United States v. Steven Helton , 782 F.3d 148 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4412
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
STEVEN RUSSELL HELTON,
Defendant − Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:12-cr-00134-1)
Argued: December 11, 2014 Decided: April 2, 2015
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Gregory and Judge Duncan joined. Judge
Gregory wrote a separate concurring opinion.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Lisa Grimes
Johnston, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal
Public Defender, David R. Bungard, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, William B. King, II, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.
WILKINSON, Circuit Judge:
Appellant Steven Helton pled guilty to one count of knowing
possession of child pornography in violation of 18 U.S.C.
§§ 2252A(a)(5)(B) and 2252A(b)(2). He was sentenced to 60 months
in prison followed by a lifetime term of supervised release.
Helton now appeals. The question presented to this court is
whether, given the facts of this case, a lifetime term of
supervised release is procedurally and substantively reasonable.
For the following reasons, we think it is and now affirm.
I.
In October 2010, Sergeant D.C. Eldridge, a member of the
West Virginia Internet Crimes Against Children Task Force,
determined that a computer near Beckley, West Virginia,
contained several child pornography videos accessed through
peer-to-peer software that the Task Force was monitoring.
Sergeant Eldridge, with assistance from the FBI, identified the
subscriber to the IP address associated with the computer as
Barbie Helton of Beaver, West Virginia. On December 29, 2010,
investigators executed a search warrant on the Helton residence
where Ms. Helton lived with her son, Steven. As part of this
initial search, Sergeant Eldridge discovered several files
containing child pornography on Steven Helton’s computer.
Defendant, after being advised of his constitutional
rights, gave a recorded statement to law enforcement, explaining
2
that he regularly viewed adult and child pornography and would
download, view, and then delete images, and then return to
download more images. Forensic investigators found a total of
961 individual images of child pornography on the hard drive of
the computer, although only 42 were actively accessible for
viewing at the time of the search. In the course of his
interview, Helton admitted to downloading some of the images
onto his iPod for personal use, but denied trading or sharing
child pornography with any other users.
Many of the images found by investigators were of
prepubescent minors engaged in sexual acts, exhibition of
genitals, or bondage, and at least one depicted a child engaged
in sadistic or masochistic acts. Helton explained that he had
been sexually abused by his stepfather when he was a child, and
that he had sought treatment in the past but had been unable to
stop viewing child pornography. He also admitted that he had
been caught viewing child pornography while he was a juvenile in
foster care and that he had been removed from a foster family
for sexually abusing a three-year old when he was thirteen years
old.
On June 12, 2012, a federal grand jury in the Southern
District of West Virginia issued a two-count indictment against
Helton for knowing receipt and knowing possession of child
pornography in violation of 18 U.S.C. §§ 2252A(a)(2), (a)(5)(B),
3
and 2252A(b)(1)-(2). Helton pled guilty to one count of knowing
possession of child pornography in violation of 18 U.S.C.
§§ 2252A(a)(5)(B) and 2252A(b)(2). The maximum term of
imprisonment under the statute is ten years. See 18 U.S.C.
§§ 2252A(a)(5)(B), 2252A(b)(2). Under 18 U.S.C. § 3583(k), the
court must impose a term of supervised release of at least five
years and up to life for crimes under § 2252A.
The presentence investigation report, prepared by the
probation office, recommended a Guidelines range of 78 to 97
months of imprisonment based on a total offense level of 28 and
a criminal history category of I. The district court adopted the
presentence investigation report, after thoroughly reviewing it
at the sentencing hearing. See J.A. 168-72. It noted the
statutory maximum and walked the defendant through the
Guidelines calculations. As the trial judge explained, a
violation of § 2252A(a)(5)(B) has a Base Offense Level of 18.
See id. at 170; see also U.S.S.G. § 2G2.2(a)(1). A two-level
enhancement was added for using a computer to search for and
access child pornography. In addition, two levels were added for
material that depicts a prepubescent minor under the age of 12
and an additional four levels for material portraying sadistic
or masochistic conduct. Lastly, a five-level enhancement was
added because the offense involved 600 or more images. Helton
received a three-level reduction for acceptance of
4
responsibility, bringing his total offense level to 28. Because
this was his first conviction, his criminal history category, as
noted, was I.
At the sentencing hearing, neither party objected to the
Guidelines calculation included in the presentence report,
although the defendant provided a comment by way of additional
explanation that the majority of images were not sadistic or
masochistic in nature. See J.A. 158-59. The sentencing judge
noted objections from the defense regarding several of the more
onerous conditions of supervised release and agreed to remove
some of the more burdensome terms where not applicable to the
nature and circumstances of Helton’s offense. She also
considered the factors listed in 18 U.S.C. § 3553(a) and heard
argument from both the government and defense counsel regarding
the appropriate sentence for Helton. See id. at 172-91. Helton
also made a statement directly to the court. See id. at 198-99.
At the conclusion of his statement, the court sentenced
defendant to a term of 60 months imprisonment, a downward
departure from the Guidelines range, and a lifetime term of
supervised release, comprised of a number of conditions specific
to the defendant, including treatment for both substance abuse
and psychosexual mental health. This appeal followed.
5
II.
This court reviews a sentence imposed by a district court
for reasonableness. See United States v. Booker, 543 U.S. 220,
261 (2005). Sentencing is the province of the district court and
in reviewing the chosen sentence, we consider only whether the
sentencing judge abused her discretion rather than whether this
court would impose the same sentence on a defendant in the
appellant’s position. See Gall v. United States, 552 U.S. 38, 51
(2007). This court will affirm a sentence when it is “within the
statutorily prescribed range and is reasonable.” United States
v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). Defendant contests
only his term of supervised release, arguing that the lifetime
term is procedurally and substantively unreasonable and should
be vacated.
Even though the Sentencing Guidelines are now advisory,
district courts “must consult those Guidelines and take them
into account when sentencing.” Booker, 543 U.S. at 264. A
sentence within the Guidelines range is presumed on appeal to be
substantively reasonable. See Rita v. United States, 551 U.S.
338, 347 (2007). Here, the lifetime term of supervised release
was within both the Guidelines range and the statutory maximum.
See 18 U.S.C. § 3583(k); U.S.S.G. § 5D1.2(b). However, that does
not end the inquiry. For a sentence to be procedurally sound, a
district judge must also consider the factors outlined in 18
6
U.S.C. § 3553(a) and “articulate the reasons for selecting the
particular sentence, especially explaining why [any] sentence
outside of the Sentencing Guideline range better serves the
relevant sentencing purposes set forth in § 3553(a).” United
States v. Green, 436 F.3d 449, 456 (4th Cir. 2006).
A.
Helton contends that his lifetime term of supervised
release is procedurally unreasonable because the district court
did not adequately explain why it chose that particular
sentence. However, we find that the sentencing judge carefully
and thoroughly explained the sentence at length.
The district court walked through the calculation of the
Guidelines range carefully at the sentencing hearing, during
which neither party objected. It noted that defense counsel had
asked for the court to consider that the majority of images did
not depict sadistic or masochistic conduct, even though counsel
did not object to the four-level enhancement for such images.
See J.A. 158. The court considered arguments made by both
parties at sentencing concerning the § 3553(a) factors and
discussed the application of the factors in fashioning Helton’s
particular sentence.
The district judge granted a downward departure from the
recommended term of imprisonment of 78 to 97 months, sentencing
Helton to 60 months in prison. See J.A. 199, 172. She explained
7
that the sentence of 60 months followed by a lifetime term of
supervised release “provide[d] just punishment for the crime for
which [Helton] pled guilty” because it both “reflect[ed] the
seriousness of the offense” and would “deter [Helton] from
committing criminal conduct in the future.” Id. at 206.
Importantly, the judge further explained that given Helton’s age
and lack of prior criminal convictions, a sentence of longer
than 60 months “simply was not necessary,” id., especially in
light of “the fact that [he would] be required to be on
supervised release for life,” id. at 207-08. Although Helton’s
prison term is not directly at issue before this court, the
judge made clear that the length of the prison term and the
length of the supervised release term were linked. She was only
comfortable with the downward departure for the term of
imprisonment because she knew that Helton would be subject to a
lengthy term of supervised release.
The judge also gave full and fair consideration to the
§ 3553(a) factors that, she explained, require the court to
consider, among other factors, the “nature and circumstances of
the offense,” “the history and characteristics of the
defendant,” and the need for the sentence imposed “to reflect
the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense,” as well as “to
8
provide the defendant with needed . . . medical care, or other
correctional treatment.” 18 U.S.C. § 3553(a); see also J.A. 173. *
Although the court must base the sentence on an
individualized assessment, it need not “robotically tick
through” the § 3553(a) factors. United States v. Johnson, 445
F.3d 339, 345 (4th Cir. 2006). In crafting the sentence, the
*
Defense counsel argued before this court that the district
court’s consideration of the § 3553(a) factors focused primarily
on “the severity of [Helton’s] conduct, which is explicitly off
limits when it comes to consideration of the supervised released
term.” Oral Arg. at 13:35. We disagree with this
characterization of the district court’s explanation. It is true
that 18 U.S.C. § 3583, which provides “factors to be considered
in including a term of supervised release,” 18 U.S.C. § 3583(c),
does not include “the need for the sentence imposed to reflect
the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense” or “the kinds of
sentences available,” 18 U.S.C. § 3553(a)(2)(A), (a)(3).
Notably, however, the statute allows for consideration of the
factors listed in § 3553(a)(1): “the nature and circumstances of
the offense and the history and characteristics of the
defendant.” 18 U.S.C. § 3553(a)(1); see also 18 U.S.C.
§ 3583(c). Here, we do not agree that the district judge focused
only on the severity of Helton’s conduct. While she did state
that she chose the 60 month sentence followed by a life term of
supervised release to “provide[] just punishment for the crime
for which [Helton] pled guilty” and to “reflect[] the
seriousness of the offense,” J.A. 206, she further noted that
she had considered “the nature and circumstances of [Helton’s]
offense, as well as [his] history and characteristics.” Id. She
specifically outlined how, in determining the proper sentence
and the conditions of supervised release, she had balanced his
youth and lack of criminal history against his admitted cycle of
downloading and deleting child pornography, the period of months
over which he had collected the images, his mental health
history, and his admitted history of viewing child pornography
and his sexual abuse of a three-year old child in foster care.
See id. at 207.
9
judge took note of both individual characteristics of the
defendant and the particular offense conduct in this case. She
considered that Helton was only “21 years old and appearing
[before the court] on [his] first criminal conviction.” J.A.
206. The court also considered Helton’s extensive “mental health
issues and [his] admissions to having viewed child pornography
as a child” in determining “the need for this sentence to
provide [Helton] with medical care and corrective treatment in
the most effective manner.” Id. at 207.
On the other hand, the judge explained that while “only 42
image files of child pornography were located in active
folders,” the defendant had “engaged in repetitive cycles of
downloading images, deleting them, and then searching for more,”
over the course of seven months, which is exactly the “type of
conduct [that] provides the market for child pornography which .
. . often results in the abuse of minors.” Id. at 206-07. She
also took notice of his admission that he had “sexually abused a
three-year-old” when he was previously in foster care. Id. at
207.
Furthermore, the judge took into account a number of
individualized considerations in shaping the conditions that
attach to defendant’s term of supervised release. Considering
the defendant’s admission to significant alcohol and marijuana
use, id. at 197, and noting that he did not have “a low risk of
10
future substance abuse,” id. at 200, she required him to
participate in a substance abuse treatment program. She also
required Helton to “submit to a psychosexual evaluation by a
qualified mental health professional,” “complete [any resulting]
treatment recommendations,” and “take all medications as
prescribed.” Id. at 201. She also imposed a number of conditions
regarding his status as a sex offender and limiting his ability
to interact with minors. Id. at 201-04.
However, the district court also, in response to a request
from defense counsel, removed several of the more onerous terms
of supervised release, finding them unnecessarily harsh in light
of the circumstances of the case. Id. at 165-68. The judge noted
that the “terms and conditions of supervised release should have
some reasonable basis given the facts and circumstances of the
offense such that they accomplish the purposes that are intended
by supervised release.” Id. at 166. Finding that there was “no
basis in this particular case,” she declined to require
“defendant to carte blanche afford access to his financial
information” unless there “is some indication that there is
something [such as a computer or cell phone with internet
capacity] purchased that should not have been.” Id.
She also declined to impose a condition preventing the
defendant from purchasing cameras, explaining that there was “no
evidence in this case that the defendant took pornographic
11
photos or videos of children.” Id. at 167-68. Despite objection
from defense counsel, she kept in place the condition preventing
defendant from purchasing or owning a cell phone with internet
capability, explaining that it was “appropriate given the facts
and circumstances of this case.” Id. at 167. Defense counsel
repeatedly requested a fifteen year term of supervised release,
but the judge rejected that in favor of a longer term coupled
with a downward departure in the length of Helton’s term of
imprisonment. See id. at 176, 190, 208.
In light of this lengthy explanation, we find no procedural
error in what the district court did. The Guidelines range was
properly calculated. The term of supervised release was within
the Guidelines range and within the permissible statutory
authorization. The defendant received a downward departure in
his prison term, which was clearly linked to a longer term of
supervised release. The defendant wants additional explanation,
specific to the term of supervised release, but we find the
district court satisfactorily explained both pieces of the
sentence at great length.
We do not dispute that there must be sufficient explanation
for a sentence to be procedurally reasonable. But we take no
issue with what the district court did here. We find the
district court’s thorough explanation sufficient on both the
sentence as a whole and the term of supervised release
12
specifically. To require more explanation would unnecessarily
intrude upon the district court’s primary and unique role in the
sentencing process.
B.
Helton also contends that his lifetime term of supervised
release is substantively unreasonable because it is longer than
necessary to further the goals of supervised release itself and
was not justified by Helton’s offense. See Appellant’s Br. at
12. We disagree. A lifetime term of supervised release is
authorized by statute and within the Sentencing Guidelines
range. See 18 U.S.C. § 3583(k) (“[T]he authorized term of
supervised release for any offense under section . . . 2252A .
. . is any term of years not less than 5, or life.”); see also
U.S.S.G. § 5D1.2 (“[T]he length of the term of supervised
release . . . may be up to life, if the offense is . . . a sex
offense.”). Furthermore, the U.S. Sentencing Commission
specifically included an advisory policy statement in the
Guidelines Manual that suggests it is the judgment of the
Sentencing Commission that in the case of sex offenses “the
statutory maximum term of supervised release is recommended.”
District courts are permitted to consider a wide variety of
information during the course of a sentencing proceeding. See
Alleyne v. United States, 133 S. Ct. 2151, 2163 n.6 (2013)
(“[J]udges may exercise sentencing discretion through ‘an
13
inquiry broad in scope, largely unlimited either as to the kind
of information [they] may consider, or the source from which it
may come.’”) (alteration in original) (quoting United States v.
Tucker, 404 U.S. 443, 446 (1972)). Here, the district judge
considered the defendant’s lengthy history of viewing child
pornography, his admitted repetitive pattern of downloading
material, deleting it, and seeking out more. She also considered
that he admitted to abusing a three-year old when he was a minor
in foster care and that he had sought help for his compulsion to
view child pornography but had been unable to stop.
Furthermore, the district court granted defendant a
downward variance in his prison term, remarking that she was
comfortable doing so because he would be subject to a lengthy
term of supervised release. It would be almost unprecedented to
credit a defendant’s challenge to a sentence as substantively
unreasonable when the district court actually reduced the term
of imprisonment below the recommended Guidelines range.
Moreover, the court modified the conditions of supervised
release, alleviating some of the more burdensome requirements
that she thought inappropriate for Helton given the offense and
circumstances of this case and this defendant. Helton can still
petition for a modification or termination of his term of
supervised release at any time after one year of supervised
release, provided it is justified by his conduct and in the
14
interest of justice. See 18 U.S.C. § 3583(e)(1); U.S.S.G.
§ 5D1.2 n.5. Given these circumstances, we cannot find the
district court’s conclusion unreasonable that a lifetime of
supervised release was necessary to deter defendant, protect the
public from additional crimes by him, and provide him with the
mental health care and necessary corrective treatment he needs.
Trial courts have significant discretion in the sentencing
process, and we see nothing in this case to suggest that this
discretion was abused in a manner that would render this
sentence substantively or procedurally unreasonable. The
judgment is accordingly affirmed.
AFFIRMED
15
GREGORY, Circuit Judge, concurring in the majority opinion:
I commend the district court’s exercise of its discretion
in fashioning Steven Helton’s sentence in this very difficult
case. Five years in prison is well enough for the 21 year-old
with no prior criminal convictions, who was physically and
sexually abused by his stepfather, who grew up in multiple
foster care homes since the age of six, and who was caught with
42 image files of child pornography on his computer. 1 J.A. 195,
206. 2 And, as the majority notes, the district court imposed the
supervised release portion of Helton’s sentence in conjunction
with a downward variance from the applicable advisory Guideline
range. The district court displayed courage in varying
downward, and in crafting an appropriate, individualized
sentence.
I.
The district court chose a sentence of 60 months of
imprisonment followed by a lifetime term of supervised release
for Helton’s knowing possession of child pornography in
violation of 18 U.S.C. § 2252(a)(5)(B) and 2252A(b)(2). Helton
1
As the majority notes, only 42 of the 961 image files
recovered by forensic investigators from Helton’s computer were
actively accessible for viewing. It appears the remaining files
were thumbnail-sized images automatically generated by the
Windows operating system.
2
Citations to the J.A. refer to the parties’ Joint Appendix
filed in this case. Specifically, the facts referenced herein
are contained in the sentencing hearing transcript.
17
appeals only the supervised release portion of his sentence. I
agree with the majority that the district court committed no
procedural error by adequately explaining why it thought this
particular punishment sufficient to meet the goals of
sentencing.
As is well known, reasonableness includes both procedural
and substantive components. See United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009). “Procedural errors include
‘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.’” Id. (quoting Gall v. United States, 552
U.S. 38, 51 (2007)). Above all, the district court “must make
an individualized assessment based on the facts presented.”
Gall, 552 U.S. at 50. In other words, the district court 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.”
Carter, 564 F.3d at 328.
Among the human failings the district court took into
account at sentencing was that Helton’s father abandoned him as
a baby. J.A. 195. His mother suffered various mental health
18
problems. J.A. 195. When Helton was six years old, his
stepfather physically and sexually abused him and his sister.
J.A. 195. Both were placed with an aunt who drank and
physically abused the children. J.A. 195. Helton was then
removed to foster care, where he was found viewing child
pornography. J.A. 195. It was during this time that Helton
also admits he sexually abused a minor child. J.A. 195. When
he was fourteen, Helton attended a mental health/sex offender
treatment facility for two and a half years. J.A. 195. Next,
he moved to a facility called the Burlington United Family
Methodist Services, and things started to look up; while at
Burlington, Helton obtained his GED and even enrolled in
Fairmont State College. J.A. 195-97. He withdrew before
completing the first semester, however, and at the age of
eighteen returned to his mother’s home. 3 J.A. 196-7. He became
his disabled mother’s caretaker and began abusing alcohol and
other drugs himself. J.A. 196-97. He was nineteen when the
police caught him in possession of child pornography.
It is against this backdrop that the district court
emphasized that it was careful to sentence Helton “only for the
3
According to Helton, upon matriculating he was told he had
not completed the requisite financial aid forms. Without any
adult assistance to navigate the system, and having “graduated”
from foster care, he was forced to withdraw from college and
return to his mother’s residence.
19
offense to which [he] pled guilty.” The court explained that it
chose a sentence “sufficient to protect the public . . . and to
avoid unwarranted disparities in sentencing of defendants of
similar backgrounds and similar violations.” In doing so, the
court balanced Helton’s age and lack of criminal convictions
against his engaging in “repetitive cycles of downloading,”
which “provides the market for child pornography” and “often
results in the abuse of minors.” In the end, the district court
decided “a sentence of incarceration longer than 60 months
simply is not necessary to meet the goals of sentencing,”
especially in consideration of the lifetime term of supervised
release. The court further “considered the need for th[e]
sentence to provide . . . medical care and corrective
treatment,” leading to the special conditions of release
including participation in medical evaluations and treatment.
There is no doubt that this explanation, following the
district court’s painstaking recollection of Helton’s
unfortunate childhood, was sufficiently individualized to meet
the requirements of procedural reasonableness.
II.
Helton’s appeal of the substantive reasonableness of his
lifetime term of supervised release is a closer question. As
the majority rightly recognizes, a district court enjoys wide
20
discretion in sentencing. The district court “is in a superior
position to find facts and judge their import,” United States v.
Diosdado-Star, 630 F.3d 359, 366 (4th Cir. 2011), but appellate
courts nevertheless play an important role in reviewing whether
an abuse of that discretion has occurred. In reviewing
substantive reasonableness, we measure the sentence against the
statutory sentencing factors while “tak[ing] into account the
totality of the circumstances.” Gall, 552 U.S. at 51; see also
United States v. Montes-Pineda, 445 F.3d 375, 378 (4th Cir.
2006).
Helton’s burden on appeal is a difficult one to meet
considering that a lifetime term of supervised release is indeed
within the advisory Guidelines range and the maximum term
authorized by statute. See U.S.S.G § 5D1.2; 18 U.S.C.
§ 3583(k). Ultimately the district court was faced with the
history and characteristics of someone who admitted to having
previously abused a child and who furthermore reverted to
viewing child pornography after having completed years of a
residential sex offender treatment program. J.A. 195. While
there is a continuing debate on the linkage between possession
of child pornography and sexual abuse of minors, it was not
improper for the district court to consider the need “to afford
adequate deterrence,” id. § 3553(a)(2)(B), and “to protect the
public from further crimes of the defendant,” id.
21
§ 3553(a)(2)(C). In the totality of the circumstances, it is
fair to say that Helton will benefit not from more time in
prison, but from long-term supervision and compliance with drug
dependency and psychosexual treatment programs. Therefore, even
though I regret that Helton can see no redemptive light at the
end of his long road to recovery, I cannot say the district
court abused its discretion.
It is this same ambivalence, however, about offenders like
Helton never being able to fully rejoin society as rehabilitated
individuals that leads me to warn against undue deference to
what are only advisory Guidelines. When we begin to accept
these Guidelines as irrefutable truths, we tend to give
ourselves to overgeneralizations like that made by the majority
when it writes: “It would be almost unprecedented to credit a
defendant’s challenge to a sentence as substantively
unreasonable when the district court actually reduced the term
of imprisonment below the recommended Guidelines range.” To the
contrary, it can be unreasonable for a twenty-one year old with
no prior criminal convictions to spend five years in prison even
when the Guidelines advocate for a minimum term of six and a
half years. And it can be unreasonable for that young man to
have to ask his probation officer for permission to purchase a
toy when, some great day later in his lifetime of supervision by
the government, he becomes a grandparent.
22
The child pornography Guideline has been recognized as an
“eccentric Guideline of highly unusual provenance which, unless
carefully applied, can easily generate unreasonable results.”
United States v. Dorvee, 616 F.3d 174, 188 (2d Cir. 2010). For
example, a defendant convicted of distributing child pornography
over the Internet but who has never had any contact with a minor
can receive a greater sentence than an individual who seeks out
a minor online, arranges a meeting, and actually abuses the
child. See id. at 176, 187. The Guideline also frequently
punishes first time offenders with the same severity as more
culpable offenders. This is because several of the § 2G2.2
enhancements of a defendant’s base offense level are broadly
defined and present in nearly all Internet child pornography
cases, like an enhancement for using a computer. See, e.g.,
United States v. Burns, No. 07 CR 556, 2009 WL 3617448, at *7
(N.D. Ill. Oct. 27, 2009) (“[M]ost of the enhancements provided
for in § 2G2.2 are of little use in distinguishing between
offenders.”). Statistics show that in non-production cases in
fiscal year 2013, a two-level enhancement for using a computer
applied in 95% of cases, a two-level enhancement for involvement
of a child victim under the age of 12 (that is, a prepubescent
minor) applied in 96% of cases, and a five-level enhancement for
23
600 or more images applied in 79% of cases. 4 Such realities have
led the Sentencing Commission to conclude that § 2G2.2 “places a
disproportionate emphasis on outdated measures of culpability,”
resulting in “penalty ranges [that] are too severe for some
offenders and too lenient for other[s].” 5
These limitations are the result of the Guideline having
been “developed largely pursuant to congressional directives,”
as opposed to the Sentencing Commission’s expertise. United
States v. Grober, 624 F.3d 592, 608 (3d Cir. 2010); see also id.
(“[T]o say that the final product is the result of Commission
data, study, and expertise simply ignores the facts.”).
Congress has been “particularly active” in directing the
Commission to increase base offense levels and impose various
enhancements, which has resulted in a dramatic rise in penalties
over the years. 6 These changes have taken place in the face of
4
U.S. Sentencing Comm’n, Use of Guidelines and Specific
Offense Characteristics 40-41 (2013), available at
http://www.ussc.gov/sites/default/files/pdf/research-and-publica
tions/federal-sentencing-statistics/guideline-application-
frequencies/2013/Use_of_Guidelines_and_Specific_Offense_Characte
ristics_Guideline_Calculation_Based_Revised.pdf.
5
U.S. Sentencing Comm’n, Federal Child Pornography Offenses
xvii (2012), available at http://www.ussc.gov/
sites/default/files/pdf/news/congressional-testimony-and-reports
/sex-offense-topics/201212-federal-child-pornography-offenses/
Full_Report_to_Congress.pdf [hereinafter Report to Congress].
6
U.S. Sentencing Comm’n, The History of the Child
Pornography Guidelines 1 (2009), available at
http://www.ussc.gov/sites/default/files/pdf/research-and-publica
(Continued)
24
resistance by the Commission, and in the form of Congress taking
the unprecedented step of directly amending the Guidelines. 7
Thus, like the former crack cocaine Guidelines, the child
pornography Guideline “do[es] not exemplify the Commission’s
exercise of its characteristic institutional role,” which is to
propose penalties “base[d on] its determinations on empirical
data and national experience, guided by a professional staff
with appropriate expertise.” Kimbrough v. United States, 552
U.S. 85, 108-09 (2007). For, what the data actually shows is
that 70% of district court judges in 2010 thought the Guideline
too severe for crimes of possession. 8 And, in fiscal year 2013,
district courts imposed a sentence below the Guideline range in
718 of 1,626 non-production cases. 9
This is why, when we talk about the slippery concept of
reasonableness, we should be cautious of presuming that the
tions/research-projects-and-surveys/sex-offenses/20091030_
History_Child_Pornography_Guidelines.pdf.
7
See Melissa Hamilton, The Efficacy of Severe Child
Pornography Sentencing: Empirical Validity or Political
Rhetoric?, 22 Stan. L. & Pol’y Rev. 545, 556 (2011).
8
U.S. Sentencing Comm’n, Results of Survey of United States
District Judges January 2010 Through March 2010, Question 8
(2010), available at http://www.ussc.gov/sites/default/files/
pdf/research-and-publications/research-projects-and-surveys/
surveys/20100608_Judge_Survey.pdf.
9
U.S. Sentencing Comm’n, 2013 Sourcebook of Federal
Sentencing Statistics, Table 28, available at
http://www.ussc.gov/research-and-publications/annual-reports-
sourcebooks/2013/sourcebook-2013; see also id. app. A (defining
“Below Guideline Range with Booker/18 U.S.C. § 3553”).
25
child pornography Guideline – as well as the Guideline for
supervised release of child pornography offenders – always
provides a reasoned departure point from which to calculate a
sentence. Like much of the judiciary, the Commission does not
view the Guideline this way for a defendant like Helton
convicted of a non-production offense. In fact, the Commission
has asked Congress to give it the authority to amend those
provisions resulting from the legislature’s directives. 10 It
believes these amendments necessary “to better promote the
purposes of punishment by accounting for the variations in
offenders’ culpability and sexual dangerousness.” 11 Though
recommended in 2012, these changes are still forthcoming.
Luckily, in the meantime, there are judges like Judge Berger who
understand that the totality of the circumstances sometimes
requires a below-Guideline term to ensure a sentence is
substantively reasonable.
10
See Report to Congress, supra note 5, at 322.
11
Id. at xvii. The Commission is also considering revising
§ 5D1.2 so that, as opposed to its current blanket
recommendation of the statutory maximum for child pornography
offenders, it would actually “provide[] guidance to judges to
impose a term of supervised release . . . that is tailored to
[an] individual offender’s risk and corresponding need for
supervision. Id. at xix.
26
III.
We measure our humanity by the justice we mete to those
thought least deserving. I join the majority in affirming the
district court, which I believe did an admirable job crafting an
individualized sentence. Perhaps in the future, our Guidelines
will evolve to become truly proportional to the severity of our
crimes. And perhaps then, a district court will not be in the
lamentable position of having to balance the need to depart
downward from an excessive Guideline term with an entire
lifetime of supervision.
27