[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 31, 2008
No. 07-10183 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00009-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
BRUCE CLAYTON PUGH,
a.k.a. sknowgirl,
a.k.a. alabamaprincess4,
a.k.a. pgugh,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(January 31, 2008)
Before MARCUS and PRYOR, Circuit Judges, and HANCOCK *, District Judge.
*
Honorable James Hughes Hancock, United States District Judge for the Northern
District of Alabama, sitting by designation.
MARCUS, Circuit Judge:
This appeal tests the nature and extent of appellate review over sentencing
under the new regime of advisory Sentencing Guidelines. After thorough review,
we are constrained to conclude that even under the most recent Supreme Court
precedent, affording substantial deference to the district court’s sentencing
determinations, the district court abused its discretion by imposing a probationary
sentence on the defendant in this case.
Here, the government appealed from the non-custodial sentence of defendant
Bruce Clayton Pugh (“Pugh”), who downloaded on his computer over a period of
several years at least 68 images of child pornography, as well as videos of an adult
male raping an infant girl and of a young girl performing oral sex on an adult male.
The advisory Sentencing Guidelines range recommended for the offense to which
Pugh pled guilty -- knowing possession of images of child pornography that were
mailed, shipped or transported by computer in violation of 18 U.S.C. §§
2252A(a)(5)(B) and 2256(8)(A) -- was 97 to 120 months’ imprisonment. The
district court nevertheless sentenced Pugh to a five-year probationary term. In so
doing, the district court relied heavily on Pugh’s history, characteristics and motive
in imposing a non-custodial sentence for a crime that fell on the high end of the
Guidelines sentencing table. But in our view, the district court did not provide a
2
sufficiently compelling justification to support the degree of its variance, nor did it
give any apparent weight to many other important statutory factors embodied by
Congress in 18 U.S.C. § 3553(a) that must be considered at sentencing. As we see
it, this probationary sentence utterly failed to adequately promote general
deterrence, reflect the seriousness of Pugh’s offense, show respect for the law, or
address in any way the relevant Guidelines policy statements and directives.
Accordingly, we hold that this sentence is unreasonable, and therefore vacate and
remand so that the district court can re-calculate the defendant’s sentence.
I.
The presentence report (“PSI”) presented the following basic facts. During
an investigation conducted in Oklahoma in May 2003, the FBI learned that Warren
Paul Perkins, III, had emailed child pornography images to the America OnLine
(“AOL”) screen name “moonkiss.” The FBI traced that screen name to Joyce Pugh,
the defendant’s sister and housemate, and obtained a warrant to search the
computer systems and other related computer components owned by the Pughs.
During a search of the Pugh home in Selma, Alabama in September 2003, a police
detective observed several images of nude pubescent children in provocative poses
in Pugh’s computer files.
3
When interviewed on the day of the search by an FBI agent, Pugh said he
downloaded child pornography images but then deleted them. Pugh added that he
may have forwarded child pornography to the “list me” areas in chat rooms. Pugh
told the FBI that he entered chat rooms on the Internet pretending to be an
underaged female and that people would then email him child pornography images.
He also admitted that he once saw an image on his computer of a man having sex
with a two- or three-year old who had a dog collar around her neck.
A subsequent forensic examination of Pugh’s computer by the FBI revealed
some 70 images of child pornography, including a horrifying video of an infant girl
being raped by an adult male, a video of a young girl performing oral sex on an
adult male, and an image of male and female children engaged in sex acts with an
adult male. There were ten known child victims -- young boys and girls whose
identities have been established by the government -- in the images found on the
defendant’s computer.
The FBI interviewed Pugh again in March 2005. At this time, Pugh told the
investigators that he went to the chat rooms pretending to be an underaged girl
using the screen name “sknowgirl.” Some users would send Pugh child
pornography thinking he was a young girl. When erotica pictures came to him
from other users, Pugh would separate them, save them, and send them to other
4
users under the pretense that he was the subject of the pictures. According to
Pugh, men were always trying to pick him up over the Internet, and he justified his
pretense by thinking that he was keeping the men away from “real children.”
He said that everyone in the chat rooms sent him child pornography images,
even though he asked them for adult pornography. Pugh explained that he actively
sought adult “bondage” and “scat” pornography,1 not the child pornography that
others sent him, and that he never looked for child pornography on the Internet.
Pugh offered that he did not want the pictures, which did not arouse him; rather, he
only wanted to talk. However, he knew that his pretense would in fact cause
people to send him child pornography.
In a January 2006 indictment, Pugh was charged by a federal grand jury
sitting in the Southern District of Alabama with receipt and distribution of images
of child pornography by computer in violation of 18 U.S.C. § 2252A(a)(2) and
(b)(1) (count one); possession of images of child pornography that had been
mailed, shipped or transported by computer in violation of 18 U.S.C. §§
2252A(a)(5)(B) and 2256(8)(A) (count two); and receipt of obscene matter by
interactive computer service in violation of 18 U.S.C. § 1462 (count three). In
1
In Pugh’s case, the “scat” images on his computer depicted women defecating in each
other’s mouths.
5
March 2006, Pugh pled guilty to the possession count embodied in Count Two,
pursuant to a written plea agreement.
As part of the plea agreement, Pugh admitted to “knowingly possess[ing] a
computer[] and compact disc which contained more than 3 images of child
pornography . . .” in violation of 18 U.S.C. § 2252A(a)(5)(B). Pugh further
admitted that a forensic examination of his computer revealed that he had
approximately 68 images and two videos of child pornography, which had been
downloaded from the internet using AOL.
These images included the following:
yungcumpusjpg: a video of a female infant with an adult male penis
penetrating the infant’s vagina. The adult male has
ejaculated and semen is on the surface of the
infant’s labia.
xxxjob.mpeg: a video of a child approximately 12 years of age
performing oral sex on an adult male.
(1).jpg: phot[o] of a boy and girl both of whom are
approximately 8 years of age and the girl has the
penis of an adult male in her mouth.
Pugh also admitted to connecting to the internet using AOL, visiting chat rooms
pretending to be an underaged child, and viewing the child pornography sent to
him by others in the chat rooms.
6
Using the 2002 Guidelines Manual, as supplemented on April 30, 2003, the
probation officer determined Pugh’s base offense level to be 17 under U.S.S.G. §
2G2.2. The offense level then was enhanced 2 levels under U.S.S.G. § 2G2.2(b)(1)
because the material involved prepubescent minors or minors under age 12; 5
levels under U.S.S.G. § 2G2.2(b)(2)(B) because the offense involved distribution
for the receipt of child pornography but not for pecuniary gain; 4 levels under
U.S.S.G. § 2G2.2(b)(3) because the material portrayed sadistic or masochistic
conduct or other depictions of violence; 2 levels under U.S.S.G. § 2G2.2(b)(5) for
use of a computer or interactive computer service; and 3 levels under U.S.S.G. §
2G2.2(b)(6) for more than 150 but fewer than 300 images.2 Subtracting 3 levels
for acceptance of responsibility under U.S.S.G. § 3E1.1, Pugh’s adjusted offense
level was 30, and his criminal history category was level I. Thus, the advisory
Sentencing Guidelines yielded a range of 97-120 months’ imprisonment.
At the sentencing hearing, the district court adopted the PSI as published.
Pugh’s counsel then called John Frank Warren, III, Ph.D., (“Warren”) to testify
concerning Pugh’s mental state and likelihood of recidivism. Warren, a clinical
2
Pugh admitted possessing 68 still images plus 2 video clips, each of which counted as
75 images under clarifying amendment 664 of the 2004 Guidelines Manual (providing that
“[e]ach video, video-clip, movie or similar recording shall be considered to have 75 images”),
and U.S.S.G. § 1B1.11(b)(2) (directing that “[t]he court shall use the Guidelines Manual in effect
on the date that the defendant is sentenced”).
7
and forensic psychologist, testified that in his opinion, Pugh presented a “low-risk”
on a “low-moderate-high” risk assessment scale, which measures an offender’s risk
of re-offending, but recognized that “no one is a no risk.” Warren also opined that
Pugh was not a pedophile, and was not addicted to child pornography, but rather,
was addicted to adult pornography, an addiction that developed as a result of an
abusive home life. Warren observed that in the late 1990s, Pugh had sought mental
health treatment for his pornography addiction, but none of the therapists or the
psychiatrist he met with addressed his concerns, and eventually, he stopped going.
Warren further suggested that Pugh would be “easy pickings for more
predatory or sociopathic peers” in a prison setting and that a prison sentence could
lead Pugh to “more maladaptive coping and, arguably, a higher risk status
following additional victimization.” According to Warren, Pugh is receiving
treatment from a psychologist in Selma, Alabama.
Warren acknowledged that he had viewed a video from Pugh’s computer in
which an adult male raped an infant female, and admitted that this experience
would have a “horrible impact” on the child victim. Warren also explained that the
impact on the children depicted in the other pornographic images on Pugh’s
computer was “very detrimental,” and offered, “that’s the reason we have laws
about child pornography.” Finally, when questioned by the district court, Warren
8
testified he had not diagnosed most defendants in the prior child pornography cases
he worked on as pedophiles -- in fact, he had diagnosed only two of about 45 or 50
as pedophiles -- which he said was consistent with the literature. Warren added that
in contrast to Pugh, however, most defendants in child pornography cases are
diagnosed as having Internet child pornography paraphilia.
Pugh then addressed the district court about the charges.3 Following
counsel’s arguments, the district court concluded that it needed additional
information before sentencing Pugh, and set a second sentencing hearing to take
further testimony on these issues. In December 2006, at Pugh’s second sentencing
hearing, FBI Special Agents Fred Haynes (“Haynes”) and George Glaser
3
The PSI also referenced an incident in November 2004 involving Pugh’s great-niece.
The FBI was contacted by Patricia Smith (“Smith”), another sister of Pugh’s, who told them that she
had been driving home from church with one of her daughters and her granddaughter. While in the
car, her granddaughter had told her, “Mee Maw, know what? Uncle Bruce told me that he licked the
hair off a girl.” Ms. Smith asked the girl to repeat herself, and she said, “Uncle Bruce said he licked
the hair off a girl’s crotch, and she licked his off.”
Warren testified that he was skeptical of the story involving Pugh’s great-niece. He said that
in his experience working with and evaluating children of abuse, children “misinterpret a lot of
things” and “incorporate something they’ve seen in a movie versus something they saw mommy do
versus something they heard about at school. It comes out as a narrative that very often doesn’t
match what actually occurs.” Warren concluded, “I discounted [this information] and found it
relatively fantastic.” Pugh also testified about his interpretation of what happened with his great-
niece, which was consistent with the earlier statements of Warren and defense counsel. Pugh’s
mother and his sisters Joyce and Brenda also testified on Pugh’s behalf; his mother and Joyce
discounted the allegation regarding Pugh’s great-niece.
After two sentencing hearings in which the district court took testimony on this issue,
ultimately no factual findings were made regarding whether or how the incident occurred.
9
(“Glaser”) testified concerning their interviews with Pugh. Haynes specifically
testified that during the first interview he conducted with the defendant in 2003,
Pugh said that he had downloaded child pornography and that there were possibly
hundreds of images on his computer. Pugh said that he did not actively seek the
child pornography and never searched for it on the Internet but that he had seen it.
He explained that it was sent to him while he was pretending to be an underaged
person in chat rooms, which he claimed he did because “he felt like . . . [by doing
so] he was keeping the child predators away from the children.” Notably, Pugh
“admit[ted]” to Haynes “that he had forwarded child pornography to others on his
list in the chat rooms.” During a second interview in 2005, Haynes and Glaser
showed Pugh images retrieved from his computer. Pugh said that when he first
started receiving child pornography images, he reported the senders to AOL.
Haynes and Glaser asked Pugh why he did not stop soliciting the child
pornography and Pugh responded that he was “addicted to it.”4
4
The record is confusing as to what Pugh exactly admitted to being addicted to during
the FBI interviews -- whether it was child pornography or internet conversations. Specifically,
Special Agent Haynes testified that Pugh admitted in his second interview that “he was addicted to
the conversations.” Haynes later testified that when he asked Pugh why he didn’t just stop eliciting
the child pornography, Pugh responded “that he was addicted to it,” and on cross-examination,
Haynes answered yes when asked if “[Haynes] said that [Pugh] said that [Pugh] was addicted to
child porn,” and when asked if “[Pugh] told [Haynes] [Pugh] was addicted to the conversations he
was having in the chat rooms.” Pugh testified that he knew they were talking about child
pornography at the second interview (when the alleged addiction comment was made), but
explained, “I was nervous. I wish I hadn’t said some of the things I had.”
10
Haynes further testified that during the interviews, Pugh understood the
difference between child pornography and adult pornography. On cross-
examination, when asked if Pugh might have said that he was addicted to the chat
room conversations that resulted in him receiving child pornography, as opposed to
being addicted to the child pornography, Haynes would not concede that he and
Pugh had misunderstood each other.
Glaser testified that as a certified “Computer Analysis and Response Team”
or “CART” examiner, he had examined Pugh’s computers. Glaser found images of
obscene adult pornography and of child pornography on the machines. Glaser
confirmed that there were 10 known victims -- children whose identities have been
established by the government -- in the child pornography found on Pugh’s
computer. Glaser had no prior experience with a defendant like Pugh, who entered
chat rooms disguised as a child to obtain adult pornography. Glaser said there
were 118,000 images on Pugh’s computers, but most of those images were not
pornographic. Of the 118,000 images, Glaser estimated that more than 1000 of the
images were pornographic. Of those 1000-plus images, Glaser said that
approximately 60 images were child pornography.
Pugh then testified. As for his first interview with Haynes, Pugh said that he
did not know at the beginning of the questioning that the FBI agents were talking
11
about child as opposed to adult pornography. When asked why he did not clarify
his statements after he learned that Haynes had been talking about child
pornography, Pugh said: “I was too scared to say anything because I’ve seen
movies, court shows where you say that you want to change your statement, they
could use that against you, saying, oh, he’s changing his story, you know.”
Regarding his habit of entering chat rooms disguised as a girl, Pugh explained that
he was looking for conversation:
When I first got AOL, I had tried to be myself, and people would not
talk to me. And a friend of mine at the time had instant-messaged me
with a female name, and he said, hey Bruce, it’s me, Mark. And that’s
what gave me the idea of pretending to be a girl. And I’d go into a
chat room, and you could type in 14, female, you know, describe what
your age and sex is, and I would get instant messages galore. And I
was like, oh, this is the way to go. But I was looking for chat. I never
pushed it towards sexual chat. It was the males that I talked to that
would push it towards sexual chat. I know it was wrong, but I would
go along with it because I did enjoy talking to people.
Following counsel’s arguments, the district court adopted the findings and
the calculations embodied in the PSI yielding an adjusted offense level of 30 and a
criminal history category I, with a resulting advisory sentencing range of 97 to 120
months. Noting the seriousness of Pugh’s crime and Congress’s harsh treatment of
it, the district court then explained its decision to impose a completely non-
custodial sentence.
12
The district court explained that Pugh had no significant criminal history,
and no history that would suggest he had or would abuse children. The court
determined that Pugh’s possession of child pornography was “passive” and
“incidental” to his actual goal of developing online relationships, even though
Pugh pretended to be an underaged female in these online chats and occasionally
sent child pornography to others.5 The court observed that Pugh took steps to
minimize the receipt of child pornography by reporting it and talking about it with
his mother, and the court noted that he had voluntarily entered treatment for
addiction to adult pornography.
The district court then cited to Warren’s opinion that Pugh was not a
pedophile and presented a low risk of re-offending, that Pugh would not benefit
from a custodial sentence, and that Pugh was addicted to adult, but not child
pornography. The court also noted that Pugh had not re-offended since his arrest
and had been compliant with the court’s pre-sentencing orders. The court
contrasted Pugh’s case with other defendants who pay for or actively solicit child
5
The district court actually said that Pugh “produced” child pornography, but because
there is no evidence of production in the record, we assume the district court meant “distribution”
rather than production. The evidence concerning distribution, as we have already noted, includes
Special Agent Haynes’s testimony that Pugh “admit[ted] to [him] that he had forwarded child
pornography to others on his list in the chat rooms.”
13
pornography, and concluded that an “unusual sentence for an unusual case” was
necessary, and that it was “convinced” that it would “never” see Pugh again.
The district court proceeded to sentence Pugh to a five-year probationary
term on the conditions that Pugh (1) continue his mental health treatment; (2) not
possess a computer with internet access; (3) consent to periodic, unannounced
examinations of any computer equipment he possessed; (4) submit to searches
based on reasonable suspicion; and (5) register with the state sex-offender registry.
After the district court denied the United States’s motion to reconsider the
sentence and impose either a sentence within the Guidelines, or a sentence of at
least one day in prison followed by a life term of supervised release, the United
States timely appealed the sentence arguing that it was so disproportionately light
in view of the seriousness of the offense that it amounted to an abuse of discretion,
and was, therefore, unreasonable.
II.
Because the law of sentencing has been changing rapidly, we begin by
providing some analysis of its current state. In United States v. Booker, 543 U.S.
220 (2005), the Supreme Court held that the mandatory Guidelines system codified
in the Sentence Reform Act of 1984, 18 U.S.C. § 3551 et seq., 28 U.S.C. §§ 991-
998 (“SRA”) -- which had been enacted to reduce the unwarranted disparities that
14
had plagued the previous discretionary sentencing regime, id. at 250, 252, 253,
255, 256, 264, 267 -- violated the Sixth Amendment. Id. at 232-35. In its place, the
Court identified two features of the SRA that would remain and work together “to
move sentencing in Congress’ preferred direction.” Id. at 264. The first was a
continued important role for the Sentencing Guidelines. See id. at 264-65.
Specifically, the Court held that “[t]he district courts, while not bound to apply the
Guidelines, must consult those Guidelines and take them into account when
sentencing.” Id. at 264.
The second was the continuation of appellate review. While Booker held
that sentences could no longer be reviewed de novo, it determined that appellate
courts thereafter would apply a “reasonableness” standard of review. According to
Justice Stevens, the Court “expressly equated” reasonableness review “with the old
abuse-of-discretion standard used to review sentencing departures.” Rita v. United
States, 127 S. Ct. 2456, 2471 n.2 (2007) (Stevens, J., joined by Ginsburg, J.,
concurring). As the Court explained in Booker, “reasonableness” standards are
“not foreign to sentencing law.” 543 U.S. at 262. “The Act has long required their
use in important sentencing circumstances -- both on review of departures, see 18
U.S.C. § 3742(e)(3) (1994 ed.), and on review of sentences imposed where there
was no applicable Guideline, see §§ 3742(a)(4), (b)(4), (e)(4).” Id. (citing United
15
States v. White Face, 383 F.3d 733, 737-40 (8th Cir. 2004); United States v.
Tsosie, 376 F.3d 1210, 1218-19 (10th Cir. 2004); United States v. Salinas, 365
F.3d 582, 588-90 (7th Cir. 2004); United States v. Cook, 291 F.3d 1297, 1300-02
(11th Cir. 2002); United States v. Olabanji, 268 F.3d 636, 637-39 (9th Cir. 2001);
United States v. Ramirez-Rivera, 241 F.3d 37, 40-41 (1st Cir. 2001)); see also
United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005) (per curiam)
(“Before Booker, we reviewed departures from the Guidelines for
reasonableness.”). Booker recognized that reasonableness review could not
“provide the uniformity that Congress originally sought” when it enacted the SRA
and its original scheme of mandatory Guidelines. 543 U.S. at 263. Nevertheless,
reasonableness review would still “tend to iron out sentencing differences.” Id.
Booker further held that in performing this review, we must measure
“reasonableness” against the factors outlined by Congress in 18 U.S.C. § 3553(a).6
6
Section 3553(a) provides the following considerations for the court to consider:
(1) the nature and circumstances of the offense and the 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
16
Booker, 543 U.S. at 261. The Supreme Court explained that the factors contained
in Section 3553(a) would not only “guide” the district courts in sentencing, but that
“[t]hose factors in turn will guide appellate courts, as they have in the past, in
determining whether a sentence is unreasonable.” Id.; accord Winingear, 422 F.3d
at 1246; see also United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per
curiam) (“We must evaluate whether the sentence imposed by the district court
fails to achieve the purposes of sentencing as stated in section 3553(a).”). We have
also held that the burden of establishing that a sentence is unreasonable lies with
the party challenging the sentence. Talley, 431 F.3d at 788.
(D) to provide the defendant with needed educational or vocational
training, 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 . . . 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; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
17
The next opportunity the Supreme Court had to address the new sentencing
regime came in Rita v. United States, 127 S. Ct. 2456 (2007), where the Court
concluded that appellate courts could properly presume that a sentence imposed
within a properly calculated Sentencing Guidelines range was reasonable. In
reaching this conclusion, the Court unambiguously said that appellate courts must
apply “reasonableness” review to a district court’s sentence, which “merely asks
whether the trial court abused its discretion.” 127 S. Ct. at 2465. Rita also
explained that “[w]here the judge imposes a sentence outside the Guidelines, the
judge will explain why he has done so.” 127 S. Ct. at 2468.
The Supreme Court most recently addressed sentencing in Gall v. United
States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558
(2007).7 Gall reviewed the reasonableness of a sentence falling far below the range
recommended by the Guidelines (a probationary term instead of a sentence falling
within the Guidelines range of 30-36 months’ imprisonment), and specifically
addressed “whether a court of appeals may apply a ‘proportionality test,’ and
require that a sentence that constitutes a substantial variance from the Guidelines
be justified by extraordinary circumstances.” 128 S. Ct. at 591. The Court
determined that “while the extent of the difference between a particular sentence
7
Kimbrough primarily involved issues related to the Guidelines for crack cocaine
offenses.
18
and the recommended Guidelines range is surely relevant, courts of appeals must
review all sentences -- whether inside, just outside, or significantly outside the
Guidelines range -- under a deferential abuse-of-discretion standard.” Id.
In its analysis, Gall reiterated that “a district court should begin all
sentencing proceedings by correctly calculating the applicable Guidelines range.”
Id. at 596. Gall further emphasized that “after giving both parties an opportunity to
argue for whatever sentence they deem appropriate, the district judge should then
consider all of the § 3553(a) factors to determine whether they support the sentence
requested by a party.” Id.
Gall also repeated that appellate review of sentencing decisions employs the
“familiar abuse-of-discretion standard of review,” id. at 594, and then created a
two-step process for conducting that review: first, the appellate court “must . . .
ensure that the district court committed no significant procedural error, such as
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.” Gall, 128 S. Ct. at 597. The first step -- aimed at addressing “procedural”
errors -- highlights the continued importance of the Guidelines, and the Booker
19
Court’s intention that the “continued use of the Guidelines in an advisory fashion
would further the purposes of Congress in creating the sentencing system to be
honest, fair, and rational.” Talley, 431 F.3d at 787. So although the Court
“reject[ed] . . . an appellate rule that requires ‘extraordinary’ circumstances to
justify a sentence outside the Guidelines range . . . [or] the use of a rigid
mathematical formula that uses the percentage of a departure as the standard for
determining the strength of the justifications required for a specific sentence,” it
nonetheless repeatedly emphasized that “appellate courts may therefore take the
degree of variance into account and consider the extent of a deviation from the
Guidelines.” Gall, 128 S. Ct. at 595.
Indeed, Gall explained that a district judge
must make an individualized assessment based on the facts presented.
If he decides that an outside-Guidelines sentence is warranted, he
must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the
variance. We find it uncontroversial that a major departure should be
supported by a more significant justification than a minor one.
Id. at 597 (emphases added). Thus, not only must the district courts “consult th[e]
Guidelines and take them into account when sentencing,” Booker, 543 U.S. at 264,
they must properly calculate the Guidelines range and “includ[e] an explanation for
any deviation from the Guidelines range.” Gall, 128 S. Ct. at 597.
20
After an appellate court has determined that “the district court’s sentencing
decision is procedurally sound,” Gall directs that “the appellate court should then
consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id. at 597. The Court explained:
When conducting this review, the court will, of course, take into
account the totality of the circumstances, including the extent of any
variance from the Guidelines range. If the sentence is within the
Guidelines range, the appellate court may, but is not required to, apply
a presumption of reasonableness. But if the sentence is outside the
Guidelines range, the court may not apply a presumption of
unreasonableness. It may consider the extent of the deviation, but
must give due deference to the district court’s decision that the §
3553(a) factors, on a whole, justify the extent of the variance. The fact
that the appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to justify reversal of
the district court.
Id. (citation omitted).
Gall reminds us once again, as Pugh suggests, to appreciate the institutional
advantage that district courts have in applying and weighing the Section 3553(a)
factors in individual cases. Nonetheless, it also remains true that the district
court’s choice of sentence is not unfettered. Again, Gall makes clear that the
district court is obliged to “consider all of the § 3553(a) factors to determine
whether they support the sentence requested by a party.” 128 S. Ct. at 596-97
(emphasis added). The Section 3553(a) “factors in turn . . . guide appellate courts,
as they have in the past, in determining whether a sentence is unreasonable.”
21
Booker, 543 U.S. at 261; accord Winingear, 422 F.3d at 1246; see also Talley, 431
F.3d at 788 (“We must evaluate whether the sentence imposed by the district court
fails to achieve the purposes of sentencing as stated in section 3553(a).”). The
appellate court “will, of course, take into account the totality of the circumstances,
including the extent of any variance from the Guidelines range.” Gall, 128 S. Ct.
at 597.8
These directives leave no doubt that an appellate court may still overturn a
substantively unreasonable sentence, albeit only after examining it through the
prism of abuse of discretion, and that appellate review has not been extinguished.
Thus, a sentence still may be substantively unreasonable if it does “not achieve the
purposes of sentencing stated in § 3553(a).” United States v. Martin, 455 F.3d
1227, 1237 (11th Cir. 2006). So, even though we afford “due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent of
the variance,” Gall, 128 S.Ct. at 597, we may find that a district court has abused
its considerable discretion if it has weighed the factors in a manner that
demonstrably yields an unreasonable sentence. We are therefore still required to
make the calculus ourselves, and are obliged to remand for resentencing “if we are
8
Because we review the “totality of circumstances,” a district court need not discuss each
Section 3553(a) factor, Talley, 431 F.3d at 786, although “[w]here the judge imposes a sentence
outside the Guidelines, the judge will explain why he has done so.” Rita, 127 S. Ct. at 2468.
22
left with the definite and firm conviction that the district court committed a clear
error of judgment in weighing the § 3553(a) factors by arriving at a sentence that
lies outside the range of reasonable sentences dictated by the facts of the case.”
United States v. McBride, No. 06-16544, 2007 WL 4555205, at *3 (11th Cir. Dec.
28, 2007) (internal quotation marks omitted); United States v. Clay, 483 F.3d 739,
743 (11th Cir. 2007); cf. United States v. Fernandez, 443 F.3d 19, 34-35 (2d Cir.
2006) (stating that “we will not second guess the weight (or lack thereof) that the
judge accorded to a given factor . . . [under § 3553(a)], as long as the sentence
ultimately imposed is reasonable in light of all the circumstances presented”
(emphasis added)). This standard of review is altogether consonant with our
traditional use of the abuse-of-discretion standard, under which we will reverse
only if “we find that the district court has made a clear error of judgment . . . .”
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc).
Moreover, a district court’s unjustified reliance on any one Section 3553(a)
factor may be a symptom of an unreasonable sentence. See United States v. Crisp,
454 F.3d 1285, 1292 (11th Cir. 2006) (citing United States v. Rattoballi, 452 F.3d
127, 137 (2d Cir. 2006); United States v. Ture, 450 F.3d 352, 358-59 (8th Cir.
2006); United States v. Hampton, 441 F.3d 284, 288-89 (4th Cir. 2006); United
States v. Cage, 451 F.3d 585 (10th Cir. 2006)); accord United States v. Ward, 506
23
F.3d 468, 478 (6th Cir. 2007). Likewise, “[a] sentence may be substantively
unreasonable when the district court selects the sentence arbitrarily, bases the
sentence on impermissible factors [or] fails to consider pertinent section 3553(a)
factors.” Ward, 506 F.3d at 478 (internal quotation marks omitted); see also
United States v. Ausburn, 502 F.3d 313, 328 (3d Cir. 2007) (asking if the district
court: “(1) exercised its discretion by giving meaningful consideration to the §
3553(a) factors; and (2) applied those factors reasonably by selecting a sentence
grounded on reasons logical and consistent with the factors”) (internal quotation
marks omitted); United States v. Willingham, 497 F.3d 541, 543-44 (5th Cir. 2007)
(asking if sentence: “(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”)
(citation omitted); United States v. Boleware, 498 F.3d 859, 861 (8th Cir. 2007)
(same).
We hasten to add that while the application of these analyses may suggest an
unreasonable sentence, they do not necessarily make a sentence unreasonable: Gall
itself found that the district court did not commit reversible error simply because it
“attached great weight” to a single factor. 128 S. Ct. at 600; see United States v.
Pauley, No. 07-4270, 2007 WL 4555520, at *7 (4th Cir. Dec. 28, 2007). However,
24
it remains uncontroverted that a sentence suffering from these “symptoms” may in
fact be unreasonable, depending on an examination of the “totality of the
circumstances.” Gall, 128 S. Ct. at 597. And a review of the totality of the
circumstances in this case through the lens of abuse of discretion yields the
conclusion that Pugh’s sentence is substantively unreasonable.
III.
The district court found “based on the facts of this case, based on [Pugh’s]
personal characteristics and history, and based on a consideration of all of the other
factors,” that Pugh did not deserve a Guidelines range -- much less a custodial --
sentence. In reciting its rationale, the district court focused primarily on one of the
many Section 3553(a) factors -- “the nature and circumstances of the offense and
the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). In
particular, as we have noted, the district court emphasized that Pugh (1) was a first-
time offender without a history suggesting that he had or would abuse children; (2)
was addicted to adult pornography and had sought treatment for that addiction; (3)
was not a pedophile and presented a low risk for recidivism, according to a
psychologist who evaluated him; and (4) complied with the terms and conditions
of his pretrial supervision. The district court further found that Pugh’s possession
offense was “passive” and “incidental” to his actual goal of developing online
25
relationships, and that Pugh had taken steps to report his receipt of child
pornography to AOL and his family.
To be sure, we appreciate the thoughtfulness and care taken by the district
court in sentencing Pugh -- the court held two sentencing hearings, and deliberated
extensively over its sentencing decision in this case. We also recognize the wide
discretion afforded to district courts in sentencing, especially since the district
court is in a “superior position to find facts and judge their import.” Gall, 128 S.
Ct. at 597 (internal quotation marks omitted). Accordingly, we accept, as we must,
the findings of fact made by the district court in this case; we discern no clear error
in this regard.
We do, however, observe these additional salient facts that were elicited, and
uncontroverted, at the sentencing hearings: Pugh intentionally posed as a teenage
girl and knew that he would receive child pornography through this posture; Pugh
derived a benefit from these images, as evidenced by Pugh’s admission that “this
[wa]s the way to go” for him to achieve his “goal” of communication; Pugh
repeatedly downloaded the child pornography images and videos at least 70 times
over a period of several years; Pugh forwarded some of these images to others in
the chat room; the images were grotesque, and, as noted, included a video of an
adult male raping an infant girl and a picture of an adult male having sex with a
26
toddler with a dog collar around her neck; Pugh failed to report these images to the
police; and the psychologist admitted that Pugh did not present “no” risk for
recidivism. Likewise, we note that the federal penal code treats the possession of
child pornography and child abuse as distinct offenses.9
Although the district court concluded, on these facts, that Pugh’s conduct
was “incidental” and “passive,” his conduct was neither isolated, unintentional nor
lawful. Nevertheless, Pugh argues in his supplemental brief that “the district judge
regarded Pugh’s passive and incidental, as opposed to willful, possession of the
child pornography as a reasonable basis for giving him a less severe sentence than
the sentences he has given to more typical child pornography offenders who solicit
or purchase child pornography images.” App’ee Supp. Br. at 19 (emphasis added).
This argument misses the mark. Pugh seems to suggest that because the district
court found that his ultimate motive was not to gather child pornography, somehow
his crime was not “willful.” But on this record there can be no dispute that Pugh
downloaded and forwarded child pornography consciously, intentionally,
deliberately, and voluntarily, regardless of whether the receipt of child
9
See, e.g., United States v. Goff, 501 F.3d 250, 259 (3d Cir. 2007) (where a defendant
was charged with child pornography possession but “was not charged with molestation, . . . pointing
out that he hadn’t committed it is, in one sense, irrelevant”); United States v. Grosenheider, 200 F.3d
321, 332-34 (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”).
27
pornography was his end goal or only a means by which to encourage others to
“chat” with him. Cf. Georgia Elec. Co. v. Marshall, 595 F.2d 309, 318 (5th Cir.
1979) (“a conscious, intentional, deliberate, voluntary decision, which, regardless
of a venial motive, properly is described as willful”) (internal quotation marks
omitted).10 Indeed, he pled to “knowingly possess[ing]” 68 images and two videos
of child pornography. While motive may be a valid concern at sentencing, it
cannot obliterate the knowing, deliberate and repeated means by which this serious
crime was committed. See, e.g., United States v. Carlson, 498 F.3d 761, 766-67
(8th Cir. 2007) (concluding that a district court’s reliance on a defendant’s
intentions, which were “arguably better than a defendant who uses the funds for
purely personal reasons” but nonetheless resulted in fraud on the government, “not
particularly compelling” for a reduced sentence).
With this factual background in mind, we turn to whether (when viewed
through the prism of abuse of discretion) the district court’s sentence was
substantively unreasonable. While undertaking this calculus, we are not limited to
considering only the factors expounded upon by the district court; as the Supreme
Court has made clear, Section 3553(a) “remains in effect, and sets forth numerous
10
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit that were rendered prior to
October 1, 1981.
28
factors that guide sentencing. Those factors in turn will guide appellate courts, as
they have in the past, in determining whether a sentence is unreasonable.” Booker,
543 U.S. at 261. Indeed, we could not begin to review the reasonableness of a
sentence without examining all of the relevant factors embodied in Section
3553(a).
Having reviewed all of those factors in the context of this case, we conclude
that in imposing a non-custodial sentence, the district court performed a narrow,
although intensive, analysis that minimized -- and in some instances, ignored --
many of the important Section 3553(a) concerns that we are directed to consider by
Congress and the Supreme Court. Id.; Gall, 128 S. Ct. at 596. As we have already
observed, a sentence may be unreasonable if it is grounded solely on one factor,
relies on impermissible factors, or ignores relevant factors. See supra at _. At the
end of the day, the sentence in this case is unreasonable, and the district court’s
analysis suffers from many of these “symptoms.” We detail them below.
First, Pugh’s sentence does not “afford adequate deterrence to criminal
conduct,” i.e., general deterrence. 18 U.S.C. § 3553(a)(2)(B); Martin, 455 F.3d at
1240. This factor -- along with retribution, rehabilitation, and incapacitation --
expressly makes up one of the four purposes of sentencing identified by Congress
in Section 3553(a). See S. Rep. No. 98-225, at 75-76 (1983), reprinted in 1984
29
U.S.C.C.A.N. 3182, 3259 (“to deter others from committing the offense” is one of
the four purposes of sentencing). Congress intended that courts consider each of
these four stated factors “in imposing sentence in a particular case.” Id. at 68, 75,
1984 U.S.C.C.A.N. at 3251, 3258; id. at 77, 1984 U.S.C.C.A.N. at 3260 (“The
intent of subsection (a)(2) is . . . to require that the judge consider what impact, if
any, each particular purpose should have on the sentence in each case.”). Indeed,
as the Eighth Circuit has observed, “general deterrence . . . is one of the key
purposes of sentencing . . . .” United States v. Medearis, 451 F.3d 918, 920-21 (8th
Cir. 2006) (quotations omitted).
This is particularly compelling in the child pornography context, as the
Seventh Circuit has aptly said:
Young children were raped in order to enable the production of
the pornography that the defendant both downloaded and
uploaded -- both consumed himself and disseminated to others.
The greater the customer demand for child pornography, the
more that will be produced. Sentences influence behavior, or so
at least Congress thought when in 18 U.S.C. § 3553(a) it made
deterrence a statutory sentencing factor. The logic of deterrence
suggests that the lighter the punishment for downloading and
uploading child pornography, the greater the customer demand
for it and so the more will be produced.
United States v. Goldberg, 491 F.3d 668, 672 (7th Cir.) (citations omitted), cert.
denied, 128 S. Ct. 666 (2007); see also Goff, 501 F.3d at 261 (“deterring the
production of child pornography and protecting the children who are victimized by
30
it are factors that should have been given significant weight at sentencing, but in
fact received not a word from the District Court”). Pugh’s probationary sentence,
we think, tends to undermine the purpose of general deterrence, and in turn, tends
to increase (in some palpable if unmeasurable way) the child pornography market.
This problem is compounded not just because of the number of images Pugh
downloaded over an extended time frame, but also because Pugh distributed some
of the images to others.
Pugh suggests, however, that the district court’s observation that it had
imposed “harsh but . . . appropriate sentences” in other cases adequately addressed
general deterrence and respect for the law (a factor discussed below). Even if this
statement could be read as touching, albeit tangentially, on these factors, we still
cannot say that the resulting sentence fairly reflects their consideration. Indeed, it
is unclear to us how the district court’s sentences in other cases can be seen as
explaining how a probationary sentence for possession of child pornography in this
case promotes general deterrence or, for that matter, respect for the law. This
seems to be especially true here where unlike in Gall, no other co-defendants were
sentenced for the same crime that Pugh has committed. Quite simply, by imposing
a non-custodial sentence, the district court accorded no weight to general
deterrence.
31
Second, this sentence failed “to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense.” 18
U.S.C. § 3553(a)(2)(A). As described in the legislative history of Section 3553(a):
This purpose -- essentially the ‘just deserts’ concept -- should be
reflected clearly in all sentences; it is another way of saying that the
sentence should reflect the gravity of the defendant’s conduct. From
the public’s standpoint, the sentence should be of a type and length
that will adequately reflect, among other things, the harm done or
threatened by the offense, and the public interest in preventing a
recurrence of the offense. From the defendant’s standpoint the
sentence should not be unreasonably harsh under all the circumstances
of the case and should not differ substantially from the sentence given
to another similarly situated defendant convicted of a similar offense
under similar circumstances.
S. Rep. No. 98-225, at 75-76, 1984 U.S.C.C.A.N. at 3258-59.11
The contents of Pugh’s computer contained depraved images, and there were
10 known (and countless unknown) victims in the 68 images and two videos. As
the government emphasized and Pugh’s own expert Warren conceded at the
sentencing hearing, the pictures undeniably have a devastating impact on the young
victims. In this connection, the Supreme Court has observed:
The legislative judgment, as well as the judgment found in the
relevant literature, is that the use of children as subjects of
11
Notably, this notion of “just deserts” or retribution is a distinct consideration from
general deterrence. See United States v. Foss, 501 F.2d 522, 527 (1st Cir. 1974) (cited with approval
in the legislative history of Section 3553(a)) (“[T]he view that punishment should fit the offender
has never yet been held to eliminate general deterrence as a factor to be considered along with
others. . . . This is so even though general deterrence concerns itself not with the individual
offender but with the sentence’s impact on others.”).
32
pornographic materials is harmful to the physiological, emotional, and
mental health of the child. . . .
It has been found that sexually exploited children are unable to
develop healthy affectionate relationships in later life, have
sexual dysfunctions, and have a tendency to become sexual
abusers as adults. Sexual molestation by adults is often
involved in the production of child sexual performances. When
such performances are recorded and distributed, the child’s
privacy interests are also invaded. . . .
The distribution of photographs and films depicting sexual activity by
juveniles is intrinsically related to the sexual abuse of children. . . .
[T]he materials produced are a permanent record of the children’s
participation and the harm to the child is exacerbated by their
circulation. . . .
As one authority has explained:
“[P]ornography poses an even greater threat to the child victim
than does sexual abuse or prostitution. Because the child’s
actions are reduced to a recording, the pornography may haunt
him in future years, long after the original misdeed took place.
A child who has posed for a camera must go through life
knowing that the recording is circulating within the mass
distribution system for child pornography.” Shouvlin,
Preventing the Sexual Exploitation of Children: A Model Act,
17 Wake Forest L. Rev. 535, 545 (1981). See also [Schoettle,
Child Exploitation: A Study of Child Pornography, 19 J. Am.
Acad. Child Psychiatry 289, 292 (1980)] (“[I]t is the fear of
exposure and the tension of keeping the act secret that seem to
have the most profound emotional repercussions”); Note,
Protection of Children from Use in Pornography: Toward
Constitutional and Enforceable Legislation, 12 U. Mich. J. Law
Reform 295, 301 (1979) (interview with child psychiatrist)
(“The victim’s knowledge of publication of the visual material
increases the emotional and psychic harm suffered by the
child”).
33
New York v. Ferber, 458 U.S. 747, 758-59 & nn.9-10 (1982) (citations omitted);
see also United States v. Yuknavich, 419 F.3d 1302, 1310 (11th Cir. 2005)
(“possession of child pornography is not a victimless crime”); Goff, 501 F.3d at
259 (“Consumers such as Goff who ‘merely’ or ‘passively’ receive or possess
child pornography directly contribute to this continuing victimization.”).
Moreover, Pugh’s possession -- and distribution -- of child pornography
undeniably created the demand for more. See Yuknavich, 419 F.3d at 1310 (“A
child somewhere was used to produce the images downloaded . . . , in large part,
because individuals like [the defendant] exist to download the images.”). Indeed,
Pugh’s own expert, Warren, also conceded that Pugh contributed to the demand for
child pornography, increasing the victimization of still more children. The
Supreme Court has explained:
It is . . . surely reasonable for the State to conclude that it will
decrease the production of child pornography if it penalizes those who
possess and view the product, thereby decreasing demand. . . .
According to the State, since the time of our decision in Ferber, much
of the child pornography market has been driven underground; as a
result, it is now difficult, if not impossible, to solve the child
pornography problem by only attacking production and distribution.
Indeed, 19 States have found it necessary to proscribe the possession
of this material. . . . The State’s ban on possession and viewing
encourages the possessors of these materials to destroy them. [In
addition] . . . , encouraging the destruction of these materials is also
desirable because evidence suggests that pedophiles use child
pornography to seduce other children into sexual activity.
34
Osborne v. Ohio, 495 U.S. 103, 109-11 (1990); see also United States v. Williams,
444 F.3d 1286, 1290 (11th Cir. 2006) (“Our concern is not confined to the
immediate abuse of the children depicted in these images, but is also to
enlargement of the market and the universe of this deviant conduct that, in turn,
results in more exploitation and abuse of children.”), cert. granted, 127 S. Ct. 1874
(2007); United States v. Davis, 204 F.3d 1064, 1066 (11th Cir. 1999) (per curiam)
(“We have recently explained that the harm resulting from possession of child
pornography occurs when one sustains a market for such pictures.”) (citing United
States v. Miller, 146 F.3d 1281, 1285 (11th Cir. 1998)); Goff, 501 F.3d at 260
(“[T]he consumer of child pornography ‘creates a market’ for the abuse by
providing an economic motive for creating and distributing the materials.”).
In short, regardless of Pugh’s motive, his crime was a serious one, as
recognized by Congress and the courts. Congress repeatedly has stressed the
terrible harm child pornography inflicts on its victims, dating back to its first
enactment of child pornography laws in 1977.12 Since that time, it has not only
12
Congressional findings appear throughout the following authorities:
• The Senate Report on the Protection of Children Against Sexual
Exploitation Act of 1977 recognized that: “the use of children as
prostitutes or as the subjects of pornographic materials is very
harmful to both the children and the society as a whole . . . [; s]uch
encounters cannot help but have a deep psychological, humiliating
impact on these youngsters and jeopardize the possibility of healthy,
35
affectionate relationships in the future . . . [; and] such base and
sordid activities . . . may permanently traumatize and warp the minds
of the children involved . . . .” S. Rep. 95-438, at 4-9 (1977),
reprinted in 1978 U.S.C.C.A.N. 40, 41-46.
• Findings in the Child Protection Act of 1984 recognized that “the use
of children as subjects of pornographic materials is harmful to the
physiological, emotional, and mental health of the individual child
and to society.” Pub. L. No. 98-292, § 2, 98 Stat. 204 (1984).
• Findings in the Child Abuse Victims’ Rights Act of 1986 recognized
that “Congress has recognized the physiological, psychological, and
emotional harm caused by the production, distribution, and display
of child pornography by strengthening laws prescribing such
activity.” Pub. L. No. 99-500, § 702(2), 100 Stat. 1783 (1986).
• Findings in the Child Pornography Prevention Act of 1996
recognized that: “(1) the use of children in the production of sexually
explicit material, including photographs, films, videos, computer
images, and other visual depictions, is a form of sexual abuse which
can result in physical or psychological harm, or both, to the children
involved; (2) where children are used in its production, child
pornography permanently records the victim’s abuse, and its
continued existence causes the child victims of sexual abuse
continuing harm by haunting those children in future years; (3) child
pornography is often used as part of a method of seducing other
children into sexual activity; . . . (7) the creation or distribution of
child pornography which includes an image of a recognizable minor
invades the child’s privacy and reputational interests, since images
that are created showing a child’s face or other identifiable feature on
a body engaging in sexually explicit conduct can haunt the minor for
years to come; . . . (10)(A) the existence of and traffic in child
pornographic images creates the potential for many types of harm in
the community and presents a clear and present danger to all
children; and (B) it inflames the desires of child molesters,
pedophiles, and child pornographers who prey on children, thereby
increasing the creation and distribution of child pornography and the
sexual abuse and exploitation of actual children who are victimized
as a result of the existence and use of these materials; (11)(A) the
sexualization and eroticization of minors through any form of child
pornographic images has a deleterious effect on all children by
encouraging a societal perception of children as sexual objects and
leading to further sexual abuse and exploitation of them; and (B) this
36
made detailed findings, but has expanded repeatedly criminal exposure for the
possession of child pornography:
1990. In Pub. L. No. 101-647, § 323, 104 Stat. 4789 (1990), codified at 18
U.S.C. § 2252(a)(4)(b), Congress proscribed the knowing possession
of child pornography, adding to a statute that had made the knowing
receipt of this material a crime;
1992. In Pub. L. No. 102-141, § 632, 105 Stat. 834 (1992), codified at 28
U.S.C. § 994 note, Congress directly amended the Guidelines
provision addressing the offense of child pornography possession,
increasing the base offense level by two levels;
1995. In Pub. L. No. 104-71, §§ 2, 3, 109 Stat. 774 (1995), codified at 28
U.S.C. § 994 note, Congress again amended the Guidelines provision,
increasing the base offense level by another two levels, and adding an
enhancement if a computer was used to transport or ship the material;
1996. In Pub. L. No. 104-208, § 121, 110 Stat. 3009 (1996), codified at 18
U.S.C. § 2252A(a)(5)(B), Congress added another statutory provision
for possession, almost identical to the existing one, but more targeted
at the problem of new computer technologies;13
sexualization of minors creates an unwholesome environment which
affects the psychological, mental and emotional development of
children and undermines the efforts of parents and families to
encourage the sound mental, moral and emotional development of
children . . . .” Pub. L. No. 104-208, § 121, 110 Stat. 3009 (1996).
• Findings in the Prosecutorial Remedies and Other Tools to End the
Exploitation of Children Today Act of 2003 recognized that: “[c]hild
pornography results from the abuse of real children by sex offenders;
the production of child pornography is a byproduct of, and not the
primary reason for, the sexual abuse of children.” Pub. L. No.
108-21, § 501(12), 117 Stat. 650 (2003).
13
This is the offense to which Pugh pled guilty, 18 U.S.C. § 2252A(a)(5)(B).
37
1998. In Pub. L. No. 105-314, § 203, 112 Stat. 2974 (1998), codified at 18
U.S.C. §§ 2252(a)(4)(b) and 2252A(a)(5)(b), Congress amended the
statutory provisions proscribing possession by reducing the number of
images needed for conviction from three to one; and
2003. In Pub. L. No. 108-21, §§ 101, 401, 117 Stat. 650 (2003), codified at
18 U.S.C. § 3583(k) and 28 U.S.C. § 994 note, Congress increased the
statutory maximum term of supervised release for child pornography
possession to life, and directly amended the Guideline provision,
adding an enhancement based on number of images.
In light of these detailed legislative findings and numerous legislative enactments,
we cannot help but underscore the seriousness of this crime.
Although the district court recognized that child pornography is “a serious
crime,” the sentence it imposed did not reflect the seriousness of the crime. Nor
did the sentence reflect any apparent consideration of promoting respect for the
law. Even when measured through the lens of abuse-of-discretion review, these
failings are conspicuous. See, e.g., United States v. Perrin, 478 F.3d 672, 676 (5th
Cir. 2007) (“Though it noted the severity of the offense, the court failed to explain
how this severity, particularly the images’ depravity and numerosity, factored into
its decision to depart downward from the guideline range to the statutory
minimum.”).
Indeed, even Pugh recognized the significance of his crime, proffering to the
district court that “a lengthy period of home confinement” together with a
“lifetime” of supervised release would “address the seriousness of the offense and
38
promote respect for the law as well provide adequate punishment.” His resulting
probationary sentence, on the contrary -- without any home confinement or long-
term supervised release -- afforded precious little if any weight to the principles
underlying 18 U.S.C. § 3553(a)(2)(A).
Third, the sentence imposed did not reflect consideration of “any pertinent
policy statement,” 18 U.S.C. § 3553(a)(5), despite the Guidelines’ express policy
statement for child pornography cases just like Pugh’s. As early as the 2002
Guidelines Manual, the version applicable to Pugh’s sentence, the relevant policy
statement provided that, “[i]f the instant offense of conviction is a sex offense, the
statutory maximum term of supervised release is recommended.” U.S.S.G. §
5D1.2(c) (2002) (emphasis added). Concurrently, the statute itself directed that
“the authorized term of supervised release for” a sex offense “involving a minor
victim . . . is any term of years or life.” 18 U.S.C. § 3583(k) (emphasis added),
amended by Pub. L. No. 109-248, § 141(e)(2), 120 Stat. 587 (2006); see also
United States v. Allison, 447 F.3d 402, 407 (5th Cir. 2006) (noting that “the policy
statement recommending a life term of supervised release cannot be read in a
vacuum, as the policy statement is derived from the statutory authority in 18
U.S.C. § 3583(k) and is consistent with Congress’s intention to punish [sex
39
offenders] with life terms of supervised release because of the high rate of
recidivism”) (footnote omitted).
The legislative history in 2003 surrounding the enactment of Section
3583(k) reveals that “‘Congress and the Sentencing Commission intended to
impose life terms of supervised release on sex offenders. Congress explicitly
recognized the high rate of recidivism in convicted sex offenders.’” Perrin, 478
F.3d at 678 (quoting Allison, 447 F.3d at 406 (citing in turn 18 U.S.C. § 3583(k);
H.R. Rep. No. 108-66, reprinted in 2003 U.S.C.C.A.N. 683 (2003) (conf. report))).
The Fifth Circuit has explained:
The legislative history of § 3583(k) states that the life term of
supervised release was in response to the “long-standing concerns of
Federal judges and prosecutors regarding the inadequacy of the
existing supervision periods for sex offenders, particularly for the
perpetrators of child sexual abuse crimes, whose criminal conduct
may reflect deep-seated aberrant sexual disorders that are not likely to
disappear within a few years of release from prison. The current
length of the authorized supervision periods is not consistent with the
need presented by many of these offenders for long-term and in some
cases, life-long monitoring and oversight.”
Allison, 447 F.3d at 405-06 (quoting H.R. Rep. No. 108-66, at 49-50 (2003),
reprinted in 2003 U.S.C.C.A.N. 683, 684; and citing United States v. Moriarty, 429
F.3d 1012, 1025 (11th Cir. 2005)). As the Fifth Circuit put it in another child
pornography case, “[i]t is precisely this type of offender that supervised release
was designed to rehabilitate.” United States v. Armendariz, 451 F.3d 352, 362 n.6
40
(5th Cir. 2006) (citing S. Rep. No. 98-225, at 124 (1984), reprinted in 1984
U.S.C.C.A.N. 3182 (“[T]he primary goal [of supervised release] is to ease the
defendant’s transition into the community after the service of a long prison term
for a particularly serious offense, or to provide rehabilitation to a defendant who
has spent a fairly short period in prison for punishment or other purposes but still
needs supervision and training programs after release.”)); see also United States v.
Johnson, 529 U.S. 53, 59 (2000) (“The objectives of supervised release would be
unfulfilled if excess prison time were to offset and reduce terms of supervised
release. Congress intended supervised release to assist individuals in their
transition to community life. Supervised release fulfills rehabilitative ends, distinct
from those served by incarceration.”) (citing S. Rep. No. 98-225, at 124 (1983)).
Yet the sentence imposed, which contains no period of supervised release,
did not reflect the policy statement, the statute, or these underlying concerns.
Fourth, the sentence did not adequately reflect two related factors -- the
“kinds of sentences available” and “the sentencing range” established by the
Guidelines. 18 U.S.C. § 3553(a)(3), (4). Nor did the district court “ensure that the
justification [for the extent of its deviation from the Guidelines] [wa]s sufficiently
compelling to support the degree of the variance.” Gall, 128 S. Ct. at 597.
41
Pugh’s adjusted offense level was 30, and his criminal history category was
level I, making his offense fall into “Zone D” of the Sentencing Table. See
Sentencing Table, U.S.S.G. § 5A. Notably, the Guidelines do not authorize a
sentence of probation where the applicable Guidelines range is in Zone C or D of
the Sentencing Table. See U.S.S.G. §§ 5B1.1 cmt. n.2, 5C1.1(f). In addition, as
we’ve already noted, Section 3583(k) of the statute provides that “any term of
years or life” of supervised release is mandated for sex offenders like Pugh, and the
Guidelines recommend a life term of supervised release. See supra at _. As a
result, this probationary sentence varies both from the recommended Guidelines
range, and also from the “kinds of sentences” available under the Guidelines. See
18 U.S.C. § 3553(a)(4). However, the district court did not so much as
acknowledge that probation ordinarily was not available for this crime, nor that a
life term of supervised release was recommended.
Furthermore, while the district court accepted the Guidelines calculation,
and asked on the record whether “Mr. Pugh deserves a 97-month sentence,” it did
not give any real weight to the Guidelines range in imposing the sentence. Not
only did the district court impose probation, which is not permitted under the now-
advisory Guidelines regime, but it departed just about as much as it could -- some
97 months for an offense with a Guidelines calculation of 97-120 months’
42
imprisonment. The district court did not simply impose a 97-month downward
variance; rather, it imposed a sentence of zero months’ imprisonment.14
In the Supreme Court’s parlance, the degree of variance imposed by the
district court here -- far greater than the 30-month variance imposed in Gall -- is
undeniably “major.” Gall, 128 S. Ct. at 597. “In reviewing the reasonableness of a
sentence outside the Guidelines range, appellate courts may therefore take the
degree of variance into account and consider the extent of a deviation from the
Guidelines.” Id. at 595 (emphasis added). But the district court failed to even
acknowledge that its sentence amounted to a 97-month variance, and its implicit
explanation for the variance -- simply relying on Pugh’s characteristics and motive
-- hardly matches the degree of variance it imposed. Quite simply, in our view, the
district court did not support this “major departure” with a “significant
justification.” Id. at 597. This failing is particularly telling in light of the
importance the Supreme Court accorded this factor in Gall.15
14
We recognize that because the statute contains no mandatory minimum, Congress
understood that a judge could sentence a defendant to zero months’ imprisonment. The Seventh
Circuit has “imagine[d] a case, involving the downloading of a handful of images none showing
any prepubescent child or depicting any sexual activity, yet still constituting child pornography
(the statute defines ‘child’ as any minor and ‘pornography’ as including besides actual sexual
activity ‘lascivious exhibition of the genitals or pubic area,’ 18 U.S.C. §§ 2256(1), (2)(A)(v)), in
which a permissible sentence might be light.” Goldberg, 491 F.3d at 672. But plainly that is not
the case here. While there may be other circumstances in which a non-custodial sentence may
be reasonable, this is not one of them.
15
The Supreme Court has recently held that a district judge has the authority to deviate
from the Guidelines in a particular crack cocaine case because the Guidelines range for these
43
Fifth, because the district court did not impose a substantial term of
supervised release, the sentence did not adequately reflect the need to “protect the
public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). The
district court brushed aside consideration of this purpose of sentencing -- aimed at
incapacitation -- by simply concluding that it was “convinced that I will never see
you again.”
As Congress has found and as we have discussed, child sex offenders have
appalling rates of recidivism and their crimes are under-reported. See Allison, 447
F.3d at 405-406. Yet because the district court did not impose any custodial
sentence on Pugh -- not even one day -- by law it could not impose any term of
supervised release. See 18 U.S.C.A. § 3583(a) (a “defendant [may] be placed on a
offenses was based on “the mandatory minimum sentences set in the 1986 Act, and did not take
account of ‘empirical data and national experience.’” Kimbrough, 128 S. Ct. at 575 (citation
omitted). The Guidelines involved in Pugh’s case, however, do not exhibit the deficiencies the
Supreme Court identified in Kimbrough. First, the Guidelines range is derived at least in part from
the early Parole Guidelines, rather than directly derived from Congressional mandate. See, e.g.,
Revised Draft Sentencing Guidelines 72 (Jan. 1987) (“The serious nature of th[e] offense [of
transporting, receiving, or trafficking in material involving the sexual exploitation of a minor] is
reflected in the enhancement for the distribution of material depicting minors under age twelve. The
amount of enhancement reflects the time specified by the parole guidelines.”). Second, there is no
indication that either the Guidelines range or the policy statement involved in Pugh’s sentence
suffers from any criticisms like those Kimbrough identified for the crack cocaine Guidelines. There,
the Supreme Court found that the Sentencing Commission itself had “reported that the crack/powder
disparity produces disproportionately harsh sanctions.” Kimbrough, 128 S. Ct. at 575. Here, the
Sentencing Commission has not made any similar statements; rather, the Guidelines and policy
statement are based in part upon Congress’s longstanding concern for recidivism in such cases, see
supra at _, and even Pugh’s expert admitted that no one, including Pugh, presents “no” risk for
recidivism.
44
term of supervised release after imprisonment”); U.S.S.G. § 5D1.1; United States
v. Chavez, 204 F.3d 1305, 1312-1313 (11th Cir. 2000). And while the district
court imposed some conditions on Pugh through probation (e.g., continued mental
health treatment, registering as sex offender, and random visits), Pugh’s
compliance with those conditions will be monitored for only 5 years.16 This period
of monitoring is extremely light for a child pornography offender. Had even a
short term of imprisonment been imposed by the district court, Pugh could have
been monitored for a substantial period of time, including the possibility of
supervised release for the rest of his life, as permitted by the statutory penalties, 18
U.S.C. § 3583(k), and recommended by the Sentencing Commission.17
Despite the district court’s strong conviction that Pugh would not suffer
from recidivism, the resulting sentence does not provide a sufficient mechanism to
monitor Pugh for a lengthy time, and thus protect the public from any future crime,
16
In Gall, the Supreme Court held that “[o]ffenders on probation are . . . subject to
several standard conditions that substantially restrict their liberty.” 128 S. Ct. at 595. We do not
dispute this, but note that Gall did not involve a child pornography offense, which involves different
considerations for supervised release, including the characteristics associated with child
pornography offenders and the Guidelines recommendation of a life term of supervised release for
such offenders.
17
Moreover, even in cases not involving child sex offenses, supervised release is a
stronger tool than probation. See United States v. Reese, 71 F.3d 582, 587-88 (6th Cir. 1995)
(“There is an inherent difference between probation and supervised release. When probation is
revoked for a violation, the rules set forth in 18 U.S.C. § 3565 limit the term of resentencing to the
term allowable under the original offense. . . . By contrast, a violation of supervised release may
result in a cumulative punishment that exceeds the original prison sentence.”).
45
as contemplated in 18 U.S.C. § 3553(a)(2)(C). This omission is particularly
striking, since Pugh himself agreed to a lifetime of supervised release.18
Sixth, and finally, the sentence did not adequately reflect “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)(6). While the district
court found Pugh to be at “the low end of the spectrum of possession,” noting that
the situation was “quite different from those I normally see,” it nonetheless did not
adequately explain how Pugh’s non-custodial sentence avoided profound
disparities with other similarly situated defendants.
Indeed, we have typically treated child sex offenses as serious crimes,
upholding severe sentences in these cases. See, e.g., United States v. Mauldin, 224
F. App’x 915 (11th Cir. 2007) (unpublished) (affirming 78-month sentence and life
term of supervised release for possession of child pornography); United States v.
Hodnett, 210 F. App’x 949 (11th Cir. 2006) (unpublished) (affirming 360-month
sentence and life term of supervised release for receipt, distribution, and possession
18
On this note, we also disagree with Pugh’s suggestion that the district court
appropriately relied on his “self-motivated rehabilitation” like the district court did in Gall. In Gall,
the offender completely stopped committing the offending conduct years before his arrest; here, at
best, Pugh unsuccessfully sought treatment for an adult pornography addiction prior to his arrest but
nonetheless did not stop downloading child pornography. We add that it is unclear how a related
Section 3553(a) factor -- “the need . . . to provide the defendant with needed . . . medical care,” 18
U.S.C. 3553(a)(2)(D) -- was furthered by the sentence the district court imposed. Presumably Pugh
could be subject to longer-term treatment had a substantial term of supervised release been imposed.
46
of child pornography); United States v. Thrift, 205 F. App’x 816 (11th Cir. 2006)
(unpublished) (affirming 97-month sentence and life term of supervised release for
use of internet to entice a minor to engage in sexual activity), cert. denied, 127 S.
Ct. 2143 (2007).
We have in some instances affirmed downward variances in these kinds of
cases, but in each of them, substantial prison sentences had been imposed. See,
e.g., McBride, 2007 WL 4555205 (affirming 84-month sentence for distribution of
child pornography where Guidelines called for 151-188 months); United States v.
Bohannon, 476 F.3d 1246 (11th Cir.) (affirming 120-month sentence for use of
internet to entice minor into sexual activity where Guidelines called for 135-168
months), cert. denied, 127 S. Ct. 2953 (2007); United States v. Gray, 453 F.3d
1323 (11th Cir. 2006) (per curiam) (affirming 72-month sentence for distribution
of child pornography where Guidelines called for 151-188 months); United States
v. Halsema, 180 F. App’x 103 (11th Cir. 2006) (unpublished) (affirming 24-month
sentence for possession of child pornography where Guidelines called for 57-71
months). And in a similar case, another court upheld a substantial sentence, even
though the defendant possessed many fewer images than Pugh. See United States
v. Nikonova, 480 F.3d 371, 377 (5th Cir.) (affirming a 31-month sentence where
the defendant possessed 13 images and the district court noted that, although the
47
defendant may be “atypical,” her offense fell “within the heartland of cases
involving possession of child pornography”), cert. denied, 128 S. Ct. 163 (2007).
In fact, Pugh has not cited and we cannot find a single case involving child
pornography in which any court has upheld a non-custodial sentence like this
one.19 Rather, appellate courts have consistently overturned zero-imprisonment or
other sharply downward-varying sentences in such cases on the ground that the
resulting sentences were unreasonably lenient. See, e.g., United States v. Fink, 502
F.3d 585, 586 (6th Cir. 2007) (vacating sentence of 70 months’ imprisonment and
five years’ supervised release); Goff, 501 F.3d at 262 (vacating sentencing of four
months’ imprisonment and three years’ supervised release); Goldberg, 491 F.3d at
668 (vacating sentence of one-day imprisonment and 10 years’ supervised release);
United States v. Borho, 485 F.3d 904 (6th Cir. 2007) (vacating sentence of 72
months’ imprisonment and 5 years’ supervised release); Perrin, 478 F.3d at 672
(vacating sentence of 60 months’ imprisonment and 10 years’ supervised release);
Armendariz, 451 F.3d at 352 (vacating sentence of five years’ imprisonment and
no supervised release). While these cases do not drive our decision, they do
support the conclusion that the district court’s probationary sentence will result in
19
We have located only one case in which an appellate court has upheld a non-
imprisonment sentence for a child pornography offense -- but in that unpublished decision of the
Fifth Circuit, which incidentally lacks any detailed discussion, one year of house arrest was
imposed. See United States v. Polito, 215 F. App’x 354 (5th Cir. 2007).
48
unwarranted disparities, further suggesting that the sentence imposed was
unreasonable.
IV.
Taking the Section 3553(a) factors as a whole as well as the district court’s
findings and calculus, we are constrained to conclude that Pugh’s probationary
sentence was unreasonable, and that the district court abused its discretion in
imposing it. We recognize that the appropriate weight given to each of the factors
cannot be calibrated with a slide rule and that the district court properly has been
accorded great discretion in determining how to weigh those factors. However, the
district court must give some weight to the factors in a manner that is at least
loosely commensurate with their importance to the case, and in a way that
“achieve[s] the purposes of sentencing stated in § 3553(a).” Martin, 455 F.3d at
1237. Where it does not, and instead “commit[s] a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case,” we must remand for
resentencing. McBride, 2007 WL 4555205, at *3 (internal quotation marks
omitted). Indeed, if we could not say so here, we would come perilously close to
holding that appellate review is limited to procedural irregularity, so long as the
district court says it has reviewed all of the Section 3553(a) factors. We do not
49
read Supreme Court precedent as having so eviscerated appellate review at the
same time that it has mandated the appellate courts to continue to review sentences
for reasonableness.
We, therefore, VACATE Pugh’s sentence, and REMAND the case to the
district court for further review and resentencing. In so doing, we do not suggest
what that sentence should be. We hold only that a sentence of probation, without a
single day in jail or any period of supervised release is an unreasonable one.
VACATED and REMANDED.
50
United States v. Pugh
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2008-01-31
Citations: 515 F.3d 1179
Copy CitationsCombined Opinion