NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 18, 2008
Decided December 17, 2008
Before
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐3653
UNITED STATES OF AMERICA, United States District Court for the
Plaintiff‐Appellee, Northern District of Illinois,
Eastern Division.
v.
No. 06 CR 316
ROBERT SKINNER,
Defendant‐Appellant. Blanche M. Manning
Judge.
O R D E R
Robert Skinner pleaded guilty to two counts of sexual exploitation of a child, see 18
U.S.C. § 2251(a), and was sentenced to a total of 60 years’ imprisonment. He challenges his
sentence on appeal, arguing that the district court ignored his principle argument at
sentencing, that a psychological evaluation showed that he was unlikely to reoffend.
Because the record does not establish that the district court adequately considered Skinner’s
argument, we vacate and remand for a new sentencing
No. 07‐3653 Page 2
Skinner repeatedly engaged in sex acts with a minor. He videotaped and
photographed some of those acts when the victim was eleven years old, and he also
attempted to groom another minor to participate in sex acts. Skinner was indicted on six
counts of using a minor to produce a video or photos of sexually explicit conduct, and
pleaded guilty to two counts. The government proffered at sentencing, without
contradiction, that the video demonstrated that the victim was in pain, that Skinner’s
conduct was part of a continuing pattern, and that the victim suffered extreme
psychological trauma.
Based on the undisputed facts, the district court calculated a guidelines
imprisonment range encompassing both counts of conviction and arrived at a total offense
level of 43. That yielded a guidelines range of life imprisonment, which was reduced to a
total of 60 years, the effective statutory maximum if the terms on the two counts were run
consecutively. See 18 U.S.C. § 2251(e), U.S.S.G. § 5G1.1(a). Skinner concedes that the
guidelines were applied correctly.
Skinner, though, argued both in a written memorandum and at sentencing that he
should receive a below‐range sentence because, he asserts, his likelihood of recidivism is
low. He attached to his sentencing memorandum an evaluation from a clinical
psychologist, Orest Wasyliw, Ph.D., who interviewed Skinner, administered psychological
tests, and completed two assessments, the Hare Psychopathy Checklist‐Revised (PCL‐R),
and the Static‐99 Actuarial Risk Assessment. Wasyliw concluded that Skinner suffers from
paraphilia with pedophilic and ephebophilic traits (meaning that he is aroused by
prepubescent and teenage children), but no other psychological disorders, that he is a good
candidate for psychological treatment, and that he presents a low risk of recidivism. Based
on this report, Skinner proposed a sentence of 15 years’ imprisonment, the statutory
minimum.
Before imposing total imprisonment four times what Skinner argued was
appropriate, the district court acknowledged that Skinner did not have a prior record. The
court noted, however, that Skinner had abused a very young child, filmed the abuse, and
put the images on his work computer. The court contemplated the possibility that Skinner’s
victim will “never be the same,” and concluded that in Skinner’s case “the guidelines got it
right.” But the court said nothing about Wasyliw’s conclusion that Skinner does not present
a long‐term risk of committing similar crimes.
That silence prompts Skinner’s contention on appeal that the district court ignored
his principal argument for a below‐range sentence: psychological evidence confirms that he
is unlikely to reoffend. We review sentences for reasonableness in light of the factors
outlined in 18 U.S.C. § 3553(a), and a properly calculated guidelines sentence is presumed
No. 07‐3653 Page 3
reasonable. Rita v. United States, 127 S.Ct. 2456, 2462 (2007); United States v. Arceo, 535 F.3d
679, 687 (7th Cir. 2008); United States v. Campos, 541 F.3d 735, 750 (7th Cir. 2008). However,
the district court must give “meaningful consideration” to the § 3553(a) factors. United
States v. Panaigua‐Verdugo, 537 F.3d 722, 727 (7th Cir. 2008). Although the standard of review
is highly deferential, even to affirm a sentence within the guidelines range we must be able
to conclude that the district court exercised its discretion; that is, that the court actually
considered the § 3553(a) factors. United States v. Schroeder, 536 F.3d 746, 755 (7th Cir. 2008);
United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). Where the district court
“passes over in silence the principal argument made by the defendant even though the
argument was not so weak as not to merit discussion,” we cannot be confident in the
judge’s attention to the statutory factors. Cunningham, 429 F.3d at 679.
We do not have the requisite confidence in this case. It is possible that the district
court considered the psychologist’s report. Skinner attached the report to a memorandum
he filed with the court, and his counsel referred to it at sentencing. It would have been
difficult to overlook these points asserted by the defense. Perhaps the resulting sentence
was an implicit rejection of those points. But the lesson of Cunningham is that the district
court must not only consider the defendant’s principal argument, but that it is necessary to
make a record of that consideration sufficient to allow us to conclude the court exercised its
discretion. Here, Skinner submitted a lengthy and detailed psychologist’s report quite
relevant to several of the 3553(a) factors as the cornerstone of his argument for leniency, and
the district court “passed over in silence” that argument. This presentation was by no
means trivial or frivolous. In this circumstance, the sentencing judge’s silence is equivocal
and does not assure us that the defendant’s argument was considered and rejected.
On remand, it may be that the original sentence of 60 years’ imprisonment is
justified. But the district court should demonstrate, on the record, meaningful consideration
of Skinner’s principal contention that he presents little risk of recidivism. Accordingly, we
VACATE and REMAND for resentencing.