F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
August 20, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 06-8055
ROBERT GEINER,
Defendant - Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF W YOM ING
(D . C t. No. 05-CR-63-W FD)
Loretta R. Green, Assistant Federal Public Defender (Raymond P. M oore, Federal
Public D efender, with her on the briefs), Office of the Federal Public D efender,
Cheyenne, W yoming, appearing for D efendant-Appellant.
Stuart S. Healy, III, Assistant United States Attorney (M atthew H. M ead, United
States Attorney, with him on the brief), Office of the United States Attorney,
Cheyenne, W yoming, appearing for Plaintiff-Appellee.
Before TA CH A, Chief Circuit Judge, M U RPH Y, Circuit Judge, and
L UN G ST RU M , * District Judge.
TA CH A, Chief Circuit Judge.
*
The Honorable John W . Lungstrum, Chief Judge, United States District
Court for the District of Kansas, sitting by designation.
Defendant-Appellant Robert Geiner appeals his sentence of 210 months’
imprisonment for attempted interstate transportation of child pornography and
possession of child pornography. W e exercise jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a)(1) and affirm.
I. BACKGROUND
M r. Geiner was charged with attempted interstate transportation of child
pornography (count one), in violation of 18 U.S.C. § 2252A(a)(2)(A) & (b)(1),
and possession of child pornography (count two), in violation of 18 U.S.C.
§ 2252A(a)(5)(B) & (b)(2). He pleaded guilty to both counts, but did so without
entering into a plea agreement. Because the proposed plea agreement required
that M r. Geiner stipulate to the application of certain enhancements under the
United States Sentencing Guidelines (U.S.S.G. or Guidelines), M r. Geiner
rejected the agreement, electing to raise his arguments regarding the proper
application of the Guidelines before the District Court. At his change of plea
hearing, M r. Geiner admitted that he knowingly possessed and attempted to
distribute computer files containing child pornography by enabling the file-
sharing feature on a computer software program called “bearshare,” which he
installed on his home computer. He also admitted that he obtained computer files
containing child pornography by downloading them from other people using
bearshare.
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The U.S. Probation Office issued a Presentence Investigation Report (PSR)
calculating an imprisonment range under the Guidelines of 210 to 262 months for
count one and 210 to 240 months for count 2 based on a total offense level of 37
and a Criminal History Category of I. The total offense level included a five-
level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for committing an offense
involving “distribution for the receipt, or expectation of receipt, of a thing of
value, but not for pecuniary gain.” As the PSR addendum reflects, M r. Geiner
objected to the application of this enhancement, arguing that it should not apply
because he did not barter or agree with another for the exchange of a “thing of
value” when he shared and downloaded files containing child pornography.
M r. Geiner noted this same objection to the PSR at his sentencing hearing,
arguing that, instead of applying the five-level enhancement, the court should
apply the general two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for
distribution that does not fall under one of the other § 2G2.2(b)(3) subsections.
In response, the Government introduced the testimony of the special agent who
investigated and interviewed M r. Geiner. 1 The agent testified that M r. Geiner had
been using a software program called bearshare, a peer-to-peer file-sharing
program that is available on the Gnutella File-Sharing Network. The agent
explained that M r. Geiner originally used this program to download images from
1
M r. Geiner stipulated to the agent’s expertise in the area of Internet crime
investigation, specifically investigations involving child exploitation.
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others without enabling the sharing feature of the software program to allow
others to access and download his computer files. Later, however, M r. Geiner
changed the software settings by clicking a box on the software’s preferences
page to facilitate the sharing of certain computer files with others. 2 According to
the agent, M r. Geiner had learned that he could download files from others at a
faster speed if he permitted others to obtain files from him. As the agent
explained, because M r. Geiner permitted the sharing of his files, he became a
“priority trader” when he sought files from other network users. A s a priority
trader, M r. Geiner had the benefit of a faster downloading speed, which gave him
the ability to obtain files containing child pornography more easily and
efficiently. After hearing from both parties, the District Court decided that the
enhancement applied to M r. Geiner’s case because he had made files containing
child pornography available to the public in return for the ability to obtain child
pornography at a faster speed.
After the court addressed M r. Geiner’s objections to the PSR, M r. Geiner
indicated that he wished to call witnesses to testify in his behalf. At this point,
the District Court notified the parties that it intended to impose a sentence within
the Guidelines, even though the court understood that the Guidelines are not
mandatory and it may exercise its discretion to impose a sentence that meets the
2
The software makes available in a separate folder only those files that the
user has designated for sharing.
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objectives of the sentencing factors delineated in 18 U.S.C. § 3553(a). The court
noted that the Guidelines have “particular value to sentencing judges in this kind
of case” and that it should not ignore the Guidelines when a Guidelines sentence
meets the purposes of the factors in § 3553(a). In addition, the court explained
that, because it intended to apply a Guidelines sentence, it would not consider
“impermissible bases for departure.” In response, M r. Geiner’s counsel indicated
that she understood the court’s intentions and that all of the testimony she
planned to present was related to a ground for departure under the G uidelines,
specifically diminished capacity under U .S.S.G. § 5K2.13.
After hearing M r. Geiner’s testimony and counsels’ arguments concerning a
departure based on diminished capacity, the court accepted the PSR’s total
offense level of 37 and decided to sentence M r. Geiner within the Guidelines
range contained in the PSR. Before imposing the sentence, the court asked the
parties if they wished to make any additional objections. Neither party objected.
The court subsequently sentenced M r. Geiner to 210 months’ imprisonment, the
bottom end of the applicable range under the Guidelines.
On appeal, M r. Geiner challenges his sentence on two grounds. He argues
that the D istrict C ourt erred in applying the enhancement under U.S.S.G.
§ 2G2.2(b)(3)(B) and that his sentence is both unreasonable and unconstitutional
because the court did not consider the § 3553(a) factors.
II. D ISC USSIO N
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W e will set aside M r. Geiner’s sentence only if it is procedurally or
substantively unreasonable in light of the statutory factors contained in 18 U.S.C.
§ 3553(a). See United States v. Hildreth, 485 F.3d 1120, 1127 (10th Cir. 2007).
A procedurally reasonable sentence reflects the sentencing court’s calculation of
the applicable advisory Guidelines range and its application of the § 3553(a)
factors. See United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007). In
addition, to impose a procedurally reasonable sentence, the sentencing court must
“afford defendants their rights under the Federal Rules of Criminal Procedure.”
Id. A sentence is substantively reasonable when it “reflects the gravity of the
crime and the § 3553(a) factors as applied to the case.” Id.
M oreover, although the Guidelines are now advisory, we accord a properly
calculated Guidelines sentence a presumption of substantive reasonableness, see
United States v. Kristl, 437 F.3d 1050, 1054–55 (10th Cir. 2006) (per curiam), an
approach the Supreme Court recently upheld as constitutional, Rita v. United
States, 127 S. Ct. 2456 (2007). In holding that the courts of appeals may accord
Guidelines sentences this presumption, the Supreme Court explained that the
Guidelines “seek to embody the § 3553(a) considerations” and “reflect a rough
approximation of sentences that might achieve § 3553(a)’s objectives.” Id. at
2464. Consequently, when a district court imposes a Guidelines sentence, it
reflects the “double determination” of the district court and the Sentencing
Commission regarding the proper sentence: “The upshot is that the sentencing
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statutes envision both the sentencing judge and the Commission as carrying out
the same basic § 3553(a) objectives, the one, at retail, the other at wholesale.” Id.
at 2463. As the Court reasoned, an appellate presumption of reasonableness
“simply recognizes the real-world circumstance that when the judge’s
discretionary decision accords w ith 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.” 3 Id. at 2465.
In affirming the use of an appellate presumption, the Court also emphasized
the nonbinding nature of the presumption. Id. at 2463. It does not function like
an evidentiary presumption, which requires one side to meet a particular burden
of proof, and it does not allow for the especially strong deference appellate courts
often grant an expert agency’s factual findings. Id. The presumption simply
reflects the increased likelihood that a G uidelines sentence will be reasonable
because it represents the combined judgment of the sentencing court and the
Sentencing Commission. Id. at 2465. W ith this in mind, we first determine
whether the D istrict Court correctly applied the G uidelines, reviewing the court’s
findings of fact for clear error and its legal conclusions de novo. See Kristl, 437
F.3d at 1054. W e then address M r. Geiner’s argument that his sentence is
3
In Rita, the Supreme Court cautioned that this presumption operates only
on appeal. A sentencing court may not presume that a Guidelines sentence
applies in any given case, but must comply with the “thorough adversarial testing
contemplated by federal sentencing procedure.” 127 S. Ct. at 2465.
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unreasonable and unconstitutional.
A. Application of the Guidelines
The District Court applied a five-level increase to M r. Geiner’s sentence
under U.S.S.G. § 2G2.2(b)(3)(B), which enhances a sentence based on
“[d]istribution for the receipt, or expectation of receipt, of a thing of value, but
not for pecuniary gain.” The application note to this section defines the type of
distribution to which the enhancement applies as “any transaction, including
bartering or other in-kind transaction, that is conducted for a thing of value, but
not for profit.” U.S.S.G. § 2G2.2 app. n.1. The definition of “thing of value” is
clarified by the note as “anything of valuable consideration” and is illustrated by
an example: “For example, in a case involving the bartering of child pornographic
material, the ‘thing of value’ is the child pornographic material received in
exchange for other child pornographic material bartered in consideration for the
material received.” Id.
M r. Geiner argues that this enhancement should not apply because he did
not agree to provide access to his files in exchange for the files he sought from
others. Nor did he expect anyone to reciprocate by providing files or anything
else of value. In other words, because he did not communicate with anyone who
had access to his files and did not expect anyone to provide him with something
of value in return for his files, M r. Geiner contends that the District Court erred
in applying the five-level enhancement. Because this Court has yet to interpret
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this particular Guidelines provision, we analyze the relevant language in detail,
focusing in particular on the meaning of “transaction,” “expectation,” and “thing
of value.”
1. The M eaning of “Transaction”
W e begin by addressing the argument that the enhancement applies only to
a bargained-for exchange or agreement between two or more traders in child
pornography. Although the application note contains terms familiar to contract
law, the plain language of the provision itself counsels against a narrow
interpretation of its application. A person need only have the “expectation of
receipt” of something of value for the enhancement to apply. This expectation
need not arise from an underlying agreement to exchange child pornography or
distribute it in return for a thing of value. Although the application note indicates
that “bartering” and “other in-kind transaction[s]” are examples of transactions to
which the enhancement applies, it does not limit the definition of transaction to
these examples. W e therefore agree with the Second Circuit’s interpretation of
the note’s language: “The word ‘including’ before the examples indicates that any
transaction— so long as it involves the ‘expectation’ of the ‘receipt’ of a ‘thing of
value’— suffices to trigger the subsection’s enhancement.” United States v.
M aneri, 353 F.3d 165, 170 (2d Cir. 2003); see also United States v. Oldham, 177
Fed. App’x 842, 846–47 (10th Cir. 2006) (unpublished) (agreeing with the Second
Circuit’s holding that a defendant may have an expectation in the “absence of a
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specific agreement with another person”). Hence, M r. Geiner need not have
entered into a specific agreement or understanding with other individuals for the
enhancement to apply. The enhancement applies if he engaged in any transaction
with the expectation that he would receive a thing of value.
Our recent discussion of “distribution” under 18 U.S.C. § 2252A in United
States v. Shaffer, 472 F.3d 1219 (10th Cir. 2007), illustrates how M r. Geiner’s
conduct constitutes a “transaction.” In Shaffer, we interpreted the term
“distribution” under § 2252A(a)(2) 4 according to its plain meaning, holding that a
defendant distributes child pornography under the statute by “distributing,
delivering, transferring, or dispersing” it to others. Id. at 1223–24 (internal
quotation marks omitted). W e specifically held that a defendant distributes child
pornography by making computer files containing child pornography available for
others to download. Id. at 1223. W e likened a defendant who makes computer
files available in this manner to the owner of a self-serve gas station:
[N]either the owner nor his or her agents may ever pump gas. But
the owner has a roadside sign letting all passersby know that, if they
choose, they can stop and fill their cars for themselves, paying at the
pump by credit card. Just because the operation is self-serve . . . we
do not doubt for a moment that the gas station owner is in the
business of “distributing[]” . . . gasoline.
4
Under 18 U.S.C. § 2252A(a)(2), a person is subject to criminal liability if
he or she “knowingly receives or distributes . . . any child pornography [or any
material that contains child pornography] that has been mailed, or shipped or
transported in interstate or foreign comm erce by any means, including by
computer.”
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Id. at 1223–24. W e also do not doubt that the gas station owner and the passerby
engage in a “transaction,” which includes both an “act or an instance of
conducting business or other dealings . . . [and] [a]ny activity involving two or
more persons.” Black’s Law Dictionary (8th ed. 2004). Hence, the meaning of
“distribution” under § 2252A easily falls within the meaning of the w ord
“transaction.” 5 Here, M r. Geiner does not dispute that he attempted to distribute
child pornography within the meaning of § 2252A. In addition, he does not
contest the District Court’s finding that a governmental agent was able to
download files containing child pornography from his computer. Because his
conduct satisfies our definition of distribution in Shaffer, 472 F.3d at 1224, it also
constitutes a “transaction” as that term is used in the application note to U.S.S.G .
§ 2G2.2. See Shaffer, 472 F.3d at 1224 (holding that defendant “distributed”
child pornography under § 2252A when others downloaded it after he made it
available through his use of a file-sharing program). Consequently, the only
5
The application note to U.S.S.G. § 2G2.2 defines “distribution” more
broadly than our interpretation of the term under § 2252A: “‘Distribution’ means
any act, including possession with intent to distribute, production, advertisement,
and transportation, related to the transfer of material involving the sexual
exploitation of a minor. Accordingly, distribution includes posting material
involving the sexual exploitation of a minor on a website for public viewing but
does not include the mere solicitation of such material by a defendant.” U.S.S.G .
§ 2G2.2 app. n.1. W e need not decide when conduct that meets this broader
definition of “distribution” will constitute a “transaction” in the ordinary sense
discussed above. Today, we only observe that conduct meeting the definition of
distribution in Shaffer, see 472 F.3d at 1223–24, is also a “transaction” as that
term is used in the application note to U.S.S.G. § 2G2.2.
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remaining question is whether M r. Geiner expected to receive a thing of value.
2. The “Expectation of Receipt” of a “Thing of Value” Under U.S.S.G .
§ 2G2.2(b)(3)(B)
The term “expectation” in U.S.S.G. § 2G2.2(b)(3)(B) is a result of a 2000
amendment to the Guidelines. 6 As we recently noted, although this Court has yet
to interpret the amended language, the Second Circuit has interpreted the
provision at issue. See Oldham, 177 Fed. App’x at 846 (unpublished) (citing
M aneri, 353 F.3d 165). In M aneri, the Second Circuit explained when a
defendant expects to receive a thing of value under U .S.S.G. § 2G2.2(b)(3)(B):
“[B]ased on the ordinary meaning of the word ‘expectation,’ . . . [the] five-level
enhancement applies when a defendant distributes child pornography in
anticipation of, or while reasonably believing in the possibility of, the receipt of a
thing of value.” 353 F.3d at 169. W e agree that this interpretation reflects the
ordinary meaning of the word “expectation” and hold that a defendant expects to
receive a thing of value under U.S.S.G. § 2G2.2(b)(3)(B) when he distributes
child pornography in anticipation of, or while reasonably believing in the
possibility of, the receipt of a thing of value.
In the instant case, M r. Geiner clearly anticipated that he would receive a
thing of value when he enabled the software’s file-sharing feature in order to
6
The amended provision was originally codified at § 2G2.2(b)(2)(B). See
U.S. Sentencing Guidelines M anual § 2G2.2(b)(2)(B) (2000). In November 2004,
the enhancement at issue was recodified at § 2G2.2(b)(3)(B).
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distribute files containing child pornography to others. The District Court found
that M r. Geiner enabled the file-sharing feature to allow others to access his files
because he wanted to be able to acquire child pornography on the file-sharing
network at a faster speed. In other words, he made his files available to others on
the network in anticipation of a faster downloading speed. Believing that others
would configure their systems to allow priority downloading, M r. Geiner expected
to become a priority trader w ho could acquire shared files more quickly.
Although he had no definite guarantee that others w ould so configure their
systems, he reasonably believed in that possibility and anticipated the benefit of
acquiring files at a more rapid speed.
M r. Geiner acknowledges that he configured his software to permit the
sharing of his files because he wanted to be able to download images at a faster
speed. Nevertheless, he contends that he did not expect to receive a “thing of
value” because he would have had access to the images he sought without
allowing others to access his files. He argues that, because he could have
downloaded the same images w ithout allowing this access, he did not expect to
receive a thing of value. In short, he argues that he did not expect to receive a
benefit when he configured the software on his computer to allow for the
distribution of files containing child pornography.
W e agree that M r. Geiner did not expect to access images and other files in
exchange for allowing other network users to access his files. Although other
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courts have held that, by sharing files on a file-sharing network, a defendant
necessarily expects to receive a “thing of value” (i.e., access to other users’ files),
United States v. Griffin, 482 F.3d 1008, 1013 (8th Cir. 2007); United States v.
M cVey, 476 F. Supp. 2d 560, 563 (E.D. Va. 2007), we do not think the language
of U.S.S.G. § 2G2.2(b)(3)(B) permits such a broad interpretation. To apply the
enhancement to every defendant who shares files on a peer-to-peer file-sharing
network would be to disregard the connection between distribution and “thing of
value” in the provision’s requirement that “distribution [be] for the receipt, or
expectation of receipt, of a thing of value.” U .S.S.G. § 2G2.2(b)(3)(B) (emphasis
added). Although a defendant may share files on a file-sharing network with the
expectation of receiving other users’ files in return, this is not necessarily true in
every case. Indeed, the present case illustrates the exception. M r. Geiner
originally chose not to share his files with others on the network, but he still used
the software to access other users’ files. Thus, he did not begin sharing files
solely for the purpose of receiving them.
W e therefore disagree with the Eighth Circuit’s holding that the
enhancement automatically applies “to a defendant who downloads and shares
child pornography files via an internet peer-to-peer file-sharing network, as these
networks exist— as the name ‘file-sharing’ suggests— for users to share, swap,
barter, or trade files between one another.” Griffin, 482 F.3d at 1013; see also
M cVey, 476 F. Supp. 2d at 563 (“[T]he very purpose of belonging to any file-
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sharing group is to facilitate the receipt of files from others by agreeing to allow
other persons[’] access to the files on one’s own computer.”). This broad
interpretation allows for the application of the enhancement based merely on a
defendant’s installation of file-sharing software or his use of a file-sharing
network. Although file sharing may be the purpose of these networks, in some
cases, users may be able to choose not to share files while still retrieving files
from others. Thus, a defendant who distributes child-pornography files by
sharing them on a file-sharing network does not necessarily do so in exchange for
similar files, particularly when the defendant understands that these files are
available even if he chooses not to share his own. Rather, whether a defendant
distributes files containing child pornography for the receipt, or expectation of
receipt, of other files available on the network is a question of fact properly
resolved on a case-by-case basis by the sentencing court.
In the case before us, although M r. Geiner did not distribute child
pornography with the expectation of receiving child pornography in return, he
nevertheless expected to receive a “thing of value.” As the District Court found,
once he allowed others to access his files, M r. Geiner expected to be able to
access and download files containing child pornography at a faster speed. A
“thing of value” need not have objective value, but may be something of value to
the defendant, as the example in the application note to U.S.S.G.
§ 2G2.2(b)(3)(B) illustrates: “For example, in a case involving the bartering of
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child pornographic material, the ‘thing of value’ is the child pornographic
material received in exchange for other child pornographic material bartered in
consideration for the material received.” Id. The provision’s history also
indicates that a “thing of value” may be something valued by the defendant. Prior
to its 2000 amendment, § 2G2.2(b)(2) only provided for a five-level enhancement
in cases of distribution for pecuniary gain. In 2000, the Guidelines provision was
amended to include an enhancement for “distribution for the receipt, or
expectation of receipt, of a thing of value, but not for pecuniary gain.” Id.
(emphasis added); see also U.S.S.G. Appx. C, vol. II, Amendment 592
(explaining that the guideline was amended to make clear that it “applies to the
distribution of pornography both for monetary remuneration and a non-pecuniary
interest”).
Here, the record supports the conclusion that M r. Geiner valued the faster
downloading speed he gained in return for allowing others to access his files
containing child pornography. Furthermore, as M r. Geiner concedes, a “thing of
value” need not be tangible. See United States v. Nilsen, 967 F.2d 539, 542 (11th
Cir. 1992) (per curiam) (noting that “C ongress’ frequent use of ‘thing of value’ in
various criminal statutes has evolved the phrase into a term of art which the
courts generally construe to envelope both tangibles and intangibles”). The faster
downloading speed is therefore a “thing of value” in the context of this case.
In short, M r. Geiner distributed child pornography with the expectation that
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he would receive a thing of value, that is, faster downloading capabilities
enabling him to obtain child pornography more easily and efficiently. Thus, the
District Court did not err in applying the enhancement in this case, and because
the court sentenced M r. Geiner within the applicable G uidelines range, his
sentence is entitled to a presumption of substantive reasonableness. See Kristl,
437 F.3d at 1055. As a practical matter, however, the application of the
presumption is unnecessary in this case. Because, as w e explain below , M r.
Geiner challenges the reasonableness of his sentence on procedural grounds, the
substantive reasonableness of the sentence is not at issue.
B. Consideration of the § 3553(a) Sentencing Factors
M r. Geiner contends that his sentence is both unreasonable under 18 U.S.C.
§ 3553(a) and unconstitutional because the District Court failed to consider the
sentencing factors delineated in § 3553(a) 7 and consequently applied the
Guidelines in a mandatory fashion in violation of United States v. Booker, 543
U.S. 220 (2005). He bases his argument on the fact that the court notified the
parties at the sentencing hearing that it intended to impose a Guidelines sentence
7
Under 18 U.S.C. § 3553(a), a sentencing court must consider: (1) the
nature of the crime and the characteristics of the defendant; (2) the need for the
sentence to reflect the seriousness of the crime, deter criminal conduct, protect
the public, and provide the defendant with needed training or treatment; (3) the
kinds of available sentences; (4) the sentencing range under the advisory
Guidelines; (5) policy statements issued by the Sentencing Commission; (6) the
need to avoid sentencing disparities among similar defendants; and (7) the need to
provide restitution to any victims of the crime.
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and would not consider “impermissible bases for departure” (namely, departures
not sanctioned by the Guidelines).
Although “[r]easonableness review has both procedural and substantive
components,” Hildreth, 485 F.3d at 1127 (internal quotation marks omitted), M r.
Geiner does not challenge his sentence as substantively unreasonable. H is
contention that the District Court failed to consider the statutory factors contained
in § 3553(a) is a procedural argument challenging the District Court’s method for
calculating his sentence. Kristl, 437 F.3d at 1055 (“[T]he reasonableness
standard of review . . . necessarily encompasses both the reasonableness of the
length of the sentence [i.e., substantive reasonableness], as well as the method by
which the sentence w as calculated [i.e., procedural reasonableness].”); Atencio,
476 F.3d at 1102 (“In setting a procedurally reasonable sentence, a district court
must calculate the proper advisory Guidelines range and apply the factors set
forth in § 3553(a).”). In addition, M r. Geiner challenges his sentence on
constitutional grounds. He argues that, by failing to consider the § 3553(a)
factors, the District Court applied the Guidelines in a mandatory fashion, using
judge-found facts to enhance his sentence in violation of the Sixth Amendment.
See United States v. Booker, 543 U.S. 220 (2005).
M r. Geiner did not, however, raise these arguments below or otherwise
object to the procedure by which the District Court determined his sentence. W e
therefore limit our review to plain error: “Plain error occurs w hen there is (i)
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error, (ii) that is plain, which (iii) affects the defendant’s substantial rights, and
which (iv) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.
2007). But even under the “more exacting” review we apply to allegations of
constitutional error, see United States v. Brooks, 438 F.3d 1231, 1244 (10th Cir.
2006), we need not look beyond the first prong of the plain-error analysis here
because the D istrict Court committed no error.
As w e have repeatedly noted, a district court “need not recite any magic
words to show us that it fulfilled its responsibility to be mindful of the
[§ 3553(a)] factors that Congress has instructed it to consider.” United States v.
Pruitt, 487 F.3d 1298, 1303–04 (10th Cir. 2007) (quotation omitted). Indeed, w e
have held that “a specific discussion of Section 3553(a) factors is not required for
sentences falling within the ranges suggested by the Guidelines.” Ruiz-Terrazas,
477 F.3d at 1202. Although a more general discussion is not necessarily the best
practice, it is all that procedural reasonableness requires when a court imposes a
sentence within the applicable Guidelines range. Id. In discussing the
explanation required to support a G uidelines sentence, the Supreme Court
recently described the requisite level of detail in similar terms:
[W ]hen a judge decides simply to apply the Guidelines to a particular
case, doing so will not necessarily require lengthy explanation.
Circumstances may well make clear that the judge rests his decision
upon the Commission’s own reasoning that the Guidelines sentence
is a proper sentence (in terms of § 3553(a) and other congressional
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mandates) in the typical case, and that the judge has found that the
case before him is typical.
Rita, 127 S. Ct. at 2468. In Rita, the sentencing court’s statement of reasons was
“brief but legally sufficient.” Id. at 2469. Although the Court acknowledged that
the sentencing court “might have said more,” it concluded that an extensive
explanation for a Guidelines sentence was not required because the context and
the record demonstrated that “the sentencing judge considered the evidence and
arguments.” Id.
Similarly, the context and the record in the present case clearly indicate
that the D istrict Court considered the evidence and the arguments. In particular,
the record makes clear that the court rested its “decision upon the C ommission’s
own reasoning that the Guidelines sentence is a proper sentence” in this case. See
Rita, 127 S. Ct. at 2468. The District Court specifically explained that, in the
court’s judgment, a Guidelines sentence in this “kind of case” reflects the
purposes of § 3553(a). In addition, in addressing M r. Geiner’s argument for a
departure based on diminished capacity, see U.S.S.G. § 5K2.13, the court
discussed various § 3553(a) factors, including the nature of the offense and
characteristics of the defendant, § 3553(a)(1), the need for the sentence to protect
the public, § 3553(a)(2), the applicable Guidelines range, § 3553(a)(4), and
pertinent policy statements issued by the Sentencing Commission, § 3553(a)(5).
M oreover, in announcing the sentence prior to its imposition, the court explicitly
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stated that its judgment was “[p]ursuant to the Sentencing Reform Act of 1984
and especially considering those factors set forth in 18 U.S.C. § 3553(a).” Hence,
as the record demonstrates, the D istrict Court treated the G uidelines as advisory
and considered the § 3553(a) factors in m aking its sentencing determination. It
did not, therefore, err in calculating M r. Geiner’s sentence.
W e note, however, that M r. Geiner does not argue that the D istrict Court
prevented him from commenting on a matter “related to an appropriate sentence”
under Federal Rule of Criminal Procedure 32. Under Rule 32(i), the sentencing
court “must allow the parties’ attorneys to comment on the probation officer’s
determinations and other matters relating to an appropriate sentence.” Fed. R.
Crim. P. 32(i)(1)(C) (emphasis added). Although M r. Geiner argues that the
District Court “limited” the parties’ arguments to permissible departures under the
Guidelines, he does not argue that the court actually refused to hear a specific
argument under § 3553(a). That is, M r. Geiner does not argue that the District
Court refused to hear an argument that he wished to make. 8 Consequently, in
upholding M r. Geiner’s sentence as procedurally reasonable, we are not
suggesting that a district court may refuse to hear arguments for modifying a
8
In addition, nothing in the record suggests that the District Court refused
to hear any of M r. Geiner’s arguments. After the court notified the parties that it
intended to impose a Guidelines sentence, M r. Geiner did not object or otherwise
indicate that he wished to introduce evidence for a departure or variance based on
§ 3553(a). Instead, M r. Geiner’s counsel indicated that the testimony she planned
to present was related to M r. Geiner’s diminished capacity, a ground for departure
under the Guidelines. See U.S.S.G. § 5K2.13.
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Guidelines sentence when they are based solely on § 3553(a). To impose a
procedurally reasonable sentence, the district court must comply with the Federal
Rules of Criminal Procedure. Had the court prevented M r. Geiner from
comm enting on a matter related to an appropriate sentence, we would face a
different question. Today, we simply hold that the District Court did not apply
the G uidelines in a mandatory fashion and its method for calculating M r. Geiner’s
sentence was procedurally reasonable.
III. C ON CLU SIO N
For the foregoing reasons, we AFFIRM M r. Geiner’s sentence.
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United States v. Geiner
Court: Court of Appeals for the Tenth Circuit
Date filed: 2007-08-20
Citations: 498 F.3d 1104
Copy CitationsCombined Opinion