United States v. Shannon, Ralph ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2794
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RALPH SHANNON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 CR 179—Barbara B. Crabb, Chief Judge.
____________
ARGUED JANUARY 11, 2008—DECIDED FEBRUARY 29, 2008
____________
Before BAUER, POSNER and EVANS, Circuit Judges.
BAUER, Circuit Judge. Ralph Shannon pleaded guilty to
one count of possession of child pornography, in violation
of 18 U.S.C. § 2252(a)(4). The district court sentenced
Shannon to 46 months’ imprisonment and a life term of
supervised release. On appeal, he argues that (1) the
federal sentencing scheme approved in United States v.
Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)
violates the Fifth and Sixth Amendments; and (2) his
sentence was unreasonable. For the following reasons,
we affirm.
2 No. 07-2794
In 2003, federal authorities initiated a nationwide inves-
tigation into a company called Regpay, which owned
and operated various members-only internet websites
containing images of children engaged in sexually ex-
plicit conduct with other children and adults. The investi-
gation revealed that Shannon was one of Regpay’s paying
customers, and that he had accessed several pornog-
raphic websites through Regpay. On March 24, 2005,
investigators executed a search warrant at Shannon’s
home, seizing two desktop computers, three computer
hard drives, computer media, child-sized sex toys, and
a child-sized mannequin. An examination of the com-
puters and hard drives revealed over 400 images con-
taining child pornography.
On April 20, 2007, Shannon pleaded guilty to one
count of possession of child pornography, in violation of
18 U.S.C. § 2252(a)(4). The presentencing investigation
report (“PSR”), which the district court adopted, stated
that based on Shannon’s criminal history category (I) and
the offense level (twenty-three), the guidelines range
was forty-six to fifty-seven months’ imprisonment with
a range of two years to life of supervised release. The
PSR recommended a sentence of 57 months’ imprison-
ment with a life term of supervised release.
At sentencing, Shannon addressed his objections to the
PSR, including the recommended life term of supervised
release. The court stated that though Shannon’s crim-
inal history category was the lowest possible, his “interest
in sexually explicit depictions of children demonstrates
a substantial need to protect the public.” Taking into
consideration Shannon’s history and characteristics, as
well as the seriousness of the offense, the court found
that a sentence of imprisonment on the low end of the
No. 07-2794 3
sentencing guideline range would protect the com-
munity and reflect the serious nature of Shannon’s actions
“when the sentence is coupled with a life term of super-
vised release with stringent conditions.” The court recom-
mended that Shannon be afforded the opportunity to
participate in sex offender treatment while incarcerated.
The district court then sentenced Shannon to 46 months’
imprisonment, and a life term of supervised release.
Shannon raises two issues on appeal, the first of which
we can dispose of in haste. Shannon argues (as far as
we can discern) that his sentence was unconstitutional
under the Fifth Amendment and the Sixth Amendment
as interpreted by Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) because the post-
Booker guidelines scheme impermissibly allows district
court judges to find facts that affect federal sentences.
Because Shannon failed to raise this issue before the
trial court, it is forfeited, and our review is for plain
error. United States v. Matthews, 505 F.3d 698, 707 (7th
Cir. 2007). We have considered similar arguments on
multiple occasions, and have rejected them. See United
States v. Roti, 484 F.3d 934, 937 (7th Cir. 2007); United States
v. Savage, 505 F.3d 754, 764 (7th Cir. 2007); United States v.
Hollins, 498 F.3d 622, 633 (7th Cir. 2007); United States v.
White, 472 F.3d 458, 464-65 (7th Cir. 2006). District court
judges do not violate the Constitution when they find
facts by a preponderance of the evidence for purposes of
calculating a guideline range, as long as the guidelines
remain advisory and the ultimate decision is based on
consideration of the § 3553(a) factors. Hollins, 498 F.3d
at 633.
In his other argument on appeal, Shannon also con-
tends that the district court failed to adequately articulate
4 No. 07-2794
the reasons for her decision to sentence Shannon to the
guidelines recommendation of lifetime supervision. We
review sentences for reasonableness, using an abuse of
discretion standard. United States v. Sura, 511 F.3d 654,
664 (7th Cir. 2007). A sentence is reasonable if the district
court gives meaningful consideration to the factors enu-
merated in 18 U.S.C. § 3553(a),1 including the advisory
sentencing guidelines, and arrives at a sentence that is
objectively reasonable in light of the statutory factors and
the individual circumstances of the case. Gall v. United
States, 552 U.S. ___, 128 S.Ct. 586, 596-97, 169 L.Ed.2d
445 (2007); United States v. Wachowiak, 496 F.3d 744, 748
(7th Cir. 2007). The court need not address every § 3553(a)
factor in checklist fashion, explicitly articulating its con-
clusions regarding each one. United States v. Brock, 433
F.3d 931, 934-36 (7th Cir. 2006); United States v. Dean,
414 F.3d 725, 729 (7th Cir. 2005). Instead the court may
1
Those factors include, in pertinent part:
(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 conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other correc-
tional treatment in the most effective manner.
18 U.S.C. § 3553(a).
No. 07-2794 5
simply give an adequate statement of reasons, consistent
with § 3553(a), for thinking the sentence it selects is ap-
propriate. United States v. Harris, 490 F.3d 589, 597 (7th
Cir. 2007). A sentence within a properly calculated guide-
line range is presumed reasonable. United States v. Haskins,
511 F.3d 688, 695 (7th Cir. 2007) (citing Rita v. United States,
___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007));
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005)
(adopting a rebuttable presumption of reasonableness
for within-guidelines sentences).
In this case, the district court sufficiently explained
Shannon’s sentence, including the life term of supervised
release. The court took into consideration: (1) Shannon’s
limited criminal history, see § 3553(a)(1); (2) the serious
nature of the offense, see id.; (3) the fact that Shannon’s
interest in child pornography demonstrated a “substan-
tial need to protect the public,” see § 3553(a)(2)(C); and
(4) Shannon’s need for sex offender treatment and super-
vision, see § 3553(a)(2)(D). After explaining these factors,
the court found that a sentence at the low end of the
guidelines range for imprisonment and at the high end of
the range for supervised release was required in this case.
The court adequately addressed the objections raised by
Shannon, and demonstrated nothing short of a thorough
and thoughtful analysis of Shannon’s case. Shannon
presents nothing to disturb the rebuttable presumption
of reasonableness of his within-guidelines sentence.
Accordingly, we AFFIRM Shannon’s sentence.
USCA-02-C-0072—2-29-08