PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 07-4270
LARRY PAULEY,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(2:04-cr-00150)
Argued: December 5, 2007
Decided: December 28, 2007
Before WILLIAMS, Chief Judge, MOTZ, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Chief Judge Williams and Judge Motz joined.
COUNSEL
ARGUED: Robert Booth Goodwin, II, Assistant United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellant. Benjamin Lee Bailey, BAILEY &
GLASSER, L.L.P., Charleston, West Virginia, for Appellee. ON
BRIEF: Charles T. Miller, United States Attorney, Charleston, West
Virginia, for Appellant. Eric B. Snyder, Deirdre H. Purdy, BAILEY
& GLASSER, L.L.P., Charleston, West Virginia, for Appellee.
2 UNITED STATES v. PAULEY
OPINION
HAMILTON, Senior Circuit Judge:
Larry Pauley pled guilty to one count of possessing photographs
that contained images of child pornography, 18 U.S.C.
§ 2252A(a)(5)(B). At sentencing, the district court determined that
Pauley’s Guidelines range was 78 to 97 months’ imprisonment. After
considering this range in conjunction with the factors set forth in 18
U.S.C. § 3553(a), the district court sentenced Pauley to forty-two
months’ imprisonment. Finding no abuse of discretion, we affirm the
sentence imposed by the district court.
I
Pauley was an art teacher at Hayes Junior High School in St.
Albans, West Virginia from August 1971 until he moved to a similar
position at St. Albans High School in September 2003. While he was
teaching at Hayes Junior High School in the 2002-2003 school year,
Pauley was approached by a female eighth-grade student (the victim)
who asked whether he was interested in paying her money if she took
nude photographs of herself. Pauley agreed to the victim’s proposal
and, thereafter, the victim, using a Polaroid camera she owned, took
nude photographs of herself and sold them to Pauley. A similar trans-
action was proposed by the victim and consummated by the parties
later in the 2002-2003 school year.
For the 2003-2004 school year, both Pauley and the victim were at
St. Albans High School. In September 2003, the victim approached
Pauley and asked if he was interested in paying her money to take
more nude photographs of herself. Pauley responded in the affirma-
tive. Consequently, Pauley purchased more nude photographs of the
victim during that month.
Some time before October 1, 2003, the victim approached Pauley
with a proposal of a different kind. This time, the victim asked Pauley
if he was interested in paying the victim and her friend, who was also
a student at St. Albans High School, to take nude photographs of
themselves together. Pauley told the victim that he was willing to pay
both the victim and her friend for such photographs.
UNITED STATES v. PAULEY 3
On October 1, 2003, Pauley gave the victim his Polaroid camera
and some film, and the victim placed these items in her school locker.
Later that day, the victim’s friend reported to school personnel that
Pauley was willing to pay her and the victim money to take nude pho-
tographs of themselves together. An investigation by school personnel
and the St. Albans Police Department ensued. During a search of the
victim’s locker, school personnel discovered the camera and the film
Pauley had given the victim. After the execution of a search warrant
at Pauley’s home, police officers recovered the photographs that the
victim took of herself. Seventeen of the twenty-five photographs
taken were determined to contain images of child pornography. None
of the photographs included the face of the victim.
On August 10, 2004, the government filed a one-count information
charging Pauley with possessing photographs that contained images
of child pornography, id. § 2252A(a)(5)(B). On September 13, 2004,
pursuant to a written agreement with the government, Pauley pled
guilty.
In preparation for sentencing, a presentence report (PSR) was pre-
pared by the probation office. Using the November 2003 edition of
the United States Sentencing Commission’s Guidelines Manual
(USSG), the probation officer calculated Pauley’s Guidelines range as
follows. For his offense, Pauley’s base offense level was 15, USSG
§ 2G2.4(a). However, because the offense involved causing a minor
to engage in sexually explicit conduct for the purpose of producing
a visual depiction of such conduct, the probation officer applied the
Sexual Exploitation of a Minor Guideline, USSG § 2G2.1, see USSG
§ 2G2.4(c)(1) (providing for cross-reference to USSG § 2G2.1),
which resulted in an offense level of 27. The probation officer added
two more levels because the photographs involved a victim who had
attained the age of twelve years but had not attained the age of sixteen
years, USSG § 2G2.1(b)(1)(B). Because the victim, as a student at St.
Albans High School, was arguably within Pauley’s supervisory con-
trol, the probation officer increased Pauley’s offense level by two
levels pursuant to USSG § 2G2.1(b)(2). The probation officer also
increased the offense level by two levels because, in the probation
officer’s view, the victim was vulnerable under USSG § 3A1.l(b)(1).
After giving Pauley a three level reduction for acceptance of responsi-
bility, USSG § 3E1.1, the probation officer calculated Pauley’s
4 UNITED STATES v. PAULEY
offense level to be 30. This offense level, coupled with a criminal his-
tory category of I, produced a recommended Guidelines range of 97
to 121 months’ imprisonment.
At sentencing, the district court sustained Pauley’s objection to the
vulnerable victim enhancement. This reduced Pauley’s Guidelines
range to 78 to 97 months’ imprisonment. After allowing the parties
to present arguments as to what they believed the appropriate sen-
tence should be, the district court considered the Guidelines range and
§ 3553(a) factors, ultimately concluding that the circumstances of the
case warranted a downward variance to a sentence of forty-two
months’ imprisonment. According to the district court, the extent of
the downward variance was supported by the following facts as they
related to the § 3553(a) factors: (1) in buying the nude photographs
each time, Pauley initially was approached by the victim with such a
proposal; (2) fewer than two dozen pornographic photographs were
taken with the victim’s Polaroid camera; (3) the victim’s face did not
appear in any of the photographs; (4) Pauley displayed deep remorse;
(5) besides the criminal conduct at issue, Pauley was a model citizen
and a good father and teacher; (6) as a result of his conviction, Pauley
lost his teaching certificate and his state pension; (7) Pauley agreed
to a lifetime of supervised release; (8) no other child pornography was
found in Pauley’s house; and (9) the counseling Pauley would receive
during incarceration would rehabilitate him, allow him to lead a pro-
ductive life upon release, and make further crimes by Pauley
extremely unlikely.
II
On appeal, the government contends that the sentence imposed by
the district court is unreasonable. More specifically, the government
contends that the district court did not offer compelling reasons justi-
fying the substantial variance from the advisory Guidelines range of
78 to 97 months’ imprisonment. Alternatively, the government claims
that the sentence must be vacated because the district court placed
excessive weight on one of the § 3553(a) factors.
A
Before the enactment of the Sentencing Reform Act of 1984
(SRA), as amended, 18 U.S.C. § 3551 et seq., 28 U.S.C. § 991 et seq.,
UNITED STATES v. PAULEY 5
a sentencing court enjoyed wide discretion in imposing a criminal
sentence. Mistretta v. United States, 488 U.S. 361, 363 (1989).
Because the vast majority of federal criminal statutes have only a
maximum term of years (and a maximum monetary fine), a sentenc-
ing court was permitted to impose any term of imprisonment and any
fine up to the statutory maximums. Given this wide discretion, the
sentencing court’s "determination as to what sentence was appropriate
met with virtually unconditional deference on appeal." Id. at 364.
Consequently, there was little, if any, appellate review of the sentence
imposed by the sentencing court. Cf. Dorszynski v. United States, 418
U.S. 424, 431 (1974) ("[O]nce it is determined that a sentence is
within the limitations set forth in the statute under which it is
imposed, appellate review is at an end.").
The passage of the SRA radically changed the sentencing land-
scape. The SRA created the United States Sentencing Commission
and authorized the Sentencing Commission to establish and imple-
ment sentencing policies for the federal criminal justice system. See
28 U.S.C. § 991(a) (establishing the Sentencing Commission "as an
independent commission in the judicial branch of the United States");
id. § 991(b)(1) (noting that one of the purposes of the Sentencing
Commission is to "establish sentencing policies and practices for the
Federal criminal justice system"). At Congress’ direction, the Sen-
tencing Commission developed the Sentencing Guidelines to reduce
judicial discretion, thereby creating more uniformity in sentences of
similarly situated offenders. See id. § 994(a)(1) (directing Sentencing
Commission to promulgate Sentencing Guidelines); see also United
States v. Booker, 543 U.S. 220, 253 (2005) (noting that "Congress’
basic goal in passing the Sentencing Act was to move the sentencing
system in the direction of increased uniformity"). Thus, the purposes
of the Guidelines are to "provide direction as to the appropriate type
of punishment-probation, fine, or term of imprisonment-and the
extent of the punishment imposed." Stinson v. United States, 508 U.S.
36, 41 (1993).
Application of the Sentencing Guidelines by the sentencing court
involves a multi-step process through which the sentencing court
assesses the seriousness of a defendant’s current offense and past
crimes to establish an offense level and a criminal history score,
which then are used to determine the defendant’s applicable sentenc-
6 UNITED STATES v. PAULEY
ing range from a box grid called the "Sentencing Table." USSG Sen-
tencing Table. A host of factors are used to determine a defendant’s
offense level and criminal history score, thus requiring the sentencing
court to make detailed findings of facts supporting any enhancements
or reductions to a defendant’s offense level, any adjustments to a
defendant’s criminal history score, or any departure above or below
the Guidelines range.
Prior to the Supreme Court’s decision in Booker, the Sentencing
Guidelines were mandatory and binding on all sentencing and appel-
late courts. Booker, 543 U.S. at 233-34. In Booker, the Court held that
the mandatory nature of the Sentencing Guidelines rendered them
incompatible with the Sixth Amendment’s guarantee of a right to a
jury trial. Id. at 232-36. In so doing, the Court reaffirmed the holding
of Apprendi v. New Jersey that "[a]ny fact (other than a prior convic-
tion) which is necessary to support a sentence exceeding the maxi-
mum authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury beyond
a reasonable doubt." Booker, 543 U.S. at 244 (reaffirming the holding
of Apprendi v. New Jersey, 530 U.S. 466 (2000)).
To remedy the Sixth Amendment violation, the Booker Court did
not strike down all of the provisions of the SRA relating to the Guide-
lines; rather, the Court excised the two provisions of the SRA which
made the Guidelines mandatory on sentencing and appellate courts.
Id. at 258-63 (severing and excising the two provisions, 18 U.S.C.
§ 3553(b)(1) and 18 U.S.C. § 3742(e), that made the Guidelines man-
datory but leaving the rest of the Guidelines intact). Thus, Booker ren-
dered the Sentencing Guidelines advisory, but the Court stressed in
that case that a sentencing court still must take the Guidelines into
account at sentencing along with the factors set forth in § 3553(a).
Booker, 543 U.S. at 264.* The Booker Court also instructed appellate
(Text continued on page 8)
*Under § 3553(a), a sentencing court must 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;
UNITED STATES v. PAULEY 7
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defen-
dant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treat-
ment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for
—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the
Guidelines—
(i) issued by the Sentencing Commission pursuant to sec-
tion 994(a)(1) of title 28, United States Code, subject to
any amendments made to such Guidelines by act of Con-
gress (regardless of whether such amendments have yet to
be incorporated by the Sentencing Commission into
amendments issued under section 994(p) of title 28); and
(ii) that, except as provided in section 3742(g), are in
effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised
release, the applicable Guidelines or policy statements issued
by the Sentencing Commission pursuant to section 994(a)(3)
of title 28, United States Code, taking into account any
amendments made to such Guidelines or policy statements
by act of Congress (regardless of whether such amendments
have yet to be incorporated by the Sentencing Commission
into amendments issued under section 994(p) of title 28);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant to sec-
tion 994(a)(2) of title 28, United States Code, subject to any
amendments made to such policy statement by act of Con-
gress (regardless of whether such amendments have yet to be
incorporated by the Sentencing Commission into amend-
ments issued under section 994(p) of title 28); and
8 UNITED STATES v. PAULEY
courts to review a sentencing decision for reasonableness. Id. at 260-
62. According to the Court, reasonableness review served "to iron out
sentencing differences." Id. at 263.
Recently, the Supreme Court decided two cases which together
explain in detail the mechanics of Booker’s remedial holding. See
Gall v. United States, No. 06-7949, 2007 WL 4292116 (U.S. Decem-
ber 10, 2007); Kimbrough v. United States, No. 06-6330, 2007 WL
4292040 (U.S. December 10, 2007). In Gall, the Court instructed that
the sentencing court should first calculate the applicable Guidelines
range. 2007 WL 4292116, at *7. This starting point furthers Con-
gress’ desire for efficient administration and nationwide consistency
in sentencing. Id. After calculating the Guidelines range, the sentenc-
ing court must give both the government and the defendant "an oppor-
tunity to argue for whatever sentence they deem appropriate." Gall,
2007 WL 4292116, at *7. The sentencing court should then consider
all of the § 3553(a) factors to determine whether they support the sen-
tence requested by either party. Id.; see also Kimbrough, 2007 WL
4292040, at *10 (noting that, while § 3553(a) requires the sentencing
court to give due consideration to the Guidelines, Booker allows the
sentencing court to fashion the sentence in light of other statutory
considerations). In so doing, the sentencing court may not presume
that the Guidelines range is reasonable. Gall, 2007 WL 4292116, at
*7. In the event the sentencing court decides to impose a variance
sentence, i.e., one outside of the recommended Guidelines range, the
sentencing court "must consider the extent of the deviation and ensure
that the justification is sufficiently compelling to support the degree
of the variance." Id. As noted by the Gall Court, it is an "uncontrover-
sial" proposition that a "major departure should be supported by a
more significant justification than a minor one." Id.
(B) that, except as provided in section 3742(g), is in effect
on the date the defendant is sentenced.
(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).
UNITED STATES v. PAULEY 9
Our appellate review of the reasonableness of a sentence focuses
on whether the sentencing court abused its discretion in imposing the
chosen sentence. Id. This abuse of discretion standard of review
involves two steps, the first examines the sentence for significant pro-
cedural errors, the second looks at the substance of the sentence. The
Court in Gall explained that "significant" procedural errors include
errors 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, 2007 WL 4292116, at *7.
Substantive reasonableness review entails taking into account the
"totality of the circumstances, including the extent of any variance
from the Guidelines range." Id. If the sentence is within the Guide-
lines range, we, as an appellate court, may, but are not required to,
presume that the sentence is reasonable. Id. However, if the sentence
is outside the Guidelines range, we are prohibited from applying a
presumption of unreasonableness. Id. To hold otherwise would fatally
undermine the Court’s holding in Booker. Id. at *6. In reviewing the
substantive reasonableness of the sentence, we may consider "the
extent of the deviation," but we "must give due deference to the dis-
trict court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the variance." Gall, 2007 WL 4292116, at *7. Even if we
would have reached a different sentencing result on our own, this fact
alone is "insufficient to justify reversal of the district court." Id.
B
Turning to our review of Pauley’s sentence, we initially note that
there are no procedural errors. The parties agree that the district court
correctly calculated the Guidelines range to be 78 to 97 months’
imprisonment. After calculating the Guidelines range, the district
court allowed both Pauley and the government to argue what should
be the appropriate sentence. After such argument, the district court
carefully considered the § 3553(a) factors to determine whether they
supported a variance sentence. In so doing, the district court did not
presume that the Guidelines range was reasonable. Moreover, the dis-
trict court thoroughly explained its reasoning supporting the variance
10 UNITED STATES v. PAULEY
sentence. In short, there being no procedural errors, we must deter-
mine whether the district court abused its discretion in determining
that the § 3553(a) factors supported a forty-two month sentence and
justified a thirty-six month deviation from the Guidelines range. Gall,
2007 WL 4292116, at *10.
The district court’s rationale for varying downward thirty-six
months from the low-end of Pauley’s Guidelines range is reasonable
and premised on the factors set forth in § 3553(a). In its ruling, the
district court emphasized that certain facts related to the nature and
circumstances of Pauley’s offense were mitigating. Certainly, the dis-
trict court acted within its discretion when it concluded that Pauley
was less culpable than an individual who approaches a minor victim
and asks her to take nude photographs of herself. Moreover, the dis-
trict court was at liberty to find Pauley less culpable because the vic-
tim’s face did not appear in any of the photographs. If her face had
so appeared, she could have been subjected to more serious harm,
especially if the photographs wound up in the public domain. Along
a similar vein, the low number of pornographic photographs taken
and the fact that the Polaroid photos were not readily transmittable
over the Internet certainly are two additional mitigating facts that the
district court in the exercise of its discretion was allowed to consider
in varying downward from the Guidelines range.
The district court also reasonably concluded that other factors tied
to the nature and circumstances of Pauley’s offense were mitigating.
The district court was at liberty to find as a mitigating factor that no
other child pornography was found in Pauley’s house. The lack of
other child pornography in Pauley’s possession demonstrated that he
was not as culpable, say as an individual who possesses photographic
images of numerous individuals.
In its consideration of the § 3553(a) factors, the district court cor-
rectly found in the exercise of its discretion that other facts warranted
a sentence lower than that recommended by the Guidelines range. The
district court found that Pauley warranted a lower sentence because
he was deeply remorseful and, besides the criminal conduct at issue,
he was a good father and teacher. Such considerations were appropri-
ate because they are directly tied to § 3553(a)(1)’s directive that the
court consider the history and characteristics of the defendant. 18
UNITED STATES v. PAULEY 11
U.S.C. § 3553(a)(1). The district court also found that Pauley war-
ranted a lower sentence because he lost his teaching certificate and his
state pension as a result of his conduct. Consideration of these facts
is consistent with § 3553(a)’s directive that the sentence reflect the
need for "just punishment," id. § 3553(a)(2)(A), and "adequate deter-
rence," id. § 3553(a)(2)(B). The district court further explained that a
lower sentence would allow Pauley to be rehabilitated through the
counseling he will receive during incarceration, and the court noted
that a lifetime of supervised release would reduce the risk of Pauley
becoming a repeat offender and would deter him from future criminal
conduct. These are also valid considerations under § 3553(a). In sum,
considering all of the factors that the district court viewed as mitigat-
ing in their totality, we hold that the thirty-six month downward vari-
ance was supported by the justifications necessary to uphold the
sentence.
C
In its brief, which was filed before the Supreme Court’s decisions
in Gall and Kimbrough, the government argues that, under our deci-
sions in United States v. Khan, 461 F.3d 477 (4th Cir. 2006), cert.
denied, 127 S. Ct. 2428 (2007), and United States v. Moreland, 437
F.3d 424 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006), Pauley’s
sentence must be vacated because the district court was not permitted
to vary from the Guidelines range unless compelling reasons existed
to justify the substantial variance from the Guidelines range. Accord-
ing to the government, no such compelling reasons are present. In a
related argument, relying on our decision in United States v. Green,
436 F.3d 449 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006), the gov-
ernment argues that Pauley’s sentence must be vacated because the
district court placed excessive weight on Pauley’s history and charac-
teristics. See id. at 457 ("[T]he overarching standard of review for
unreasonableness will not depend on whether we agree with the par-
ticular sentence selected, . . . but whether the sentence was selected
pursuant to a reasoned process in accordance with law, in which the
court did not give excessive weight to any relevant factor, and which
effected a fair and just result in light of the relevant facts and law.").
We reject both of these arguments.
With regard to the former argument, the government reads too
much into our decision in Khan. In Moreland, we stated that the "far-
12 UNITED STATES v. PAULEY
ther the court diverges from the advisory guideline range, the more
compelling the reasons for the divergence must be." Moreland, 437
F.3d at 434. This statement is consistent with Gall’s requirement that,
if the district court "decides that an outside-Guidelines sentence is
warranted, [it] must consider the extent of the deviation and ensure
that the justification is sufficiently compelling to support the degree
of the variance." Gall, 2007 WL 4292116 at *2. Moreover, to the
extent that our language in Khan is inconsistent with Gall, see Kahn,
461 F.3d at 500 ("under the principles outlined in Moreland, the dis-
trict court must present compelling reasons for the variance"), we
obviously are bound by Gall. See Gall, 2007 WL 4292116, at *2-6
(rejecting the Eighth Circuit’s rule that a sentence that constitutes a
substantial variance from the Guidelines range must be justified by
extraordinary circumstances).
As to the government’s argument that, under Green, Pauley’s sen-
tence must be vacated because the sentencing court placed excessive
weight on one of the § 3553(a) factors, its argument is misplaced.
Contrary to the government’s suggestion, the district court in this case
did not place excessive weight on any one factor in § 3553(a). Rather,
the district court cautiously considered all of the relevant § 3553(a)
factors in imposing a reasonable sentence. Moreover, to the extent
that our language in Green suggests that a court cannot reasonably
accord significant weight to a single sentencing factor in fashioning
its sentence, Gall and Kimbrough hold otherwise. In Gall, the
Supreme Court held it "quite reasonabl[e]" for the sentencing court to
have "attached great weight" to a single factor, in that case "self-
motivated rehabilitation." Gall, 2007 WL 4292116, at *12; see also
Kimbrough, 2007 WL 4292040, at *10 (holding that an appellate
court should not find the sentencing court’s reliance on a single factor
unreasonable, so long as the court imposes a sentence "sufficient, but
not greater than necessary to accomplish the sentencing goals
advanced in § 3553") (internal quotation marks omitted).
III
For these reasons, Pauley’s sentence is affirmed.
AFFIRMED