United States v. Clogston

United States Court of Appeals
For the First Circuit

No. 10-2244

UNITED STATES OF AMERICA,

Appellee,

v.

SHAWN C. CLOGSTON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Boudin, Selya and Howard, Circuit Judges.

Marvin H. Glazier, Suzanne N. Russell, and Vafiades, Brountas
& Kominsky, LLP on brief for appellant.
Thomas E. Delahanty II, United States Attorney, and Margaret
D. McGaughey, Appellate Chief, on brief for appellee.

December 9, 2011
 SELYA, Circuit Judge. After defendant-appellant Shawn C.

Clogston pleaded guilty to unlawful possession of child

pornography, the district court imposed a sentence within the

guideline sentencing range (GSR). The appellant challenges this

sentence. Concluding that the sentence is both procedurally sound

and substantively reasonable, we affirm.

This case has its genesis in a March 30, 2009, foray by

agents of the Bureau of Immigration and Customs Enforcement (ICE).

Acting on a lead furnished by the Maine State Police, the ICE

agents seized two computers from the appellant's home in

Millinocket, Maine. While they were searching the computers' hard

drives at the local police station, the appellant gave a voluntary

statement in which he admitted to downloading and storing child

pornography. The computer searches confirmed his confession.

On October 8, 2009, the appellant waived indictment and

entered a guilty plea to a single-count information, which charged

him with unlawful possession of child pornography in violation of

18 U.S.C. § 2252A(a)(5)(B). The district court accepted the plea

and ordered the preparation of a presentence investigation report.

At the disposition hearing on October 13, 2010, the

district court first calculated the GSR. The court started with a

base offense level of 18, see USSG §2G2.2(a)(1); made a series of

upward adjustments — two levels because some of the images involved

prepubescent minors, see id. §2G2.2(b)(2); four levels because some

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of the images depicted violence, see id. §2G2.2(b)(4); two levels

because the offense of conviction involved the use of a computer,

see id. §2G2.2(b)(6); and five levels due to the large number of

images, see id. §2G2.2(b)(7)(D) — and made a three-level downward

adjustment for acceptance of responsibility, see id. §3E1.1(a)-(b).

The total offense level (28), paired with the applicable criminal

history category (II), yielded a GSR of 87 to 108 months.

The appellant did not contest any of these computations

but asserted that the child pornography guidelines were too blunt

and too harsh. He averred that the guidelines did not sufficiently

distinguish between first-time offenders and repeat offenders and

made no allowance for offenders who, like himself, had not sought

to profit from the pornographic images. Nor did the guidelines, in

his view, adequately account for the fact that he had not tried to

entice minors to engage in illicit conduct. For these reasons, he

deemed the GSR to be overly punitive and beseeched the court to

exercise its authority to impose a sentence well below it. The

government demurred, urging the imposition of a within-the-range

sentence.

The district court specifically rehearsed the appellant's

history and the nature of his criminal conduct. More generally,

the court noted that it had considered all of the sentencing

factors limned in 18 U.S.C. § 3553(a). Although it acknowledged

the absence of any evidence that the appellant had been physically

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involved with young girls, the court rated his offense as serious

(observing among other things that several of the images depicted

sexual abuse of very young girls). In the end, the court imposed

an incarcerative sentence near the bottom of, but within, the GSR:

90 months. This timely appeal ensued.

We review the imposition of a sentence for abuse of

discretion. Gall v. United States, 552 U.S. 38, 46 (2007). "The

touchstone of abuse of discretion review in federal sentencing is

reasonableness." United States v. Vargas-Dávila, 649 F.3d 129, 130

(1st Cir. 2011). The review process is bifurcated: we first

determine whether the sentence imposed is procedurally reasonable

and then determine whether it is substantively reasonable. United

States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008).

The appellant characterizes his arguments as addressing

only the substantive reasonableness of his sentence. But two of

them — his claim that the district court failed to recognize its

authority to reject the Sentencing Commission's policy judgments

and his claim that the district court shirked its responsibility to

consider a sentencing factor enumerated in 18 U.S.C. § 3553(a) —

belie this characterization. These claims are appropriately

analyzed as part of the procedural reasonableness requirement. See

United States v. Stone, 575 F.3d 83, 88-89 (1st Cir. 2009); United

States v. Rodríguez, 527 F.3d 221, 231 (1st Cir. 2008); Martin, 520

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F.3d at 92. We begin with them, and then proceed to gauge the

substantive reasonableness of the sentence.1

The appellant asserts that, in composing the federal

sentencing guidelines, the Sentencing Commission treated child

pornography in a Draconian manner; that the Commission did not

adequately differentiate among various types of offenders; and that

the guideline ranges for passive child pornography offenses

committed by first-time offenders are much too severe. He argues

that these incongruities were made known to the sentencing court

but the court failed to recognize that it had the authority to

deviate from the GSR if it disagreed with the Commission's policy

judgments.

This claim of error has its roots in the Supreme Court's

decision in Kimbrough v. United States, 552 U.S. 85 (2007). In

that case, the court of appeals had ruled that a sentencing court

was bound to follow the disparate treatment of crack cocaine and

cocaine powder built into the federal sentencing guidelines. The

Supreme Court reversed. It explained:

A district judge must include the Guidelines
range in the array of factors warranting
consideration. The judge may determine,
however, that, in the particular case, a

1
The appellant perfunctorily raises a due process argument in
his brief, asserting that the court had no basis to find that he
was "walking on the very edge" of committing a sexual offense
against a child. This argument is undeveloped and, as such, we
deem it abandoned. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).

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 within-Guidelines sentence is "greater than
necessary" to serve the objectives of
sentencing. 18 U.S.C. § 3553(a) (2000 ed. and
Supp. V). In making that determination, the
judge may consider the disparity between the
Guidelines' treatment of crack and powder
cocaine offenses.

Id. at 91.

In the case at hand, the appellant posits that the

sentencing court committed Kimbrough error with respect to its

authority to reject the policy judgments baked into the sentencing

guidelines for child pornography offenses. In support, he points

to (i) a statement made during the plea colloquy and (ii) the

court's failure to meet head-on his argument for a below-the-range

sentence. This claim is insubstantial.

To be sure, Kimbrough made pellucid a sentencing court's

authority to deviate from a properly calculated GSR because of a

particularized disagreement with the Sentencing Commission's policy

judgments. Here, however, we see no probative evidence that the

sentencing court misunderstood this grant of authority. The

statement on which the appellant relies cannot sensibly be read as

a repudiation of that authority. While the appellant argues that

the court commented on its "obligation to impose . . . th[e]

sentencing guidelines range[]", the court immediately caught its

slip of the tongue and substituted "consider" for "impose." As

amended, the court posits an obligation consistent with and

confirmed by Kimbrough. See id. That the district court knew of

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its authority to vary from the GSR is evidenced by its

acknowledgment, shortly after making the quoted comment, that it

had the power to impose a sentence above or below the GSR.2

We find equally unpersuasive the appellant's insistence

that the district court's failure at sentencing to address his

policy argument evinces Kimbrough error. A reviewing court should

be reluctant to read too much into a district court's failure to

respond explicitly to particular sentencing arguments. Instead,

the reviewing court must assay the record as a whole to gauge the

sentencing judge's thought process. See Stone, 575 F.3d at 91;

United States v. DeCologero, 530 F.3d 36, 70 (1st Cir. 2008).

On whole-record review, we discern no Kimbrough error

here. At the sentencing hearing, the district court expressly

recognized its obligation to impose a sentence that is sufficient,

but not greater than necessary, to accomplish the appropriate goals

of sentencing. This is precisely the obligation on which the

Kimbrough Court focused. See 552 U.S. at 101 (citing 18 U.S.C.

§ 3553(a)).

What is more, the sentencing court listened to the

arguments proffered at the disposition hearing and carefully

explained why its chosen sentence fit both the offender and the

2
We note that the statement was made during the plea hearing
— over a year prior to sentencing and before the appellant had laid
out his position concerning the undue harshness of the guidelines
for child pornography offenses. The timing is further evidence
that the appellant has misinterpreted the court's comment.

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circumstances of the offense. The record, viewed in its entirety,

does not fairly suggest — let alone demonstrate — that the court

desired to vary from the GSR but considered itself powerless to do

so. Because the discretion to vary under Kimbrough is not

tantamount to an obligation to do so, see Rodríguez, 527 F.3d at

231, the appellant's claim of error founders.

The appellant's remaining claim of procedural error is

premised on a supposed sin of omission. He says that the district

court should have compared his sentence with the sentences of

similarly situated offenders to avoid unwarranted sentencing

disparity. See 18 U.S.C. § 3553(a)(6).

This argument is unavailing. Even though the district

court did not specifically mention disparity, it stated that it had

considered all of the section 3553(a) factors. Such a statement

"is entitled to some weight." United States v. Dávila-González,

595 F.3d 42, 49 (1st Cir. 2010). While a sentencing court must

consider all relevant section 3553(a) factors, "it need not do so

mechanically." Vargas-Dávila, 649 F.3d at 131; see United States

v. Fernández-Cabrera, 625 F.3d 48, 53 (1st Cir. 2010) (noting that

a sentencing court's explanation of a sentence need not "be precise

to the point of pedantry").

In this instance, we credit the district court's

statement that it considered all of the relevant sentencing

factors. The fact that the court imposed a within-the-range

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sentence helps us to reach this conclusion: such a sentence

requires less explanation than one that varies from the GSR. See

United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir. 2011);

Dávila-González, 595 F.3d at 48.

This brings us to the substantive reasonableness of the

sentence. The appellant contends that his sentence is

substantively unreasonable because the district court placed too

much weight on some sentencing factors and not enough weight on

others. Specifically, he maintains that the district court focused

too much on an assault that he perpetrated on his parents, the

nature of the offense, and the likelihood of recidivism and did not

give enough weight to his acceptance of responsibility, mental

health and drug abuse issues, and the absence of any evidence

suggesting that he ever was physically involved with young girls.

In the sentencing context, "reasonableness is a protean

concept." Martin, 520 F.3d at 92. There is no one reasonable

sentence in any given case but, rather, a universe of reasonable

sentencing outcomes. Id. Challenging a sentence as substantively

unreasonable is a burdensome task in any case, and one that is even

more burdensome where, as here, the challenged sentence is within

a properly calculated GSR. A defendant who protests his within-

the-range sentence on this ground "must adduce fairly powerful

mitigating reasons and persuade us that the district court was

unreasonable in balancing pros and cons despite the latitude

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implicit in saying that a sentence must be reasonable." Madera-

Ortiz, 637 F.3d at 30 (internal quotation marks omitted).

Sentencing is much more an art than a science. A

sentencing court is under a mandate to consider a myriad of

relevant factors, but the weighting of those factors is largely

within the court's informed discretion. The appellant in effect

seeks to substitute his judgment for that of the sentencing court.

We cannot countenance such a substitution.

In addition, the appellant overlooks the court's

statement at the disposition hearing that it had considered all of

the factors (both aggravating and mitigating). That the sentencing

court chose not to attach to certain of the mitigating factors the

significance that the appellant thinks they deserved does not make

the sentence unreasonable. See United States v. Anonymous

Defendant, 629 F.3d 68, 78 (1st Cir. 2010).

In the last analysis, a sentencing court has the right —

indeed, the duty — to evaluate the nature and circumstances of the

offense of conviction and the characteristics and history of the

offender. The court must then quantify that evaluation in a

sentence that is fair, just, and in accordance with law. The

performance of that duty by the court below was well within the

realm of reasonableness. Given the numerous images of very young

girls in the appellant's possession, the court was entitled to

ponder, and to pass informed judgment on, questions such as whether

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he could conform his future actions to the norms of society and

whether he posed a risk to young girls.

Let us be perfectly clear: the sentencing guidelines for

child pornography cases are very stern. The Sentencing Commission

could have softened them by giving weight to some of the

considerations emphasized by the appellant, but it chose not to do

so. By the same token, the district court could have varied from

the GSR based on those considerations, but it chose not to do so.

The district court's reticence is understandable: the record in

this case mentions troubling aspects and, despite the efforts of

the appellant's able counsel to minimize matters, the sentencing

court opted to impose a within-the-range sentence. This was a

defensible result, and the court stated a plausible rationale for

reaching it. No more was required. United States v. Carrasco-de-

Jesús, 589 F.3d 22, 30 (1st Cir. 2009); United States v. Jiménez-

Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc).

We need go no further. For the reasons elucidated above,

we uphold the appellant's sentence.

Affirmed.

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