United States v. Huckins

FILE D
United States Court of Appeals
Tenth Circuit

PUBLISH June 25, 2008
Elisabeth A. Shumaker
U N IT E D STA T E S C O U R T O F A PPE A L S Clerk of Court

T E N T H C IR C U IT

UNITED STATES OF AM ERICA ,

Plaintiff - Appellant ,
No. 07-3220
v.

SCOTT JAM ES HUCKINS ,

Defendant - Appellee .

A PPE A L FR O M T H E U N IT E D ST A T E S D IST R IC T C O U R T
FO R T H E D IST R IC T O F K A N SA S - W IC H IT A
(D .C . N o. 06-C R -10245-JT M )

Submitted on the briefs: *

Eric F. M elgren, United States Attorney; Alan G. M etzer, Assistant United States
Attorney, W ichita, Kansas, for Plaintiff - Appellant.

Charles A. O’Hara, O’Hara & O’Hara, W ichita, Kansas, for Defendant -
Appellee.

Before K E L L Y , H O L L O W A Y , and G O R SU C H , Circuit Judges.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause therefore
is ordered submitted without oral argument.
K E L L Y , Circuit Judge.

Defendant-Appellee Scott James Huckins pleaded guilty to one count of

possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), and

one count of criminal forfeiture, 18 U.S.C. § 2253(a)(3). Although the applicable

United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) (2006) range

was 78 to 97 months, the district court, after weighing the factors set forth in 18

U.S.C. § 3553(a), sentenced M r. Huckins to 18 months’ imprisonment and 3

years’ supervised release, fined him $1,000, and required him to forfeit his

computer equipment. The government appeals, arguing that it was substantively

unreasonable for the district court to grant a downward variance. Our jurisdiction

arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b), and we affirm.

Background

On April 6, 2005, agents of the Federal Bureau of Investigation went to M r.

Huckins’s residence in W ichita, Kansas. M r. Huckins was not home but his

father was present. The agents informed M r. Huckins’s father that M r. Huckins’s

credit card had been used to purchase a membership to a website that hosted child

pornography. M r. Huckins’s father gave the agents verbal consent to search for

child pornography on M r. Huckins’s computer, which was located in M r.

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Huckins’s bedroom. M r. Huckins was contacted by telephone and gave the agents

verbal consent to search his computer.

The agents executed a “pre-search” computer utility program on M r.

Huckins’s computer and uncovered images of child pornography. The images

were of real children and had been shipped in interstate commerce via the

internet. M r. Huckins’s computer was seized and sent to the Heart of America

Regional Computer Forensics Laboratory for forensic examination. That

examination uncovered images of child pornography, pictures of known child

pornography victims, a file sharing program, and an internet history displaying

child pornography sites visited.

M r. Huckins was indicted for possession of child pornography and criminal

forfeiture on November 14, 2006. He pleaded guilty to both charges by way of a

plea agreement on M arch 7, 2007. Following M r. Huckins’s guilty plea, a

presentence investigation report (“PSR”) was prepared. The PSR calculated a

total offense level of 28, which included a base offense level of 18 pursuant to

U.S.S.G. § 2G2.2(a)(1), a 2-level enhancement pursuant to § 2G2.2(b)(2) because

the offense involved material containing prepubescent minors or minors who had

not attained the age of 12 years, a 4-level enhancement pursuant to § 2G2.2(b)(4)

because the offense involved material portraying sadistic or masochistic conduct,

a 2-level enhancement pursuant to § 2G2.2(b)(6) because a computer or

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interactive computer service was used for the possession, transmission, receipt or

distribution of the material, a 5-level enhancement pursuant to § 2G2.2(b)(7)(D)

because the offense involved over 600 images containing child pornography,

including 14 videos, a 2-level reduction pursuant to § 3E1.1(a) for acceptance of

responsibility, and a 1-level reduction pursuant to § 3E1.1(b) for entering a timely

guilty plea. The offense level of 28, together with a criminal history category of

I, resulted in a Guidelines imprisonment range of 78 to 97 months.

M r. Huckins initially objected to three of the PSR’s offense-level

enhancements but later withdrew those objections. He also filed a motion for a

downward variance pursuant to 18 U.S.C. § 3553(a). In his motion, M r. Huckins

argued that, among other things, he was 20 years old at the time of the crime and

22 at the time of sentencing, he had virtually no criminal record, had been

employed, cooperated with law enforcement and consented to the search, was not

indicted until a year and a half after the FBI seized his computer, he pleaded

guilty, immediately sought psychotherapy once charged, and made efforts to

correct his life, such as becoming involved in relationships and stopping

excessive drinking. He also noted that, as a result of pleading guilty, he will be a

registered sex offender for the remainder of his life.

The government opposed M r. Huckins’s motion, arguing that a sentence

within the Guidelines range was appropriate. The government explained that M r.

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Huckins’s age was irrelevant, his cooperation was already accounted for in the 3-

level reduction for his acceptance of responsibility and timely guilty plea, and he

did not seek medical treatment until after his unlawful activity was discovered.

At M r. Huckins’s sentencing, the district court initially indicated that it

intended to impose a sentence of 78 months, which represented the low end of the

Guidelines range, but then expressed concerns about the length of such a

sentence. Although the court recognized the nature and seriousness of the

offense, it found M r. Huckins’s case distinguishable from other child pornography

cases over which it had previously presided, and stated that it was considering a

downward variance to a range of 36 to 48 months. The government advised the

court that it would not oppose a downward variance down to 48 months. Aplt.

App. at 73.

The parties then presented their arguments, and M r. Huckins made his

allocution. After, the court responded that it was not ready to impose sentence.

The court discussed that it was troubled by this case because M r. Huckins did not

fit the characteristics of the typical defendant who possesses child pornography

and that he was not prosecuted until a year and a half after the seizure of his

computer. The court also noted that M r. Huckins was very cooperative with law

enforcement, and it referenced the letters it received on behalf of M r. Huckins.

W hile recognizing the nature and seriousness of the offense, the court explained

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that “the history and circumstances of the defendant seem to me to weigh every

bit as heavily as the nature and seriousness of the offense. I think that the

sentence, I would hope, if it’s to be a just sentence, has to fit not only the crime

but the offender.” Id. at 67. W ith that, the court continued sentencing for one

week.

W hen sentencing resumed, the court announced it intended to impose a

sentence of 18 months. The court began its explanation of M r. Huckins’s

sentence by indicating that it took a significant amount of time in deciding what

constituted an appropriate sentence in this case. As a starting point, the court

discussed that it recognized the nature and seriousness of possessing child

pornography as well as the serious penalties Congress has imposed for that

offense. The court expressed that it did not want to “downplay the significance of

the problem or Congressional action in anyway.” Id. at 69. Indeed, the court

expressly rejected a probationary sentence “given Congress’s clear statement

reflecting the attitudes of the people of this country with respect to possession of

child pornography.” Id. at 71. In so doing, the court noted that

there are over 100 children that are involved in these videos and stills
who have been victimized and whose lives have been wrecked
beyond almost anyone’s ability to find redemption. And that is what
Congress was concerned about in enacting the penalty provisions for
this law. The idea is if you can dry up the market, then there will not
be a need for the product, and perhaps the industry will dry up.
W hether that’s a wise course or not is not my call to make. It is
Congress’s, and it is what it’s done. I think that to put M r. Huckins

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 on probation, given the offense, would minimize the significance of
the offense itself. So I don’t think that’s appropriate.

Id. at 71-72.

However, the court explained that once it got “past the offense itself and

the penalties that are possible, [i.e.,] the guidelines,” and examined the

“individual and the type of offense that he actually committed,” a different kind

of picture emerged. Id. at 69. The court stated that M r. Huckins had no real

criminal record; he was going through a difficult period in his life and

experiencing significant depression at the time he committed the offense; the

offense was committed over a short period of time and there had been no repeat

of the offense; during the time that the government waited to prosecute him, he

obtained licenses for employment and, through his own and his family’s efforts,

made significant improvements in his life; he did not occupy a position of trust

with children; and he displayed exceptional responsibility and remorse for his

actions. Balancing these findings against the seriousness of the offense, the court

imposed a sentence of 18 months’ imprisonment followed by 3 years’ supervised

release.

Final judgment was entered on July 2, 2007, and the government timely

appealed. On appeal, the government argues that the district court’s findings did

not justify granting M r. Huckins’s request for a downward variance and that the

sentence is substantively unreasonable.

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 Discussion

After United States v. Booker, 543 U.S. 220 (2005), we review the

reasonableness of sentencing decisions, “whether inside, just outside, or

significantly outside the Guidelines range[,] under a deferential abuse-of-

discretion standard.” Gall v. United States, 128 S. Ct. 586, 591, 594 (2007). “A

district court abuses its discretion when it renders a judgment that is arbitrary,

capricious, whimsical, or manifestly unreasonable.” United States v. M uñoz-

Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (internal quotations omitted).

Reasonableness review is comprised of a procedural component and a substantive

component. United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008).

Procedural reasonableness addresses whether the district court incorrectly

calculated or failed to calculate the Guidelines sentence, treated the Guidelines as

mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous

facts, or failed to adequately explain the sentence. Gall, 128 S. Ct. at 597.

Relevant here,1 substantive reasonableness addresses “whether the length of the

sentence is reasonable given all the circumstances of the case in light of the

1
Neither the government nor M r. Huckins claims procedural error, and we
find none. The district court correctly calculated the applicable Guidelines range
and properly considered the § 3553(a) factors.

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factors set forth in 18 U.S.C. § 3553(a).” United States v. Verdin-Garcia, 516

F.3d 884, 895 (10th Cir. 2008) (internal quotations omitted).

Although sentences imposed within the correctly calculated Guidelines

range may be presumed reasonable on appeal, sentences imposed outside the

Guidelines range may not be presumed unreasonable. Gall, 128 S. Ct. at 597. In

reviewing a district court’s decision to deviate from the Guidelines, we “consider

the extent of the deviation” but give “due deference to the district court’s decision

that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. W e

cannot reverse simply because we might have reasonably arrived at a different

sentence. Id. W e afford the district court this level of deference because it has

an unquestionable institutional advantage over an appellate court to consider

whether the facts of an individual case justify a variance under § 3553(a). Id. at

597-98.

The district court is required to provide a “specific reason” for deviating

from the Guidelines. 18 U.S.C. § 3553(c)(2); United States v. Angel-Guzman,

506 F.3d 1007, 1016 (10th Cir. 2007). An adequate explanation of the chosen

sentence allows for meaningful appellate review and promotes the perception of

fair sentencing. Gall, 128 S. Ct. at 597. “[A] district judge must give serious

consideration to the extent of any departure from the Guidelines and must explain

his conclusion that an unusually lenient or an unusually harsh sentence is

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appropriate in a particular case with sufficient justifications.” Id. at 594.

Although “a major departure should be supported by a more significant

justification than a minor one,” id. at 597, we no longer require that

“extraordinary” circumstances justify a sentence outside the Guidelines range nor

do we mathematically calculate the percentage variance from the Guidelines and

use that percentage “as the standard for determining the strength of the

justifications required,” id. at 595; see Smart, 518 F.3d at 807. As noted, the

parties do not claim the district court procedurally erred in its explanation, so we

proceed to qualitatively assess the substantive reasonableness of the sentence

under the totality of the circumstances. Gall, 128 S. Ct. at 597.

After calculating the Guidelines range of 78 to 97 months, the district court

initially indicated that the § 3553(a) factors justified a downward variance to a

range of 36 to 48 months, but ultimately imposed a sentence of 18 months. The

government challenges the substantive reasonableness of this sentence, arguing

that the district court’s justification for granting a downward variance of 60 to 79

months from the Guidelines range was not sufficiently compelling or supported by

extraordinary facts. W e disagree.

As an initial matter, the government conceded to the district court that

some variance was appropriate. At sentencing, the government advised the court

that it was unopposed to a downward variance to 48 months. Aplt. App. at 73.

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Therefore, despite the government’s argument on appeal that a variance of 60 to

79 months is inappropriate, a variance of 30 months separated the parties’

positions before the district court.

In addition, it is evident from the government’s argument that the

government filed its opening brief in this case before the United States Supreme

Court decided Gall v. United States, 128 S. Ct. 586 (2007), which we are bound

to apply. Notwithstanding having the opportunity to do so, the government did

not file a reply brief, request supplemental briefing, or file a Rule 28(j) letter

after Gall was decided. See Fed. R. App. P. 28(j) (party may file letter to court

addressing pertinent and significant authority that come to party’s attention after

briefs have been filed). The government primarily relies on United States v.

Cage, 451 F.3d 585, 594-96 (10th Cir. 2006), for the proposition that the district

court’s justification was not sufficiently compelling or dramatic, or supported by

extraordinary facts to warrant the extreme downward variance. See Aplt. Br. at 7-

9. After Gall, this standard of review no longer applies, and consequently, Cage

does not control this case. See Smart, 518 F.3d at 808; see also United States v.

Akers, 261 F. App’x 110, 114 (10th Cir. 2008) (unpublished) (explaining that

Cage has been overruled by Gall).

The government also argues that it was inappropriate for the district court

to justify its variance, in part, on the fact that M r. Huckins had no real criminal

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record since he had already been placed in a criminal history category of I. Even

if this were improper, we note that the court weighed a number of factors in

addition to M r. Huckins’s lack of a criminal record to arrive at its sentencing

decision. In any event, the court’s consideration of this factor was appropriate.

Although the Guidelines discourage granting a downward departure based upon

criminal history when the defendant has been placed in a criminal history category

of I, U.S.S.G. § 4A1.3(b)(2)(A), this is a not a departure case, it is a variance

case. See United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir. 2007)

(explaining deviation from recommended Guidelines range through application of

Chapters 4 or 5 of Guidelines is a “departure” while deviation through application

of § 3553(a) factors is a “variance”). And, after Gall and Kimbrough, a factor’s

disfavor by the Guidelines no longer excludes it from consideration under §

3553(a). M uñoz-Nava, 524 F.3d at 1148 & n.6; see Gall, 128 S. Ct. at 602;

Kimbrough v. United States, 128 S. Ct. 558, 575 (2007). Therefore, a district

court may weigh a defendant’s lack of a criminal record, even when the defendant

has been placed into a criminal history category of I, in its § 3553(a) analysis.

See M uñoz-Nava, 524 F.3d at 1142, 1148.

Applying the appropriate deferential standard of review announced in Gall

to this case, we hold that the district court did not abuse its discretion in granting

the downward variance and that M r. Huckins’s sentence was substantively

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reasonable. To reach its sentencing decision, the district court took significant

time to carefully balance the nature and seriousness of the offense, the need for

deterrence and the need to protect the public, with the history and characteristics

of the defendant. In so doing, the court clearly appreciated the nature and

seriousness of the offense, discussing Congress’s decision to enhance penalties

associated with possession of child pornography, and expressly rejecting a

probationary sentence. W e too recognize the importance of these factors and the

need for deterrence. See 18 U.S.C. § 3553(a)(2); United States v. Goldberg, 491

F.3d 668, 672 (7th Cir. 2007), cert. denied, 128 S. Ct. 666 (2007) (“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.”). However, as the district court correctly understood, the

history and characteristics of the defendant must be factored into the final

sentencing calculus. See 18 U.S.C. § 3553(a)(1).

Here, the court considered a number of factors pertaining to the history and

characteristics of M r. Huckins that counterbalanced the nature and seriousness of

the offense, namely that he (1) had no real criminal record prior to these offenses;

(2) was going through a difficult time with significant depression when he

committed the offenses; (3) committed the offenses over a short period of time;

(4) has not repeated the offenses— the activity stopped without legal intervention;

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(5) obtained licenses for employment and maintained steady employment prior to

being charged; (6) has consistently improved his life through his own efforts and

those of his family; (7) did not occupy a position of trust with children; and (8)

has demonstrated repeated remorse and an exceptional understanding of how his

conduct has affected his life and the lives of his family. Aplt. App. at 69-72. The

court also considered the many letters of support it received on behalf of M r.

Huckins.

This approach is clearly consistent with Gall’s instruction that district

courts should “consider every convicted person as an individual and every case as

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

the crime and the punishment to ensue.” Gall, 128 S. Ct. at 598 (internal

quotations omitted). It is also consistent with approaches approved by our sister

circuits in similar post-Gall cases, some of which involved larger downward

variances. See, e.g., United States v. Smith, No. 06-4885, 2008 W L 1816564, *4

(4th Cir. Apr. 23, 2008) (unpublished) (affirming downward variance to 24

months from Guidelines range of 78 to 97 months for 18 U.S.C. § 2252(a)

conviction because district court properly counterbalanced seriousness of offense

against defendant’s personal characteristics); see also United States v. Grossman,

513 F.3d 592, 598 (6th Cir. 2008) (affirming downward variance to 66 months

from recommended Guidelines sentence of 120 months for § 2252(a) conviction);

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United States v. W hite, 506 F.3d 635, 645-49 (8th Cir. 2007) (affirming

downward variance to 72 months from Guidelines range of 108 to 135 months for

two § 2252(a) convictions); but see United States v. Pugh, 515 F.3d 1179, 1194

(11th Cir. 2008) (vacating non-custodial sentence for §§ 2252(a), 2256(8)(A)

convictions where Guidelines range was 97 to 120 months).

That is not to say that deviations from the Guidelines do not require

appropriate justification. For example, sentences that vary from the Guidelines

“based solely on the judge’s view that the Guidelines range fails properly to

reflect § 3553(a) considerations” will require close scrutiny. See Kimbrough, 128

S. Ct. at 575 (internal quotations omitted). But where, as here, the court decides

to vary from the Guidelines after a careful, reasoned, and reasonable

consideration of the § 3553(a) factors, we cannot say the court abuses its

discretion.

Accordingly, while this court could conclude a different sentence was

reasonable, we cannot exercise the discretion of the district court and “decide de

novo whether the justification for a variance is sufficient or the sentence

reasonable.” Gall, 128 S. Ct. at 602; M uñoz-Nava, 524 F.3d at 1149. Affording

the district court due deference on its determination that the § 3553(a) factors, as

a whole, justify the variance, we find that the district court’s decision was

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“reasoned and reasonable,” not an abuse of discretion. Gall, 128 S. Ct. at 602;

M uñoz-Nava, 524 F.3d at 1149.

AFFIRM ED.

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07-3220, United States v. Huckins

G O R SU C H , Circuit Judge, concurring.

I write separately to emphasize the narrowness of our holding. As the court

explains, the government filed its opening brief in this appeal before Gall v.

United States, __ U.S. __, 128 S.Ct. 586 (2007), was decided. In its brief, the

government argued that, under our then-controlling precedent, the district court

was obliged, but failed, to offer “compelling reasons” for its sentence given how

far it varied from the advisory Guidelines range. Gall, however, repudiated the

sort of exacting appellate scrutiny advocated in the government’s opening brief

and once required by our case law. See United States v. Smart, 518 F.3d 800, 807

(10th Cir. 2008) (holding that, after Gall, “sentencing review may not be based on

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” (internal quotation omitted)). In his response brief, M r. Huckins seized

on this fact and argued that, under the more forgiving abuse of discretion standard

of review announced in Gall, we should affirm the district court. After that, the

government did, literally, nothing. It did not file a reply brief, it did not submit a

Rule 28(j) letter, it did not seek supplemental briefing. The government even

waived oral argument. As a result, the government has advanced before us no

argument why this case should be reversed under Gall, and the government’s
failure to contest this appeal under governing legal authority leaves us with no

choice but to affirm. See United States v. Int’l Bus. M achs. Corp., 517 U.S. 843,

855 (1996) (“It would be inappropriate for us to []examine . . . without the benefit

of the parties’ briefing,” matters that a party has chosen not to contest.); Sally

Beauty Co., Inc. v. Beautyco, Inc., 304 F.3d 964, 976 n.2 (10th Cir. 2002)

(concluding the court must reverse because the defendant did not contest

plaintiff’s argument or offer any other basis for the court to affirm). For this

same reason, we have no occasion to pass on the question whether, under Gall,

factors like those presented in this case would be sufficient to sustain a variance

of this magnitude in a contested appeal.

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