United States v. Wachowiak, Robert J. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1643
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
ROBERT J. WACHOWIAK, JR.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 CR 22—Lynn Adelman, Judge.
____________
ARGUED NOVEMBER 1, 2006—DECIDED AUGUST 1, 2007
____________
Before KANNE, EVANS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Judge Adelman sentenced 24-
year-old Robert Wachowiak to 70 months’ imprisonment
for downloading and electronically “sharing” child pornog-
raphy on his home computer. Wachowiak’s sentence is
considerably less than his advisory guidelines range of
121 to 151 months, and the government submits it is
unreasonably low in light of the sentencing factors in 18
U.S.C. § 3553(a). In addition to discounting the serious-
ness of Wachowiak’s offense, the government argues, the
judge deviated from the sentencing guidelines on the
basis of mitigating factors routinely present in child
pornography possession cases or already reflected in
Wachowiak’s guidelines range. A 70-month sentence, the
2 No. 06-1643
government maintains, lies beyond the outer limit of the
district court’s post-Booker sentencing discretion.
We affirm. Although lenient, this below-guidelines
sentence survives review for reasonableness, a deferential
standard that has both procedural and substantive
aspects. See Rita v. United States, 127 S. Ct. 2456, 2465,
2468-70 (2007); United States v. Wallace, 458 F.3d 606,
609-10 (7th Cir. 2006). The government concedes that
Judge Adelman explicitly considered the litany of factors
specified in § 3553(a), including the nature and severity of
the crime, Wachowiak’s history and characteristics, the
advisory guidelines range, and the purposes of sentencing
enumerated in § 3553(a)(2). The challenge mounted here
is substantive, not procedural. We conclude that Judge
Adelman’s reasons for selecting a 70-month sentence—
Wachowiak’s “excellent” character, genuine remorse,
susceptibility to treatment, low risk of recidivism, strong
family support, and certain mitigating aspects of his
offense—are rooted in § 3553(a), sufficiently individu-
alized to the circumstances of this case, and generally
associated with sentencing leniency. Given the seriousness
of this crime, we might not have weighed these factors so
heavily, but we cannot say Wachowiak’s sentence is
unreasonable.
I. Background
Wachowiak first came to the government’s attention in
2004 when an undercover agent in Florida logged on to a
popular file-sharing network and found numerous images
of child pornography being “shared” from an IP address
in Milwaukee. The government traced the IP address to
Wachowiak’s home computer, obtained a search warrant
for his home, and seized his computer and external hard
drive. Forensic examination of the computer and hard
drive revealed hundreds of images of child pornography,
No. 06-1643 3
nine depicting children in bondage and nineteen depicting
children under the age of ten. Wachowiak was inter-
viewed and admitted to using the network to receive and
share child pornography files.
Wachowiak pleaded guilty to one count of receiving
child pornography in violation of 18 U.S.C. § 2252(a)(2),
which carries a 5-year minimum and 20-year maximum
sentence. His uncontested presentence report calculated
an advisory guidelines sentencing range of 121 to 151
months. His offense level of 32 reflected 13 points worth of
enhancements for using a computer, possessing images
of prepubescent children, possessing images portraying
sadism or masochism, and possessing more than 600
images. Wachowiak also received a three-point reduction
for acceptance of responsibility. This was his first offense,
so his criminal history was Category I.
At sentencing Wachowiak argued for the statutory
minimum, 60 months, while the government asked for a
guidelines sentence. Judge Adelman settled on 70 months,
concluding the guidelines range of 121 to 151 months
was greater than necessary to achieve the sentencing
purposes of § 3553(a). In his oral sentencing remarks
and later in a written opinion, the judge explained that
he had rejected Wachowiak’s proposed 60-month sentence
as too low given the number and nature of the images,
some of which depicted very young children, sadistic
conduct, and known victims of sexual exploitation. United
States v. Wachowiak, 412 F. Supp. 2d 958, 960 (E.D. Wis.
2006). The judge nevertheless found that several factors
mitigated the severity of Wachowiak’s offense, specifically:
(1) Wachowiak never enticed or had improper contact
with any child; (2) he was extremely cooperative with the
government and gave a prompt and detailed confession;
and (3) he never produced or purposely distributed any
images (although he did “share” them through the file-
sharing program). Id.4 No. 06-1643
The judge went on to describe Wachowiak’s character as
“excellent,” noting that (1) Wachowiak had neither a
criminal record nor a history of drug use; (2) he was an
honor roll student in high school; (3) he was a talented
pianist employed as a liturgical musician and was pursu-
ing a bachelor’s degree in music education; (3) after
resigning his liturgical music position following his
arrest, he obtained a job as a bakery clerk at a local
grocery; and (4) all of his employers “thought highly of
him.” Id. Judge Adelman also relied heavily on the opin-
ions of two sex offender specialists who examined
Wachowiak and assessed his recidivism risk as low. Roger
Northway, M.S., a sex offender therapist, began treating
Wachowiak shortly after his arrest; he submitted a report
to the court based on his observations of Wachowiak
during treatment and certain risk assessment tests he
administered. Dr. Patricia Coffey, a licensed psychologist
with expertise in sex predator evaluations for the State of
Wisconsin, also examined Wachowiak. Both experts
reported that Wachowiak posed a low risk for direct sexual
contact with children and was a good candidate for treat-
ment because he understood his impulses were wrong
and wanted to control them. Id. at 961.
The judge also took note of the quality of Wachowiak’s
allocution, characterizing it as genuinely remorseful,
reflecting “insight into his behavior” and “progress in
treatment.” Id. Wachowiak, the judge said, “was making
every effort to combat his addiction to pornography and
remain crime-free.” Id. at 962. Finally, Judge Adelman
cited Wachowiak’s supportive family and friends who
would assist in his rehabilitation.
Judge Adelman then explained why he thought a 70-
month sentence better fulfilled the statutory sentencing
purposes of § 3553(a) than a guidelines sentence. The
latter, he concluded, would be greater than necessary to
promote respect for the law and provide just punishment,
No. 06-1643 5
§ 3553(a)(2)(A), given Wachowiak’s lack of criminal history
and what the judge viewed as the mitigated seriousness
of his offense. Id. The judge also concluded that 70 months
would provide “adequate deterrence” under § 3553(a)(2)(B)
because it was longer than sentences imposed on defen-
dants for similar crimes in federal and state court.1 The
judge said a sentence “exceeding five years would deter
others considering receiving this type of material.” Id. A
guidelines sentence of more than ten years was “greater
than necessary to protect the public” under § 3553(a)(2)(C),
the judge reasoned, because the experts concluded
Wachowiak posed little risk of recidivism or “crossing
the line” into actual improper contact with children.
Lastly, the judge said a guidelines sentence would
unduly delay Wachowiak’s access to treatment. See
§ 3553(a)(2)(D).
Finally, Judge Adelman explained several aspects of
Wachowiak’s case that he believed were appropriate
considerations under § 3553(a) but were not adequately
factored into the guidelines calculation. First, he said
the guidelines failed to fully account for Wachowiak’s
“sincere expression of remorse” and “otherwise outstand-
ing character” by narrowly channeling these considera-
tions into Wachowiak’s “acceptance of responsibility”
reduction under U.S.S.G. § 3E1.1 and criminal history
Category I, respectively. Wachowiak, 412 F. Supp. 2d at
963. Second, the judge said “the guidelines failed to
account for the significant collateral consequences
[Wachowiak] suffered as a result of his conviction,”
1
Later in his opinion, the judge discussed but ultimately
declined to consider Wachowiak’s argument that a below-
guidelines sentence was necessary under 18 U.S.C. § 3553(a)(6)
to account for unwarranted sentence disparities among fed-
eral and state defendants convicted of similar crimes. United
States v. Wachowiak, 412 F. Supp. 2d 958, 965 (E.D. Wis. 2006).
6 No. 06-1643
namely, the stigma of being a sex offender and his inability
to pursue a career in his chosen profession of music
education. Id. at 963-64. Third, the judge believed the
guidelines failed to consider the positive role of
Wachowiak’s family members, who promised to aid in his
rehabilitation and reintegration into the community
and support his efforts to avoid reoffending. Id. at 964.
Finally, the judge noted that the probation office had
recommended that Wachowiak receive a sentence signifi-
cantly below the guidelines range, which he characterized
as “unusual.” Id. at 964 n.6.
In addition to the 70-month term of imprisonment, the
judge imposed a three-year term of supervised release with
various nonstandard supervision terms. Wachowiak is
forbidden from associating with any minors without
prior approval from his probation officer. He must sub-
mit all his financial records, computer passwords and
pseudonyms, and permit periodic inspections of his
computer. He may not access the Internet from any
location without first notifying his probation officer.
The government appealed, challenging the 70-month
sentence as unreasonably low.
II. Discussion
Under the advisory guidelines regime ushered in by
United States v. Booker, we review Wachowiak’s 70-month
sentence for reasonableness. 543 U.S. 220, 261 (2005);
Rita, 127 S. Ct. at 2459. This abuse-of-discretion standard
has both procedural and substantive aspects. Rita, 127
S. Ct. at 2465, 2468-70; Wallace, 458 F.3d at 609; United
States v. Repking, 467 F.3d 1091, 1096 (7th Cir. 2006) (per
curiam). “The Supreme Court’s decision in Booker re-
quires the sentencing judge first to compute the guide-
lines sentence just as he would have done before Booker,
No. 06-1643 7
and then—because Booker demoted the guidelines from
mandatory to advisory status—to decide whether the
guidelines sentence is the correct sentence to give the
particular defendant.” United States v. Dean, 414 F.3d 725,
727 (7th Cir. 2005).
Booker sentencing discretion is exercised in accordance
with the sentencing factors specified in 18 U.S.C.
§ 3553(a).2 That section, “unlike the guidelines them-
selves after Booker, is mandatory. The sentencing judge
cannot, after considering the factors listed in that stat-
ute, import his own philosophy of sentencing if it is
inconsistent with them.” Id. at 729 (citations omitted). But
the § 3553(a) factors are broad, vague, and open-ended, id.,
and review for reasonableness is deferential, United
States v. Walker, 447 F.3d 999, 1008 (7th Cir. 2006), so the
2
18 U.S.C. § 3553(a) provides, in relevant part:
(a) Factors to be considered in imposing a sentence. The
court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in para-
graph (2) of this subsection. The court, in determining the
particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal con-
duct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educa-
tional or vocational training, medical care, or other
correctional treatment in the most effective manner.
8 No. 06-1643
sentencing judge has considerable discretion to individual-
ize the sentence to the offense and offender as long as the
judge’s reasoning is consistent with § 3553(a). “[T]he
sentencing statutes envision both the sentencing judge
and the [Sentencing] Commission as carrying out the
same basic § 3553(a) objectives, the one, at retail, the
other at wholesale.” Rita, 127 S. Ct. at 2463.
We have previously described Booker reasonableness
review in this way:
Two things are critical now: first, whether the district
court’s choice of sentence is adequately reasoned in
light of the § 3553(a) factors . . . ; and second, whether
the sentence can ultimately be deemed a reasonable
one. . . . At each point, the focus is on what the district
court did, not on what it might have done. Thus, the
procedural inquiry focuses on the actual reasons
given, not on whether the sentence could have been
supported by a different rationale; the substantive
inquiry looks at the sentence imposed, not at all the
other hypothetical sentences that might have been
chosen.
Wallace, 458 F.3d at 609 (citations omitted). Accordingly,
a sentence is reasonable if the sentencing judge has given
meaningful consideration to the sentencing factors enu-
merated in § 3553(a), including the advisory sentencing
guidelines, and arrived at a sentence that is objectively
reasonable in light of the statutory factors and the individ-
ual circumstances of the case. Id. at 609-12; United States
v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005); Dean,
414 F.3d at 729.
This obligation generally is easily discharged when the
judge chooses a sentence within a properly calculated
guidelines range, which on appeal is entitled to a presump-
tion of reasonableness. United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005) (adopting a rebuttable presump-
No. 06-1643 9
tion of reasonableness for within-guidelines sentences); see
also United States v. Laufle, 433 F.3d 981, 987 (7th Cir.
2006) (explaining the sentencing judge need only give a
concise statement of reasons when imposing a within-
guidelines sentence). We now know that the rebuttable
presumption of reasonableness we adopted in Mykytiuk
comports with the Sixth Amendment and the Supreme
Court’s substantive and remedial opinions in Booker. Rita,
127 S. Ct. at 2465-67.
The Court emphasized in Rita, however, that the
presumption it was approving “is an appellate court
presumption.” Id. at 2465 (emphasis in original); see also
United States v. Griffin, Nos. 05-4177 & 05-4178, 2007 WL
2027411, at *10 (7th Cir. July 16, 2007). The Court held
that because reasonableness review under Booker “merely
asks whether the trial court abused its discretion,” the
presumption of reasonableness for within-guidelines
sentences “applies only on appellate review.” Rita, 127
S. Ct. at 2465. In the district court, the sentencing deci-
sion is subjected to “the thorough adversarial testing
contemplated by federal sentencing procedure . . . [and]
does not enjoy the benefit of a legal presumption that
the Guidelines sentence should apply.” Id. (citations
omitted). Accordingly, while an appellate court may apply
a nonbinding presumption of reasonableness to a guide-
lines sentence, the district court’s Booker sentencing
discretion presupposes no thumb on the scale in favor of
a guidelines sentence.
Rita thus validated our observation in United States v.
Demaree that the sentencing judge “is not required—or
indeed permitted—to ‘presume’ that a sentence within the
guidelines range is the correct sentence3.” 459 F.3d 791,
3
To the extent some of our cases have suggested that the
appellate presumption of reasonableness for within-guidelines
(continued...)
10 No. 06-1643
794-95 (7th Cir. 2006) (citation omitted); see also
Cunningham, 429 F.3d at 676 (The sentencing court
“cannot treat all sentences that would fall within the
guidelines sentencing range as reasonable per se.”).
Although “[t]he applicable guideline nudges [the sentenc-
ing judge] toward the sentencing range, . . . his freedom to
impose a reasonable sentence outside the range is unfet-
tered.” Demaree, 459 F.3d at 795. That a within-guidelines
sentence is presumed reasonable on appeal does not mean
that a sentence outside the range is presumptively unrea-
sonable. United States v. Jordan, 435 F.3d 693, 698 (7th
Cir. 2006); United States v. Howard, 454 F.3d 700, 703
(7th Cir. 2006). Rita also held that “appellate courts
may not presume that every variance from the advisory
Guidelines is unreasonable.” 127 S. Ct. at 2467.
Although as a matter of procedural reasonableness the
sentencing court is not required to issue a detailed oral or
written opinion in every case, “a statement of reasons
[for the choice of sentence] is important.” Id. at 2468.
Whether imposing a sentence within or outside the
advisory guidelines range, the sentencing judge should at
least “set forth enough to satisfy the appellate court that
he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking
authority.” Id.We have held that sentences outside the applicable
guidelines range—whether above or below it—may be
upheld as reasonable as long as the district court’s
§ 3553(a) explanation is sufficiently compelling to justify
3
(...continued)
sentences also applies as a “benchmark” or “presumption” in the
district court, United States v. Hankton, 463 F.3d 626, 629 (7th
Cir. 2006); United States v. Wurzinger, 467 F.3d 649, 650-51 (7th
Cir. 2006), that suggestion has been displaced by Rita.
No. 06-1643 11
the variance. Dean, 414 F.3d at 729. At a minimum, this
explanation should articulate the statutory factors the
judge believes warrant a sentence above or below the
guidelines range. Id. The more extreme the variance,
however, “the more compelling the justification based on
factors in § 3553(a) that the judge must offer in order
to enable [us] to assess the reasonableness of the sen-
tence imposed.” Id. If the justification is consistent with
§ 3553(a) and reasonably corresponds to factors unique to
the defendant (i.e., not normal incidents of the offense
or the judge’s wholesale disagreement with the guide-
lines), and the sentence chosen is within the broad range
of objectively reasonable sentences in the circumstances,
the sentence will be affirmed. See Wallace, 458 F.3d at
611; Repking, 467 F.3d at 1096; Dean, 414 F.3d at 729.
As we have noted, the government does not argue that
the sentence imposed here fails procedural review for
reasonableness. Nor could it. Judge Adelman’s oral
sentencing remarks and follow-up written opinion thor-
oughly and meaningfully analyzed the § 3553 factors,
including the sentencing guidelines. He carefully and at
length explained his choice of a 70-month sentence over a
guidelines sentence. There is no suggestion the judge
considered impermissible factors or that his factfinding
was clearly erroneous in any respect. The government
argues the judge’s statement of reasons was flawed, not
insubstantial. As such, we understand the government to
be challenging this sentence as substantively unreason-
able—simply too great a deviation from the bottom of the
applicable guidelines range given the seriousness of the
offense and what it views as a lack of unique justification.
While the contours of substantive reasonableness re-
view are still emerging, we have previously analogized it
to the “unreasonableness” standard in the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
12 No. 06-1643
§ 2254(d), which permits federal courts to grant habeas
relief for state prisoners only when the state-court decision
under review was “contrary to, or involved an unreason-
able application of ” clearly established federal law,
§ 2254(d)(1), or “was based on an unreasonable deter-
mination of the facts,” § 2254(d)(2). Wallace, 458 F.3d at
610. In the AEDPA context, we have held that an “unrea-
sonable” application of federal law is one that lies “well
outside the boundaries of permissible differences of opin-
ion.” Id. (quoting Hardaway v. Young, 302 F.3d 757, 762
(7th Cir. 2002)). Conversely, an application of federal law
will be upheld as reasonable under the AEDPA “if it was
‘one of several equally plausible outcomes.’ ” Id. (quoting
Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997)).
We also noted in Wallace and other cases that substan-
tive reasonableness review distinguishes between common
and particularized factors. Id. at 611; Jordan, 435 F.3d
at 696-97; Dean, 414 F.3d at 729 (sentencing judge should
supply “an adequate statement of the judge’s reasons,
consistent with section 3553(a), for thinking the sentence
that he has selected is indeed appropriate for the particu-
lar defendant”). A nonguidelines sentence premised on
factors that are common to offenders with like crimes may
reflect a simple disagreement with the guidelines; “Booker
did not authorize courts to find that the guidelines them-
selves (or the statutes on which they are based) are unrea-
sonable.” Wallace, 458 F.3d at 611 (citing United States v.
Miller, 450 F.3d 270, 275 (7th Cir. 2006) and United States
v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005)). On the
other hand, a variance from the guidelines that is suffi-
ciently particularized to the individual circumstances of
the case and not disproportionate to the strength of the
reasons for varying likely will survive reasonableness
review. See Jordan, 435 F.3d at 696-97 (affirming a
sentence well above the guidelines range for traveling in
interstate commerce to engage in a sex act with a minor
No. 06-1643 13
where the district court identified numerous highly
aggravating circumstances particular to defendant’s case);
United States v. Baker, 445 F.3d 987, 991-92 (7th Cir.
2006) (affirming a below-guidelines sentence for distribu-
tion of child pornography where the district court provided
an “extended discussion” of mitigating factors specific to
the defendant’s case).
The concept of substantive reasonableness contemplates
“a range, not a point.” Cunningham, 429 F.3d at 679. That
said, we have declined invitations to fix the outer limits
of the “reasonableness range” by reference to a ratio or
percentage by which the sentence deviates from the
guidelines range. Repking, 467 F.3d at 1095; Wallace,
458 F.3d at 613. We will not substitute our judgment for
that of the sentencing court. United States v. Ngatia, 477
F.3d 496, 501-02 (7th Cir. 2007) (“[T]he district court’s
choice of sentence, whether inside or outside the
guideline[s] range, is discretionary and subject therefore to
only light appellate review.” (citing Demaree, 459 F.3d at
795)); United States v. Williams, 425 F.3d 478, 481 (7th
Cir. 2005) (“The question is not how we ourselves would
have resolved the factors identified as relevant by section
3553(a) . . . . We are not sentencing judges.” (citation
omitted)). As with other discretionary decisions, the
district court is institutionally better situated to make
individualized sentencing judgments than an appellate
panel. Koon v. United States, 518 U.S. 81, 98 (1996);
Walker, 447 F.3d at 1008; Williams, 425 F.3d at 480.
The following examples of below-guidelines sentences
vacated as unreasonable by panels of this court may help
illustrate the limits of Booker sentencing discretion in
this circuit:
1) In United States v. Goldberg, No. 07-1393, 2007 WL
1827645 (7th Cir. June 27, 2007), we vacated as
unreasonable a sentence of one day in prison and ten
14 No. 06-1643
years’ supervised release in a child pornography
possession case where the guidelines range was 63 to
78 months and the district court’s reasons were at best
idiosyncratic and at worst deeply flawed. “A prison
sentence of one day for a crime Congress and the
American public consider grave, in circumstances that
enhance the gravity (we refer to the character of some
of the images) [depicting prepubescent girls being
vaginally raped by adult males], committed by a
convicted drug offender, does not give due weight to
the ‘nature and circumstances of the offense’ and the
‘history and characteristics of the defendant.’ ”
Goldberg, 2007 WL 1827645, at *3. In Goldberg, the
district court’s reasoning reflected serious misjudg-
ments about the gravity of the offense and the defen-
dant’s character and motivations, and the one-day
sentence was too severely disproportionate to the
guidelines range in the circumstances to withstand
reasonableness review.
2) In United States v. Roberson, 474 F.3d 432 (7th Cir.
2007), we vacated as unreasonable a sentence of one
month for an armed bank robbery and 84 months
consecutive on the companion gun charge. The applica-
ble guidelines range for the armed robbery was 46 to
57 months, and the 84-month consecutive sentence
for the gun offense was the mandatory minimum. The
district judge’s sentencing remarks reflected that
she was improperly influenced by her disagreement
with the statutory mandatory consecutive minimum
term on the gun offense and the prosecutor’s decision
to charge it. Id. at 434-35. Further, the mitigating
factors cited by the district court—the defendant’s
youth (he was 19 years old), good performance in
elementary school, and supportive family—were either
too “meager” or “two-edged” to support such a de
minimis sentence for an armed robbery. Id.No. 06-1643 15
3) In Repking, 467 F.3d at 1091, we vacated as unrea-
sonable a sentence of one day in prison and three
years’ supervised release for a wealthy bank executive
who misappropriated nearly $1 million in bank funds
by making false banking entries. The defendant was
also convicted of filing a false tax return, and his
applicable guidelines range for these offenses was 41
to 51 months. Although we found the district court’s
sentencing remarks to be procedurally adequate, we
concluded that the judge drastically overvalued the
mitigating factors (the defendant’s charitable works
and payment of restitution) and undervalued the
seriousness of the crime.
4) In Wallace, 458 F.3d at 606, we vacated as unrea-
sonable a sentence of three years’ probation for a wire
fraud involving $400,000 of intended loss where the
applicable guidelines range was 24 to 30 months in
prison. We said the mitigating factors identified by the
district court were permissible (the defendant’s
“extraordinary remorse” and cooperation and other-
wise law-abiding life) but did not justify such remark-
able leniency. Id. at 613. “In the end, it is the fact
that the court chose to eliminate any meaningful
incarceration for a crime that involved $400,000 of
intended loss that makes this such an extraordinary
choice.” Id. at 614.
On the other hand, in Baker, this court affirmed a below-
guidelines sentence of 87 months for distribution of child
pornography where the applicable guidelines range was
108 to 135 months. 445 F.3d at 987. We noted that “the
district court paid close attention to Mr. Baker’s lack of a
criminal history, his relatively young age, his religious
background and his history of employment and higher
education.” All of these factors, we held, were permissible
and adequately linked to § 3553(a) for the district court
to rely on them in arriving at a below-guidelines sen-
16 No. 06-1643
tence. Id. at 992. In affirming the 87-month sentence, the
Baker panel observed that the district court’s deviation
from the guidelines range was “sufficiently proportional”
to the strength of its reasons for deviating. Id. at 993. That
is, the variance from the guidelines range was not so
disproportionate to the factors justifying it as to make it
unreasonable. And in Ngatia, 477 F.3d at 501-02, we
affirmed a below-guidelines sentence of 84 months for
heroin importation. Although the sentence in Ngatia
was substantially lower than the guidelines range of 188
to 235 months, we affirmed the district court’s exercise of
Booker discretion, which rested primarily on the defen-
dant’s good character, sincere remorse, educational
achievements, and rehabilitative efforts.
In Goldberg, Roberson, Repking, and Wallace, the below-
guidelines sentences were fairly obviously unreasonable,
imposing little or no imprisonment for quite serious
crimes, on very weak or (as in Goldberg and Roberson)
seriously misguided or even impermissible reasoning. We
see this case as closer to Baker, and to a lesser extent
Ngatia. Here, as required by § 3553(a)(1), Judge Adelman
evaluated the nature and circumstances of Wachowiak’s
offense, acknowledging the severity of the offense of
receiving child pornography and noting that consumers
of child pornography like Wachowiak share responsibility
with its producers for the harm inflicted on its young
victims. He also duly noted the quantity and nature of
some of Wachowiak’s images as aggravating circum-
stances. On balance, however, the judge believed the
mitigating circumstances of the offense outweighed the
aggravating. Wachowiak neither produced nor purposely
distributed any of the images and never enticed or had
any improper contact with a child. He cooperated with
the government, gave a detailed confession, expressed
sincere remorse, sought treatment, and pleaded guilty in
a timely fashion.
No. 06-1643 17
The government argues the judge gave too much weight
to these factors in mitigation and notes that Wachowiak’s
cooperation, remorse, and guilty plea are already ac-
counted for in the guidelines calculation. It is true that
a defendant’s cooperation, remorse, and prompt guilty
plea are factored into the acceptance-of-responsibility
adjustment, but we said in Wallace that “[i]f Booker means
anything at all, it must mean that the court was permit-
ted to give further weight to a factor covered by a specific
guidelines adjustment, especially where (as is true here)
that factor is present to an exceptional degree or in some
other way makes the case different from the ordinary case
where the factor is present.” 458 F.3d at 613 (quotations
omitted). Judge Adelman thought Wachowiak’s “greater
expression of remorse” and “insight into his condition and
the harm he was causing children” deserved more weight,
a permissible discretionary judgment post-Booker.
Judge Adelman’s reliance on the fact that the defendant
did not commit a more serious crime strikes us as question-
able, however. In the first place, the judge’s duty is to
address the crime the defendant did commit. As impor-
tantly, the Sentencing Commission sets and adjusts the
guidelines ranges with the specific objective of achieving
proportionality in sentencing for crimes of differing
severity. Rita, 127 S. Ct. at 2464. The Commission is “a
respected public body with access to the best knowledge
and practices of penology,” Goldberg, 2007 WL 1827645, at
*5; its judgments should not lightly be disregarded. The
expert witnesses who evaluated Wachowiak’s recidivism
risk assigned some relevance to the fact that Wachowiak
had not escalated to “hands-on” sex offending; we think
this factor was more appropriately considered as an
offender characteristic than an offense characteristic.
Judge Adelman also considered at length Wachowiak’s
history and characteristics as required by § 3553(a)(1).
He heard (through testimony and letters) from one of
18 No. 06-1643
Wachowiak’s college professors, two of his aunts, his
mother, his grandmother, and his girlfriend, all of whom
spoke highly of his character and pledged their continued
support for him. The judge also considered the opinions
of the two experts (a sex offender counselor and a licensed
psychologist) who reported that Wachowiak posed little
risk of reoffending, was motivated to change, and was a
good candidate for treatment.4 The judge noted
Wachowiak’s academic accomplishments and musical
talent, as well as the positive references provided by his
past employers. Together with Wachowiak’s lack of
criminal history and genuine remorse, these factors
convinced the judge of Wachowiak’s “excellent” character,
amenability to treatment, and low recidivism risk.
Again, while Wachowiak’s guidelines range accounted
for some of these mitigating personal characteristics, the
judge believed the guidelines painted only a partial picture
of Wachowiak’s character and the need for punishment
and deterrence (both specific and general) in this case.
Judge Adelman said his assessment of Wachowiak’s
“history and characteristics” under § 3553(a)(1) encom-
passed more than tallying prior convictions to yield a
criminal history score. In addition to Wachowiak’s law-
abiding past and sincere remorse, the judge found that he
was “a kind, caring individual, who enjoyed the broad
support of family, friends, colleagues, and teachers” and
4
The government argues that the expert evidence about
Wachowiak’s risk to reoffend was “inconclusive at best” because
Wachowiak had tried before to overcome his child pornography
consumption but failed, and because the risk instruments
administered by Wachowiak’s therapist, Mr. Northway, were not
specifically designed for offenders who had not committed a
“hands-on” offense. These are not arguments for a reviewing
court; the sentencing judge was entitled to accept the experts’
opinions and give them the weight he thought they deserved.
No. 06-1643 19
“demonstrated strength of character in confronting his
problems,” none of which were reflected in Wachowiak’s
Category I criminal history under the guidelines. The
government counters that Wachowiak’s lack of criminal
history and expressions of remorse are common to many
child pornography offenders and thus do not warrant an
exceptional sentence. While Wachowiak may be a typical
offender in some respects, Judge Adelman sufficiently
explained why in his judgment, Wachowiak’s degree of
remorse and his otherwise good character set him apart
from more run-of-the-mill child pornography offenders.
In short, Judge Adelman methodically worked through
the statute, ultimately concluding that 70 months suffi-
ciently punished Wachowiak, reflected the seriousness of
his offense, promoted deterrence, protected the public, and
ensured prompt treatment, all considerations required
by § 3553(a)(2). While we might disagree with some of
Judge Adelman’s reasons for selecting a below-guidelines
sentence, they are not wrongheaded to the point of unrea-
sonableness, as in Goldberg and Roberson. They were, for
the most part, specific to Wachowiak (that is, not routine
in all or most child pornography possession cases) and
generally correspond to leniency in sentencing. The judge
gave meaningful consideration to the guidelines range
and explained at length why he felt Wachowiak deserved
less.
This is not a case in which the judge manifested dis-
agreement with the culpability assumptions built into the
guidelines, a prototypically unreasonable exercise of
Booker sentencing discretion. United States v. Gonzalez,
462 F.3d 754, 755 (7th Cir. 2006); United States v. Miller,
450 F.3d 270, 275-76 (7th Cir. 2006); Wallace, 458 F.3d at
612-13. Nor is this a case in which the judge deviated
from the guidelines solely on the basis of overstated
mitigating factors or “normal incidents” of the offense.
Repking, 467 F.3d at 1096. Judge Adelman did refer to one
20 No. 06-1643
normal incident of a child pornography conviction—the
social stigma of being a sex offender—as a “collateral
consequence” the guidelines failed to take into account.
Were this his only or primary reason for deviating
from the guidelines we might be more skeptical of the
sentence’s reasonableness, as stigma and child pornogra-
phy convictions go hand in hand. But this was just one of
many reasons the judge gave for this below-guidelines
sentence.
At bottom, the government believes 70 months does not
adequately reflect the seriousness of Wachowiak’s offense.
If we were sentencing Wachowiak, we might agree. But
our task on reasonableness review is limited; we are to
ensure that “the district judge imposed the sentence for
reasons that are logical and consistent with the § 3553(a)
factors,” Williams, 425 F.3d at 781, and that the sentence
imposed falls within the broad range of reasonable sen-
tences in the circumstances of the case. A one-day sen-
tence for a millionaire bank executive who stole nearly
$1 million fell outside that range, Repking, 467 F.3d at
1096 (advisory guidelines range of 41 to 51 months), as
did a sentence of probation for a brokerage employee
who embezzled $400,000, Wallace, 458 F.3d at 606 (advi-
sory guidelines range of 24 to 30 months). A one-day
sentence for possession of hundreds of highly aggravated
images of child pornography fell outside that range,
Goldberg, 2007 WL 1827645, at *1, *3 (advisory guidelines
range of 63 to 78 months), as did a sentence of one month
for armed bank robbery, Roberson, 474 F.3d at 437 (advi-
sory guidelines range of 46 to 57 months). This sentence of
70 months for receiving child pornography, though cer-
tainly lenient given the seriousness of the crime, lies
tolerably within the boundaries of permissible differences
of judicial opinion.
Booker sentencing discretion is inevitably in tension
with the congressional goals of achieving greater unifor-
No. 06-1643 21
mity and proportionality in sentences through a system of
guidelines sentencing. Rita, 127 S. Ct. at 2464. But we do
not understand Booker’s review-for-reasonableness stan-
dard to empower us to displace district court sentencing
judgments more aggressively than traditional abuse-of-
discretion principles normally would allow. See United
States v. Pruitt, 487 F.3d 1298, 1319-20 (10th Cir. 2007)
(McConnell, J., concurring) (discussing the limits of
appellate review for reasonableness, observing that
“appellate courts . . . have neither the district court’s
familiarity with individual circumstances nor the [Sentenc-
ing] Commission’s expertise and democratic warrant to
set policy”). On this understanding of reasonableness
review, Wachowiak’s 70-month sentence is not unreason-
able.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-1-07