United States v. Cory Reibel , 688 F.3d 868 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3416
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
C ORY M. R EIBEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:11-cr-30058-GPM-1—G. Patrick Murphy, Judge.
A RGUED A PRIL 24, 2012—D ECIDED A UGUST 6, 2012
Before B AUER, K ANNE and H AMILTON, Circuit Judges.
P ER C URIAM. Cory Reibel sexually molested his girl-
friend’s three-year-old daughter and took pornographic
photos of her. He pleaded guilty to two counts of pro-
ducing child pornography in violation of 18 U.S.C.
§ 2251(a) and received concurrent prison sentences of
360 months, the bottom of the Guidelines range but
also the statutory maximum. Reibel argues on appeal
that his sentence is unreasonable in two ways: it
2 No. 11-3416
punishes him as severely as the worst child porno-
graphers, and the judge based it on mere speculation
about sex offenders and their victims rather than on
evidence. But we have repeatedly rejected the idea that
the maximum sentence for child-pornography offenses
must be reserved for the worst offenders, and the
district judge had sound reasons for choosing the sen-
tence he imposed. We therefore affirm the district
court’s judgment.
I. BACKGROUND
Reibel was living with his girlfriend, D.P., and her
three-year-old daughter when the child told her
mother that Reibel had touched her “private area.” D.P.
promptly confronted Reibel, but he swore that he
had just rubbed the child’s belly. Unconvinced, D.P.
searched Reibel’s cell phone one morning as he slept
and there discovered four photos of her daughter’s
nude pubic area. After sending them to her own
phone, D.P. left the house and called the police. Reibel
was arrested and admitted to taking the photos. The
child, in a forensic interview, said that in addition to
photographing her Reibel had digitally penetrated her
vagina and anus and had called her “sexy.”
Federal prosecutors charged Reibel with two counts
of producing child pornography. Reibel, who had co-
operated throughout the investigation, pleaded guilty
to both charges. A probation officer then prepared a
presentence report describing Reibel’s difficult child-
hood (his stepfather was physically, though not sexually,
No. 11-3416 3
abusive), lack of a criminal record, gainful employment
as lead server for a catering company, and victimization
of D.P.’s daughter. Also included in the presentence
report was a victim-impact statement from D.P. in
which she relates that she spent five days in a psychiatric
ward after learning of Reibel’s crimes and that she and
her daughter continue to suffer psychologically.
Reibel’s probation officer calculated his Guidelines
imprisonment range at 360 months to life based on a
criminal history category of I and total offense level of
42 (base offense level of 32, see U.S.S.G. § 2G2.1(a), plus
4 levels because the victim was under age 12, see id.
§ 2G2.1(b)(1), 2 levels for molesting the girl, see id.
§ 2G2.1(b)(2)(A), 2 levels because the victim was under
Reibel’s care, see id. § 2G2.1(b)(5), and 5 levels for
engaging in a pattern of abuse (the photos were
taken on two different days), see id. § 4B1.5(b), minus
3 levels for acceptance of responsibility, see id. § 3E1.1).
But taking the statutory maximum into account, see
18 U.S.C. § 2251(e), the probation officer concluded that
Reibel’s advisory sentence was just 360 months. (The
Guidelines call for concurrent sentences on Reibel’s
two counts. See U.S.S.G. § 5G1.2(c).)
At sentencing Reibel’s lawyer conceded that the
presentence report stated the facts accurately and calcu-
lated his advisory sentence correctly, but he argued
that Reibel’s remorse, lack of prior convictions, history
of drug addiction, desire for treatment, and professed
commitment not to reoffend meant that a below-Guide-
lines sentence of 188 months’ imprisonment would satisfy
4 No. 11-3416
the goals of sentencing. For its part, the government
urged the judge to give Reibel 5 years beyond the
advisory 30 by imposing consecutive rather than con-
current sentences.
After listening to the parties’ entreaties, the judge
detailed how the sentencing factors of 18 U.S.C. § 3553(a)
applied in Reibel’s case. He began with the nature of
the offense, which he called a “repulsive crime that Con-
gress . . . has set its face against.” Turning next to the
defendant’s history and characteristics, he acknowl-
edged Reibel’s “particularly difficult childhood,” clean
criminal record, and steady employment. The judge
then emphasized the need to provide “just punishment”
and to protect society from the defendant, explaining
that D.P.’s desire for retribution was legitimate and
that lengthy incarceration would prevent Reibel from
reoffending. The judge rejected, however, the govern-
ment’s request for a 35-year sentence and instead
imposed concurrent 30-year sentences. In his assess-
ment, “the sentencing scheme laid out by Congress in
this case is well thought out and it’s appropriate.”
II. DISCUSSION
On appeal Reibel first argues that the child-
pornography Guidelines skew toward the statutory
maximum and that this, in combination with mitigating
evidence in his presentence report, rebuts the appellate
presumption that a within-Guidelines sentence is rea-
sonable. The child-pornography Guidelines, he notes,
were developed without the help of empirical evidence,
No. 11-3416 5
see United States v. Maulding, 627 F.3d 285, 287 (7th
Cir. 2010), and he contends that as a result they fail to
approximate the sentencing goals of § 3553(a). This is
demonstrated, he says, by his receiving the same
sentence as child pornographers who are statistically
more likely to reoffend and whose conduct was “far
more reprehensible.”
Reibel is making what amounts to a marginal-
deterrence argument (i.e., an argument that the harshest
sentences must be reserved for the worst offenders, see
United States v. Newsom, 428 F.3d 685, 688 (7th Cir. 2005)).
But marginal-deterrence arguments stand a chance
only if the sentencing scheme actually encourages crimi-
nals to commit more-serious crimes (for example, if the
punishment for robbery were the same as that for
murder, then robbers would have an incentive to
murder any witnesses to their robberies). See United
States v. Beier, 490 F.3d 572, 575 (7th Cir. 2007). The child-
pornography sentencing scheme gives no such encour-
agement; offenders worse than Reibel can be given con-
secutive sentences or prosecuted separately for child
molestation (or another crime). See id.; United States v.
Klug, 670 F.3d 797, 801-02 (7th Cir. 2012); Maulding,
627 F.3d at 288. Reibel correctly points out that the
consecutive-sentence option is available only for defen-
dants facing multiple charges, but we have difficulty
imagining an offender worse than Reibel who could
neither be charged with more than one child-pornography
count nor prosecuted separately for a related crime. In
any event, the potential inaptness of the Guidelines in
some sex cases does not obligate district judges to give
6 No. 11-3416
all sex offenders below-Guidelines sentences. See United
States v. Garthus, 652 F.3d 715, 721 (7th Cir. 2011); Maulding,
627 F.3d at 288; United States v. Huffstatler, 571 F.3d 620,
623-24 (7th Cir. 2009).
Anticipating the possibility that his marginal-
deterrence argument would be unavailing, Reibel also
argues that, irrespective of any flaws in the Guidelines,
the mitigating evidence in his presentence report rebuts
the appellate presumption that a within-Guidelines sen-
tence is reasonable. He points to his stable employment,
high school diploma, lack of prior convictions, and
the abuse he suffered as a child. The judge, however,
thoroughly considered this mitigating evidence when
applying the § 3553(a) factors, and Reibel’s disagree-
ment with how the judge weighted particular factors
does not establish an abuse of discretion. See Beier, 490
F.3d at 574.
Reibel next challenges the reasonableness of his sen-
tence by arguing that the district judge based it on mere
speculation about sex-offender recidivism rates and the
severity of damage suffered by sex-abuse victims rather
than on dependable evidence. He relies on United States
v. Miller, 601 F.3d 734 (7th Cir. 2010), in which we con-
cluded that the defendant’s above-Guidelines sentence
was unreasonable because it was based on the district
judge’s belief, unsupported by evidence, that “sex-of-
fenders have a higher than normal rate of recidivism,
specific deterrence does not work for them, and as a
result, lengthy incapacitation is the only way to protect
the public,” id. at 739. According to Reibel, his own sen-
No. 11-3416 7
tence was inspired by the same unfounded views. In
support of this contention he provides quotations from
his sentencing hearing and cites several sex-offender
studies finding comparatively low recidivism rates
for first-time offenders, for perpetrators who were not
themselves victims of sexual abuse, and for men who
molest female rather than male children. He also cites
a study finding that the psychological repercussions
of sexual abuse are influenced by the victim’s age at the
time of the abuse (younger children tend to recover
faster) and its duration, which in this case was relatively
short thanks to the victim’s conscientious mother.
We are unpersuaded that the judge based Reibel’s
sentence on speculation and ignored evidence that
should have been taken into account. In contrast to
Miller, the judge here did not opine that sex offenders
are utterly intractable or irredeemable; he instead ex-
plained that though it remains an “open question”
whether punishment effectively deters sex offenders, sex-
offender recidivism rates, like those of other offenders,
are known to drop with age. And importantly, Reibel
received a presumptively reasonable within-Guidelines
sentence, see Rita v. United States, 551 U.S. 338, 347 (2007),
whereas the defendant in Miller was given an above-
Guidelines sentence requiring special justification, 601
F.3d at 739. As for the studies on sex offenders and their
victims that Reibel cites in his appellate brief, he never
brought them to the attention of the district court, and
sentencing judges cannot be expected to rely on
evidence not before them. See Beier, 490 F.3d at 574. Be-
sides, to tie sex offenders’ sentences to the statistics
8 No. 11-3416
Reibel presents in his brief would be repugnant:
offenders would be able to secure a shorter sentence
by molesting girls rather than boys; offenders who
were once victims would receive longer sentences than
those who were not; and abusers of young children
would receive shorter sentences than those whose
victims were older.
Reibel’s last challenge to his sentence is that it is unrea-
sonable because the district judge gave great weight
to two of the § 3553(a) factors: the need for just
punishment (D.P.’s legitimate desire for retribution) and
the need to protect society from Reibel’s potential
future offenses. Again, sentencing judges have discretion
over how much weight to give a particular factor. Beier,
490 F.3d at 574; Garthus, 652 F.3d at 720-21. Although
the weighting must fall “ ‘within the bounds of reason,’ ”
those bounds “ ‘are wide,’ ” United States v. Busara, 551
F.3d 669, 674 (7th Cir. 2008) (quoting United States v.
Johnson, 471 F.3d 764, 766 (7th Cir. 2006)), and Reibel
offers no good reason to conclude that the judge
here abused his discretion. Penalties for child-porno-
graphy offenses are harsh, but Reibel’s offense does not
fall outside the heartland of such cases.
III. CONCLUSION
The judgment of the district court is A FFIRMED.
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