NONPRECEDENTIAL DISPOSITION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
Submitted September 16, 2009*
Decided October 7, 2009
Before
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐4017
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v. No. 07‐CR‐164
CHRISTOPHER W. DALLUM, Barbara B. Crabb,
Defendant‐Appellant. Chief Judge.
O R D E R
Christopher Dallum pleaded guilty to two counts of possessing child pornography,
18 U.S.C. § 2252(a)(4), and was sentenced to a total of 144 months’ imprisonment. Dallum
argues that he must be resentenced because, in his view, the district court should not have
applied U.S.S.G. § 2G2.2 in calculating his guidelines range. We affirm the judgment.
In addition to the two counts of possessing child pornography, Dallum was also
charged with using a means of interstate commerce to entice a minor to engage in sexual
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP.
P. 34(a)(2).
No. 08‐4017 Page 2
activity, 18 U.S.C. § 2422(b). He pleaded guilty to the child‐pornography charges, and
because he has a prior conviction for sexual assault of a minor, a 10‐year statutory
minimum sentence applied to each child‐pornography count, id. § 2252(b)(2). The district
court calculated Dallum’s imprisonment range under the sentencing guidelines and set a
base offense level of 18, see U.S.S.G. § 2G2.2(a). The court increased the offense level to 38
after adding 2 levels because of the young ages of some of the children depicted in the
materials; 2 more levels because the offense conduct involved online distribution; 4 levels
because the materials portray sadistic or masochistic activity or violence; 5 levels because
Dallum had an ongoing sexual relationship with a 16‐year‐old female; 2 levels because the
crimes involved a computer; and 5 levels because he possessed more than 600 images. Id.
§ 2G2.2(b)(2), (b)(3)(F), (b)(4), (b)(5), (b)(6), (b)(7)(D). The district court then arrived at a
total offense level of 35 after giving Dallum credit for acceptance of responsibility. Id.
§ 3E1.1(a). That total offense level, coupled with Dallum’s criminal history category of III
which included 3 points for sexual assault of a minor, yielded a guidelines imprisonment
range of 210 to 262 months (the district court stated the range as 188 to 235 months, which
would have been the applicable guidelines imprisonment range if Dallum had a criminal
history category of II).
At sentencing Dallum urged the district court to disregard § 2G2.2 entirely and
instead impose a total of 30 months’ imprisonment. Dallum reasoned that § 2G2.2 is not
empirically sound and should never have been adopted by the Sentencing Commission, and
thus any prison term assessed after taking into account the guidelines range would “far
exceed any rational sentence.” If the district court disregarded § 2G2.2, Dallum continued,
the court would arrive at a sentence of 30 months’ imprisonment based on the remaining
factors in 18 U.S.C. § 3553(a). The district court did not accept Dallum’s premise that
§ 2G2.2 could be ignored, but the court did acknowledge that “the way the [child‐
pornography guidelines] build upon each other is Draconian” and, after considering the
guidelines imprisonment range in Dallum’s case, concluded that a lower sentence would be
appropriate. The district court then evaluated the remaining § 3553(a) factors before settling
on a prison term of 120 months for each count, with 24 months of the second term to run
consecutively for a total of 144 months.
On appeal Dallum does not argue that his overall prison term is unreasonable when
weighed against all of the § 3553(a) factors. Instead he repeats his argument that § 2G2.2 is
invalid and that any prison sentence based on a range calculated using that Chapter 2
guideline must be declared unreasonable as a matter of law. In essence, Dallum insists that
§ 3553(a)(4), which directs the sentencing court to take into account the guidelines range,
must be excised from the statute when the crime of conviction relates to child pornography.
We first note that defense counsel has submitted an unacceptable brief on appeal.
No. 08‐4017 Page 3
He copies into his brief over 30 pages of an article written by a federal public defender on
the flaws of the child‐pornography guidelines. Although this article is often cited in child‐
pornography cases, counsel mistakenly assumes that we would receive more benefit from a
verbatim recitation of the article than from arguments tailored to Dallum’s case.
Dallum insists that his position regarding § 2G2.2 is grounded in United States v.
Booker, 543 U.S. 220 (2005), but he misunderstands that decision. Although Booker made the
sentencing guidelines advisory, “district courts must treat the Guidelines as the ‘starting
point and the initial benchmark.’“ Kimbrough v. United States, 128 S. Ct. 558, 574 (2007)
(quoting Gall v. United States, 128 S. Ct. 586, 596 (2007); see also Nelson v. United States,
129 S. Ct. 890, 891‐92 (2009); Rita v. United States, 551 U.S. 338, 351 (2007). The district court
may impose a sentence outside of the guidelines range because of a policy disagreement
with the guidelines, Spears v. United States, 129 S. Ct. 840, 843‐44 (2009); Kimbrough, 128 S. Ct.
at 575 , or because the guidelines range does not account for all information pertinent to the
§ 3553(a) factors, Rita, 551 U.S. at 351; United States v. Smith, 562 F.3d 866, 872 (7th Cir. 2009),
but the court cannot simply refuse to take the guidelines range into account.
Since Dallum filed his appeal, we made this point explicitly in another case
involving § 2G2.2: “[W]hile district courts perhaps have the freedom to sentence below the
child‐pornography guidelines based on disagreement with the guidelines, as with the crack
guidelines, they are certainly not required to do so.” United States v. Huffstatler, 571 F.3d
620, 624 (7th Cir. 2009). In Huffstatler, we described the argument made by Dallum as
“untenable.” Id. at 623. Indeed, we have since added that a sentencing court is not even
obligated to consider arguments like the one Dallum presents. See United States v. Aguilar‐
Huerta, 576 F.3d 365, 367‐68 (7th Cir. 2009) (“[W]e do not think a judge is required to consider
. . . an argument that a guideline is unworthy of application in any case because it was
promulgated without adequate deliberation.”).
Finally, it is patently frivolous for Dallum to argue that his sentence “far exceed[s]
any rational sentence.” Indeed his sentence of 144 months’ imprisonment is extremely
lenient considering his conviction for sexual assault of a 16‐year‐old female and his
possession of materials depicting young children engaged in sadistic and masochistic sexual
activity. Moreover, his sentence is 66 months below the properly calculated guidelines
range of 210 to 262 months’ imprisonment and only two years above the 10‐year statutory
minimum sentence. Thus, Dallum fails to persuade us that his sentence is unreasonable.
See United States v. Wallace, 531 F.3d 504, 507 (7th Cir. 2008) (“We have never deemed a
below‐range sentence to be unreasonably high.”); United States v. George, 403 F.3d 470, 473
(7th Cir. 2005) (“It is hard to conceive of below‐range sentences that would be unreasonably
high.”).
No. 08‐4017 Page 4
AFFIRMED.