United States v. Duhon

United States Court of Appeals
Fifth Circuit

REVISED FEBRUARY 21, 2006 FILED
IN THE UNITED STATES COURT OF APPEALS February 17, 2006
FOR THE FIFTH CIRCUIT
______________________ Charles R. Fulbruge III
Clerk
No. 05-30387
______________________

UNITED STATES OF AMERICA,

Plaintiff - Appellant,
v.

DAVID VINCENT DUHON,

Defendant - Appellee.
______________________

Appeal from the United States District Court
for the Western District of Louisiana

_____________________

Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

The Government appeals the district court’s post-Booker, non-

Guideline sentence. We hold that the sentence is unreasonable with

regard to the sentencing factors enumerated in 18 U.S.C. § 3553(a)

(2000).

I. BACKGROUND

Appellee David Duhon pleaded guilty to one count of possessing

child pornography in violation of 18 U.S.C. § 2252A(a)(5)(2000).

Duhon submitted a factual stipulation in connection with his plea.

He acknowledged that FBI agents found images of children engaged in
sexually explicit activity on his computer. Duhon admitted that he

had downloaded the pictures from the Internet.

A. THE PRESENTENCE REPORT AND FIRST SENTENCING HEARING

The presentence report (“PSR”) determined a base offense level

of fifteen. U.S.S.G. § 2G2.4 (2002).1 It recommended three

two-level enhancements under section 2G2.4(b) because (1) the

material involved minors under twelve, (2) the offense involved the

possession of ten or more images, and (3) Duhon used a computer.

The PSR also subtracted three levels for acceptance of

responsibility. U.S.S.G. § 3E1.1. Thus, it arrived at an adjusted

offense level of eighteen. Given Duhon’s category I criminal

history, the PSR calculated the Guideline range at twenty-seven to

thirty-three months imprisonment.

Duhon objected to the PSR’s suggested enhancements for the age

of the children and number of images involved, citing Blakely v.

Washington, 542 U.S. 296 (2004). He argued that these facts had

neither been admitted to nor found by a jury beyond a reasonable

doubt. He also moved for a downward departure, claiming that a

back injury he suffered in 1987 was an extraordinary physical

1
All references to the Sentencing Guidelines are to the
2002 volume, which was in effect at the time of Duhon’s offense.
Both the PSR and the district court used the 2002 Guidelines to
calculate Duhon’s sentencing range because the newer Guidelines
in effect at the time of Duhon’s sentencing were less favorable
to him. See United States v. Domino, 62 F.3d 716, 720 (5th Cir.
1995).

2
impairment that warranted a sentence below the applicable Guideline

range. See U.S.S.G. § 5H1.4.

At a sentencing hearing on August 25, 2004, the district court

denied Duhon’s motion for a downward departure. Considering

Duhon’s Blakely motion, the court decided to stay sentencing until

the Supreme Court issued its ruling in United States v. Booker,

125 S. Ct. 738 (2005). Before adjourning, the court expressed

hostility toward the Sentencing Guidelines, lamented Congress’s

criminalization of possessing child pornography, and promised that

he would give Duhon “the lowest sentence I can give consistent with

my oath.”

B. THE POST-BOOKER SENTENCING HEARING

Following the Booker ruling, the sentencing was reconvened on

February 28, 2005. Over the Government’s objection, the district

court ruled that Booker precluded it from using facts not admitted

by Duhon to enhance his sentence, even under an advisory regime.

The court calculated a Guideline range without using the

enhancements for the age of the children or the number of images

involved in the offense. This calculation resulted in an offense

level of fourteen and an advisory term of imprisonment of fifteen

to twenty-one months. The court announced, however, that it would

not follow the Guidelines, characterizing them as “totally

discretionary.” It stated that it would use the discretion granted

3
by Booker to “deviate from the United States Sentencing Commission

Guidelines and impose a sentence that . . . is appropriate based on

the facts.”2 The court explained why it thought a lesser sentence

was appropriate and sentenced Duhon to sixty months probation.

The Government reiterated its objection to the court’s

calculation of the Guideline range. The court responded that it

would have imposed the same sentence regardless of which advisory

Guideline range was correct. The Government claims on appeal that

the probationary sentence imposed by the district court is

unreasonable.

II. STANDARD OF REVIEW

The district court’s interpretation of the Guidelines, even

after Booker, is reviewed de novo. See United States v. Smith, __

F.3d __, No. 05-30313, slip op. at n.2 (5th Cir. filed Feb. 17,

2006). We accept the district court’s findings of fact unless

clearly erroneous. United States v. Creech, 408 F.3d 264, 270 n.2

(5th Cir. 2005). The ultimate sentence is reviewed for

“unreasonableness” with regard to the statutory sentencing factors

enumerated in section 3553(a). Booker, 125 S. Ct. at 765.3

2
The district court used the term “deviation” to
distinguish its sentence from sentences supported by “departures”
made under authority of the Guidelines. In United States v.
Mares, we adopted the phrase “non-Guideline sentence” to express
this distinction. 402 F.3d 519 n.7 (5th Cir. 2005).
3
The relevant factors include:
(1) the nature and circumstances of the offense and the

4
 In an opinion filed concurrently with this one, we address

non-Guideline sentences like that at issue here. See Smith, __

F.3d __. Before imposing a non-Guideline sentence, a district

court must consider the Sentencing Guidelines. Id. at 5; United

States v. Mares, 402 F.3d 511, 518–19 (5th Cir. 2005). This

consideration requires that the court calculate the appropriate

Guideline range. E.g., Smith, __ F.3d at __, at 5. Additionally,

the court should articulate fact-specific reasons for its sentence.

Mares, 402 F.3d at 519. Those reasons should be “consistent with

the sentencing factors enumerated in section 3553(a).” Smith, __

F.3d at __, at 5–6. The court need not make “a checklist

recitation of the section 3553(a) factors.” Id. at 6. However,

“the farther a sentence varies from the applicable Guideline

history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed . . . medical
care, or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines . . . ;
(5) any pertinent policy statement . . . ;
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct . . . .
18 U.S.C. § 3553(a).

5
sentence, the more compelling the justification based on factors in

section 3553(a) must be.” Id. (internal quotation marks omitted).

In reviewing for reasonableness, we assess whether the

statutory sentencing factors support the sentence. Id. at 6; see

United States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005).

A non-Guideline sentence is unreasonable where it “(1) does not

account for a factor that should have received significant weight,

(2) gives significant weight to an irrelevant or improper factor,

or (3) represents a clear error of judgment in balancing the

sentencing factors.” Smith, __ F.3d at __, at 6–7; see Long

Soldier, 431 F.3d at 1123; United States v. Haack, 403 F.3d 997,

1004 (8th Cir. 2005).

III. DISCUSSION

The sentence at issue does properly take into account two

section 3553(a) factors. First, under subsection (1), the sentence

reflects the history and characteristics of the defendant. In

imposing its sentence, the court emphasized Duhon’s lack of

criminal record and letters on his behalf from family and friends.

It explained its belief that Duhon was unlikely to reoffend.

Second, the court reasoned that Duhon’s psychiatric rehabilitation

would be best served with a probationary sentence that would allow

him to continue treatment with his current psychologist. This was

consistent with subsection (2)(D)’s mandate to consider the need to

6
provide the defendant with medical care in the most effective

manner.

Under section 3553(a), however, a sentence must be supported

by the totality of the relevant statutory factors. United States

v. McBride, __ F.3d __, No. 04-4347, slip op. at 5 (6th Cir. Jan.

17, 2006). The sentence at issue fails to account for factors that

should have received significant weight and accords significant

weight to an improper or irrelevant factor. Specifically, the

sentence (1) does not adequately take into account the Sentencing

Guidelines, (2) fails to sufficiently reflect the seriousness of

Duhon’s offense, and (3) improperly gives weight to the Guideline

sentence of a differently-situated codefendant. As a result, the

sentence is unreasonable.

A. FAILURE TO ADEQUATELY ACCOUNT FOR FACTORS

1. The Sentencing Guidelines

a. The Guideline Range

It is undisputed that the district court failed to determine

the correct Guideline range. We have held that the applicable

range “should be determined in the same manner as before

Booker/Fanfan” and that a judge may still find all the facts

supporting a sentence. Mares, 402 F.3d at 519. Thus, the court’s

conclusion that it could not adjust Duhon’s Guideline range

upwardly based on facts neither admitted by Duhon nor proven beyond

7
a reasonable doubt was incorrect. The correct sentencing range was

twenty-seven to thirty-three months imprisonment, not the fifteen

to twenty-one months considered by the court.

Duhon argues that this error was harmless because the court

stated that it would have imposed the same non-Guideline sentence

regardless of the Guideline range. Duhon is correct that the

sentence was imposed in spite of rather than “as a result of an

incorrect application of the sentencing guidelines.” 18 U.S.C. §

3742(f). In Villegas, we recognized that section 3742(f) survives

Booker. Under that statute, we review de novo and vacate a

sentence imposed “as a result” of a Guidelines error without

reaching the sentence’s ultimate reasonableness. Villegas, 404

F.3d at 362. Because Duhon’s non-Guideline sentence did not

directly “result” from the Guidelines error, it need not be vacated

under Villegas based solely on the miscalculation.

But it does not follow from this that the error in calculating

the Guideline range is irrelevant to our second-step review for

reasonableness. Mares recognized that if the district court

commits a “legal error” in required sentencing procedures, the

sentence may not merit the “great deference” ordinarily accorded on

reasonableness review. 402 F.3d at 520. Among those sentencing

procedures required by Mares is that the district court calculate

the Guideline range before imposing a non-Guideline sentence. Id.

at 519; United States v. Angeles-Mendoza, 407 F.3d 742, 746 (5th

8
Cir. 2005).

This requirement reflects Booker’s mandate that sentencing

courts “take account” of the Guidelines along with other sentencing

goals. Booker, 125 S. Ct. at 764–65 (emphasis added). In light of

its duty to “account” for the Guidelines, the court’s statement

that it would impose the same sentence regardless of which range

applied, makes the sentence more, rather than less, problematic.

The court cannot reasonably impose the same sentence regardless of

the correct advisory range anymore than it could reasonably impose

the same sentence regardless of the seriousness of the offense.

Both are sentencing factors that must be taken into account under

section 3553(a). See Smith, __ F.3d at __, at 5–6 (holding that

the Guideline range must be a “frame of reference” for a non-

Guideline sentence). A sentencing court cannot evade its duty

under Booker and Mares to correctly calculate the Guideline range

with the expedient of saying the Guidelines would not affect the

result. Accordingly, the miscalculation deprives the sentence of

“great deference” and is a factor to be considered in assessing the

reasonableness of the sentence.

b. Other Guidelines Provisions

Under Booker, a sentence must account for more than just the

applicable Guideline range. Section 3553(a) requires the court to

consider the “kinds of sentence” available under the Guidelines as

well as “any pertinent policy statement.” In the case at bar, the

9
district court ignored Guidelines provisions relating to probation

and physical injury.

First, the sentence deviates from a relevant advisory

Guideline disallowing probation in Duhon’s case. The Guidelines do

not authorize a sentence of probation where the applicable

Guideline range is in Zone C or D of the Sentencing Table. See

U.S.S.G. §§ 5B1.1 cmt. n.2, 5C1.1(f). Both Duhon’s correct

Guideline range and the range incorrectly used by the district

court fell within Zone D. See U.S.S.G. § 5A. Thus, the

probationary sentence varies, not only from the applicable

Guideline range, but also from the “kinds of sentence” available

under the Guidelines. See 18 U.S.C. 3553(a)(4). In such a

situation, the court, at a minimum, should acknowledge that it is

aware that probation would not ordinarily be available under the

advisory Guidelines.

Second, the sentence diverges from a policy statement

prohibiting the consideration of physical condition. The district

court considered Duhon’s back injury in imposing its sentence.

Section 5H1.4 of the Sentencing Guidelines states that “[p]hysical

condition . . . is not ordinarily relevant in determining whether

a departure may be warranted.” At the pre-Booker sentencing

hearing, the court acknowledged that the Guidelines would not

permit a downward departure for Duhon’s physical condition. At the

post-Booker hearing, however, the district court relied on Duhon’s

10
back injury without explaining its deviation from the advisory

policy statement. We agree with the Sixth Circuit that a district

court that “relies on any factors which are deemed by the

Guidelines to be prohibited or discouraged . . . [should] address

these provisions and decide what weight, if any, to afford them in

light of Booker.” Jackson, 408 F.3d at 305 n.3 (6th Cir. 2005);

see also United States v. Selioutsky, 409 F.3d 114, 118 (2d Cir.

2005) (stating that the district court must consider the

availability of departure authority before imposing a non-Guideline

sentence). The court’s reliance on Duhon’s physical condition

without addressing the relevant policy statement is especially

troubling here since the court found that Duhon no longer sees a

physician and does not take any prescription medications for his

back injury.4

The court’s failure to appropriately take into account the

Sentencing Guidelines is significant. It is not necessary for us

to decide, however, whether this alone is sufficient to render

Duhon’s sentence unreasonable. The sentence also fails to

adequately reflect the seriousness of Duhon’s offense and

inappropriately gives weight to the Guideline sentence of Duhon’s

4
The court also noted that Duhon’s disability payments
would be suspended during his incarceration. It acknowledged
that Duhon was married and had a nineteen-year-old son. To the
extent that the court took into account that Duhon’s family might
suffer some financial hardship, it should have similarly
addressed the policy statement discouraging this as a ground for
departure. See U.S.S.G. § 5H1.6.

11
codefendant.

2. Seriousness of the Offense

Under section 3553(a)(2)(A)—(B), the sentence imposed must

reflect the seriousness of the offense, promote respect for the

law, and afford adequate deterrence. Our review of the sentencing

transcript convinces us that the district court severely misjudged

the seriousness of Duhon’s possession of child pornography. As a

result, the sentence fails to advance adequately the objectives of

subsections (a)(2)(A)—(B).

The court’s comments at Duhon’s hearings are replete with

criticism of child pornography laws and suggest that the court

believed Duhon’s offense was not harmful to children because Duhon

himself did not physically molest anyone. At Duhon’s plea hearing,

the district court stated:

There are those who think that the way Congress has
reacted to child pornography is pretty much one size fits
all. . . . [T]hey’ve got a lot of folks out there that
. . . will take advantage of young people in their day
life [sic] or try to make contact with them. That’s on
the one hand. On the other hand, its my belief . . .
that everybody that does what you have admitted to doing
here today doesn’t fall in that category, but the law
doesn’t make much of a distinction, frankly, and that’s
unfortunate.

Similarly, at the first sentencing hearing, the court

minimized the offense and suggested that prosecuting child

pornography cases was a waste of time and resources:

[The Assistant United States Attorneys] work very hard
for all of us. They do stuff like get really bad guys

12
 that are killing our society with drugs. They protect us
against terrorists. And sometimes, because the Congress
dictated to them, they go out and get people who get on
the Internet and just screw up like what happened in this
case in my view.

. . . .

It would amaze you-all as taxpayers if you really
understood what’s going on inside the judiciary, inside
all the government agencies right now. . . .

Mr. Duhon knows what I am going to do . . . . I am going
to give him as little as I can because I think that’s
what it merits.

The Assistant United States Attorney objected, stating that he did

not want to give the impression that he believed these cases should

not be prosecuted. The court responded that they had

“philosophical differences” on the issue:

They’ve got people that ought to go to jail because they
might be dangerous and they’ve got people that do stupid
things. If we had a federal statute that says you’re
guilty of being stupid, Mr. Duhon might be guilty of
that, but that’s not the point.

At the close of hearing, the court explained to those in attendance

that the prosecutors were just doing “their duty under the oath.

We’re all in this together, and usually these are the good guys

putting away the bad guys.” (Emphasis added).

At the post-Booker sentencing hearing, the court similarly

stated,

If there was a federal statute that made it illegal to do
dumb things, you would be guilty. I can only imagine how
embarrassing this is for you today . . . . Nothing in
this record indicates to me that you’re one of those guys
who are going out and trying to hurt young boys or girls,
but we’ve got some sickos out there that are.

13
 The district court’s view of Duhon’s child pornography offense

was misguided for several reasons. The court stated that the law

fails to distinguish between simple possession of child pornography

and “try[ing] to make contact” with children to “take advantage” of

and “hurt” them. The law, in fact, makes a drastic distinction.

Congress established a series of distinctly separate
offenses respecting child pornography, with higher
sentences for offenses involving conduct more likely to
be, or more directly, harmful to minors than the mere
possession offense. Similarly, the guidelines clearly
reflect consideration of whether and the degree to which
harm to minors is or has been involved.

United States v. Grosenheider, 200 F.3d 321, 332–334 (5th Cir.

2000) (collecting cases rejecting departures based on rationale

that defendant had “not abused any child, and had no inclination,

predisposition or tendency to do so”). Indeed, the applicable

Sentencing Guidelines provide an offense level of thirty-three for

soliciting minors under twelve for prohibited sexual conduct using

a computer. See U.S.S.G. § 2A3.1(a), (b)(2)(A), (b)(6). Had Duhon

solicited children for sex, rather than possessed child

pornography, the sentencing range would have been 135–168 months,

more than five times his actual Guideline sentence. See U.S.S.G.

§ 5A. Thus, the district court’s view that a sentence below

Duhon’s Guideline range may have been warranted because the law

“doesn’t make much of a distinction” between possession of

pornography and solicitation of children for sex was incorrect.5
5
We disagree with the concurring opinion’s analysis of this
issue on several grounds. First, it mischaracterizes the
district court’s comments. The concurrence states “that the

14
 More importantly, the court’s judgment that Duhon’s offense

was just a “dumb thing,” a “stupid thing,” and merely a “screw up”

understates the harm caused by possessing child pornography. In

United States v. Norris, this Court held that children are victims

in the possession of child pornography. 159 F.3d 926, 929 (5th

Cir. 1998). Norris recognized that possessing the images is itself

a form of abuse because it “inva[des] the privacy of the child

depicted.” Id. at 930. The possession perpetuates “a permanent

record” of the original abuse that can “haunt[] those children in

future years.” Id. at 929–30. Additionally, “the consumer of child

pornography instigates the original production of child pornography

by providing an economic motive for creating [it].” Id. at 930.

“[P]ossession of child pornography is not a victimless crime. A

district court . . . observ[ed] that the 2003 version of the
Guidelines do not distinguish between possessors of child
pornography who engage in a pattern of non-internet based,
intrastate molestation of children and those who do not.” The
court below painted with a broad brush and did not entertain the
fine distinctions attributed to it by the concurrence.
Second, the concurrence fails to take into account that
under the 2003 Guidelines a pornography defendant who has also
molested children would either (a) be sentenced under the sexual
abuse Guideline or (b) receive a higher sentence due to an
increased criminal history score. See, e.g., United States v.
Lebovitz, 401 F.3d 1263 (11th Cir. 2005) (defendant was sentenced
under 2003 child pornography and sexual abuse Guidelines and
received 118 months imprisonment); United States v. Sharpley, 399
F.3d 123, 127 n.4 (2d Cir. 2005) (defendant’s criminal history
score was increased for prior state sexual abuse conviction).
Third, the concurrence conflicts with our precedent. See
Grosenheider, 200 F.3d at 333 (holding that the pre-2004
Guidelines “take into account the gravity of a possession offense
as compared with more serious forms of exploitation”).

15
child somewhere was used to produce the images downloaded . . . ,

in large part, because individuals like [the defendant] exist to

download the images.” United States v. Yuknavich, 419 F.3d 1302,

1310 (11th Cir. 2005).

The severe molestation and young children involved in the

images suggest that Duhon’s offense could instigate violent abuse.

According to the PSR, the pictures which Duhon downloaded were of

prepubescent girls aged eight to ten years. These pictures

“included photographs of a girl being raped by an adult man, forced

to perform oral sex and placing foreign objects into her vagina.”

The PSR also states that Duhon distributed child pornography to at

least one other individual, his codefendant Berne Life.6

Under the circumstances, the district court misjudged the

seriousness of Duhon’s offense. As a result, the sentence imposed

fails to advance sufficiently the sentencing objectives enumerated

in section 3553(a)(2)(A)—(B).

6
The district court apparently adopted all the factual
statements contained in the PSR with the exception of paragraph
twenty-four. The adopted facts include paragraph five, to which
Duhon concedes that he made no objection. That paragraph
describes the graphic pictures found on a disc labeled “pics from
Dave.” Life stated that the disc was given to him by Duhon.
The court did not resolve a factual dispute regarding
paragraph twenty-four because it concluded Duhon’s Guideline
range would not be affected. Paragraph twenty-four states that
Duhon “admitted to investigators that he distributed child
pornography to two or three friends.” On remand, the district
court should resolve all factual issues material to the sentence,
whether or not they would affect the advisory range. See Mares,
402 F.3d at 519.

16
 B. CONSIDERATION OF SENTENCING DISPARITY WITH CODEFENDANT

In imposing its non-Guideline sentence of sixty months

probation, the district court took into account that Duhon’s

codefendant Berne Life had received a Guideline sentence of sixty

months probation. The court acknowledged that Life had obtained

the benefit of a downward departure for “substantial assistance” to

the Government under U.S.S.G. § 5K1.1. Because disparity between

Duhon’s and Life’s sentences was not “unwarranted” within the

meaning of section 3553(a)(6), the court erred in considering it.

See Long Soldier,431 F.3d at 1123 (stating that “a proper or

relevant factor is one listed under § 3553(a)”).

We agree with the First and Eighth Circuits that a sentencing

disparity intended by Congress is not unwarranted. See United

States v. Pho, __ F.3d __, 2006 WL 20574, *11 (1st Cir. Jan. 5,

2006); United States v. Sebastian, __ F.3d __, 2006 WL 265507, *2–3

(8th Cir. Feb. 6, 2006) (holding that it is “the province of the

policymaking branches of government to determine that certain

disparities are warranted, and thus need not be avoided”). In

other words, “what counts is the uniformity in sentencing sought by

Congress.” Pho, __ F.3d at __, 2006 WL, 20574, at *11 (emphasis in

original).

Several statutory provisions convince us that Congress

believes that defendants who provide substantial assistance should

generally receive lower sentences than otherwise similarly-situated

17
defendants. Congress has required that the Sentencing Commission

“assure that the guidelines reflect the general appropriateness of

imposing a lower sentence than would otherwise be imposed . . . to

take into account a defendant’s substantial assistance in the

investigation or prosecution of another person who has committed an

offense.” 28 U.S.C. § 994(n). Additionally, Congress provides

judges the authority to sentence below the statutory minimum where

the Government moves for a substantial assistance departure. See

18 U.S.C. § 3553(e). Similarly, under 18 U.S.C. § 3559(d)(2), if

a defendant renders substantial assistance, a judge may give a

sentence less than the otherwise mandatory sentence of life

imprisonment or death. Lastly, substantial assistance departures

are provided for by the Sentencing Guidelines, and Congress has

specified those Guidelines as a factor that must be taken into

account in imposing a sentence. See 18 U.S.C. § 3553(a)(4)–(5).

Accordingly, we hold that sentencing disparity produced by

substantial assistance departures was intended by Congress and is

thus not a proper sentencing consideration under section

3553(a)(6). We note that this conclusion is consistent both with

our pre-Booker jurisprudence and with the Seventh and Second

Circuits’ interpretation of section 3553(a)(6). See United States

v. Nichols, 376 F.3d 440, 443 (5th Cir. 2004) (holding that

disparities resulting from departures for substantial assistance

are “justified”); United States v. Boscarino, __ F.3d __, No. 05-

18
2657, slip op. at 7 (7th Cir. Feb. 8, 2006) (holding that “a

sentencing difference based on one culprit’s assistance to the

prosecution is legally appropriate”); United States v. Joyner, 924

F.3d 454, 460–61 (2d Cir. 1991) (explaining that Congress intended

disparities caused by application of the Sentencing Guidelines);

United States v. Toohey, 132 Fed. Appx. 883 (2d Cir. May 23, 2005)

(unpublished) (holding that “Joyner’s construction of the role the

Guidelines play in § 3553(a)(6) consideration” remains essentially

unchanged in the wake of Booker). Because Life rendered

substantial assistance, he was differently situated from Duhon in

a way that Congress has deemed material. The district court should

have considered the need to avoid disparity among similarly-

situated defendants nationwide rather than disparity with Duhon’s

differently-situated codefendant.

We emphasize the limits of this holding. We hold only that

the disparity at issue here–that between a codefendant who rendered

substantial assistance and a defendant who did not–is warranted.

A judge may still properly reduce a defendant’s sentence for

appropriate mitigating circumstances particular to that defendant.

IV. CONCLUSION

The district court miscalculated the Guideline range. The

19
sentence diverges from advisory Guidelines provisions relating to

the kinds of sentence available and Duhon’s physical condition.

Furthermore, the sentence does not reflect sufficiently the

seriousness of Duhon’s offense. Lastly, the sentence improperly

gives weight to the Guideline sentence of a differently-situated

codefendant. On the particular circumstances of this case, the

totality of the statutory sentencing factors fails to reasonably

support the court’s sentence. We therefore VACATE Duhon’s sentence

and REMAND for resentencing consistent with Booker and its progeny.

20
 EMILIO M. GARZA, Circuit Judge, concurring in part and in the

judgment:

I agree with the majority opinion except with respect to

subsection III.A.2. I would avoid answering the difficult question

of when a district court makes a “clear error of judgment” in

assessing the seriousness of an offense. Nor do I agree that the

district court erred in its observation that the 2003 version of

the Guidelines do not distinguish between possessors of child

pornography who engage in a pattern of non-internet based,

intrastate molestation of children and those who do not. The

Sentencing Commission subsequently remedied this oversight by

providing for a five level enhancement where the possessor of child

pornography “engaged in a pattern of activity involving the sexual

abuse or exploitation of a minor.” U.S.S.G. § 2G2.2(b)(5) (2004).

Because the current version of the Guidelines draw this

distinction, it was not unreasonable for the district court

consider the prior version’s deficiency.

I concur in the judgment, however, because the district

court unreasonably failed to consider “the need for the sentence

imposed to afford adequate deterrence to criminal conduct.” 18

U.S.C. § 3553(a)(2)(B). The district court discussed the need to

protect the public from future crimes by Duhon, but it failed to

explain how a sentence of probation would discourage others

inclined to obtain child pornography. When the sentence imposed is

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so far below the Guidelines range, general deterrence becomes a

relevant factor that must be given significant weight. United

States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (a sentence is

unreasonable where the “court fails to consider a relevant factor

that should have received substantial weight”). The district

court’s failure to account for that important objective deprives

this extraordinarily lenient sentence of the “compelling

justification” required to render it reasonable. See United States

v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (“the farther the

judge’s sentence departs from the guidelines sentence . . . the

more compelling the justification based on factors in section

3553(a) that the judge must offer”).

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