United States v. Glenn McDonald ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3222
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GLENN MCDONALD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-CR-00078(1) — John Robert Blakey, Judge.
____________________
ARGUED NOVEMBER 17, 2020 — DECIDED NOVEMBER 24, 2020
____________________
Before EASTERBROOK, HAMILTON, and ST. EVE, Circuit
Judges.
ST. EVE, Circuit Judge. Glenn McDonald appeals his within-
guidelines sentence of 156 months in prison, arguing that it is
substantively unreasonable because his age and poor health
make it likely that he will die there. But McDonald failed to
present evidence of a shortened life expectancy to the district
court, and the court otherwise considered McDonald’s age
and medical conditions, along with the other factors
2 No. 19-3222
enumerated in 18 U.S.C. § 3553(a), when it selected his sen-
tence. We affirm.
I.
Background
McDonald pleaded guilty to transporting child pornogra-
phy, in violation of 18 U.S.C. § 2252A(a)(1). In his plea agree-
ment, McDonald admitted to using his computer to send two
emails with video attachments containing pornography de-
picting children as young as five and portraying “sadistic and
masochistic conduct.” McDonald also admitted to using a file-
sharing website to download child pornography. When
searched, his hard drive contained approximately 5,000 im-
ages and 890 videos of child pornography.
A probation officer calculated a guidelines range of 151 to
188 months in prison for McDonald based on a total offense
level of 34 and a criminal history category of I. The officer
noted that, beyond the videos described in the plea agree-
ment, McDonald’s hard drive contained over 100 images of
girls under ten in bathing suits outside his neighbor’s home,
and that McDonald had sent an email stating his interest in
“naked kids preteen. 0 to 12yo.” The officer recommended a
reduction of three levels for acceptance of responsibility, even
though McDonald insisted that he received emails with child
pornography unintentionally and “wasn’t sure” if that con-
tent was illegal because he had “assumed” the government
“ran” the internet.
McDonald filed two sentencing memoranda, both arguing
for a below-guidelines sentence of five years (the statutory
minimum) because of his age and health. McDonald con-
tended that “[a]ny lengthy sentence may be a death sentence”
No. 19-3222 3
because of his age (62 at the time of the first memo and 63 at
the time of the second), his type I diabetes, and his two
blocked arteries near his heart. Although he furnished no ac-
tuarial evidence of his life expectancy, he submitted medical
records from 2010 and 2016 confirming that he had diabetes
and a “high risk” coronary-artery calcium score.
At the sentencing hearing on October 18, 2019, the district
court accepted the facts and guidelines calculation from the
probation officer without objection. McDonald argued that
the guidelines recommendation was a “poor fit,” and he
feared the “real possibility” of dying in prison if sentenced
within the recommended range. McDonald asserted that,
given the “90 percent blockage of his arteries” and his diabe-
tes, even a below-guidelines sentence would be “challenging”
for him.
The district court sentenced McDonald to 156 months in
prison – within the guideline range of 151-188 months impris-
onment. The court explained that “in most part and signifi-
cant part” it based McDonald’s sentence on the factors enu-
merated in 18 U.S.C. § 3553(a), including the guidelines range
of 151 to 188 months. As mitigating factors, it acknowledged
McDonald’s medical reports, and it considered his age and
medical conditions as “individual difficulties” that McDonald
would face in custody. The court also noted how McDonald
had served his family and community by caring for his par-
ents before their deaths and by rescuing animals. But the
court explained that aggravating factors countervailed. Begin-
ning with McDonald’s role in the child-pornography market,
the court stressed that, although he did not produce it,
McDonald “owe[d his] fair share of culpability” because he
possessed and distributed large amounts of child
4 No. 19-3222
pornography. The court also found “significant” reasons to
believe that McDonald would reoffend: He had “actively at-
tempt[ed] to participate in an internet community that shared
and distributed” child pornography by emailing members
and “puffing” up his sexual desire for children as young as
infants. Finally, the court considered that McDonald had pho-
tographed neighborhood children and had wavered in ac-
cepting responsibility for his offense.
II.
Analysis
On appeal, McDonald challenges only the substantive rea-
sonableness of his within-guidelines sentence. McDonald ar-
gues that the district court effectively sentenced him to life in
prison without adequate reason or explanation. Offering data
for the first time that on average diabetes reduces a person’s
life expectancy by 12 years, and that a 64-year-old man’s life
expectancy is normally 18 years, he maintains that a sentence
above the five-year statutory minimum is a de facto life sen-
tence. (McDonald misstates his age at sentencing; he was in
fact 63.) He concludes that because the court failed to mention
McDonald’s exact age and health issues when imposing his
“life” sentence, the court did not adequately justify it.
McDonald has not shown that his within-guidelines sen-
tence is unreasonable. To begin, we presume that a within-
guidelines sentence is reasonable. Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Mykytiuk, 415 F.3d 606,
607 (7th Cir. 2005). McDonald’s argument that his life expec-
tancy is less than his 13-year prison term does not rebut the
presumption that the district court sentenced him reasonably,
because he never presented this argument (let alone data for
No. 19-3222 5
it) to the district court. “[L]itigants generally are not allowed
to bypass the district court and present evidence for the first
time to the court of appeals.” United States v. Miller, 832 F.3d
703, 704 (7th Cir. 2016) (citing Fed. R. App. P. 10(e)). True,
McDonald submitted three pages of medical records. But they
stated only that he had diabetes and blocked arteries; they did
not opine on his life expectancy. The district court thus was
not required to find that, if McDonald were to serve his full
sentence, he would not be alive when released in his late-70s.
A release date at that age “is not the kind of de facto life sen-
tence that has concerned us in the past.” United States v. Din-
gle, 862 F.3d 607, 613 (7th Cir. 2017) (sentence substantively
reasonable where defendant would be released in his mid-
80s). Without actuarial evidence in the district court of a
de facto life sentence (or an excuse from McDonald for not
presenting such data there), the district court cannot be
faulted for sentencing him to a 13-year prison term, or not
elaborating on the actuarial impact of his age and health.
Further, the actuarial data that McDonald now presents
does not compel the conclusion he advances. The data shows
that a man of his age is expected to live 18 more years, which
is more than his sentence of 13 years. He “attempts to rely on
the average reduction in life expectancy caused by diabetes,
without regard to the age at which he acquired the disease or
the reduction in life expectancy that accrues to a person of his
age.” United States v. Wurzinger, 467 F.3d 649, 651 n.2 (7th Cir.
2006). But an average reduction does not reliably estimate
McDonald’s life expectancy. “[O]lder people are closer to
death and have shorter life expectancies, [so] life-threatening
conditions may cause a smaller drop in life expectancy for
them, simply because they have less life to lose.” Id.6 No. 19-3222
Finally, even if we assume that McDonald’s sentence is ef-
fectively a life sentence, the district court adequately ex-
plained his sentence in a manner consistent with the § 3553(a)
factors, which is all that was required. See United States v. Cun-
ningham, 883 F.3d 690, 701–02 (7th Cir. 2018); United States v.
Volpendesto, 746 F.3d 273, 299 (7th Cir. 2014). “[T]he probabil-
ity that a convict will not live out his sentence should certainly
give pause to a sentencing court.” Wurzinger, 467 F.3d at 652.
But we have upheld a de facto life sentence where the sentenc-
ing court determined that the defendant “showed a risk of re-
cidivism and lack of respect for the law,” Volpendesto, 746 F.3d
at 299, and the court “appreciated the severity of the sen-
tence.” United States v. Cheek, 740 F.3d 440, 454 (7th Cir. 2014)
(quoting United States v. Patrick, 707 F.3d 815, 819–20
(7th Cir.2013)); see also United States v. Kincannon, 567 F.3d 893,
901 (7th Cir. 2009). The district court did so here. In choosing
his sentence, the court considered McDonald’s age and health
issues as “difficulties” he would face in custody. But the court
found the seriousness of McDonald’s conduct, his wavering
acceptance of responsibility, and the substantial risk of his re-
cidivism more “significant.” See United States v. Gross,
437 F.3d 691, 693 (7th Cir. 2006) (distributing child pornogra-
phy “is quite serious,” because it “creates a market for its pro-
duction, which inevitably leads to the abuse of children.”);
Wurzinger, 467 F.3d at 653 (even if “older offenders are gener-
ally less likely to commit crime,” “what matters is whether the
court reasonably concluded that [the defendant] in particular
is a risk for further crimes”). The court’s explanation of its rea-
sons for McDonald’s sentence was therefore adequate.
See Cunningham, 883 F.3d at 701–02.
AFFIRMED