United States v. Steven Helton

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4412

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

STEVEN RUSSELL HELTON,

Defendant − Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:12-cr-00134-1)

Argued: December 11, 2014 Decided: April 2, 2015

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Gregory and Judge Duncan joined. Judge
Gregory wrote a separate concurring opinion.

ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Lisa Grimes
Johnston, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal
Public Defender, David R. Bungard, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, William B. King, II, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.
WILKINSON, Circuit Judge:

Appellant Steven Helton pled guilty to one count of knowing

possession of child pornography in violation of 18 U.S.C.

§§ 2252A(a)(5)(B) and 2252A(b)(2). He was sentenced to 60 months

in prison followed by a lifetime term of supervised release.

Helton now appeals. The question presented to this court is

whether, given the facts of this case, a lifetime term of

supervised release is procedurally and substantively reasonable.

For the following reasons, we think it is and now affirm.

In October 2010, Sergeant D.C. Eldridge, a member of the

West Virginia Internet Crimes Against Children Task Force,

determined that a computer near Beckley, West Virginia,

contained several child pornography videos accessed through

peer-to-peer software that the Task Force was monitoring.

Sergeant Eldridge, with assistance from the FBI, identified the

subscriber to the IP address associated with the computer as

Barbie Helton of Beaver, West Virginia. On December 29, 2010,

investigators executed a search warrant on the Helton residence

where Ms. Helton lived with her son, Steven. As part of this

initial search, Sergeant Eldridge discovered several files

containing child pornography on Steven Helton’s computer.

Defendant, after being advised of his constitutional

rights, gave a recorded statement to law enforcement, explaining

2
that he regularly viewed adult and child pornography and would

download, view, and then delete images, and then return to

download more images. Forensic investigators found a total of

961 individual images of child pornography on the hard drive of

the computer, although only 42 were actively accessible for

viewing at the time of the search. In the course of his

interview, Helton admitted to downloading some of the images

onto his iPod for personal use, but denied trading or sharing

child pornography with any other users.

Many of the images found by investigators were of

prepubescent minors engaged in sexual acts, exhibition of

genitals, or bondage, and at least one depicted a child engaged

in sadistic or masochistic acts. Helton explained that he had

been sexually abused by his stepfather when he was a child, and

that he had sought treatment in the past but had been unable to

stop viewing child pornography. He also admitted that he had

been caught viewing child pornography while he was a juvenile in

foster care and that he had been removed from a foster family

for sexually abusing a three-year old when he was thirteen years

old.

On June 12, 2012, a federal grand jury in the Southern

District of West Virginia issued a two-count indictment against

Helton for knowing receipt and knowing possession of child

pornography in violation of 18 U.S.C. §§ 2252A(a)(2), (a)(5)(B),

3
and 2252A(b)(1)-(2). Helton pled guilty to one count of knowing

possession of child pornography in violation of 18 U.S.C.

§§ 2252A(a)(5)(B) and 2252A(b)(2). The maximum term of

imprisonment under the statute is ten years. See 18 U.S.C.

§§ 2252A(a)(5)(B), 2252A(b)(2). Under 18 U.S.C. § 3583(k), the

court must impose a term of supervised release of at least five

years and up to life for crimes under § 2252A.

The presentence investigation report, prepared by the

probation office, recommended a Guidelines range of 78 to 97

months of imprisonment based on a total offense level of 28 and

a criminal history category of I. The district court adopted the

presentence investigation report, after thoroughly reviewing it

at the sentencing hearing. See J.A. 168-72. It noted the

statutory maximum and walked the defendant through the

Guidelines calculations. As the trial judge explained, a

violation of § 2252A(a)(5)(B) has a Base Offense Level of 18.

See id. at 170; see also U.S.S.G. § 2G2.2(a)(1). A two-level

enhancement was added for using a computer to search for and

access child pornography. In addition, two levels were added for

material that depicts a prepubescent minor under the age of 12

and an additional four levels for material portraying sadistic

or masochistic conduct. Lastly, a five-level enhancement was

added because the offense involved 600 or more images. Helton

received a three-level reduction for acceptance of

4
responsibility, bringing his total offense level to 28. Because

this was his first conviction, his criminal history category, as

noted, was I.

At the sentencing hearing, neither party objected to the

Guidelines calculation included in the presentence report,

although the defendant provided a comment by way of additional

explanation that the majority of images were not sadistic or

masochistic in nature. See J.A. 158-59. The sentencing judge

noted objections from the defense regarding several of the more

onerous conditions of supervised release and agreed to remove

some of the more burdensome terms where not applicable to the

nature and circumstances of Helton’s offense. She also

considered the factors listed in 18 U.S.C. § 3553(a) and heard

argument from both the government and defense counsel regarding

the appropriate sentence for Helton. See id. at 172-91. Helton

also made a statement directly to the court. See id. at 198-99.

At the conclusion of his statement, the court sentenced

defendant to a term of 60 months imprisonment, a downward

departure from the Guidelines range, and a lifetime term of

supervised release, comprised of a number of conditions specific

to the defendant, including treatment for both substance abuse

and psychosexual mental health. This appeal followed.

5
II.

This court reviews a sentence imposed by a district court

for reasonableness. See United States v. Booker, 543 U.S. 220,

261 (2005). Sentencing is the province of the district court and

in reviewing the chosen sentence, we consider only whether the

sentencing judge abused her discretion rather than whether this

court would impose the same sentence on a defendant in the

appellant’s position. See Gall v. United States, 552 U.S. 38, 51

(2007). This court will affirm a sentence when it is “within the

statutorily prescribed range and is reasonable.” United States

v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). Defendant contests

only his term of supervised release, arguing that the lifetime

term is procedurally and substantively unreasonable and should

be vacated.

Even though the Sentencing Guidelines are now advisory,

district courts “must consult those Guidelines and take them

into account when sentencing.” Booker, 543 U.S. at 264. A

sentence within the Guidelines range is presumed on appeal to be

substantively reasonable. See Rita v. United States, 551 U.S.

338, 347 (2007). Here, the lifetime term of supervised release

was within both the Guidelines range and the statutory maximum.

See 18 U.S.C. § 3583(k); U.S.S.G. § 5D1.2(b). However, that does

not end the inquiry. For a sentence to be procedurally sound, a

district judge must also consider the factors outlined in 18

6
U.S.C. § 3553(a) and “articulate the reasons for selecting the

particular sentence, especially explaining why [any] sentence

outside of the Sentencing Guideline range better serves the

relevant sentencing purposes set forth in § 3553(a).” United

States v. Green, 436 F.3d 449, 456 (4th Cir. 2006).

Helton contends that his lifetime term of supervised

release is procedurally unreasonable because the district court

did not adequately explain why it chose that particular

sentence. However, we find that the sentencing judge carefully

and thoroughly explained the sentence at length.

The district court walked through the calculation of the

Guidelines range carefully at the sentencing hearing, during

which neither party objected. It noted that defense counsel had

asked for the court to consider that the majority of images did

not depict sadistic or masochistic conduct, even though counsel

did not object to the four-level enhancement for such images.

See J.A. 158. The court considered arguments made by both

parties at sentencing concerning the § 3553(a) factors and

discussed the application of the factors in fashioning Helton’s

particular sentence.

The district judge granted a downward departure from the

recommended term of imprisonment of 78 to 97 months, sentencing

Helton to 60 months in prison. See J.A. 199, 172. She explained

7
that the sentence of 60 months followed by a lifetime term of

supervised release “provide[d] just punishment for the crime for

which [Helton] pled guilty” because it both “reflect[ed] the

seriousness of the offense” and would “deter [Helton] from

committing criminal conduct in the future.” Id. at 206.

Importantly, the judge further explained that given Helton’s age

and lack of prior criminal convictions, a sentence of longer

than 60 months “simply was not necessary,” id., especially in

light of “the fact that [he would] be required to be on

supervised release for life,” id. at 207-08. Although Helton’s

prison term is not directly at issue before this court, the

judge made clear that the length of the prison term and the

length of the supervised release term were linked. She was only

comfortable with the downward departure for the term of

imprisonment because she knew that Helton would be subject to a

lengthy term of supervised release.

The judge also gave full and fair consideration to the

§ 3553(a) factors that, she explained, require the court to

consider, among other factors, the “nature and circumstances of

the offense,” “the history and characteristics of the

defendant,” and the need for the sentence imposed “to reflect

the seriousness of the offense, to promote respect for the law,

and to provide just punishment for the offense,” as well as “to

8
provide the defendant with needed . . . medical care, or other

correctional treatment.” 18 U.S.C. § 3553(a); see also J.A. 173. *

Although the court must base the sentence on an

individualized assessment, it need not “robotically tick

through” the § 3553(a) factors. United States v. Johnson, 445

F.3d 339, 345 (4th Cir. 2006). In crafting the sentence, the

*
Defense counsel argued before this court that the district
court’s consideration of the § 3553(a) factors focused primarily
on “the severity of [Helton’s] conduct, which is explicitly off
limits when it comes to consideration of the supervised released
term.” Oral Arg. at 13:35. We disagree with this
characterization of the district court’s explanation. It is true
that 18 U.S.C. § 3583, which provides “factors to be considered
in including a term of supervised release,” 18 U.S.C. § 3583(c),
does not include “the need for the sentence imposed to reflect
the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense” or “the kinds of
sentences available,” 18 U.S.C. § 3553(a)(2)(A), (a)(3).
Notably, however, the statute allows for consideration of the
factors listed in § 3553(a)(1): “the nature and circumstances of
the offense and the history and characteristics of the
defendant.” 18 U.S.C. § 3553(a)(1); see also 18 U.S.C.
§ 3583(c). Here, we do not agree that the district judge focused
only on the severity of Helton’s conduct. While she did state
that she chose the 60 month sentence followed by a life term of
supervised release to “provide[] just punishment for the crime
for which [Helton] pled guilty” and to “reflect[] the
seriousness of the offense,” J.A. 206, she further noted that
she had considered “the nature and circumstances of [Helton’s]
offense, as well as [his] history and characteristics.” Id. She
specifically outlined how, in determining the proper sentence
and the conditions of supervised release, she had balanced his
youth and lack of criminal history against his admitted cycle of
downloading and deleting child pornography, the period of months
over which he had collected the images, his mental health
history, and his admitted history of viewing child pornography
and his sexual abuse of a three-year old child in foster care.
See id. at 207.

9
judge took note of both individual characteristics of the

defendant and the particular offense conduct in this case. She

considered that Helton was only “21 years old and appearing

[before the court] on [his] first criminal conviction.” J.A.

206. The court also considered Helton’s extensive “mental health

issues and [his] admissions to having viewed child pornography

as a child” in determining “the need for this sentence to

provide [Helton] with medical care and corrective treatment in

the most effective manner.” Id. at 207.

On the other hand, the judge explained that while “only 42

image files of child pornography were located in active

folders,” the defendant had “engaged in repetitive cycles of

downloading images, deleting them, and then searching for more,”

over the course of seven months, which is exactly the “type of

conduct [that] provides the market for child pornography which .

. . often results in the abuse of minors.” Id. at 206-07. She

also took notice of his admission that he had “sexually abused a

three-year-old” when he was previously in foster care. Id. at

207.

Furthermore, the judge took into account a number of

individualized considerations in shaping the conditions that

attach to defendant’s term of supervised release. Considering

the defendant’s admission to significant alcohol and marijuana

use, id. at 197, and noting that he did not have “a low risk of

10
future substance abuse,” id. at 200, she required him to

participate in a substance abuse treatment program. She also

required Helton to “submit to a psychosexual evaluation by a

qualified mental health professional,” “complete [any resulting]

treatment recommendations,” and “take all medications as

prescribed.” Id. at 201. She also imposed a number of conditions

regarding his status as a sex offender and limiting his ability

to interact with minors. Id. at 201-04.

However, the district court also, in response to a request

from defense counsel, removed several of the more onerous terms

of supervised release, finding them unnecessarily harsh in light

of the circumstances of the case. Id. at 165-68. The judge noted

that the “terms and conditions of supervised release should have

some reasonable basis given the facts and circumstances of the

offense such that they accomplish the purposes that are intended

by supervised release.” Id. at 166. Finding that there was “no

basis in this particular case,” she declined to require

“defendant to carte blanche afford access to his financial

information” unless there “is some indication that there is

something [such as a computer or cell phone with internet

capacity] purchased that should not have been.” Id.

She also declined to impose a condition preventing the

defendant from purchasing cameras, explaining that there was “no

evidence in this case that the defendant took pornographic

11
photos or videos of children.” Id. at 167-68. Despite objection

from defense counsel, she kept in place the condition preventing

defendant from purchasing or owning a cell phone with internet

capability, explaining that it was “appropriate given the facts

and circumstances of this case.” Id. at 167. Defense counsel

repeatedly requested a fifteen year term of supervised release,

but the judge rejected that in favor of a longer term coupled

with a downward departure in the length of Helton’s term of

imprisonment. See id. at 176, 190, 208.

In light of this lengthy explanation, we find no procedural

error in what the district court did. The Guidelines range was

properly calculated. The term of supervised release was within

the Guidelines range and within the permissible statutory

authorization. The defendant received a downward departure in

his prison term, which was clearly linked to a longer term of

supervised release. The defendant wants additional explanation,

specific to the term of supervised release, but we find the

district court satisfactorily explained both pieces of the

sentence at great length.

We do not dispute that there must be sufficient explanation

for a sentence to be procedurally reasonable. But we take no

issue with what the district court did here. We find the

district court’s thorough explanation sufficient on both the

sentence as a whole and the term of supervised release

12
specifically. To require more explanation would unnecessarily

intrude upon the district court’s primary and unique role in the

sentencing process.

Helton also contends that his lifetime term of supervised

release is substantively unreasonable because it is longer than

necessary to further the goals of supervised release itself and

was not justified by Helton’s offense. See Appellant’s Br. at

12. We disagree. A lifetime term of supervised release is

authorized by statute and within the Sentencing Guidelines

range. See 18 U.S.C. § 3583(k) (“[T]he authorized term of

supervised release for any offense under section . . . 2252A .

. . is any term of years not less than 5, or life.”); see also

U.S.S.G. § 5D1.2 (“[T]he length of the term of supervised

release . . . may be up to life, if the offense is . . . a sex

offense.”). Furthermore, the U.S. Sentencing Commission

specifically included an advisory policy statement in the

Guidelines Manual that suggests it is the judgment of the

Sentencing Commission that in the case of sex offenses “the

statutory maximum term of supervised release is recommended.”

District courts are permitted to consider a wide variety of

information during the course of a sentencing proceeding. See

Alleyne v. United States, 133 S. Ct. 2151, 2163 n.6 (2013)

(“[J]udges may exercise sentencing discretion through ‘an

13
inquiry broad in scope, largely unlimited either as to the kind

of information [they] may consider, or the source from which it

may come.’”) (alteration in original) (quoting United States v.

Tucker, 404 U.S. 443, 446 (1972)). Here, the district judge

considered the defendant’s lengthy history of viewing child

pornography, his admitted repetitive pattern of downloading

material, deleting it, and seeking out more. She also considered

that he admitted to abusing a three-year old when he was a minor

in foster care and that he had sought help for his compulsion to

view child pornography but had been unable to stop.

Furthermore, the district court granted defendant a

downward variance in his prison term, remarking that she was

comfortable doing so because he would be subject to a lengthy

term of supervised release. It would be almost unprecedented to

credit a defendant’s challenge to a sentence as substantively

unreasonable when the district court actually reduced the term

of imprisonment below the recommended Guidelines range.

Moreover, the court modified the conditions of supervised

release, alleviating some of the more burdensome requirements

that she thought inappropriate for Helton given the offense and

circumstances of this case and this defendant. Helton can still

petition for a modification or termination of his term of

supervised release at any time after one year of supervised

release, provided it is justified by his conduct and in the

14
interest of justice. See 18 U.S.C. § 3583(e)(1); U.S.S.G.

§ 5D1.2 n.5. Given these circumstances, we cannot find the

district court’s conclusion unreasonable that a lifetime of

supervised release was necessary to deter defendant, protect the

public from additional crimes by him, and provide him with the

mental health care and necessary corrective treatment he needs.

Trial courts have significant discretion in the sentencing

process, and we see nothing in this case to suggest that this

discretion was abused in a manner that would render this

sentence substantively or procedurally unreasonable. The

judgment is accordingly affirmed.

AFFIRMED

15
GREGORY, Circuit Judge, concurring in the majority opinion:

I commend the district court’s exercise of its discretion

in fashioning Steven Helton’s sentence in this very difficult

case. Five years in prison is well enough for the 21 year-old

with no prior criminal convictions, who was physically and

sexually abused by his stepfather, who grew up in multiple

foster care homes since the age of six, and who was caught with

42 image files of child pornography on his computer. 1 J.A. 195,

206. 2 And, as the majority notes, the district court imposed the

supervised release portion of Helton’s sentence in conjunction

with a downward variance from the applicable advisory Guideline

range. The district court displayed courage in varying

downward, and in crafting an appropriate, individualized

sentence.

The district court chose a sentence of 60 months of

imprisonment followed by a lifetime term of supervised release

for Helton’s knowing possession of child pornography in

violation of 18 U.S.C. § 2252(a)(5)(B) and 2252A(b)(2). Helton

1
As the majority notes, only 42 of the 961 image files
recovered by forensic investigators from Helton’s computer were
actively accessible for viewing. It appears the remaining files
were thumbnail-sized images automatically generated by the
Windows operating system.
2
Citations to the J.A. refer to the parties’ Joint Appendix
filed in this case. Specifically, the facts referenced herein
are contained in the sentencing hearing transcript.

17
appeals only the supervised release portion of his sentence. I

agree with the majority that the district court committed no

procedural error by adequately explaining why it thought this

particular punishment sufficient to meet the goals of

sentencing.

As is well known, reasonableness includes both procedural

and substantive components. See United States v. Carter, 564

F.3d 325, 328 (4th Cir. 2009). “Procedural errors include

‘failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence – including an explanation for any deviation from the

Guidelines range.’” Id. (quoting Gall v. United States, 552

U.S. 38, 51 (2007)). Above all, the district court “must make

an individualized assessment based on the facts presented.”

Gall, 552 U.S. at 50. In other words, the district court should

“consider every convicted person as an individual and every case

as a unique study in the human failings that sometimes mitigate,

sometimes magnify, the crime and the punishment to ensue.”

Carter, 564 F.3d at 328.

Among the human failings the district court took into

account at sentencing was that Helton’s father abandoned him as

a baby. J.A. 195. His mother suffered various mental health

18
problems. J.A. 195. When Helton was six years old, his

stepfather physically and sexually abused him and his sister.

J.A. 195. Both were placed with an aunt who drank and

physically abused the children. J.A. 195. Helton was then

removed to foster care, where he was found viewing child

pornography. J.A. 195. It was during this time that Helton

also admits he sexually abused a minor child. J.A. 195. When

he was fourteen, Helton attended a mental health/sex offender

treatment facility for two and a half years. J.A. 195. Next,

he moved to a facility called the Burlington United Family

Methodist Services, and things started to look up; while at

Burlington, Helton obtained his GED and even enrolled in

Fairmont State College. J.A. 195-97. He withdrew before

completing the first semester, however, and at the age of

eighteen returned to his mother’s home. 3 J.A. 196-7. He became

his disabled mother’s caretaker and began abusing alcohol and

other drugs himself. J.A. 196-97. He was nineteen when the

police caught him in possession of child pornography.

It is against this backdrop that the district court

emphasized that it was careful to sentence Helton “only for the

3
According to Helton, upon matriculating he was told he had
not completed the requisite financial aid forms. Without any
adult assistance to navigate the system, and having “graduated”
from foster care, he was forced to withdraw from college and
return to his mother’s residence.

19
offense to which [he] pled guilty.” The court explained that it

chose a sentence “sufficient to protect the public . . . and to

avoid unwarranted disparities in sentencing of defendants of

similar backgrounds and similar violations.” In doing so, the

court balanced Helton’s age and lack of criminal convictions

against his engaging in “repetitive cycles of downloading,”

which “provides the market for child pornography” and “often

results in the abuse of minors.” In the end, the district court

decided “a sentence of incarceration longer than 60 months

simply is not necessary to meet the goals of sentencing,”

especially in consideration of the lifetime term of supervised

release. The court further “considered the need for th[e]

sentence to provide . . . medical care and corrective

treatment,” leading to the special conditions of release

including participation in medical evaluations and treatment.

There is no doubt that this explanation, following the

district court’s painstaking recollection of Helton’s

unfortunate childhood, was sufficiently individualized to meet

the requirements of procedural reasonableness.

II.

Helton’s appeal of the substantive reasonableness of his

lifetime term of supervised release is a closer question. As

the majority rightly recognizes, a district court enjoys wide

20
discretion in sentencing. The district court “is in a superior

position to find facts and judge their import,” United States v.

Diosdado-Star, 630 F.3d 359, 366 (4th Cir. 2011), but appellate

courts nevertheless play an important role in reviewing whether

an abuse of that discretion has occurred. In reviewing

substantive reasonableness, we measure the sentence against the

statutory sentencing factors while “tak[ing] into account the

totality of the circumstances.” Gall, 552 U.S. at 51; see also

United States v. Montes-Pineda, 445 F.3d 375, 378 (4th Cir.

2006).

Helton’s burden on appeal is a difficult one to meet

considering that a lifetime term of supervised release is indeed

within the advisory Guidelines range and the maximum term

authorized by statute. See U.S.S.G § 5D1.2; 18 U.S.C.

§ 3583(k). Ultimately the district court was faced with the

history and characteristics of someone who admitted to having

previously abused a child and who furthermore reverted to

viewing child pornography after having completed years of a

residential sex offender treatment program. J.A. 195. While

there is a continuing debate on the linkage between possession

of child pornography and sexual abuse of minors, it was not

improper for the district court to consider the need “to afford

adequate deterrence,” id. § 3553(a)(2)(B), and “to protect the

public from further crimes of the defendant,” id.

21
§ 3553(a)(2)(C). In the totality of the circumstances, it is

fair to say that Helton will benefit not from more time in

prison, but from long-term supervision and compliance with drug

dependency and psychosexual treatment programs. Therefore, even

though I regret that Helton can see no redemptive light at the

end of his long road to recovery, I cannot say the district

court abused its discretion.

It is this same ambivalence, however, about offenders like

Helton never being able to fully rejoin society as rehabilitated

individuals that leads me to warn against undue deference to

what are only advisory Guidelines. When we begin to accept

these Guidelines as irrefutable truths, we tend to give

ourselves to overgeneralizations like that made by the majority

when it writes: “It would be almost unprecedented to credit a

defendant’s challenge to a sentence as substantively

unreasonable when the district court actually reduced the term

of imprisonment below the recommended Guidelines range.” To the

contrary, it can be unreasonable for a twenty-one year old with

no prior criminal convictions to spend five years in prison even

when the Guidelines advocate for a minimum term of six and a

half years. And it can be unreasonable for that young man to

have to ask his probation officer for permission to purchase a

toy when, some great day later in his lifetime of supervision by

the government, he becomes a grandparent.

22
The child pornography Guideline has been recognized as an

“eccentric Guideline of highly unusual provenance which, unless

carefully applied, can easily generate unreasonable results.”

United States v. Dorvee, 616 F.3d 174, 188 (2d Cir. 2010). For

example, a defendant convicted of distributing child pornography

over the Internet but who has never had any contact with a minor

can receive a greater sentence than an individual who seeks out

a minor online, arranges a meeting, and actually abuses the

child. See id. at 176, 187. The Guideline also frequently

punishes first time offenders with the same severity as more

culpable offenders. This is because several of the § 2G2.2

enhancements of a defendant’s base offense level are broadly

defined and present in nearly all Internet child pornography

cases, like an enhancement for using a computer. See, e.g.,

United States v. Burns, No. 07 CR 556, 2009 WL 3617448, at *7

(N.D. Ill. Oct. 27, 2009) (“[M]ost of the enhancements provided

for in § 2G2.2 are of little use in distinguishing between

offenders.”). Statistics show that in non-production cases in

fiscal year 2013, a two-level enhancement for using a computer

applied in 95% of cases, a two-level enhancement for involvement

of a child victim under the age of 12 (that is, a prepubescent

minor) applied in 96% of cases, and a five-level enhancement for

23
600 or more images applied in 79% of cases. 4 Such realities have

led the Sentencing Commission to conclude that § 2G2.2 “places a

disproportionate emphasis on outdated measures of culpability,”

resulting in “penalty ranges [that] are too severe for some

offenders and too lenient for other[s].” 5

These limitations are the result of the Guideline having

been “developed largely pursuant to congressional directives,”

as opposed to the Sentencing Commission’s expertise. United

States v. Grober, 624 F.3d 592, 608 (3d Cir. 2010); see also id.

(“[T]o say that the final product is the result of Commission

data, study, and expertise simply ignores the facts.”).

Congress has been “particularly active” in directing the

Commission to increase base offense levels and impose various

enhancements, which has resulted in a dramatic rise in penalties

over the years. 6 These changes have taken place in the face of

4
U.S. Sentencing Comm’n, Use of Guidelines and Specific
Offense Characteristics 40-41 (2013), available at
http://www.ussc.gov/sites/default/files/pdf/research-and-publica
tions/federal-sentencing-statistics/guideline-application-
frequencies/2013/Use_of_Guidelines_and_Specific_Offense_Characte
ristics_Guideline_Calculation_Based_Revised.pdf.
5
U.S. Sentencing Comm’n, Federal Child Pornography Offenses
xvii (2012), available at http://www.ussc.gov/
sites/default/files/pdf/news/congressional-testimony-and-reports
/sex-offense-topics/201212-federal-child-pornography-offenses/
Full_Report_to_Congress.pdf [hereinafter Report to Congress].
6
U.S. Sentencing Comm’n, The History of the Child
Pornography Guidelines 1 (2009), available at
http://www.ussc.gov/sites/default/files/pdf/research-and-publica
(Continued)
24
resistance by the Commission, and in the form of Congress taking

the unprecedented step of directly amending the Guidelines. 7

Thus, like the former crack cocaine Guidelines, the child

pornography Guideline “do[es] not exemplify the Commission’s

exercise of its characteristic institutional role,” which is to

propose penalties “base[d on] its determinations on empirical

data and national experience, guided by a professional staff

with appropriate expertise.” Kimbrough v. United States, 552

U.S. 85, 108-09 (2007). For, what the data actually shows is

that 70% of district court judges in 2010 thought the Guideline

too severe for crimes of possession. 8 And, in fiscal year 2013,

district courts imposed a sentence below the Guideline range in

718 of 1,626 non-production cases. 9

This is why, when we talk about the slippery concept of

reasonableness, we should be cautious of presuming that the

tions/research-projects-and-surveys/sex-offenses/20091030_
History_Child_Pornography_Guidelines.pdf.
7
See Melissa Hamilton, The Efficacy of Severe Child
Pornography Sentencing: Empirical Validity or Political
Rhetoric?, 22 Stan. L. & Pol’y Rev. 545, 556 (2011).
8
U.S. Sentencing Comm’n, Results of Survey of United States
District Judges January 2010 Through March 2010, Question 8
(2010), available at http://www.ussc.gov/sites/default/files/
pdf/research-and-publications/research-projects-and-surveys/
surveys/20100608_Judge_Survey.pdf.
9
U.S. Sentencing Comm’n, 2013 Sourcebook of Federal
Sentencing Statistics, Table 28, available at
http://www.ussc.gov/research-and-publications/annual-reports-
sourcebooks/2013/sourcebook-2013; see also id. app. A (defining
“Below Guideline Range with Booker/18 U.S.C. § 3553”).

25
child pornography Guideline – as well as the Guideline for

supervised release of child pornography offenders – always

provides a reasoned departure point from which to calculate a

sentence. Like much of the judiciary, the Commission does not

view the Guideline this way for a defendant like Helton

convicted of a non-production offense. In fact, the Commission

has asked Congress to give it the authority to amend those

provisions resulting from the legislature’s directives. 10 It

believes these amendments necessary “to better promote the

purposes of punishment by accounting for the variations in

offenders’ culpability and sexual dangerousness.” 11 Though

recommended in 2012, these changes are still forthcoming.

Luckily, in the meantime, there are judges like Judge Berger who

understand that the totality of the circumstances sometimes

requires a below-Guideline term to ensure a sentence is

substantively reasonable.

10
See Report to Congress, supra note 5, at 322.
11
Id. at xvii. The Commission is also considering revising
§ 5D1.2 so that, as opposed to its current blanket
recommendation of the statutory maximum for child pornography
offenders, it would actually “provide[] guidance to judges to
impose a term of supervised release . . . that is tailored to
[an] individual offender’s risk and corresponding need for
supervision. Id. at xix.

26
III.

We measure our humanity by the justice we mete to those

thought least deserving. I join the majority in affirming the

district court, which I believe did an admirable job crafting an

individualized sentence. Perhaps in the future, our Guidelines

will evolve to become truly proportional to the severity of our

crimes. And perhaps then, a district court will not be in the

lamentable position of having to balance the need to depart

downward from an excessive Guideline term with an entire

lifetime of supervision.