United States v. Brian Annoreno , 713 F.3d 352 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2783
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B RIAN A. A NNORENO ,
a/k/a “A CIDBURN ”,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 33—James B. Zagel, Judge.
A RGUED JANUARY 14, 2013—D ECIDED A PRIL 12, 2013
Before E ASTERBROOK, Chief Judge, H AMILTON, Circuit
Judge, and M ILLER, District Judge. Œ
M ILLER, District Judge. Brian Annoreno appeals his
aggregate 480-month sentence after pleading guilty to
charges of conspiring to receive, transport, and distribute
Œ
The Honorable Robert L. Miller, Jr. of the Northern District
of Indiana, sitting by designation.
2 No. 11-2783
child pornography, receipt of child pornography,
and possession of materials containing child pornog-
raphy. He contends the sentencing judge committed a
variety of errors: failing to calculate the guideline range
properly, failing to state his reasons or address ade-
quately Mr. Annoreno’s sentencing disparity argument,
improperly considering Mr. Annoreno’s mental disabil-
ities as an aggravating factor, enhancing the sentence
based on speculation about the time needed for rehabil-
itation, and imposing a substantively unreasonable sen-
tence. We find no error and affirm Mr. Annoreno’s sen-
tence.
A.
Today’s case presents a number of facts not commonly
seen in child pornography cases. Mr. Annoreno was an
administrator—a person with significant authority—of
an internet chat room called “Kiddypics & Kiddyvids.”
Through this chat room, users would broadcast live
videos of people sexually molesting and abusing young
children, including infants. The software program be-
hind the chat room allowed users to engage in conver-
sation and trade child pornography through “peer-to-
peer” file sharing. In peer-to-peer file sharing, users
make specific files and videos containing child pornogra-
phy available to others in exchange for access to such
files on other users’ computers. Mr. Annoreno made
such files on his computer available, trading for others’
images and videos of child pornography. Mr. Annoreno
used the screen name “Acidburn” on this site and came
No. 11-2783 3
to chat with a person using the name “Big_Daddy619.”
Using this site and the peer-to-peer software,
Big_Daddy619 broadcast his molestations of four
children live to other users. Big_Daddy619, who
eventually cooperated with investigators and testified
at Mr. Annoreno’s sentencing hearing, also watched
Mr. Annoreno sexually molest a child, then no more
than one year old, about five times.
Investigators identified “Acidburn” sufficiently to get
a warrant for the computers in the home Mr. Annoreno
shared with his mother and his daughter. The inves-
tigators found more than 57 files containing child pornog-
raphy on one of the computers—seven files were stored
in the temporary Internet files folder and the rest had
been deleted but still existed in the hard drive’s
unallocated space. Mr. Annoreno quickly confessed
to police and helped them identify other users of
the “Kiddypics & Kiddyvids” chat room, including
Big_Daddy619, on whose computer investigators even-
tually found a close-up image of the genitalia of the
child Mr. Annoreno had molested on “Kiddypics &
Kiddyvids.”
While in custody on those charges, Mr. Annoreno
prepared a list of child pornography he wanted and
offered another inmate payment if the inmate could
procure it for him. His request focused on boys aged
two to five. Other inmates attacked Mr. Annoreno
while he was in custody, leaving him nearly blind.
After being examined and found competent to pro-
ceed, Mr. Annoreno entered into a plea agreement with
4 No. 11-2783
the government. Mr. Annoreno pleaded guilty to three
of the counts against him and provided a factual basis
for those counts. The plea agreement noted the parties’
factual dispute about whether Mr. Annoreno had made
a video of himself molesting and performing oral sex
on a child and of that child’s genitalia; the government
would seek to prove those things at the sentencing hear-
ing. The plea agreement noted that the maximum
sentence permitted by statute was 50 years and set
forth four potential sentencing guideline ranges that
might apply, depending on the sentencing court’s
findings and cross-references. The plea agreement left
both the government and Mr. Annoreno free to seek
any sentence allowed by law.
The presentence report took the government’s posi-
tions with respect to the broadcasting of the videos and
images of the child Mr. Annoreno molested and ac-
ceptance of responsibility and calculated the guidelines
as recommending a sentence of life imprisonment. Be-
cause the advisory guideline range exceeded the
statutory maximum of 50 years, the presentence report
concluded that the guidelines recommended a 50-year
sentence. U.S.S.G. § 5G1.1(a) (“Where the statutorily
authorized maximum sentence is less than the mini-
mum of the applicable guideline range, the statutorily
authorized maximum sentence shall be the guideline
sentence.”); see, e.g., United States v. Craig, 703 F.3d 1001,
1002 (7th Cir. 2012) (“Because his total offense level
was 43, his guideline range for each count was life. . . .
But the judge could not impose that sentence because
the statutory maximum sentence for each count was
No. 11-2783 5
30 years.”). Mr. Annoreno objected to the presentence
report’s guideline calculations to the extent they were
based on the videos and images of the child. The gov-
ernment made technical objections relating to the
grouping calculations, but wound up at the same place
as the presentence report: an advisory guideline range
of 50 years.
The district court conducted a two-day evidentiary
hearing. At the end of the hearing, Mr. Annoreno
declined the court’s invitation for additional objections
to the proposed guideline calculations. The sentencing
court declined to resolve the government’s grouping
argument because the guidelines would recommend a
life sentence no matter how the grouping was done.
After noting that the guideline range was advisory, the
court adopted the presentence report’s calculations. The
court invited argument concerning the sentencing
factors in 18 U.S.C. § 3553(a), heard Mr. Annoreno’s
allocution, and imposed an aggregate 40-year sentence.
Mr. Annoreno appeals that sentence.
B.
Mr. Annoreno argues that the sentencing court commit-
ted procedural and substantive error, triggering dif-
fering standards of review: “First, we conduct a de novo
review for any procedural error. If we determine that
the district court committed no procedural error, we
review the sentence for substantive reasonableness
under an abuse-of-discretion standard.” United States v.
Marin-Castano, 688 F.3d 899, 902 (7th Cir. 2012) (citations
6 No. 11-2783
omitted). As to the procedural challenge, we look to see
whether the sentencing judge properly calculated the
guideline range, recognized that the guideline range
wasn’t mandatory, considered the sentencing factors in
28 U.S.C. § 3553(a), selected a sentence based on facts
that weren’t clearly erroneous, and explained the sen-
tence adequately. Gall v. United States, 552 U.S. 38, 53
(2007); United States v. Jackson, 547 F.3d 786, 792 (7th
Cir. 2008).
Mr. Annoreno contends the district court didn’t
calculate and announce the advisory guideline range.
We disagree. First, Mr. Annoreno offered no objection
when the sentencing judge told both counsel, “if that’s
not correct, this is the time to speak to me.” Nor did
Mr. Annoreno object at sentencing to the sentencing
court’s determination that Mr. Annoreno wasn’t en-
titled to an offense level reduction for acceptance of
responsibility. Accordingly, we review the sentencing
record for plain error. United States v. Robinson, 663
F.3d 265, 268 (7th Cir. 2011); United States v. Brodie, 507
F.3d 527, 530 (7th Cir. 2007).
A sentencing judge can adopt the presentence report as
his or her findings if the judge decides its content is
accurate. United States v. Willis, 300 F.3d 803, 807 (7th
Cir. 2002); United States v. Parolin, 239 F.3d 922, 924-25
(7th Cir. 2001). The sentencing judge did so when he
said the report had calculated Mr. Annoreno’s guidelines
correctly. Ample evidence supported his finding in the
government’s favor (as recommended by the presentence
report) with respect to Mr. Annoreno’s conduct with
No. 11-2783 7
the child. Mr. Annoreno admitted the conduct in his
statement to authorities, and Big_Daddy619 testified
during the sentencing hearing. Mr. Annoreno’s efforts to
obtain child pornography while in custody provide
ample support for finding (as the presentence report
recommended) that Mr. Annoreno hadn’t accepted
responsibility. See United States v. DeLeon, 603 F.3d
397, 409 (7th Cir. 2010) (no reduction for acceptance of
responsibility where court found defendant didn’t “vol-
untarily terminate or withdraw from criminal conduct
in the sense the Guidelines seem to contemplate,” citing
U.S.S.G. § 3E1.1, cmt. n.1(b)). By adopting the pre-
sentence report, the sentencing judge found the ad-
visory guideline to be life imprisonment (statutorily
capped at 50 years). The judge might have used more
words in adopting the presentence report and its guide-
line calculation, but no more were needed.
Mr. Annoreno argues that the district court should
have discussed the alternative sentencing ranges men-
tioned in the presentence report, but he cites no
authority for that proposition. He made no such request
at the sentencing hearing. There might be cases in which
determining the guideline recommendation requires
discussing alternative methods of calculation, but we
haven’t required that for all cases. See United States v.
Scott, 631 F.3d 401, 410 (7th Cir. 2011) (“While the
district court might have been required to issue a
more explicit ruling on this issue had [the defendant]
more expressly raised it, [his] veiled references to
[other guideline ranges] did not obligate the district
court to address this issue more directly.”). Mr. Annoreno
8 No. 11-2783
gives us no reason why such a discussion was neces-
sary in his case. The sentencing court adopted the pre-
sentence report, which explained its calculations.
Two of Mr. Annoreno’s next claims of error can best
be considered together. Mr. Annoreno contends that
the sentencing court made impermissible use of evidence
of Mr. Annoreno’s diminished capacity by using it as
an aggravating factor rather than as a mitigating fac-
tor. Mr. Annoreno also says the sentencing court
impermissibly used his need for treatment as a factor
favoring longer confinement. We understand the sen-
tencing court’s comments differently.
The sentencing guideline’s policy statements recog-
nize that a lower sentence might be warranted if a defen-
dant’s sign ificantly reduced m ental capacity—
meaning an impaired ability to control behavior that
the defendant knows is wrongful—substantially contrib-
uted to the commission of the offense. U.S.S.G. § 5K2.13.
At the sentencing hearing, Mr. Annoreno presented
evidence of his low IQ (71), his susceptibility to being
led by others, Attention Deficit Hyperactive Disorder,
Attention Deficit Disorder, depression, manic depres-
sion, and bi-polar disorder. He notes that in United
States v. Durham, 645 F.3d 883, 898 (7th Cir. 2011), we
said, “A finding of diminished capacity should never
be treated as an aggravating factor for sentencing pur-
poses.” But we also explained in Durham that “the dis-
tinction between diminished capacity and personal char-
acteristics that either increase or decrease the risk of
recidivism (i.e., aggravating or mitigating factors) is an
No. 11-2783 9
important one” and “a defendant must show why a
particular personal characteristic, such as a low IQ,
acts as a mitigating factor, as opposed to an ag-
gravating one.” Id.; see also United States Kubeczko, 660
F.3d 260, 262-63 (7th Cir. 2011); United States v.
Garthus, 652 F.3d 715, 717-18 (7th Cir. 2011). The sen-
tencing court acknowledged both the aggravating
and mitigating aspects of Mr. Annoreno’s mental charac-
teristics:
He is a man who’s had very bad luck. He’s had very
bad luck because of his genetic inheritance, which
is not his fault. . . .
But he was born with some disabilities; and while
disabilities often mitigate, and in a moral sense in
this case may very well mitigate the offense, in
some circumstances—and this is one—they aggravate
the sentence.
. . . His mental abilities will make—in my experience,
will make his therapy, to the extent there is therapy
for this because there are many who get it and
don’t benefit, would make his therapy difficult
to accomplish, but mainly, more than anything else,
he is a follower. No one disagrees on that. And
that idea of administering the website is part of his
being a follower, not really part of being a leader.
But the trouble is that he has a need now for some-
thing that is not only illegal, but it is destructive
to children; and I don’t think he has the ability to
control it.
Sent. Tr., at 188-89.
10 No. 11-2783
The sentencing court acknowledged the mitigation to
be found in culpability to the extent Mr. Annoreno’s
mental characteristics were viewed as significantly
reduced mental capacity. The sentencing court also
noted that Mr. Annoreno’s mental characteristics might
make him less amenable to treatment and rehabilita-
tion, which would leave him a continuing risk to chil-
dren. The sentencing court considered its options
and permissibly decided that treatment was unlikely
to be effective. There was no abuse of discretion in
the court’s analysis of Mr. Annoreno’s mental charac-
teristics, including his diminished mental capacity.
Mr. Annoreno also argues that the sentencing court
gave him a longer prison sentence so that he could re-
ceive more rehabilitative treatment. Federal sentencing
courts can’t do that. Tapia v. United States, 131 S. Ct. 2382,
2391 (2011) (“[T]his is a case in which text, context,
and history point to the same bottom line: Sec-
tion 3582(a) precludes sentencing courts from imposing
or lengthening a prison term to promote an offender’s
rehabilitation.”); United States v. Lucas, 670 F.3d 784, 795
(7th Cir. 2012) (“Although ‘imprisonment’ is not an
appropriate means of promoting correction and rehab-
ilitation,’ 18 U.S.C. § 3582(a), the mere mention that
[the defendant] would have the opportunity to take
part in rehabilitative programs is not prohibited under
Tapia.”). Mr. Annoreno misinterprets what the sen-
tencing court did. The sentencing court didn’t say
Mr. Annoreno’s sentence must be 40 years because it
will take that long to rehabilitate him. The sentencing
court said that given the significant amount of informa-
No. 11-2783 11
tion it had, Mr. Annoreno couldn’t be rehabilitated
through treatment, so “if he is not incapacitated for a
sufficiently long period of time until he reaches an age
where it will be difficult for him to participate in child
exploitation issues, [then] he represents a danger to the
community.” Sent. Tr., at 190.
In his argument in this court, Mr. Annoreno’s counsel
pointed to several cases in which defendants were
sentenced to well below 50 years for conduct that
Mr. Annoreno saw as more egregious than his own. He
argues that the sentencing court didn’t address his non-
frivolous argument that a sentence of 17 to 22 years
was needed to avoid unwarranted sentencing disparities.
Sentencing within the range advised by the sentencing
guidelines accounts for concerns of unwarranted sen-
tencing disparities, United States v. Pape, 601 F.3d 743,
750 (7th Cir. 2010), so we have described challenges
that a within-range sentence is disparate as “pointless.”
United States v. Chapman, 694 F.3d 908, 916 (7th Cir. 2012).
A below-range sentence is most unlikely to create a
sentencing disparity adverse to the defendant. See
United States v. Lemke, 693 F.3d 731, 733 (7th Cir. 2012)
(“Lemke faces an uphill battle on appeal, given that his
sentence is presumptively reasonable because it is
below the applicable Guidelines range.”).
There was no procedural error in Mr. Annoreno’s
sentencing.
12 No. 11-2783
C.
We apply an abuse of discretion standard when evalu-
ating a sentence’s reasonableness. United States v. Taylor,
701 F.3d 1166, 1174 (7th Cir. 2012) (citing Gall v.
United States, 552 U.S. 38, 46 (2007)). “We will uphold
[a] sentence so long as the district court offered an ade-
quate statement of its reasons, consistent with 18 U.S.C.
§ 3553(a), for imposing such a sentence.” United States
v. Abebe, 651 F.3d 653, 657 (7th Cir. 2011) (quoting
United States v. Aldridge, 642 F.3d 537, 544 (7th Cir.
2011)). “Although the district judge is not required to
make factual findings as to each of the [§ 3553(a)]
factors, the record on appeal should reveal that the
district judge considered the factors. . . . It is simply
not required that the sentencing judge tick off every
possible sentencing factor or detail and discuss, sep-
arately, every nuance of every argument raised for
this court to find that the sentence was proper.” United
States v. Collins, 640 F.3d 265, 270-71 (7th Cir. 2011).
Mr. Annoreno argues that his sentence was substan-
tively unreasonable for several reasons. He says the
sentencing court had no evidentiary basis on which
to decide how long he needed to be imprisoned before
the public would be safe, statistics show that de-
fendants like Mr. Annoreno are unlikely to recidivate,
his physical condition makes it unlikely he will offend
again, and conditions of supervision protected the
public adequately. A sentence within the range the sen-
tencing guidelines recommend is presumptively rea-
sonable. United States v. Ramirez-Fuentes, 703 F.3d 1038,
No. 11-2783 13
1049 (7th Cir. 2013). The presumption is no weaker
when the sentence was ten years below what the guide-
lines recommend. See United States v. Klug, 670 F.3d
797, 800 (7th Cir. 2012) (384-month sentence pre-
sumed reasonable when guidelines recommended life).
Mr. Annoreno hasn’t overcome that presumption.
Mr. Annoreno demands more of a sentencing record
than the law requires with respect to protecting the
public. The sentencing court made its best estimate as
to when it would be safe to return Mr. Annoreno to the
general public, taking into account the unusually large
amount of information the court had about him.
Mr. Annoreno might be right that a shorter sentence
would have sufficed, or the sentencing guidelines
might be right that the public still will be at risk if
Mr. Annoreno ever walks out of prison alive. But a lack
of certainty as to how to achieve a goal doesn’t mean
a sentencing court can’t shape a reasonable sentence
with that goal in mind. The sentencing court didn’t
decide Mr. Annoreno’s sentence on the basis of unsub-
stantiated beliefs about the chances of rehabilitation or
recidivism of child sex offenders as a class. Cf. United
States v. Bradley, 628 F.3d 394, 398-99 (7th Cir. 2010);
United States v. Miller, 601 F.3d 734, 739 (7th Cir.
2010). Federal sentencing law requires no more than
reasonableness, and a 40-year sentence for this 35-year-
old seems consistent with what we know from the per-
spective of incapacitation. See, e.g., United States v.
Craig, 703 F.3d 1001, 1003-04 (7th Cir. 2012) (Posner, J.,
concurring) (“For suppose the defendant had been sen-
tenced not to 50 years in prison but to 30 years.
14 No. 11-2783
He would then be 76 years old when released (slightly
younger if he had earned the maximum good-time cred-
its). How likely would he be to commit further crimes
at that age? . . . It is true that sex offenders are more
likely to recidivate than other criminals . . . because
their criminal behavior is for the most part compulsive
rather than opportunistic. But capacity and desire to
engage in sexual activity diminish in old age.”).
Mr. Annoreno reports that research shows that
“first offenders” like him (with only minor prior convic-
tions for which the guidelines don’t assess criminal
history points) have only an 8.8% recidivism rate;
he cites other statistics showing that sex offenders’ recidi-
vism rates are lower than for the average criminal and
online offenders have lower recidivism rates, as well.
Such statistics can be helpful to sentencing courts and
reviewing courts alike, but since United States v. Booker,
543 U.S. 220, 245-46 (2005), sentencing courts try to indi-
vidualize sentences rather than impose a sentence that
fits the largest portion of the criminal population. That
is what the sentencing court did: it looked at the need
to isolate, not the average first offender or sex offender
or online offender, but Brian Annoreno. Doing so is
far from unreasonable.
Mr. Annoreno’s near-blindness is a powerful and griev-
ous mitigating factor, but doesn’t make a sentence
ten years below the advisory guideline sentence unrea-
sonable. The blending and evaluation of mitigating
factors are matters best suited for, and so generally
left to, the sentencing judge’s discretion. United States v.
No. 11-2783 15
Trujillo-Castillon, 692 F.3d 575, 578 (7th Cir. 2012)
(“[T]he court considered Trujillo-Castillon’s evidence in
mitigation but simply assigned it lesser weight than
the defendant would have liked.”). Mr. Annoreno hasn’t
convinced us that this isn’t such a case. Finally, given
Mr. Annoreno’s efforts to obtain child pornography
while in pretrial detention, we are unpersuaded by
his argument that supervised release conditions would
be adequate to protect the public.
D.
Mr. Annoreno’s sentencing was procedurally sound,
and his sentence was substantively reasonable. We
affirm the judgment of the district court.
4-12-13