 U.S. 361, 367
(1989); Kerr v. Puckett, 138 F.3d 321, 324 (7th Cir. 1998).
Finally, the guidelines sentencing range appears to have
been miscalculated. The district judge did not make the
12 No. 07-1393
upward adjustment required by U.S.S.G. § 2G2.2(b)(3) for
sadistic images, even though at the sentencing hearing
the government pointed out that some of the images on
the defendant’s computer involved “bondage of these
young children” and “sadistic and masochistic sexual
activity with these children,” as well as girls “as young
as two and three years old being vaginally penetrated
with an adult male penis.”
We do not rule that a sentence below a properly calcu-
lated guidelines range would have been improper in this
case. The guidelines are merely advisory, and the statutory
sentencing factors (a laundry list of incommensurables
which guides consideration but does not dictate the
sentence or even the sentencing range) leave plenty of
discretion to the sentencing judge. But that discretion
was abused in this case, and the judgment is therefore
reversed and the case remanded for resentencing.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-27-07