United States v. Wireman

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 28, 2017

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 15-3291

MARK ANTHONY WIREMAN,

Defendant - Appellant.
_________________________________

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:15-CR-10012-JTM-1)
_________________________________

Paige A. Nichols, Research & Writing Specialist (Melody Brannon, Federal Public
Defender, with her on the briefs), Office of the Federal Public Defender, Topeka, Kansas,
for Defendant-Appellant.

Jason W. Hart, Assistant United States Attorney (Thomas E. Beall, Acting United States
Attorney, with him on the brief), Office of the United States Attorney, District of Kansas,
Wichita, Kansas, for Plaintiff-Appellee.
_________________________________

Before TYMKOVICH, Chief Judge, McKAY, and BALDOCK, Circuit Judges.
_________________________________

BALDOCK, Circuit Judge.
_________________________________

Reviewing whether a district court adequately explained a defendant’s

sentence is more of an art than a science. This inquiry, which goes to the ultimate

question whether the defendant’s sentence is procedurally reasonable, Gall v. United
States, 552 U.S. 38, 51 (2007), compels us to ensure that the district court

“considered the parties’ arguments” for different sentences—an obligation that

“normally” requires the district court to “explain why [it] . . . rejected” any “non-

frivolous” arguments—and that the district court “ha[d] a reasoned basis for

exercising [its] own legal decisionmaking authority,” Rita v. United States, 551 U.S.

338, 356–57 (2007). But the manner in which the district court must engage in this

analysis is not static across all cases: “The appropriateness of brevity or length,

conciseness or detail, when to write, what to say, depends upon circumstances.

Sometimes a judicial opinion responds to every argument; sometimes it does not.”

Rita, 551 U.S. at 356.

But no matter how inherently fluid this area of law may be, we have held time

and time again that a district court does not run astray of its duty to “consider[] the

parties’ arguments” simply because it does not directly address those arguments

head-on—assuming, that is, that the district court imposes a within-Guidelines

sentence. Indeed, if the defendant’s sentence is within the applicable Guidelines

range, the district court may satisfy its obligation to explain its reasons for rejecting

the defendant’s arguments for a below-Guidelines sentence by “entertain[ing] [the

defendant’s] . . . arguments,” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1202–

03 & n.4 (10th Cir. 2007) (emphasis added), and then “somehow indicat[ing] that [it]

did not rest on the guidelines alone, but considered whether the guideline sentence

actually conforms, in the circumstances, to the [18 U.S.C. § 3553(a)] statutory

factors,” United States v. Martinez-Barragan, 545 F.3d 894, 903 (10th Cir. 2008)

2
(second alteration in original) (internal quotation marks omitted). Such a “functional

rejection” of a defendant’s arguments—as opposed to an explicit rejection—is

entirely proper. Martinez-Barragan, 545 F.3d at 903 (internal quotation marks

omitted).

Nonetheless, Defendant Mark Anthony Wireman argues today that his

sentence is procedurally unreasonable because the district court did not specifically

address and reject his arguments for a downward variance from his within-Guidelines

sentence. We must decide whether the particular argument he made to the district

court—namely, that the Guideline under which he was sentenced was inherently

flawed on policy grounds—warrants an exception to our long-held rule that the

district court was not required to explicitly address and reject his arguments in such

an instance. Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,

we hold that it does not and affirm.

*

Defendant is a frequent sexual offender who, in this particular instance,

pleaded guilty to five counts of distributing child pornography in violation of

18 U.S.C. § 2252(a)(2) and one count of possessing child pornography in violation of

18 U.S.C. § 2252(a)(4)(B). In short, and without going into graphic detail,

Defendant emailed one of his friends several images of child pornography and

discussed the images over the phone with this man for their mutual sexual

gratification. Defendant also emailed this same friend non-pornographic images of

3
children he personally knew and claimed in these emails—claims that he now

contends were simply fantasies—that he had sexually abused these children.

Defendant’s prior sexual offenses had also involved children: at the time he

pleaded guilty in this case, Defendant had already been convicted of five different

sexually based crimes involving minors. In four of the five instances, Defendant

actually had physical sexual contact with a minor. In the fifth instance he provided a

minor with sexually explicit material. In light of this extensive criminal history,

Defendant’s Presentence Investigation Report (PSR) indicated that he had a criminal

history category of IV.

Section 2G2.2 of the United States Sentencing Guidelines (U.S.S.G.), the

applicable sentencing provision for Defendant’s crimes, set the base offense level for

Defendant’s sentence at 22. See U.S.S.G. § 2G2.2(a)(2). Further, five Specific

Offense Characteristics under § 2G2.2 applied to Defendant and increased his offense

level: (1) a 2-level increase because the material at issue involved prepubescent

minors, see U.S.S.G. § 2G2.2(b)(2); (2) a 2-level increase because he generically

distributed material involving the sexual exploitation of a minor, see U.S.S.G.

§ 2G2.2(b)(3)(F); (3) a 4-level increase because the material involved sadistic,

masochistic, or violent depictions, see U.S.S.G. § 2G2.2(b)(4); (4) a 5-level increase

because he engaged in a pattern of activity involving the sexual abuse or exploitation

of a minor, see § 2G2.2(b)(5); and (5) a 2-level increase because he used a computer

or interactive computer service to distribute the material, see § 2G2.2(b)(6). Thus,

after factoring in a 3-level decrease for Defendant’s acceptance of responsibility,

4
Defendant’s total offense level was 34. Coupled with his category IV criminal

history, a total offense level of 34 corresponded to a guideline range of 210–262

months’ imprisonment.

As is relevant here, Defendant argued in a sentencing memorandum to the

district court that he was entitled to a downward variance from the guideline range

because § 2G2.2 is inherently flawed. He made three sub-arguments in support of

this claim: first, that § 2G2.2(a)(2)’s base offense level of 22 is “harsher than

necessary” under the 18 U.S.C. § 3553(a) sentencing factors; second, that courts

should be hesitant to rely on § 2G2.2 because the Sentencing Commission did not

depend on empirical data when drafting § 2G2.2; and third, that the Specific Offense

Characteristics outlined in § 2G2.2 are utilized so often “that they apply in nearly

every child-pornography case” and therefore fail to distinguish between various

offenders. Defendant then argued in the memorandum that his individual

circumstances—including a traumatizing childhood where he was repeatedly sexually

abused by family members and the fact that in this instance he shared a relatively

small amount of child pornography with only one of his friends—warranted a

downward variance from this excessive guideline range.

At sentencing, the district court alluded to the memorandum but did not speak

at length about it:

[Defendant’s counsel] has filed, on behalf of [Defendant], a
motion for downward variance and a sentencing memorandum, as well.
....

5
 . . . Frankly, I’m struggling with a lot of the issues that have
been raised in . . . [Defendant’s counsel’s] memorandum on
[Defendant’s] behalf.
They’re arguments that [Defendant’s counsel] has made before
and that I anticipate he will keep making until they’re addressed in a
meaningful way by an appellate court, and probably even after that, if
he feels the appellate court still doesn’t have it right. All of that is to be
admired and respected but it may not control at this point.

Beyond this instance, the district court never again mentioned the sentencing

memorandum or Defendant’s arguments by name. But when finally sentencing

Defendant, the district court stated the following:

[T]he really difficult part is trying to determine a sentence that’s
sufficient but not greater than necessary, which essentially means the
minimum acceptable sentence in this case to comply with the purposes
of sentencing.
And, obviously, I am considering the sentencing guidelines,
which promote uniformity in sentencing, to some extent, although I
have to say in this particular area there’s not much in the way of
uniformity and I think that courts are all over the map, as both [the
government] and [Defendant’s counsel] have indicated, because,
frankly, offenders are all over the map . . . . But we hope to find some
thread of uniformity in sentencing and the guidelines help in that regard
by weighing the basic nature of the offense, as well as aggravating and
mitigating factors.

The district court also remarked that “everybody here has done quite an extraordinary

job in presenting . . . to me” all the relevant information pertaining to Defendant’s

sentence.

The district court ultimately sentenced Defendant to concurrent terms of 240

months’ imprisonment on each of the six counts against him. In coming to this

decision, the district court was particularly concerned with the personal nature of the

6
non-pornographic images Defendant emailed to his friend as well as Defendant’s

criminal history:

[Defendant’s counsel] has talked about the relatively few number of
[child pornography] images that are involved, and certainly that’s one
factor, but there’s also far more personal images than a lot of what one
simply downloads on the internet where there’s no personal connection
to the people who are in these images. And I don’t think that the
number of images that were involving or are involved here cuts in
[Defendant’s]—or cuts to his benefit when the persons who are in the
images are known in some way or another to the parties that are
exchanging them.
As I say, I think that there is something that is—makes a person
less culpable downloading a thousand images from some unknown
person and sharing them with a friend, than uploading or sharing ten
images of children that they know . . . .
Second thing, and, again, this goes to the sentence, and it’s an
important factor to me, is [Defendant’s] history. . . .
....
. . . [W]hile I don’t think warehousing people is an appropriate
goal standing alone, I do think that there are some people that pose a
danger to the people who are around them, and your conduct at least
would indicate that you are one of those people.
....
I don’t know if you could sit there today and tell me in good
conscience that if you walked out of here you would never commit this
kind of an offense again, and even if you told me that, and even if you
believed it yourself, I’m not sure that I could believe it just based on
what information I have seen and reviewed over the years relating to
these kinds of offenses.

After handing down its sentence, the district court concluded the proceedings by

asking Defendant and his counsel if they had “anything further.” Defendant’s

counsel stated that they did not.

*

In a powerful and well-written brief, Defendant now claims on appeal that his

sentence is procedurally unreasonable because the district court did not adequately

7
address his critiques of § 2G2.2. He therefore asks us to vacate his sentence and

remand to the district court for resentencing.

We first address our standard of review. Defendant asks us to apply de novo

review because, by submitting his memorandum for a downward variance to the

district court, he “did everything necessary to alert the district court to the need to

address the policy grounds for [his] requested variance.” But contrary to his

contention, Defendant did not do everything necessary. We have previously held that

even if a district court is fully apprised of a defendant’s arguments for a below-

Guidelines sentence, the defendant must still contemporaneously object in the district

court to “the method by which the district court arrived at a sentence, including

arguments that the sentencing court failed to explain adequately the sentence

imposed,” if he or she hopes to avoid plain error review on appeal of any alleged

procedural flaw. United States v. Romero, 491 F.3d 1173, 1176–77 (10th Cir. 2007)

(emphasis added). Here, Defendant did not object to the district court’s alleged lack

of explanation even though the district court explicitly asked him if he had “anything

further.” Cf. United States v. Marquez, 833 F.3d 1217, 1220 n.1 (10th Cir. 2016)

(holding that the district court provided the defendant with “a sufficient opportunity

to register an objection” when it asked him whether he had “‘[a]nything else this

morning’ to address” (alteration in original)). Thus, since we cannot deviate from

our prior precedent and required standard of review “barring en banc reconsideration,

a superseding contrary Supreme Court decision, or authorization of all currently

active judges on the court,” United States v. Edward J., 224 F.3d 1216, 1220 (10th

8
Cir. 2000), we must apply plain error review in our quest to determine whether the

district court adequately explained its reasons for rejecting Defendant’s arguments

for a downward variance. We will find plain error only when there is “(1) error,

(2) that is plain, which (3) affects substantial rights, and which (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Marquez, 833

F.3d at 1221 (internal quotation marks omitted).

In evaluating the first prong of the plain error standard—whether the district

court committed error—we again note that a district court must explain its reasons

for rejecting a defendant’s nonfrivolous arguments for a more lenient sentence. Rita,

551 U.S. at 357. And undoubtedly, Defendant’s critiques of § 2G2.2 were

nonfrivolous. The Supreme Court has held in other contexts that district courts may

vary from the Sentencing Guidelines “based on a policy disagreement with those

Guidelines” and “not simply based on an individualized determination that they yield

an excessive sentence in a particular case.” Spears v. United States, 555 U.S. 261,

264, 266–67 (2009) (considering the sentencing disparities for crack and powder

cocaine offenses under the Sentencing Guidelines and concluding that “district courts

are entitled to vary from the crack-cocaine guidelines in a mine-run case where there

are no particular circumstances that would otherwise justify a variance from the

Guidelines’ sentencing range” (internal quotation marks omitted)); see also

Kimbrough v. United States, 552 U.S. 85, 110 (2007) (same). Some of our sister

circuits have extended this logic to child pornography offenses and § 2G2.2. See,

e.g., United States v. Grober, 624 F.3d 592, 608–09 (3d Cir. 2010); United States v.

9
Dorvee, 616 F.3d 174, 188 (2d Cir. 2010). We ourselves have even described

arguments criticizing § 2G2.2 as “quite forceful,” United States v. Regan, 627 F.3d

1348, 1354 (10th Cir. 2010), and have specifically cautioned district courts to

“carefully apply the child pornography distribution guideline and remain mindful that

they possess broad discretion in fashioning sentences under . . . § 2G2.2,” United

States v. Grigsby, 749 F.3d 908, 911 (10th Cir. 2014).

But even though Defendant’s critiques of § 2G2.2 were nonfrivolous, we again

emphasize that the manner in which a district court must explain its reasons for

rejecting a defendant’s arguments is not set in stone across all cases. Different

standards govern depending on “how closely [the district court’s] own judgment

about the appropriate sentence . . . aligns with the judgment embodied in the

Guidelines.” Ruiz-Terrazas, 477 F.3d at 1201. Indeed, whether a district court can

functionally reject or instead must explicitly reject a defendant’s arguments pivots on

whether it ultimately imposes a sentence that is within or outside of the applicable

Guidelines range. See id.

Accordingly, when a district court has varied upwards from the Guidelines,

our cases have generally required the district court to specifically address and reject

the arguments the defendant made for a more lenient sentence. For example, we held

in United States v. Pinson, 542 F.3d 822 (10th Cir. 2008), that the district court, in a

context where it imposed an upward-variant sentence, “must also address, in its

statement of reasons, the material, non-frivolous arguments made by the defendant.”

Id. at 833 (emphasis added). Likewise, we held in United States v. Lente, 647 F.3d

10
1021 (10th Cir. 2011), that “[f]or us to conduct meaningful appellate review of the

district court’s significant upward-variant sentence, the district court must

expressly . . . address [the defendant’s] argument that her sentence would create

unwarranted sentencing disparities.” Id. at 1035 (emphasis added) (internal quotation

marks omitted); cf. 18 U.S.C. § 3553(c)(2) (requiring the district court to state “the

specific reason for the imposition of a sentence” when it imposes a sentence outside

of the Guidelines range (emphasis added)).

But when the district court has imposed a sentence within the Guidelines, our

cases have noted that the district court need not specifically address and reject each

of the defendant’s arguments for leniency so long as the court “somehow indicate[s]

that [it] did not rest on the guidelines alone, but considered whether the guideline

sentence actually conforms, in the circumstances, to the [18 U.S.C. § 3553(a)]

statutory factors.” Martinez-Barragan, 545 F.3d at 903 (second alteration in

original) (internal quotation marks omitted); see also id. (noting that when a district

court imposes a within-Guidelines sentence, “[t]he court must provide only a general

statement of its reasons and need not explicitly . . . respond to every argument for

leniency that it rejects in arriving at a reasonable sentence” (emphasis added)

(citations and internal quotation marks omitted)). For instance, in United States v.

Ruiz-Terrazas, 477 F.3d 1196 (10th Cir. 2007), we ruled that the district court was

not required to “specifically address [the] defendant’s arguments” for leniency before

rendering a within-Guidelines sentence, because it had “entertained [the

defendant’s] . . . arguments at length; indicated on the record that it had considered

11
the Section 3553(a) factors; and proceeded to explain its reliance on the range

suggested by the sentencing Guidelines.” Id. at 1202–03 & n.4 (emphases added).

And in United States v. Jarrillo-Luna, 478 F.3d 1226 (10th Cir. 2007), we held that

the district court did not err in failing to explicitly address the defendant’s arguments

for a below-Guidelines sentence because (1) the district court adequately explained

its reasons for the within-Guidelines sentence and (2) “a district court’s duty to

explain why it chose the given sentence does not also require it to explain why it

decided against a different sentence.” Id. at 1230 (emphasis added), overruled on

other grounds by United States v. Lopez-Macias, 661 F.3d 485, 491 (10th Cir. 2011);

cf. 18 U.S.C. § 3553(c) (requiring the district court to provide only a general

statement of “the reasons for its imposition of the particular sentence” when it

imposes a sentence within the Guidelines range); United States v. Sanchez-Jaurez,

446 F.3d 1109, 1115–18 (10th Cir. 2006) (vacating and remanding for resentencing

because the district court “failed to consider [the defendant’s] arguments” and

because “[t]he record indicate[d] that at no time during the sentencing hearing or

when imposing the sentence did the district court refer to the § 3553(a) factors” or

otherwise “state[] . . . reasons for the sentence it imposed”).

We are not persuaded that the principle we note above—that a district court

need not specifically address and instead may functionally reject a defendant’s

arguments for leniency when it sentences him within the Guidelines range—should

differ just because the defendant critiques the applicable Guideline itself on policy

grounds, as Defendant does in the case before us today. In our circuit, “a within-

12
guideline-range sentence that the district court properly calculated . . . is entitled to a

rebuttable presumption of reasonableness” on appeal, Grigsby, 749 F.3d at 909, and

this presumption of reasonableness holds true even if the Guideline at issue arguably

contains “serious flaws” or otherwise “lack[s] an empirical basis,” United States v.

Nghiem, 432 F. App’x 753, 757 (10th Cir. 2011) (unpublished). In fact, we even held

in a recent case that “we apply the presumption of reasonableness to sentences based

on 2G2.2, regardless of its alleged lack of empirical support.” United States v.

Franklin, 785 F.3d 1365, 1370 (10th Cir. 2015). We would be disregarding the spirit

of this appellate presumption if we were to require the district court to defend

§ 2G2.2 or any other Guideline that leads to such a presumptively reasonable

sentence. Even more, although a district court “does not enjoy the benefit” of that

same presumption of reasonableness when fashioning a sentence, Rita, 551 U.S. at

351, it may still conclude “in its individualized judgment” that any given Guideline is

reasonable and should be given “considerable weight,” United States v. Zamora-

Solorzano, 528 F.3d 1247, 1250–51 (10th Cir. 2008). And in making that

conclusion, we have never held that the district court must explain away or otherwise

justify any perceived deficiencies that particular Guideline may have. See Nghiem,

432 F. App’x at 757 (“[A] district court is not required to engage in ‘independent

analysis’ of the empirical justifications and deliberative undertakings that led to a

particular Guideline.” (internal quotation marks omitted)). Indeed, both our appellate

presumption of reasonableness for within-Guidelines sentences and the district

court’s ability to choose to rely on a Guideline without excusing its faults stem from

13
the basic premise that “Guidelines levels can properly follow Congressional policy

regarding the severity of punishment appropriate for particular offenses” even if that

policy was “not . . . founded on scientific data.” Id. (citing United States v. Alvarez-

Bernabe, 626 F.3d 1161, 1165–66 (10th Cir. 2010)); see also Grigsby, 749 F.3d at

911 (“[T]his does not mean a within-guideline-range sentence based on a guideline

lacking an empirical basis is necessarily unreasonable, and none of our sister circuits

have ever so held.” (emphasis added)).

Defendant argues against this conclusion by directing us to United States v.

Morrison, 771 F.3d 687 (10th Cir. 2014), another case where we determined whether

a district court had adequately explained why it rejected a defendant’s request for a

downward variance based on his critiques of § 2G2.2. Id. at 691. Specifically, the

defendant had argued for a below-Guidelines sentence because he believed the 2-

level use-of-a-computer enhancement under § 2G2.2 was unsound. Id. The district

court denied the motion, explaining that “there is a growing idea, but I don’t think it

has morphed into a consensus yet. And I don’t think the particular adjustment for use

of a computer is so disparate, so overly penal that I feel like it is something that

needs judicial check, yet.” Id. (internal quotation marks omitted). The district court

further explained that “it was denying the variance because of a ‘combination of

factors’ and because ‘use of the computer does facilitate distribution and the ability

to have so many photographs or images.’” Id. On appeal, we rejected the

defendant’s argument that his sentence was procedurally unreasonable, because

(1) “[t]he court considered [the defendant’s] policy objections at sentencing, and

14
although brief, the court gave a sufficient explanation for rejecting them,” and

(2) “the court offered a thorough explanation for why it believed the [defendant’s

within-Guidelines] sentence was reasonable in light of all of the objectives set forth

in 18 U.S.C. § 3553(a).” Id. at 693.

Defendant notes that “[t]he district court in Morrison explicitly considered

counsel’s critique of the use-of-a-computer enhancement and explicitly explained that it

disagreed with that critique and thought the enhancement fairly measured culpable

conduct.” He consequently argues that “Morrison demonstrates how a district court

should handle a guideline critique (address it head-on)” and that the case “supports

resentencing in [his] case.”

We agree with Defendant that the district court in Morrison should be lauded for

directly addressing and rejecting the defendant’s policy arguments for a downward

variance. Even so, the fact that the district court in Morrison went above its call of duty

does not mean that other district courts fall short of their duties when they do not directly

address and reject defendants’ policy critiques of individual Guidelines. Indeed, although

we labeled the Morrison district court’s explanations for rejecting the defendant’s

critiques as “sufficient” and “brief,” we did not intend to imply that anything less than

what the district court did in that case—i.e., specifically address and reject the

defendant’s critiques—was necessarily deficient. Even in light of Morrison, a district

court still need not explicitly address a defendant’s arguments for a below-Guidelines

sentence based on a policy critique of the Guidelines so long as (1) the ultimate sentence

is within the applicable Guidelines range, and (2) “‘[c]ontext and the record make clear’

15
the district court’s reasoning for rejecting [the defendant’s] arguments.” United States v.

Cereceres-Zavala, 499 F.3d 1211, 1217 (10th Cir. 2007) (quoting Rita, 551 U.S. at 359).

We take this opportunity, however, to encourage district courts to go beyond

the bare minimum. It never hurts (indeed, it can only help) for a district court to

directly address and refuse a defendant’s arguments for leniency even if that is not

required of it. “[A] more detailed sentencing explanation can often prove beneficial,

even if it is not mandatory, helping to reduce confusion among the parties, facilitate

and expedite judicial review, and provide guidance to practitioners and other

defendants, enabling them to better predict the type of sentence that will be imposed

in their cases.” Ruiz-Terrazas, 477 F.3d at 1202.

*

With all this in mind, we turn to whether the district court adequately

explained why it rejected Defendant’s arguments for a downward variance based on

his critiques of § 2G2.2. To start, there is no denying that, at the very least, the

district court was aware of Defendant’s arguments for a downward variance, for the

district court explicitly referenced Defendant’s sentencing memorandum at the

beginning of the sentencing hearing (i.e., “I’m struggling with a lot of the issues that

have been raised in” Defendant’s memorandum, “but it may not control at this

point”). At the same time, there is also no denying that the district court never

explicitly rejected Defendant’s arguments afterward.

But the district court did not have to explicitly reject Defendant’s arguments.

The district court’s ultimate sentence of 240 months’ imprisonment was right in the

16
middle of the suggested Guidelines range of 210–262 months’ imprisonment. As

such, it needed only to “indicate that [it] did not rest on the guidelines alone, but

considered whether the guideline sentence actually conforms, in the circumstances, to

the [§ 3553(a)] statutory factors.” Martinez-Barragan, 545 F.3d at 903.

And the district court did just that. For one thing, after entertaining the

government’s arguments against Defendant’s sentencing memorandum and his

corresponding policy critiques of § 2G2.2, the district court stated that it felt it should

rely on the suggested Guidelines range “to some extent” even though “courts are all

over the map” with § 2G2.2 because it “hope[d] to find some thread of uniformity in

sentencing and the guidelines help in that regard.” The district court also offered a

detailed explanation in which it determined that Defendant’s extensive criminal

history and the personal nature of the emailed images demanded it sentence

Defendant to a long term of imprisonment. The court’s concerns about Defendant’s

history and the personal nature of the images, coupled with its decision to rely on

§ 2G2.2’s suggested guideline range, thus acted as a functional rejection of

Defendant’s policy disagreements with § 2G2.2. Indeed, we are satisfied that the

district court had Defendant’s arguments in mind when sentencing him but ultimately

felt that those arguments were unpersuasive and paled in comparison to Defendant’s

conduct and criminal history. Consequently, the district court did not err by not

explicitly responding to Defendant’s arguments for a more lenient sentence, and it

was not required to defend § 2G2.2 or otherwise do or say anything more.

17
 Because the district court did not err, we need not reach the other three prongs of

plain error review and conclude that Defendant’s sentence is procedurally reasonable.

And because Defendant does not otherwise challenge that his prison sentence is

substantively unreasonable, his sentence is therefore

AFFIRMED.

18
15-3291, United States v. Wireman

McKAY, Circuit Judge, concurring in the judgment.

I concur in the judgment only. I agree with the majority’s well-reasoned opinion

that plain-error review applies here and that Defendant cannot satisfy this standard. But I

disagree that Defendant failed the first prong of plain-error review. I write separately

because I believe the district court erred by failing to explain why it rejected Defendant’s

nonfrivolous argument that U.S.S.G. § 2G2.2 reflects an unsound judgment.

On appeal, Defendant contends that his sentence is procedurally unreasonable

because the district court failed to address his critiques of § 2G2.2. “The [district] court,

at the time of sentencing,” must “state in open court the reasons for its imposition of the

particular sentence.” 18 U.S.C. § 3553(c). “[F]ailing to adequately explain the chosen

sentence” is a procedural error. United States v. Sanchez-Leon, 764 F.3d 1248, 1261

(10th Cir. 2014). What counts as adequate “depends upon circumstances.” Rita v.

United States, 551 U.S. 338, 356 (2007). Sometimes the sentencing court “responds to

every argument; sometimes it does not.” Id. But a district court must “set forth enough

to satisfy the appellate court that [it] has considered the parties’ arguments.” Id.

When a district court imposes a within-Guidelines sentence, as it did here, “doing

so will not necessarily require lengthy explanation.” Id. In such cases, the “court must

provide only a general statement of its reasons.” United States v. Martinez-Barragan,

545 F.3d 894, 903 (10th Cir. 2008). It “normally need say no more.” Rita, 551 U.S. at

357. “Unless,” that is, “a party contests the Guidelines sentence generally under
 §3553(a),” i.e. “argues that the Guidelines reflect an unsound judgment.” Id.

Then the sentencing judge should “go further and explain why he has rejected those

arguments.” Id. This is precisely the kind of argument Defendant made here—that §

2G2.2 reflects an unsound judgment.

“Part of the sentencing judge’s obligation under 3553(c) is to respond to a

defendant’s ‘nonfrivolous reasons for imposing a different sentence.’” United States v.

Mack, 841 F.3d 514, 523 (D.C. Cir. 2016) (quoting Rita, 551 U.S. at 357). As the

majority recognizes, “undoubtedly, Defendant’s critiques of § 2G2.2 were nonfrivolous.”

(Maj. Op. at 9.) This is not “a situation where a judge failed to address an argument that

was so weak as not to merit discussion.” United States v. Poulin, 745 F.3d 796, 801 (7th

Cir. 2014) (internal quotation marks omitted). Indeed, we have characterized such

arguments against §2G2.2 as “quite forceful.” United States v. Regan, 627 F.3d 1348,

1354 (10th Cir. 2010). And district courts have been cautioned to “carefully apply” §

2G2.2. See United States v. Grigsby, 749 F.3d 908, 911 (10th Cir. 2014).

Yet, the district court did not respond to Defendant’s arguments that § 2G2.2

reflects an unsound judgment. Though the court said its sentence was based on

Defendant’s criminal history and the nature of the offense, this does not explain why the

district court rejected Defendant’s policy argument. The district court also mentioned

one policy critique of § 2G.2.2—noting “there’s not much in the way of uniformity” (R.

Vol. III at 41)—but this was not an argument raised by Defendant. In fact, Defendant

argued precisely the opposite—that § 2G2.2 sentences are too similar.

-2-
 It is true, as the majority points out, that a district court does not need to “respond

to every argument for leniency that it rejects in arriving at a reasonable sentence.”

Sanchez-Leon, 764 F.3d at 1266 (emphasis added). That is the rule for the mine run of

cases. In the typical case, it makes perfect sense not to require the district court to

address every argument for leniency because there is practically no limit to the number of

arguments a party could make regarding the “nature and circumstances of the offense” or

the “history and characteristics of the defendant.” See 18 U.S.C. § 3553(a)(1). Every

sentencing transcript would read like a Capote novel.

But policy critiques of the Guidelines are different and deserve more attention.

See Rita, 551 U.S. at 357. For starters, there are only so many nonfrivolous policy

arguments that a party can make. Second, it is the difference between arguing about a

starting point and an end point. The Guidelines anchor a sentencing: the district court

sets the Guidelines range—the starting point—at the outset, and then the parties argue

whether the facts and circumstances of the case call for a different endpoint. By contrast,

challenging the Guidelines themselves is more like rejecting the starting point. If the

applicable Guidelines do not reflect a sound judgment, it stands to reason that they should

not anchor the sentencing. And because the anchoring effect of the Guidelines is so

strong (as it was intended to be), a winning policy argument would have an outsized

effect on the sentencing proceedings.

In my opinion, the majority has not required enough of the district court. Because

Defendant presented nonfrivolous arguments that the Guidelines reflect an unsound

judgment, I believe the district court should have responded and more fully explained its

-3-
decision. See Rita 551 U.S. at 356–57; see also Poulin, 745 F.3d at 801 (holding that the

district court was “required to consider [a policy argument against § 2G2.2] and then

provide reasons explaining his acceptance or rejection of it”). The district court did not

do that. After obliquely referring to Defendant’s sentencing memorandum at the start of

the proceeding, the sentencing judge never returned to the matter to explain his decision

to reject Defendant’s policy arguments. All we know is that he did reject it.

Accordingly, I believe the district court procedurally erred.

*

I also write separately to question the wisdom of applying the “reasonableness”

presumption to within-Guidelines sentences “regardless of [a particular Guideline’s]

alleged lack of empirical support.” United States v. Franklin, 785 F.3d 1365, 1370 (10th

Cir.), cert. denied, 136 S. Ct. 523 (2015). The majority correctly recognizes that this

circuit presumes the substantive reasonableness of within-Guideline sentences “even if

the Guideline at issue arguably contains serious flaws or otherwise lacks an empirical

basis.” (Maj. Op. at 13 (internal quotation marks, brackets, and emphasis omitted).) This

presumption is important for a number of reasons, not the least of which is that it lowers

the bar for how much we will require a sentencing court to say.

The Supreme Court has upheld our appellate presumption-of-reasonableness

standard of review “because ‘when the judge’s discretionary decision accords with the

Commission’s view of the appropriate application of § 3553(a) in the mine run of cases,

it is probable that the sentence is reasonable.’” United States v. McBride, 633 F.3d 1229,

1232–33 (10th Cir. 2011) (quoting Rita, 551 U.S. at 351). The reasonableness

-4-
presumption on appellate review “reflects the fact that, by the time an appeals court is

considering a within-Guidelines sentence on review, both the sentencing judge and the

Sentencing Commission will have reached the same conclusion as to the proper sentence

in the particular case.” Rita, 551 U.S. at 347 (emphasis omitted). It is this “double

determination” that “significantly increases the likelihood that the sentence is a

reasonable one.” Id.

But § 2G2.2 “is fundamentally different from most [guideline provisions].”

United States v. Dorvee, 616 F.3d 174, 184 (2d Cir. 2010). “Sentencing Guidelines are

typically developed by the Sentencing Commission using an empirical approach based on

data about past sentencing practices.” Id. When it comes to § 2G2.2, however, “the

Commission did not use this empirical approach.” Id. “Instead, at the direction of

Congress, the Sentencing Commission has amended the Guidelines under § 2G2.2

several times since their introduction in 1987, each time recommending harsher

penalties.” Id. What’s more, even “[t]he Commission has often openly opposed these

Congressionally directed changes.” Id. at 185; see also Grigsby, 749 F.3d at 911 (noting

that the Commission has “essentially endorsed the Second Circuit’s view of § 2G2.2”).

The reasonableness presumption also “reflects the nature of the Guidelines-writing

task that Congress set for the Commission and the manner in which the Commission

carried out that task.” Rita, 551 U.S. at 347. “In instructing both the sentencing judge

and the Commission what to do, Congress referred to the basic sentencing objectives that

the statute sets forth in 18 U.S.C. § 3553(a).” Id. But, again, § 2G2.2 is “an eccentric

Guideline of highly unusual provenance.” Dorvee, 616 F.3d at 188. The Commission

-5-
did not carry out its Guidelines-writing task in accordance with §3553(a)’s sentencing

objectives. See id. at 187. Indeed, § 2G2.2 “is fundamentally incompatible with

§3553(a)”; because it “concentra[tes] all offenders at or near the statutory maximum,

§2G2.2 eviscerates the fundamental statutory requirement in § 3553(a).” Id.

When, as here, there is no “double determination”—when the sentencing judge

and Sentencing Commission do not agree—when the Guidelines do not reflect

§3553(a)’s sentencing objectives—we should not presume the sentence’s reasonableness,

even if it falls within the Guidelines. In such cases, I believe, we should require the

district court to provide more of an explanation, not less. Cf. Rita, 551 U.S. at 357

(recognizing that when a defendant “argues that the Guidelines reflect an unsound

judgment, . . . the judge will normally go further and explain why he has rejected those

arguments”). But that is not the rule in this circuit, see Franklin, 785 F.3d at 1370, and

the majority faithfully adhered to this binding precedent, as we must.

*

Even though I believe the district court erred, I concur in the judgment because I

believe that Defendant cannot overcome plain-error review. Because Defendant failed to

object to the procedural error in the district court, we must review the sentence for plain

error. This is a “demanding standard” that is “difficult to overcome.” United States v.

Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014). Defendant “must demonstrate

(1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that

affects substantial rights,” and the error must “seriously affect[] the fairness, integrity, or

-6-
public reputation of judicial proceedings” in order for the court to grant discretionary

relief. Id.

Here, Defendant has not established that the error affected his substantial rights.

“An error seriously affects the defendant’s substantial rights, as those terms are used in

the plain-error test, when the defendant demonstrates that there is a reasonable

probability that, but for the error claimed, the result of the proceeding would have been

different.” Id. (internal quotation marks omitted). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

On appeal, Defendant essentially rehashes his § 3553(a) arguments from below.

He presents the bad with the good, and argues that “the district court’s express

consideration” of his policy argument “would have tipped the balance toward a more

lenient sentence.” (Appellant’s Op. Br. at 26.) But there is nothing in the record to

suggest that the district court was reluctant to impose the sentence that it did. To the

contrary, it imposed a middle-of-the-Guidelines sentence, and it discussed Defendant’s

criminal history and the personal nature of some of the shared images. Defendant also

argues that “the district court signaled in its Statement of Reasons that it would impose a

different sentence in the event of a guideline error, by declining to check the box

indicating that it would impose an identical sentence in that event.” (Id. at 27.) But,

more accurately, this box, if checked, states that the court would impose an identical

sentence “[i]n the event the guideline determination(s) made in this case are found to be

incorrect.” (R. Vol. II at 48.) That is not what happened here—although I believe the

-7-
district court erred by not addressing Defendant’s policy arguments, its “guideline

determinations” as such were not incorrect.

Because I agree with the majority that Defendant cannot overcome plain-error

review, I concur in the judgment.

-8-