United States Court of Appeals
Fifth Circuit
REVISED FEBRUARY 21, 2006 FILED
IN THE UNITED STATES COURT OF APPEALS February 17, 2006
FOR THE FIFTH CIRCUIT
______________________ Charles R. Fulbruge III
Clerk
No. 05-30387
______________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
DAVID VINCENT DUHON,
Defendant - Appellee.
______________________
Appeal from the United States District Court
for the Western District of Louisiana
_____________________
Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
The Government appeals the district court’s post-Booker, non-
Guideline sentence. We hold that the sentence is unreasonable with
regard to the sentencing factors enumerated in 18 U.S.C. § 3553(a)
(2000).
I. BACKGROUND
Appellee David Duhon pleaded guilty to one count of possessing
child pornography in violation of 18 U.S.C. § 2252A(a)(5)(2000).
Duhon submitted a factual stipulation in connection with his plea.
He acknowledged that FBI agents found images of children engaged in
sexually explicit activity on his computer. Duhon admitted that he
had downloaded the pictures from the Internet.
A. THE PRESENTENCE REPORT AND FIRST SENTENCING HEARING
The presentence report (“PSR”) determined a base offense level
of fifteen. U.S.S.G. § 2G2.4 (2002).1 It recommended three
two-level enhancements under section 2G2.4(b) because (1) the
material involved minors under twelve, (2) the offense involved the
possession of ten or more images, and (3) Duhon used a computer.
The PSR also subtracted three levels for acceptance of
responsibility. U.S.S.G. § 3E1.1. Thus, it arrived at an adjusted
offense level of eighteen. Given Duhon’s category I criminal
history, the PSR calculated the Guideline range at twenty-seven to
thirty-three months imprisonment.
Duhon objected to the PSR’s suggested enhancements for the age
of the children and number of images involved, citing Blakely v.
Washington, 542 U.S. 296 (2004). He argued that these facts had
neither been admitted to nor found by a jury beyond a reasonable
doubt. He also moved for a downward departure, claiming that a
back injury he suffered in 1987 was an extraordinary physical
1
All references to the Sentencing Guidelines are to the
2002 volume, which was in effect at the time of Duhon’s offense.
Both the PSR and the district court used the 2002 Guidelines to
calculate Duhon’s sentencing range because the newer Guidelines
in effect at the time of Duhon’s sentencing were less favorable
to him. See United States v. Domino, 62 F.3d 716, 720 (5th Cir.
1995).
2
impairment that warranted a sentence below the applicable Guideline
range. See U.S.S.G. § 5H1.4.
At a sentencing hearing on August 25, 2004, the district court
denied Duhon’s motion for a downward departure. Considering
Duhon’s Blakely motion, the court decided to stay sentencing until
the Supreme Court issued its ruling in United States v. Booker,
125 S. Ct. 738 (2005). Before adjourning, the court expressed
hostility toward the Sentencing Guidelines, lamented Congress’s
criminalization of possessing child pornography, and promised that
he would give Duhon “the lowest sentence I can give consistent with
my oath.”
B. THE POST-BOOKER SENTENCING HEARING
Following the Booker ruling, the sentencing was reconvened on
February 28, 2005. Over the Government’s objection, the district
court ruled that Booker precluded it from using facts not admitted
by Duhon to enhance his sentence, even under an advisory regime.
The court calculated a Guideline range without using the
enhancements for the age of the children or the number of images
involved in the offense. This calculation resulted in an offense
level of fourteen and an advisory term of imprisonment of fifteen
to twenty-one months. The court announced, however, that it would
not follow the Guidelines, characterizing them as “totally
discretionary.” It stated that it would use the discretion granted
3
by Booker to “deviate from the United States Sentencing Commission
Guidelines and impose a sentence that . . . is appropriate based on
the facts.”2 The court explained why it thought a lesser sentence
was appropriate and sentenced Duhon to sixty months probation.
The Government reiterated its objection to the court’s
calculation of the Guideline range. The court responded that it
would have imposed the same sentence regardless of which advisory
Guideline range was correct. The Government claims on appeal that
the probationary sentence imposed by the district court is
unreasonable.
II. STANDARD OF REVIEW
The district court’s interpretation of the Guidelines, even
after Booker, is reviewed de novo. See United States v. Smith, __
F.3d __, No. 05-30313, slip op. at n.2 (5th Cir. filed Feb. 17,
2006). We accept the district court’s findings of fact unless
clearly erroneous. United States v. Creech, 408 F.3d 264, 270 n.2
(5th Cir. 2005). The ultimate sentence is reviewed for
“unreasonableness” with regard to the statutory sentencing factors
enumerated in section 3553(a). Booker, 125 S. Ct. at 765.3
2
The district court used the term “deviation” to
distinguish its sentence from sentences supported by “departures”
made under authority of the Guidelines. In United States v.
Mares, we adopted the phrase “non-Guideline sentence” to express
this distinction. 402 F.3d 519 n.7 (5th Cir. 2005).
3
The relevant factors include:
(1) the nature and circumstances of the offense and the
4
In an opinion filed concurrently with this one, we address
non-Guideline sentences like that at issue here. See Smith, __
F.3d __. Before imposing a non-Guideline sentence, a district
court must consider the Sentencing Guidelines. Id. at 5; United
States v. Mares, 402 F.3d 511, 518–19 (5th Cir. 2005). This
consideration requires that the court calculate the appropriate
Guideline range. E.g., Smith, __ F.3d at __, at 5. Additionally,
the court should articulate fact-specific reasons for its sentence.
Mares, 402 F.3d at 519. Those reasons should be “consistent with
the sentencing factors enumerated in section 3553(a).” Smith, __
F.3d at __, at 5–6. The court need not make “a checklist
recitation of the section 3553(a) factors.” Id. at 6. However,
“the farther a sentence varies from the applicable Guideline
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed . . . medical
care, or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines . . . ;
(5) any pertinent policy statement . . . ;
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct . . . .
18 U.S.C. § 3553(a).
5
sentence, the more compelling the justification based on factors in
section 3553(a) must be.” Id. (internal quotation marks omitted).
In reviewing for reasonableness, we assess whether the
statutory sentencing factors support the sentence. Id. at 6; see
United States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005).
A non-Guideline sentence is unreasonable where it “(1) does not
account for a factor that should have received significant weight,
(2) gives significant weight to an irrelevant or improper factor,
or (3) represents a clear error of judgment in balancing the
sentencing factors.” Smith, __ F.3d at __, at 6–7; see Long
Soldier, 431 F.3d at 1123; United States v. Haack, 403 F.3d 997,
1004 (8th Cir. 2005).
III. DISCUSSION
The sentence at issue does properly take into account two
section 3553(a) factors. First, under subsection (1), the sentence
reflects the history and characteristics of the defendant. In
imposing its sentence, the court emphasized Duhon’s lack of
criminal record and letters on his behalf from family and friends.
It explained its belief that Duhon was unlikely to reoffend.
Second, the court reasoned that Duhon’s psychiatric rehabilitation
would be best served with a probationary sentence that would allow
him to continue treatment with his current psychologist. This was
consistent with subsection (2)(D)’s mandate to consider the need to
6
provide the defendant with medical care in the most effective
manner.
Under section 3553(a), however, a sentence must be supported
by the totality of the relevant statutory factors. United States
v. McBride, __ F.3d __, No. 04-4347, slip op. at 5 (6th Cir. Jan.
17, 2006). The sentence at issue fails to account for factors that
should have received significant weight and accords significant
weight to an improper or irrelevant factor. Specifically, the
sentence (1) does not adequately take into account the Sentencing
Guidelines, (2) fails to sufficiently reflect the seriousness of
Duhon’s offense, and (3) improperly gives weight to the Guideline
sentence of a differently-situated codefendant. As a result, the
sentence is unreasonable.
A. FAILURE TO ADEQUATELY ACCOUNT FOR FACTORS
1. The Sentencing Guidelines
a. The Guideline Range
It is undisputed that the district court failed to determine
the correct Guideline range. We have held that the applicable
range “should be determined in the same manner as before
Booker/Fanfan” and that a judge may still find all the facts
supporting a sentence. Mares, 402 F.3d at 519. Thus, the court’s
conclusion that it could not adjust Duhon’s Guideline range
upwardly based on facts neither admitted by Duhon nor proven beyond
7
a reasonable doubt was incorrect. The correct sentencing range was
twenty-seven to thirty-three months imprisonment, not the fifteen
to twenty-one months considered by the court.
Duhon argues that this error was harmless because the court
stated that it would have imposed the same non-Guideline sentence
regardless of the Guideline range. Duhon is correct that the
sentence was imposed in spite of rather than “as a result of an
incorrect application of the sentencing guidelines.” 18 U.S.C. §
3742(f). In Villegas, we recognized that section 3742(f) survives
Booker. Under that statute, we review de novo and vacate a
sentence imposed “as a result” of a Guidelines error without
reaching the sentence’s ultimate reasonableness. Villegas, 404
F.3d at 362. Because Duhon’s non-Guideline sentence did not
directly “result” from the Guidelines error, it need not be vacated
under Villegas based solely on the miscalculation.
But it does not follow from this that the error in calculating
the Guideline range is irrelevant to our second-step review for
reasonableness. Mares recognized that if the district court
commits a “legal error” in required sentencing procedures, the
sentence may not merit the “great deference” ordinarily accorded on
reasonableness review. 402 F.3d at 520. Among those sentencing
procedures required by Mares is that the district court calculate
the Guideline range before imposing a non-Guideline sentence. Id.
at 519; United States v. Angeles-Mendoza, 407 F.3d 742, 746 (5th
8
Cir. 2005).
This requirement reflects Booker’s mandate that sentencing
courts “take account” of the Guidelines along with other sentencing
goals. Booker, 125 S. Ct. at 764–65 (emphasis added). In light of
its duty to “account” for the Guidelines, the court’s statement
that it would impose the same sentence regardless of which range
applied, makes the sentence more, rather than less, problematic.
The court cannot reasonably impose the same sentence regardless of
the correct advisory range anymore than it could reasonably impose
the same sentence regardless of the seriousness of the offense.
Both are sentencing factors that must be taken into account under
section 3553(a). See Smith, __ F.3d at __, at 5–6 (holding that
the Guideline range must be a “frame of reference” for a non-
Guideline sentence). A sentencing court cannot evade its duty
under Booker and Mares to correctly calculate the Guideline range
with the expedient of saying the Guidelines would not affect the
result. Accordingly, the miscalculation deprives the sentence of
“great deference” and is a factor to be considered in assessing the
reasonableness of the sentence.
b. Other Guidelines Provisions
Under Booker, a sentence must account for more than just the
applicable Guideline range. Section 3553(a) requires the court to
consider the “kinds of sentence” available under the Guidelines as
well as “any pertinent policy statement.” In the case at bar, the
9
district court ignored Guidelines provisions relating to probation
and physical injury.
First, the sentence deviates from a relevant advisory
Guideline disallowing probation in Duhon’s case. The Guidelines do
not authorize a sentence of probation where the applicable
Guideline range is in Zone C or D of the Sentencing Table. See
U.S.S.G. §§ 5B1.1 cmt. n.2, 5C1.1(f). Both Duhon’s correct
Guideline range and the range incorrectly used by the district
court fell within Zone D. See U.S.S.G. § 5A. Thus, the
probationary sentence varies, not only from the applicable
Guideline range, but also from the “kinds of sentence” available
under the Guidelines. See 18 U.S.C. 3553(a)(4). In such a
situation, the court, at a minimum, should acknowledge that it is
aware that probation would not ordinarily be available under the
advisory Guidelines.
Second, the sentence diverges from a policy statement
prohibiting the consideration of physical condition. The district
court considered Duhon’s back injury in imposing its sentence.
Section 5H1.4 of the Sentencing Guidelines states that “[p]hysical
condition . . . is not ordinarily relevant in determining whether
a departure may be warranted.” At the pre-Booker sentencing
hearing, the court acknowledged that the Guidelines would not
permit a downward departure for Duhon’s physical condition. At the
post-Booker hearing, however, the district court relied on Duhon’s
10
back injury without explaining its deviation from the advisory
policy statement. We agree with the Sixth Circuit that a district
court that “relies on any factors which are deemed by the
Guidelines to be prohibited or discouraged . . . [should] address
these provisions and decide what weight, if any, to afford them in
light of Booker.” Jackson, 408 F.3d at 305 n.3 (6th Cir. 2005);
see also United States v. Selioutsky, 409 F.3d 114, 118 (2d Cir.
2005) (stating that the district court must consider the
availability of departure authority before imposing a non-Guideline
sentence). The court’s reliance on Duhon’s physical condition
without addressing the relevant policy statement is especially
troubling here since the court found that Duhon no longer sees a
physician and does not take any prescription medications for his
back injury.4
The court’s failure to appropriately take into account the
Sentencing Guidelines is significant. It is not necessary for us
to decide, however, whether this alone is sufficient to render
Duhon’s sentence unreasonable. The sentence also fails to
adequately reflect the seriousness of Duhon’s offense and
inappropriately gives weight to the Guideline sentence of Duhon’s
4
The court also noted that Duhon’s disability payments
would be suspended during his incarceration. It acknowledged
that Duhon was married and had a nineteen-year-old son. To the
extent that the court took into account that Duhon’s family might
suffer some financial hardship, it should have similarly
addressed the policy statement discouraging this as a ground for
departure. See U.S.S.G. § 5H1.6.
11
codefendant.
2. Seriousness of the Offense
Under section 3553(a)(2)(A)—(B), the sentence imposed must
reflect the seriousness of the offense, promote respect for the
law, and afford adequate deterrence. Our review of the sentencing
transcript convinces us that the district court severely misjudged
the seriousness of Duhon’s possession of child pornography. As a
result, the sentence fails to advance adequately the objectives of
subsections (a)(2)(A)—(B).
The court’s comments at Duhon’s hearings are replete with
criticism of child pornography laws and suggest that the court
believed Duhon’s offense was not harmful to children because Duhon
himself did not physically molest anyone. At Duhon’s plea hearing,
the district court stated:
There are those who think that the way Congress has
reacted to child pornography is pretty much one size fits
all. . . . [T]hey’ve got a lot of folks out there that
. . . will take advantage of young people in their day
life [sic] or try to make contact with them. That’s on
the one hand. On the other hand, its my belief . . .
that everybody that does what you have admitted to doing
here today doesn’t fall in that category, but the law
doesn’t make much of a distinction, frankly, and that’s
unfortunate.
Similarly, at the first sentencing hearing, the court
minimized the offense and suggested that prosecuting child
pornography cases was a waste of time and resources:
[The Assistant United States Attorneys] work very hard
for all of us. They do stuff like get really bad guys
12
that are killing our society with drugs. They protect us
against terrorists. And sometimes, because the Congress
dictated to them, they go out and get people who get on
the Internet and just screw up like what happened in this
case in my view.
. . . .
It would amaze you-all as taxpayers if you really
understood what’s going on inside the judiciary, inside
all the government agencies right now. . . .
Mr. Duhon knows what I am going to do . . . . I am going
to give him as little as I can because I think that’s
what it merits.
The Assistant United States Attorney objected, stating that he did
not want to give the impression that he believed these cases should
not be prosecuted. The court responded that they had
“philosophical differences” on the issue:
They’ve got people that ought to go to jail because they
might be dangerous and they’ve got people that do stupid
things. If we had a federal statute that says you’re
guilty of being stupid, Mr. Duhon might be guilty of
that, but that’s not the point.
At the close of hearing, the court explained to those in attendance
that the prosecutors were just doing “their duty under the oath.
We’re all in this together, and usually these are the good guys
putting away the bad guys.” (Emphasis added).
At the post-Booker sentencing hearing, the court similarly
stated,
If there was a federal statute that made it illegal to do
dumb things, you would be guilty. I can only imagine how
embarrassing this is for you today . . . . Nothing in
this record indicates to me that you’re one of those guys
who are going out and trying to hurt young boys or girls,
but we’ve got some sickos out there that are.
13
The district court’s view of Duhon’s child pornography offense
was misguided for several reasons. The court stated that the law
fails to distinguish between simple possession of child pornography
and “try[ing] to make contact” with children to “take advantage” of
and “hurt” them. The law, in fact, makes a drastic distinction.
Congress established a series of distinctly separate
offenses respecting child pornography, with higher
sentences for offenses involving conduct more likely to
be, or more directly, harmful to minors than the mere
possession offense. Similarly, the guidelines clearly
reflect consideration of whether and the degree to which
harm to minors is or has been involved.
United States v. Grosenheider, 200 F.3d 321, 332–334 (5th Cir.
2000) (collecting cases rejecting departures based on rationale
that defendant had “not abused any child, and had no inclination,
predisposition or tendency to do so”). Indeed, the applicable
Sentencing Guidelines provide an offense level of thirty-three for
soliciting minors under twelve for prohibited sexual conduct using
a computer. See U.S.S.G. § 2A3.1(a), (b)(2)(A), (b)(6). Had Duhon
solicited children for sex, rather than possessed child
pornography, the sentencing range would have been 135–168 months,
more than five times his actual Guideline sentence. See U.S.S.G.
§ 5A. Thus, the district court’s view that a sentence below
Duhon’s Guideline range may have been warranted because the law
“doesn’t make much of a distinction” between possession of
pornography and solicitation of children for sex was incorrect.5
5
We disagree with the concurring opinion’s analysis of this
issue on several grounds. First, it mischaracterizes the
district court’s comments. The concurrence states “that the
14
More importantly, the court’s judgment that Duhon’s offense
was just a “dumb thing,” a “stupid thing,” and merely a “screw up”
understates the harm caused by possessing child pornography. In
United States v. Norris, this Court held that children are victims
in the possession of child pornography. 159 F.3d 926, 929 (5th
Cir. 1998). Norris recognized that possessing the images is itself
a form of abuse because it “inva[des] the privacy of the child
depicted.” Id. at 930. The possession perpetuates “a permanent
record” of the original abuse that can “haunt[] those children in
future years.” Id. at 929–30. Additionally, “the consumer of child
pornography instigates the original production of child pornography
by providing an economic motive for creating [it].” Id. at 930.
“[P]ossession of child pornography is not a victimless crime. A
district court . . . observ[ed] that the 2003 version of the
Guidelines do not distinguish between possessors of child
pornography who engage in a pattern of non-internet based,
intrastate molestation of children and those who do not.” The
court below painted with a broad brush and did not entertain the
fine distinctions attributed to it by the concurrence.
Second, the concurrence fails to take into account that
under the 2003 Guidelines a pornography defendant who has also
molested children would either (a) be sentenced under the sexual
abuse Guideline or (b) receive a higher sentence due to an
increased criminal history score. See, e.g., United States v.
Lebovitz, 401 F.3d 1263 (11th Cir. 2005) (defendant was sentenced
under 2003 child pornography and sexual abuse Guidelines and
received 118 months imprisonment); United States v. Sharpley, 399
F.3d 123, 127 n.4 (2d Cir. 2005) (defendant’s criminal history
score was increased for prior state sexual abuse conviction).
Third, the concurrence conflicts with our precedent. See
Grosenheider, 200 F.3d at 333 (holding that the pre-2004
Guidelines “take into account the gravity of a possession offense
as compared with more serious forms of exploitation”).
15
child somewhere was used to produce the images downloaded . . . ,
in large part, because individuals like [the defendant] exist to
download the images.” United States v. Yuknavich, 419 F.3d 1302,
1310 (11th Cir. 2005).
The severe molestation and young children involved in the
images suggest that Duhon’s offense could instigate violent abuse.
According to the PSR, the pictures which Duhon downloaded were of
prepubescent girls aged eight to ten years. These pictures
“included photographs of a girl being raped by an adult man, forced
to perform oral sex and placing foreign objects into her vagina.”
The PSR also states that Duhon distributed child pornography to at
least one other individual, his codefendant Berne Life.6
Under the circumstances, the district court misjudged the
seriousness of Duhon’s offense. As a result, the sentence imposed
fails to advance sufficiently the sentencing objectives enumerated
in section 3553(a)(2)(A)—(B).
6
The district court apparently adopted all the factual
statements contained in the PSR with the exception of paragraph
twenty-four. The adopted facts include paragraph five, to which
Duhon concedes that he made no objection. That paragraph
describes the graphic pictures found on a disc labeled “pics from
Dave.” Life stated that the disc was given to him by Duhon.
The court did not resolve a factual dispute regarding
paragraph twenty-four because it concluded Duhon’s Guideline
range would not be affected. Paragraph twenty-four states that
Duhon “admitted to investigators that he distributed child
pornography to two or three friends.” On remand, the district
court should resolve all factual issues material to the sentence,
whether or not they would affect the advisory range. See Mares,
402 F.3d at 519.
16
B. CONSIDERATION OF SENTENCING DISPARITY WITH CODEFENDANT
In imposing its non-Guideline sentence of sixty months
probation, the district court took into account that Duhon’s
codefendant Berne Life had received a Guideline sentence of sixty
months probation. The court acknowledged that Life had obtained
the benefit of a downward departure for “substantial assistance” to
the Government under U.S.S.G. § 5K1.1. Because disparity between
Duhon’s and Life’s sentences was not “unwarranted” within the
meaning of section 3553(a)(6), the court erred in considering it.
See Long Soldier,431 F.3d at 1123 (stating that “a proper or
relevant factor is one listed under § 3553(a)”).
We agree with the First and Eighth Circuits that a sentencing
disparity intended by Congress is not unwarranted. See United
States v. Pho, __ F.3d __, 2006 WL 20574, *11 (1st Cir. Jan. 5,
2006); United States v. Sebastian, __ F.3d __, 2006 WL 265507, *2–3
(8th Cir. Feb. 6, 2006) (holding that it is “the province of the
policymaking branches of government to determine that certain
disparities are warranted, and thus need not be avoided”). In
other words, “what counts is the uniformity in sentencing sought by
Congress.” Pho, __ F.3d at __, 2006 WL, 20574, at *11 (emphasis in
original).
Several statutory provisions convince us that Congress
believes that defendants who provide substantial assistance should
generally receive lower sentences than otherwise similarly-situated
17
defendants. Congress has required that the Sentencing Commission
“assure that the guidelines reflect the general appropriateness of
imposing a lower sentence than would otherwise be imposed . . . to
take into account a defendant’s substantial assistance in the
investigation or prosecution of another person who has committed an
offense.” 28 U.S.C. § 994(n). Additionally, Congress provides
judges the authority to sentence below the statutory minimum where
the Government moves for a substantial assistance departure. See
18 U.S.C. § 3553(e). Similarly, under 18 U.S.C. § 3559(d)(2), if
a defendant renders substantial assistance, a judge may give a
sentence less than the otherwise mandatory sentence of life
imprisonment or death. Lastly, substantial assistance departures
are provided for by the Sentencing Guidelines, and Congress has
specified those Guidelines as a factor that must be taken into
account in imposing a sentence. See 18 U.S.C. § 3553(a)(4)–(5).
Accordingly, we hold that sentencing disparity produced by
substantial assistance departures was intended by Congress and is
thus not a proper sentencing consideration under section
3553(a)(6). We note that this conclusion is consistent both with
our pre-Booker jurisprudence and with the Seventh and Second
Circuits’ interpretation of section 3553(a)(6). See United States
v. Nichols, 376 F.3d 440, 443 (5th Cir. 2004) (holding that
disparities resulting from departures for substantial assistance
are “justified”); United States v. Boscarino, __ F.3d __, No. 05-
18
2657, slip op. at 7 (7th Cir. Feb. 8, 2006) (holding that “a
sentencing difference based on one culprit’s assistance to the
prosecution is legally appropriate”); United States v. Joyner, 924
F.3d 454, 460–61 (2d Cir. 1991) (explaining that Congress intended
disparities caused by application of the Sentencing Guidelines);
United States v. Toohey, 132 Fed. Appx. 883 (2d Cir. May 23, 2005)
(unpublished) (holding that “Joyner’s construction of the role the
Guidelines play in § 3553(a)(6) consideration” remains essentially
unchanged in the wake of Booker). Because Life rendered
substantial assistance, he was differently situated from Duhon in
a way that Congress has deemed material. The district court should
have considered the need to avoid disparity among similarly-
situated defendants nationwide rather than disparity with Duhon’s
differently-situated codefendant.
We emphasize the limits of this holding. We hold only that
the disparity at issue here–that between a codefendant who rendered
substantial assistance and a defendant who did not–is warranted.
A judge may still properly reduce a defendant’s sentence for
appropriate mitigating circumstances particular to that defendant.
IV. CONCLUSION
The district court miscalculated the Guideline range. The
19
sentence diverges from advisory Guidelines provisions relating to
the kinds of sentence available and Duhon’s physical condition.
Furthermore, the sentence does not reflect sufficiently the
seriousness of Duhon’s offense. Lastly, the sentence improperly
gives weight to the Guideline sentence of a differently-situated
codefendant. On the particular circumstances of this case, the
totality of the statutory sentencing factors fails to reasonably
support the court’s sentence. We therefore VACATE Duhon’s sentence
and REMAND for resentencing consistent with Booker and its progeny.
20
EMILIO M. GARZA, Circuit Judge, concurring in part and in the
judgment:
I agree with the majority opinion except with respect to
subsection III.A.2. I would avoid answering the difficult question
of when a district court makes a “clear error of judgment” in
assessing the seriousness of an offense. Nor do I agree that the
district court erred in its observation that the 2003 version of
the Guidelines do not distinguish between possessors of child
pornography who engage in a pattern of non-internet based,
intrastate molestation of children and those who do not. The
Sentencing Commission subsequently remedied this oversight by
providing for a five level enhancement where the possessor of child
pornography “engaged in a pattern of activity involving the sexual
abuse or exploitation of a minor.” U.S.S.G. § 2G2.2(b)(5) (2004).
Because the current version of the Guidelines draw this
distinction, it was not unreasonable for the district court
consider the prior version’s deficiency.
I concur in the judgment, however, because the district
court unreasonably failed to consider “the need for the sentence
imposed to afford adequate deterrence to criminal conduct.” 18
U.S.C. § 3553(a)(2)(B). The district court discussed the need to
protect the public from future crimes by Duhon, but it failed to
explain how a sentence of probation would discourage others
inclined to obtain child pornography. When the sentence imposed is
21
so far below the Guidelines range, general deterrence becomes a
relevant factor that must be given significant weight. United
States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (a sentence is
unreasonable where the “court fails to consider a relevant factor
that should have received substantial weight”). The district
court’s failure to account for that important objective deprives
this extraordinarily lenient sentence of the “compelling
justification” required to render it reasonable. See United States
v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (“the farther the
judge’s sentence departs from the guidelines sentence . . . the
more compelling the justification based on factors in section
3553(a) that the judge must offer”).
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United States v. Duhon
Court: Court of Appeals for the Fifth Circuit
Date filed: 2006-02-21
Citations: 541 F.3d 391
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