United States v. John Nania , 724 F.3d 824 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2028
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOHN V. N ANIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 10 CR 50031-1—Frederick J. Kapala, Judge.
A RGUED F EBRUARY 28, 2013—D ECIDED JULY 30, 2013
Before M ANION, K ANNE, and T INDER, Circuit Judges.
K ANNE, Circuit Judge. For more than three years, John V.
Nania inflicted lasting torment on several young girls:
he sexually abused them and documented that abuse
in pornographic images. When authorities discovered
Nania’s appalling actions, they arrested him and charged
him with multiple crimes. In Illinois state court, Nania
was convicted for the sexual abuse itself. In federal
court, he pled guilty to producing child pornography. At
his federal sentencing hearing, Nania argued that
2 No. 12-2028
the conduct involved in these state and federal offenses
overlapped to such an extent that the sentences should
run concurrently. The district court disagreed, however,
and ordered that Nania serve his federal prison term
consecutively to his state sentences. Nania now challenges
that decision. After review, we find no error and
affirm Nania’s sentence.
I. B ACKGROUND
Cases involving the sexual abuse of children require
care and discretion. We understand that need, and, in
light of it, have left our descriptions vague when possi-
ble. Specific details are included only as needed to resolve
the case.
In January 2009, A.M., a fourteen-year-old girl from
Rockford, Illinois, told a worker at a children’s center that
she had been sexually abused for the past three years.
(Presentence Investigation Report, “PSR,” at 3.) The
aggressor was John V. Nania. A.M. knew Nania through
his twin daughters, whom A.M. had babysat for several
years. (Id.) The children’s center reported A.M.’s abuse
to the Rockford Police Department, and investigations
began. (Id.) Within two weeks, officers searched Nania’s
home and recovered a computer containing many
images of child pornography. (Id.) The police also found
a VHS cassette that depicted Nania sexually abusing
his stepdaughter, S.M. (Id. at 5-6.) When investigators
subsequently interviewed S.M., she explained that
Nania had sexually exploited her for years and that she
had tried to commit suicide to escape the abuse. (Id. at 6.)
No. 12-2028 3
As investigations continued, several more victims
emerged. (Id.)
Eventually, these discoveries led to Nania’s arrest. He
was later convicted multiple times in Illinois state court.
(Id. at 12-14.) First, on December 8, 2009, a jury found
Nania guilty of three counts of criminal sexual assault
(Counts Four through Six in the state proceedings). (Id.
at 12-13.) All three counts related to Nania’s abuse
of S.M., his stepdaughter, and included a count for pene-
trating her vaginally when she was under the age of
eighteen (Count Four). (Id. at 13.) For each count, Nania
received a separate sentence of fifteen years in custody
and two years of supervised release. (Id. at 12.) These
sentences would run consecutively, for a total of forty-
five years in custody and six years of supervised re-
lease. (Id.)
Then, on June 25, 2010, at the conclusion of a bench
trial, an Illinois state judge found Nania guilty of three
more crimes: one count of predatory criminal sexual
assault of a child and two counts of aggravated criminal
sexual abuse (Counts One through Three in the state
proceedings). (Id.) These convictions related to Nania’s
abuse of A.M., his daughters’ babysitter. (Id. at 12-13.)
Important for our purposes, none of these counts
charged Nania with vaginally penetrating A.M. (Id.)
Nania received another twenty years in prison for the
predatory criminal sexual assault count and two seven-
year sentences for the aggravated criminal sexual abuse
counts. (Id. at 12.) The seven-year terms would run con-
currently to each other but consecutively to the twenty-
year sentence. (Id.) Thus, these crimes added another
4 No. 12-2028
twenty-seven years in state prison to Nania’s initial, forty-
five-year sentence.
After securing these convictions, the State of Illinois
dropped its remaining charges against Nania. (Id.)
His aggregate sentence for the state offenses totaled
seventy-two years. Furthermore, Illinois law limits the
amount of credit Nania can receive for good behavior to
approximately 15% of his sentence. See 730 ILCS 5/3-6-
3(a)(2)(ii); (see also Appellant’s Br. at 6). Based on that
figure, Nania is projected to be released from state
prison when he is 103 years old. (Appellant’s Br. at 6.)
Despite these formidable state sentences, law enforce-
ment authorities were not finished with Nania. Federal
prosecutors had also taken up his case. In May 2009, a
federal grand jury indicted Nania for two counts of
producing child pornography and two counts of pos-
sessing child pornography. (R. 30-2 at 8-11.) On Decem-
ber 21, 2011, Nania pled guilty to Count Two of the in-
dictment, which charged him with violating 18 U.S.C.
§ 2251(a) (producing child pornography). (Id. at 304.)
More specifically, Count Two charged Nania with
“employ[ing], us[ing], persuad[ing], induc[ing], entic[ing]
and coerc[ing] [A.M.] to engage in sexually explicit con-
duct for the purpose of producing a visual depiction of
such conduct, . . . which . . . was produced using materials
that had been mailed, shipped, and transported in inter-
state commerce.” 1 (Id. at 9.) The charge was based on a
1
For those examining the record, we clarify that the federal
indictment refers to A.M. as “Victim B,” whereas the
(continued...)
No. 12-2028 5
specific image Nania had produced, referred to as “Digital
Image 2.” (Id.) This picture depicted Nania vaginally
penetrating A.M. Nania signed a written plea agree-
ment, (R. 30-2 at 305-22), and the government later dis-
missed the remaining counts against him, (id. at 372).
The district court held Nania’s sentencing hearing on
April 16, 2012. (Id. at 370.) During the hearing, the court
adopted the factual findings of the PSR. (R. 31 at 31.)
The court also adopted the PSR’s calculations for the
sentence recommended by the U.S. Sentencing Guide-
lines. (Id. at 32.) In determining that recommendation,
the PSR took into account Nania’s exploitation of
four victims: A.M., S.M., and two others not mentioned
in the state court proceedings. (PSR at 7-11.) Ultimately,
the PSR concluded that Nania’s total offense level was
43, (id. at 11), for which a life sentence was recom-
mended, (id. at 26). But 18 U.S.C. § 2251 has a statutorily
imposed maximum sentence of 360 months. 18 U.S.C.
§ 2251(e). As a result, that maximum became the rec-
ommended sentence. See U.S.S.G. § 5G1.1(a). The
district court departed downward from the recommenda-
tion and sentenced Nania to 330 months in prison. (R. 31
at 47.)
The last remaining question was whether that federal
sentence should run concurrently or consecutively
1
(...continued)
Presentence Investigation Report refers to her as “Victim 1.”
Conversely, the indictment refers to S.M. as “Victim A,” but
she is “Victim 2” in the PSR.
6 No. 12-2028
to Nania’s state sentences. Nania argued that U.S.S.G.
§ 5G1.3(b) applied, in which case the Sentencing Guide-
lines would have recommended that Nania’s federal
sentence run concurrently with his state sentences. The
district court, however, agreed with the government
that § 5G1.3(c) and Application Note 3(D) of that provi-
sion applied, which meant the Guidelines made no
explicit recommendation about concurrent or consecu-
tive sentences. Rather, the Guidelines provided a list
of factors for the district court to weigh when deciding
whether to give a concurrent sentence. Taking those
considerations into account, the district court ordered
Nania to serve his federal sentence consecutively to
his state sentences. (R. 31 at 52.) Disagreeing with that
conclusion, Nania timely appealed his sentence on
April 26, 2012. (R. 30-2 at 376.)
II. A NALYSIS
Fair, appropriate sentences for criminal defen-
dants—this goal ranks among the central purposes of the
U.S. Sentencing Guidelines. U.S.S.G. Ch. 1, Pt. A at 2.
Today, we consider one aspect of that multi-faceted
mission: discouraging sentences that punish defendants
twice for the same conduct. The Guidelines institute
this policy in part through U.S.S.G. § 5G1.3, which applies
to defendants who face an already existing, but not yet
completed, prison term. If the conduct that led to the
undischarged term sufficiently overlaps with the
conduct for the current offense, then the Guidelines
recommend that the prison terms run concurrently.
No. 12-2028 7
That potential recommendation is the precise issue
Nania raises. First, he argues that the district court incor-
rectly decided which subsection of § 5G1.3 applied. If
so, then the court procedurally erred by misunder-
standing whether the Guidelines recommended a con-
current sentence. Alternatively, Nania argues that, even
if the district court correctly determined the applicable
provision, the court’s decision to impose the sentences
consecutively was nonetheless substantively unreasonable.
We address each argument below, although under two
different standards. We review the procedural challenge
de novo but review the substantive challenge for abuse
of discretion. United States v. Vallar, 635 F.3d 271, 277-78
(7th Cir. 2011). In the end, we find neither of Nania’s
arguments convincing.
A. Procedural Error
Nania and the government disagree over which sub-
section of § 5G1.3 applies to this case. In particular, the
debate centers on whether subsection (b) or (c) controls.
According to the government, the correct answer is
subsection (c), which gives the district court broad dis-
cretion. When § 5G1.3(c) applies, a court can order a
defendant’s multiple prison terms “to run concurrently,
partially concurrently, or consecutively”—essentially
in any format the court feels “achieve[s] a reasonable
punishment for the instant offense.” U.S.S.G. § 5G1.3(c).
The Guidelines direct the court to a set of factors it
should assess in making that decision, but the Guidelines
provide no further guidance. See id. & cmt. n.3(A).
8 No. 12-2028
In contrast, subsection (b) creates a subclass of cases
in which the Guidelines affirmatively recommend the
format of the defendant’s sentence. Specifically, subsec-
tion (b) advises courts that a defendant’s prior, undis-
charged prison term should run concurrently with the
term for the instant offense, if the conduct behind the
two terms sufficiently overlaps. Prison sentences meet
this standard when the undischarged term has “resulted
from another offense that is relevant conduct to the
instant offense of conviction,” and that relevant con-
duct “was the basis for an increase in the offense level”
for the offense of conviction. U.S.S.G. § 5G1.3(b). Nania
argues that his prison terms satisfied these criteria
and were thus subject to a recommended concurrent
sentence through § 5G1.3(b).
Of course, given the advisory nature of the Sentencing
Guidelines, a district court has no obligation to impose
a concurrent sentence, even if § 5G1.3(b) applies. United
States v. Campbell, 617 F.3d 958, 960 (7th Cir. 2010); see
also 18 U.S.C. § 3584. It is merely a recommendation.
That said, a district judge must still consider what the
Guidelines suggest. United States v. Garner, 454 F.3d
743, 747 (7th Cir. 2006). For that reason, courts must
correctly determine whether the Guidelines recommend
concurrent sentences. See, e.g., United States v. Kieffer, 681
F.3d 1143, 1167-68 (10th Cir. 2012); United States v.
Armstead, 552 F.3d 769, 784 (9th Cir. 2008); United States
v. Broadnax, 536 F.3d 695, 700-02 (7th Cir. 2008). Failure to
do so results in procedural error. See, e.g., Kieffer, 681
F.3d at 1167-68; Armstead, 552 F.3d at 784; Broadnax, 536
F.3d at 700-02. Thus, to decide whether the district
No. 12-2028 9
court followed sound procedure in this case, we must
first figure out whether it correctly determined the ap-
plicable provision of § 5G1.3.
1. Legal standards for U.S.S.G. § 5G1.3
The First Circuit has aptly described § 5G1.3 as “a
tightly imbricated framework.” United States v. Carrasco-de-
Jesús, 589 F.3d 22, 27 (1st Cir. 2009). This case requires
delving deeply into that complex structure. Consequently,
our task demands familiarity with many terms of art.
To ensure readers do not miss a step, we think it best
to begin with a brief review of how the Sentencing Guide-
lines operate.
a. General review of the Sentencing Guidelines
When district judges consult the Guidelines, they
come away with recommended punishments for crimi-
nals. The central recommendation is about the sentence’s
length. The Guidelines suggest a range of possible sen-
tences—referred to as the “Guidelines range”—and
recommend that the imposed sentence fall within it. In
each case, the “Guidelines range” is determined using
a grid that takes into account two variables: the defen-
dant’s criminal history and the “offense level” of the
current crime. See U.S.S.G. Sentencing Table. The second
variable—offense level—primarily concerns us here.
Calculating a defendant’s offense level begins simply
enough: the U.S. Sentencing Commission has assigned
10 No. 12-2028
each crime a “base offense level” between one and forty-
three. U.S. Sentencing Commission, An Overview of the
Federal Sentencing Guidelines 1, http://www.ussc.gov/
About_the_Comm ission/Overview_of_the_USSC/
Overview_Federal_Sentencing_Guidelines.pdf (last vis-
ited July 23, 2013). This number reflects the “seriousness”
of the crime. Id. Then, things get more complicated. The
offense level will increase or decrease based upon individ-
ual circumstances. Trespassing, for instance, has a base
offense level of four, but two more points are added if
the defendant possessed a dangerous weapon while
committing the crime. U.S.S.G. § 2B2.3.
When determining whether to adjust a defendant’s
offense level, a court examines what the Guidelines
call “relevant conduct.” See U.S.S.G. § 1B1.3. That is, when
there is “relevant conduct” that meets the requirements
for an adjusted offense level, the court must make that
adjustment—strictly adhering to the steps outlined by
the Guidelines is mandatory, unless otherwise specified.
United States v. Vizcarra, 668 F.3d 516, 520 (7th Cir. 2012);
see also U.S.S.G. § 1B1.3(a) (the offense level of the defen-
dant “shall be determined on the basis of [relevant con-
duct]”) (emphasis added). The Guidelines, however,
use the term “relevant conduct” to encompass a broader
swath of conduct than the term connotes in everyday
parlance. For Guidelines purposes, “relevant conduct”
includes “all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured,
or willfully caused by the defendant.” U.S.S.G.
§ 1B1.3(a)(1)(A). Given this expansive definition, the
district court has a lot to consider when determining
whether defendants qualify for particular adjustments.
No. 12-2028 11
After making all the adjustments mandated by the
Guidelines, the court has determined the defendant’s
total offense level. From there, the court will calculate
the defendant’s criminal history, which assigns de-
fendants points based upon the extent of their criminal
records. See U.S.S.G. § 4A1.1. Finally, the court will use
the total offense level, in conjunction with the
defendant’s criminal history, to determine the recom-
mended range of sentences. See U.S.S.G. § 1B1.1(a).
b. Standards specific to U.S.S.G. § 5G1.3
As we return to § 5G1.3, the concepts of “relevant
conduct” and “offense level” take center stage. As men-
tioned, § 5G1.3 only comes into play when the defendant
already has a separate, undischarged prison term. In
that case, § 5G1.3 helps determine whether the conduct
that led to the existing sentence overlaps with the con-
duct that led to the current sentence. If so, then § 5G1.3(b)
recommends that the newly imposed sentence run con-
currently with the existing one. Subsection (b), as
clarified by its Application Note, provides two prerequi-
sites for recommending a concurrent sentence: (1) the
existing “term of imprisonment resulted from another
offense that [was entirely] relevant conduct to the instant
offense”; and (2) all that conduct “increase[d] . . . the
offense level for the instant offense [under certain provi-
sions of the Guidelines].” U.S.S.G. § 5G1.3(b) & cmt. n.2(A).
These requirements may seem a bit abstract, so con-
sider how they apply to the specific context of
Nania’s case. Section 5G1.3(b) would recommend that
12 No. 12-2028
Nania’s federal sentence run concurrently with any of
his state sentences for which the underlying conduct
met two requirements: (1) all the conduct involved in
the state offense was “relevant conduct” to Nania’s
federal offense; and (2) all the conduct involved in the
state offense increased Nania’s federal offense level. See
U.S.S.G. § 5G1.3(b) & cmt. n.2(A).
Notice the wording of the above requirements: “all the
conduct involved in the state offense” must have satisfied
each requirement. In other words, the requirements of
§ 5G1.3(b) are evaluated on an offense-by-offense basis.
Some of Nania’s prior offenses may meet the require-
ments and thus qualify for a recommended concurrent
sentence, while others may not. This approach makes
defining “offense” critical. Because all the conduct from
the previous “offense” must meet subsection (b)’s re-
quirements, the more conduct involved in the prior
offense, the less likely all of it will qualify. Thus, the
provision’s applicability will shrink as the scope of
“offense” grows. And when § 5G1.3(b) applies to fewer
cases, defendants will likely face longer times in
prison, since the Guidelines will less often recommend
concurrent terms.
Several circuits have weighed in on defining “offense”
and have adopted a broad approach—one that seems
to define a single “offense” as all convictions based on
the same transaction or occurrence. See United States v.
Hall, 632 F.3d 331, 337-38 (6th Cir. 2011) (discussing
the approach of other circuits). The parties did not
brief this issue, and we decline to decide the question
No. 12-2028 13
definitively today. Strong arguments support various
definitions, and, for that reason, we think it proper
to wait for a full presentation on the issue. Thus, for
now, we will use the definition we view as most
favorable to the defendant—treating each individual
count of prior convictions as a separate “offense.” Yet
even with this circumscribed definition, Nania’s argu-
ments still falter. The same would be true under the
approach of our sister circuits, since their methodology
is even less generous toward defendants. Therefore, if we
ultimately decide to adopt the definition used by our
colleagues, the outcome of this case will still comport
with that approach.
2. Application of § 5G1.3 to Nania’s case
Employing our limited reading of “offense,” we now
address whether any of Nania’s state offenses met the
requirements of § 5G1.3(b). Before we do so, we reiterate
that § 5G1.3 only applies when a defendant has
received another undischarged sentence. Thus, if Nania
did not receive a state sentence for certain conduct,
then that conduct cannot overlap with the federal
offense in the way required by § 5G1.3(b). Nania’s
federal sentencing calculation mentioned several
victims, but he only received state sentences for his
abuse of A.M. and S.M. Therefore, our sole concern is
the conduct used in Nania’s federal sentencing pro-
ceedings that involved those two victims and whether
that conduct overlapped with the conduct charged in
Nania’s state court convictions.
14 No. 12-2028
a. Relevant conduct
The first question is whether all the conduct that led
to any of Nania’s state sentences was also relevant
conduct to his federal offense. The district court placed
the burden on Nania to make this showing and found that
Nania failed to do so. As an initial matter, we agree
that Nania bore the burden, despite his contentions
otherwise. We often require defendants to prove that
ameliorating sentencing provisions apply to them. See,
e.g., United States v. Silvious, 512 F.3d 364, 370 (7th Cir.
2008) (defendant bears the burden for U.S.S.G. § 3E1.1,
acceptance of responsibility); United States v. Corral, 324
F.3d 866, 874 (7th Cir. 2003) (defendant bears the
burden for U.S.S.G. § 3B1.2(b), minor participant in the
offense). Furthermore, at least two of our sister circuits
have held that defendants shoulder the burden for
§ 5G1.3(b) specifically. See Carrasco-de-Jesús, 589 F.3d at 28-
29; see also United States v. Burch, 406 F.3d 1027, 1030
(8th Cir. 2005) (affirming the district court’s decision to
apply § 5G1.3(c), “[i]n light of [the defendant’s] failure
to present evidence supporting his claim” that § 5G1.3(b)
applied). Therefore, we find that Nania had the burden
of showing why his case met the requirements of
§ 5G1.3(b).
Our quarrel instead arises from the district court’s
conclusion that the materials before it did not meet
Nania’s burden. The PSR, which Nania cited in the
district court, explains why Nania’s state convictions
were relevant conduct to his federal offense: the state
crimes were “part of the instant [federal] offense.” (PSR
No. 12-2028 15
at 12) (emphasis added). Given the broad definition of
“relevant conduct,” we fail to see how anything “part
of the instant offense” is not also “relevant conduct.”
In fact, the Sentencing Guidelines themselves equate
the two terms. See U.S.S.G. § 4A1.2 cmt. n.1.
Of course, the district court was free not to accept the
recommendations of the PSR and instead find that the
state convictions were not part of the instant offense.
But that decision would have had other ramifications.
Specifically, deciding that Nania’s state crimes were
not part of the instant offense would have impacted
Nania’s criminal history calculation. The Guidelines
provide that, “[a] sentence imposed after the de-
fendant’s commencement of the instant offense, but
prior to sentencing on the instant offense, is a prior
sentence if it was for conduct other than conduct that was
part of the instant offense.” Id. (emphasis added). In other
words, conduct that Nania was prosecuted for in state
court had to be one of two things: a “prior sentence” (and
thus criminal history) or “part of the instant offense”
(and thus relevant conduct). See id.
The PSR took the latter approach and found that
Nania’s state sentences were part of the instant offense.
The PSR therefore excluded these offenses from Nania’s
criminal history. The district court formally adopted
the calculations of the PSR, (R. 31 at 31), but then pro-
ceeded, in practice, to adopt the calculations only in
part. The court agreed that the state convictions were
not criminal history but also found that they were
not relevant conduct. The court reasoned that the
16 No. 12-2028
timeframes for the state and federal crimes did not
begin and end on precisely the same dates, which
arguably prevented the state crimes from being entirely
relevant to the federal offense. That theory, however,
does not square with the plain language of the Guide-
lines. If the state sentences were not relevant conduct,
then they must have been criminal history. See U.S.S.G.
§ 4A1.2 cmt. n.1. The district court could not decide
the state sentences were neither.
Because the district court claimed to have adopted the
PSR’s calculations, we will proceed under the PSR’s
decision to call the prior sentences relevant conduct,
rather than criminal history. In that case, all the conduct
behind Nania’s state sentences was relevant to his
federal offense, thereby meeting the first requirement of
§ 5G1.3(b).
b. Offense level increase
Because all of Nania’s state offenses satisfied the first
requirement (relevant conduct), our decision whether
§ 5G1.3(b) applied will turn on the provision’s second
requirement—whether all the conduct leading to any
of Nania’s state sentences also increased his federal
offense level. To make that determination, we must
parse out the specific conduct underlying Nania’s state
convictions, as well as the specific reasons for any
increases to his federal offense level. For the sake of
clarity, we address one victim at a time.
No. 12-2028 17
i. A.M.
At Nania’s bench trial for his abuse of A.M., a state
judge found him guilty of one count of predatory criminal
sexual assault of a child and two counts of aggravated
criminal sexual abuse. (PSR at 12-13.) These three
counts corresponded to three specific abusive actions.
The predatory criminal sexual assault conviction
resulted from Nania placing his penis in A.M.’s mouth.
(Id. at 12.) The remaining two counts were because
Nania placed his hand and his penis on A.M.’s vagina.
(Id. at 13.) None of this conduct increased Nania’s
federal offense level.
To see why, we examine the reasons the district court
increased Nania’s offense level, which happened four
times as a result of conduct involving A.M. (Id. at 7-8.)
First, the Guideline covering the crime to which Nania
pled guilty has a Special Instruction: if the defendant
exploited multiple victims, each victim should be
treated as a separate count of conviction and then
grouped together into a combined offense level. See
U.S.S.G. § 2G2.1(d) & cmt. n.5. Using this methodology,
each additional victim will increase Nania’s combined
offense level, even absent enhancements for aggravating
characteristics. See U.S.S.G. § 3D1.4. Therefore, the
conduct that added A.M. to Nania’s sentencing calcula-
tion constitutes the first increase to his offense level.
Because this increase occurred absent any aggravating
circumstances, we refer to it as resulting from the “base
conduct” against A.M., which, as a reminder, involved
using “materials that have been mailed, shipped, or
18 No. 12-2028
transported in interstate commerce” to produce an
image that depicted Nania vaginally penetrating A.M.
18 U.S.C. § 2251(a); (see also R. 30-2 at 9).
The key question is whether the increase in Nania’s
offense level for that “base conduct” was due to
actions already being punished by a state sentence. We
generally do not want a defendant being punished twice
for the same conduct, so the second requirement of
§ 5G1.3(b) attempts to account for that sort of overlap.
We thus ask: for any of Nania’s state counts, was all
the conduct required for conviction also part of the base-
line federal conduct? Simply put, no. The baseline
federal conduct was videotaping Nania’s vaginal penetra-
tion of A.M. None of Nania’s state counts, however,
involved videotaping any acts; they all concerned
the sexually abusive actions themselves. Furthermore,
for the state offenses involving A.M., none of the counts
were for vaginal penetration. Therefore, the increase
in Nania’s federal offense level due to the base conduct
against A.M. did not result from conduct already
being punished by a state sentence.
The same is true for the three remaining enhancements
Nania received for conduct involving A.M. All three
resulted only from particular characteristics of the
federal offense. The first enhancement applied because
that offense involved a minor who had “attained the age
of twelve years but not attained the age of sixteen
No. 12-2028 19
years.” U.S.S.G. § 2G2.1(b)(1)(B).2 The second applied
because “the offense involved the commission of a
sexual act or sexual contact.” U.S.S.G. § 2G2.1(b)(2)(A).
Finally, the third enhancement applied because
“the offense involved material that portrays sadistic or
masochistic conduct.” U.S.S.G. § 2G2.1(b)(4). But again,
Nania’s federal offense was memorializing his vaginal
penetration of A.M.—conduct not charged at the state
level. Thus, none of these enhancements resulted from
conduct that was also a state offense.
Given the above, none of the state counts for conduct
involving A.M. increased Nania’s federal offense level.
As such, U.S.S.G. § 5G1.3(b) did not apply, and the
district court correctly determined that subsection (c)
applied to these offenses. The Sentencing Guidelines did
not make an explicit recommendation about whether
Nania’s federal sentence should run concurrently or
consecutively to the sentences for the crimes against
A.M. See U.S.S.G. § 5G1.3(c). Because the district court
also reached this conclusion, it made no procedural
error in this regard.
ii. S.M.
We next address whether U.S.S.G. § 5G1.3(b) applied
to any of Nania’s state crimes that involved abuse of S.M.
2
The PSR mistakenly refers to this provision as U.S.S.G.
§ 2G2.2(b)(1)(B), but, when read in context, that listing is
clearly a typographical error.
20 No. 12-2028
This question proves thornier than it did for the crimes
involving A.M. In state Count Four, Nania was con-
victed of criminal sexual assault for vaginally penetrating
S.M. (PSR at 13.) The PSR also took this conduct into
account when calculating Nania’s federal offense level.
(Id. at 8-9.) As a result, it seems likely that the second
requirement of § 5G1.3(b) (offense level increase) was
satisfied, at least in regard to state Count Four.3 The
district court seemed to recognize this fact when it
stated, “Count 4 . . . is the only offense which could
possibly be considered both relevant conduct to the
instant offense and that resulted in an increase of the
offense level.” (R. 31 at 51.)
3
We take a moment here to reemphasize that satisfying
§ 5G1.3(b)’s requirements for one count of a multiple-count
conviction is sufficient only when “offense” is defined as
individual counts. If, on the other hand, we had interpreted
“offense” to mean all related counts, then the second require-
ment would still not be satisfied, since the remaining two
counts involving abuse of S.M. did not increase Nania’s
federal offense level. In that case, subsection (c) would have
governed these crimes, as well, as the district court found.
We will later conclude that the district court had the same
discretion accorded by subsection (c), even if subsection (b)
applied to state Count Four, as appears to be the case under
the definition of “offense” we have used today. For that
reason, in Nania’s case, the definition used did not impact
the Guidelines’ recommendation about concurrent sentences—
either one led to the Guidelines giving the district court the
broad discretion of § 5G1.3(c). Thus, if, on a later date, we accept
our sister circuits’ definition of “offense,” the result here will
still align with that approach.
No. 12-2028 21
The district court then attempted to work around the
potential application of § 5G1.3(b). Specifically, the court
decided to create an alternative sentencing scenario.
The court said that, if it appeared subsection (b) should
apply, the court would instead entirely remove Nania’s
abuse of S.M. from the sentencing calculations; that
way, no overlapping conduct would have increased
Nania’s offense level. (R. 31 at 55.) The court then went
through a detailed explanation of precisely how that
change would affect Nania’s sentencing. (Id. at 55-57.)
Important here, the change lowered Nania’s Guidelines
range from 360 months to between 292 and 360 months.
(Id. at 56.) After noting that the chosen sentence
(330 months) still fell within the revised recommendation,
the court said that this alternative analysis “would not
change the ultimate sentence that the Court would im-
pose.” (Id. at 57.)
The problem with the district court’s approach is that
it cannot disregard relevant conduct, even for the sake
of argument. Once the court accepted the findings of the
PSR, which listed Nania’s offenses against S.M. as facts,
the court could not remove those acts from its calcula-
tions. Those transgressions were relevant conduct and
had to be treated as such when calculating the Guide-
lines range. See U.S.S.G. § 1B1.3(a); see also Vizcarra,
668 F.3d at 520. Nonetheless, despite this seeming miscal-
culation by the district court, for the reasons dis-
cussed below, we still find that the court committed no
procedural error.
22 No. 12-2028
c. Application note 3(D)
The court followed proper procedure because of another
part of its deliberative process: invoking its discretion
under Application Note 3(D). This Note states that,
[o]ccasionally, the court may be faced with a complex
case in which a defendant may be subject to multiple
undischarged terms of imprisonment that seemingly
call for the application of different rules. In such a
case, the court may exercise its discretion in
accordance with subsection (c) to fashion a sentence
of appropriate length and structure it to run in
any appropriate manner to achieve a reasonable
punishment for the instant offense.
U.S.S.G. § 5G1.3 cmt. n.3(D). According to the district
court, this Application Note recommended that the
court use its discretion to determine an appropriate
sentence. (R. 31 at 49-50.) This analysis presents some
troubling issues, but, ultimately, we agree.
The Application Note lists three prerequisites for
its invocation: (1) a complex case; (2) a defendant facing
multiple prison terms; and (3) those prison terms seeming
to “call for the application of different rules.” U.S.S.G.
§ 5G1.3 cmt. n.3(D). This case easily satisfies the first
two requirements. As the preceding pages show, Nania’s
sentencing proves exceedingly complex, in large part
due to the multiple sentences he faces. The more
difficult question involves the third requirement. If the
case must seem to call for the application of “different
rules,” what “rules” is the text referring to?
No. 12-2028 23
The structure of the Note might at first indicate
that “different rules” means rules other than those in-
cluded in § 5G1.3(c). The Guidelines list Application
Note 3(D) as particular to § 5G1.3(c), which might
suggest that the Note provides discretion in complex
cases where the application of § 5G1.3(c) would lead
to odd results. See U.S.S.G. § 5G1.3 cmt. n.3. But subsec-
tion (c) already places essentially no restrictions on the
district court; the provision gives discretion to impose
sentences that “run concurrently, partially concurrently,
or consecutively . . . to achieve a reasonable punishment
for the instant offense.” U.S.S.G. § 5G1.3(c). Thus, if
“different rules” referred to ones other than those listed
in subsection (c), Application Note 3(D) would be super-
fluous—we do not know what rules would not be permis-
sible under § 5G1.3(c)’s broad, discretionary standard.
Given that courts should avoid reading texts in a way that
renders a portion superfluous, Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 113 (2001), we agree with the Eighth
Circuit that the better reading of “different rules” refers
to the various subsections of § 5G1.3, United States v.
Bauer, 626 F.3d 406, 408-09 (8th Cir. 2010).
With that reading in mind, different rules indeed seem
to govern Nania’s case. State Count Four appears to be
governed by § 5G1.3(b), whereas the other counts fall
under § 5G1.3(c). The seeming applicability of these
different rules satisfies the third requirement. In so hold-
ing, we stress that the Application Note requires only
that different rules “seemingly” apply—not that they
definitively do. U.S.S.G. § 5G1.3 cmt. n.3(D). The third
requirement can thus be satisfied even when, as here,
24 No. 12-2028
the court concludes it is likely different rules apply. There-
fore, this case meets all three requirements, which
means the district court correctly invoked Application
Note 3(D).
A larger question looms in the background, however.
Does this Application Note actually trump the text of
the Guidelines themselves? After all, the Guidelines
make no mention of a separate safety valve for when
multiple provisions apply; there are only the three rules
laid out in subsections (a), (b), and (c). Furthermore,
as mentioned, Application Note 3(D) is structured as
specifically applying to § 5G1.3(c), even though it
appears to govern discordance among subsections (a), (b),
and (c). For these reasons, we find ourselves a bit uncom-
fortable with commentary altering the text so signifi-
cantly. Our worries would be allayed if the Applica-
tion Note were its own, freestanding note (thereby in-
dicating its applicability to all the subsections), or,
better yet, were a part of the Guideline itself. Still, we
are convinced that the text of the Note means what it
says: that the Guidelines give the district court discre-
tion to determine an appropriate sentence in cases
that meet the three requirements. We do not see how
else to read the Application Note in a way that gives
it meaning.
We further highlight that our interpretation avoids
a potentially absurd result. Assume that the Guidelines
apply in the way discussed earlier: section 5G1.3(b)
governs state Count Four, while subsection (c) applies
to the remaining counts. In that case, the Guidelines
No. 12-2028 25
would recommend that Nania’s federal sentence run
concurrently with his sentence for state Count Four. The
sentence for that count was 180 months. Thus, taking
into account of all of Nania’s crimes, his recommended
federal sentence of 360 months would have been sug-
gested as 180 months consecutive to the state sentences
and 180 months concurrent to the state sentences. Yet,
had it been permissible to disregard Nania’s crimes
against S.M., Nania’s Guidelines range would have been
292 to 360 months, all consecutive to the state sentences
(since, as we concluded, none of the other offenses
satisfied the requirements of § 5G1.3(b)). (R. 31 at 56.)
That result is troubling—by including additional culpa-
ble conduct (i.e. state Count Four) in Nania’s sentencing
calculation, his recommended time in prison shrinks by
a decade or more. We understand the Sentencing Com-
mission wants to avoid punishing defendants twice,
but we cannot imagine that it would want to reduce a
sentence when more crimes are added to the picture.
Our reading of Application Note 3(D), however, avoids
this absurd result. See United States v. Brown, 232 F.3d 44,
49 (2d Cir. 2000) (per curiam) (noting that § 5G1.3(b)
should be read in a way that avoids having increased
culpable conduct decrease a defendant’s sentence); see
also Treadway v. Gateway Chevrolet Oldsmobile, Inc., 362
F.3d 971, 976 (7th Cir. 2004) (“We interpret statutes to
avoid absurd results.”)
In light of all the above, we find the district court cor-
rectly determined that the Guidelines did not make
an affirmative recommendation about concurrent or
26 No. 12-2028
consecutive sentences. Because this case met the require-
ments of Application Note 3(D), the Guidelines
instead encouraged the court to use certain enumerated
factors, discussed in-depth later, to determine an appro-
priate sentence. The district court recognized this
outcome and thus committed no procedural error in
calculating which provision of § 5G1.3 applied.
d. Other procedural concerns
As alluded to earlier, when a district court invokes
Application Note 3(D), the Note refers the court to Ap-
plication Note 3(A) for further guidance. See U.S.S.G.
§ 5G1.3 cmt. n.3(D). According to Note 3(A), the court’s
decision regarding a potentially concurrent sentence
should take into account several factors: “the type . . . and
length of the prior undischarged sentence,” “the time
served on the undischarged sentence,” “the time likely
to be served [on that sentence] before release,” “the
fact that the prior undischarged sentence may have
been imposed in state court,” and “any other circum-
stance relevant to the determination of an appropriate
sentence for the instant offense.” U.S.S.G. § 5G1.3 cmt.
n.3(A). The Note also directs the court to consider the
factors enumerated in 18 U.S.C. § 3553(a), id., although a
district judge already has that obligation when deter-
mining a sentence’s length, United States v. Dean, 414
F.3d 725, 730-31 (7th Cir. 2005).
Courts are not statutorily obligated to use the
factors listed in Application Note 3(A). Furthermore,
the Guidelines use permissive language when de-
No. 12-2028 27
scribing the factors, so we cannot say that weighing
them goes part-and-parcel with determining what the
Guidelines recommend under § 5G1.3(c). See U.S.S.G.
§ 5G1.3 cmt. n.3(A). (“the court should consider the fol-
lowing”) (emphasis added). Thus, these factors are not
part of the court’s required procedure. That said, we can
and do encourage district courts to address them. Given
the advisory nature of the Guidelines, district courts
have broad discretion to determine whether consecu-
tive, concurrent, or partially concurrent sentences suit
particular cases. When making that decision, the factors
in Application Note 3(A) provide judges a solid founda-
tion to guide their thinking. Additionally, discussing
these factors on the record facilitates meaningful
review if the substance of the district court’s decision
is later appealed.
There is one more mandatory procedural question still
to be addressed, however: the factors listed in 18 U.S.C.
§ 3553(a). Courts are statutorily obligated to consider
these factors, both when determining a sentence’s length,
id., and when deciding whether to impose a concurrent
or consecutive sentence, 18 U.S.C. § 3584. When
addressing these factors, district courts do not need to
make formal findings regarding every one. See, e.g.,
United States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir.
2009); United States v. Williams, 425 F.3d 478, 480 (7th
Cir. 2005). As a general matter, the record must merely
assure us that the court thoughtfully considered the
statutory provisions. United States v. Jung, 473 F.3d 837,
844 (7th Cir. 2007); Williams, 425 F.3d at 480. We do
require explicit findings, however, to the extent neces-
28 No. 12-2028
sary to fulfill two purposes: (1) “enabl[ing] this court to
meaningfully review the district court’s decision,” United
States v. Marion, 590 F.3d 475, 477 (7th Cir. 2009); and
(2) responding to the defendant’s principal, nonfrivolous
arguments, United States v. Martinez, 650 F.3d 667, 672
(7th Cir. 2011).
Despite Nania’s contentions otherwise, the district
court satisfied these benchmarks. The court first acknowl-
edged the factors listed in § 3553(a). (R. 31 at 40.) Then,
the court explained which factors motivated its decision
about both the sentence’s length and consecutive nature.
(Id. at 41-54.) The court did not make in-depth findings
about each factor, but its discussion convinces us that
it went through the proper inquiry and gave us enough
information to review its decision meaningfully.
The court also responded to Nania’s principal argu-
ments. Regarding sentence length, Nania asserted that
his military service, depression, and history of substance
abuse warranted a decreased sentence. The court acknowl-
edged Nania’s claims and cited the relevant provisions
of the Guidelines. (Id. at 44-46.) According to those sec-
tions, alcohol abuse does not generally warrant a
reduced sentence, while military service and depres-
sion warrant a reduction only in unusual cases. See
U.S.S.G. § 5H1.3 (mental health); § 5H1.4 (substance
abuse); § 5H1.11 (military service). In light of these
policy statements, the district court found none of the
considerations so out-of-the-ordinary as to warrant a
significant downward departure in Nania’s case. (R. 31
at 44-46.) Yet, the court also found that these consider-
No. 12-2028 29
ations cumulatively had some mitigating value, which
it took into account when configuring Nania’s sentence.
(Id. at 45-46.) This approach demonstrated proper pro-
cedure: the district court responded to Nania’s argu-
ments with thoughtful, explicit findings.
The court gave similarly judicious treatment to Nania’s
claims regarding a concurrent or consecutive sentence.
First, Nania insisted that his federal sentence should
run concurrently with his state sentences because the
overlapping conduct met the requirements of U.S.S.G.
§ 5G1.3(b). The preceding pages already demonstrate
how the district court responded to this claim. Nania
also argued that a consecutive sentence was too harsh
and largely unnecessary because his state sentences
were likely a life sentence. The district court disagreed. It
found that, despite the great length of Nania’s state
sentences, he could possibly be released. The court was
therefore concerned that a concurrent sentence would
provide no additional punishment for Nania’s federal
offense. (R. 31 at 52-53.) The court also worried that a
concurrent sentence would not provide additional deter-
rence for those who might consider mimicking Nania’s
federal crimes. (Id. at 41-42); (id. at 52-53). For these rea-
sons, the court found a consecutive sentence neither
too harsh nor unnecessary. We feel this discussion ade-
quately responded to Nania’s arguments.
Whether the district court’s conclusions were rea-
sonable is a separate, substantive inquiry, which we will
address below. We are satisfied, however, that the
court fulfilled its procedural obligations.
30 No. 12-2028
B. Substantive Reasonableness
Having concluded the district court followed sound
procedure, we must now determine whether that proce-
dure led to its intended outcome: substantively rea-
sonable punishment. See Gall v. United States, 552 U.S. 38,
51 (2007). We conduct this review for abuse of discretion.
Id. Furthermore, because Nania’s sentence fell below
the Guidelines’ recommendation, we presume it was
reasonable. See United States v. Klug, 670 F.3d 797, 800
(7th Cir. 2012). Nania bears the burden of proving other-
wise, United States v. Tanner, 628 F.3d 890, 908 (7th Cir.
2010), but fails to carry that burden here. He presents
two reasons his sentence might be substantively unrea-
sonable: its length and the fact that it runs consecutively
to his state sentences. We address each argument in
turn but find neither compelling.
1. Sentence length
We first emphasize that the district court imposed
only the 330-month federal portion of Nania’s aggregate
sentence. Nania often portrays the scenario differ-
ently—as if the court imposed the entire, combined
state and federal sentence. (See, e.g., Appellant’s Br. at
35.) What Nania overlooks is that the state and federal
sentences punish different conduct to protect different
interests. We will discuss these separate interests
more fully later, but, for now, the critical point is that
the Guidelines recommended a sentence of 360 months
to protect the federal interests alone. Thus, Nania’s 330-
No. 12-2028 31
month sentence fell below the Guidelines’s recommenda-
tion.
With that fact in mind, we turn to Nania’s principal
arguments about sentence length, which focus on his
mental health, substance abuse, and military service.
Nania claims that his history of depression and
alcoholism warranted a decreased sentence. Nania also
asserts that the court should have given a greater reduc-
tion for Nania’s time in the Army—for the awards he
earned and for his overseas service in Kuwait. We
agree that Nania’s mental health struggles are troubling
and that his military record is laudable. At the same
time, we cannot say that the district court abused its
discretion. The court acknowledged these considera-
tions had some cumulative mitigating value, which
the court took into account when formulating Nania’s
sentence. (R. 31 at 45-46.) Without doubt, that mollifying
force influenced the court’s decision to impose a below-
Guidelines sentence. (Id.)
Thus, Nania’s argument boils down to the claim that
he should have received a sentence even further below
the Guidelines. The district court reasonably re-
jected this proposition. Nania committed a very serious
crime—sexually abusing multiple young girls and
creating images of the abuse that will continue to haunt
his victims for years to come. Although Nania pre-
sented evidence of depression and alcoholism, none of
his circumstances were unusual enough to make an
already below-Guidelines sentence unreasonable. Fur-
thermore, as the district court noted, Nania can
32 No. 12-2028
receive treatment for these maladies while in prison. (Id.
at 45.) As for Nania’s Army service, we again agree
with the district court that nothing shows why Nania
deserves a more significant downward departure.
We do not mean to downplay Nania’s struggles or
accomplishments. Neither did the district court. The
court considered these matters when fashioning Nania’s
punishment, and they led it to impose a below-Guidelines
sentence. The fact that Nania did not receive an even
lower sentence does not mean that the district court
abused its discretion—and it certainly does not over-
come a presumption of reasonableness.
Nania’s secondary argument about sentence length
similarly founders. Nania notes that, statistically, defen-
dants who commit federal child pornography offenses
tend to receive sentences lower than 330 months. (Ap-
pellant’s Br. at 41-42.) Nania thus claims that his
sentence creates an unwarranted disparity with others
who committed the same crime. This argument is a non-
starter. We reiterate that Nania received a below-
Guidelines sentence. Thus, the Sentencing Commission,
which is charged with taking nationwide statistics into
account, has already found that an even higher sentence
would not have created an unwarranted disparity. In
fact, we give the Sentencing Commission’s views on
these issues such credit that we have stated a within-
Guidelines sentence necessarily takes into account unwar-
ranted disparities. See United States v. Matthews, 701 F.3d
1199, 1205 (7th Cir. 2012); United States v. Bartlett, 567
F.3d 901, 908 (7th Cir. 2009). Given this holding, it is
No. 12-2028 33
“most unlikely” that a below-Guidelines sentence will
ever result in “a sentencing disparity adverse to the
defendant.” United States v. Annoreno, 713 F.3d 352, 359
(7th Cir. 2013). Nania’s brief discussion of statistics
does not convince us otherwise.
For these reasons, Nania has failed to overcome
the presumption of reasonableness that attaches to his
below-Guidelines sentence. Therefore, we cannot find
330 months a substantively unreasonable prison term.
2. Concurrent vs. consecutive sentence
Finally, we address whether it was reasonable for
the district court to order Nania to serve his federal
sentence consecutively to his state sentences. Nania’s
sentences are indeed lengthy. As discussed, Nania will
begin serving his 330 months in federal custody when
he is 103 years old (at the earliest). Barring proceedings
that vacate some of Nania’s sentences, he will die in
prison. We have said before that “death in prison is
not to be ordered lightly,” Vallar, 635 F.3d at 280, but we
do not think the district court did so in this case.
First, the court explained “that a fully concurrent sen-
tence . . . would not provide any additional punishment
for the defendant’s federal offenses.” (R. 31 at 53.) This
argument makes sense. As referenced earlier, the fed-
eral and state offenses target different conduct to pro-
tect different interests. The state offenses punished the
abusive conduct itself, while the federal offense
punished the memorialization of that abuse in pornogra-
34 No. 12-2028
phy. That act carries additional consequences. Pornog-
raphy creates “a permanent record of a child’s abuse”
that will continue to harm the child as the image circu-
lates. Ashcroft v. Free Speech Coalition, 535 U.S. 234,
249 (2002). The district court expressed great concern
about these lasting consequences, specifically because no
one knew exactly what happened to one of Nania’s
hard drives that contained many pornographic images.
(R. 31 at 42.)
The federal sentence also addresses deterrence, a sepa-
rate objective. Given the particularly pernicious form
of continued abuse that comes with child pornography,
the government has determined that “severe criminal
penalties” are warranted to “dry up the market.” Free
Speech Coalition, 535 U.S. at 249-50. Had Nania received
a fully concurrent sentence, those goals would not
have been furthered. Again, the district court explicitly
appealed to this reasoning when determining Nania’s
sentence. (R. 31 at 41-42); (id. at 53-54). Thus, the
district court concluded that these concerns justified
a consecutive sentence, despite other potentially miti-
gating considerations. (Id. at 52-53.) Although
Nania contends otherwise, we find this reasoning
sufficient to justify the sentence imposed.
Nania argues that a consecutive federal sentence
serves no marginal deterrence because it effectively piles
a life sentence onto another life sentence. We disagree.
Nania openly acknowledges that he may outlive his state
sentences. (Appellant’s Br. at 44.) Thus, a consecutive
federal sentence serves an additional function: assuring
No. 12-2028 35
that Nania remains in prison for life. As we have
said before, “a sentence of death in prison is notably
harsher than a sentence that stops even a short period
before.” United States v. Patrick, 707 F.3d 815, 820 (7th Cir.
2013). Thus, the federal sentence indeed provides
marginal deterrence to criminals who might consider
producing child pornography.
Foreseeing this conclusion, Nania also argues that his
sentence is too harsh precisely because it is an assured
life sentence. But we do not view a life sentence as an
abuse of discretion in this case. The distinct federal inter-
ests discussed earlier warranted imposing at least some
part of the federal sentence consecutively. Since Nania
will be 103 years old when he enters federal custody,
those additional years make his aggregate sentence an
assured life term. We have no qualms about that out-
come. Nania comm itted m an y seriou s crim es
that cumulatively warrant life in prison. As already held,
a 30-year sentence is reasonable for the federal crime
alone. Therefore, a life sentence seems entirely reasonable
for that same federal crime in addition to six serious
state crimes.
Nania’s final argument relies on faulty logic. He claims
that his aggregate sentence more than tripled what the
Guidelines suggested (360 months). As we have
discussed, however, the federal and state crimes are
distinct. Nania cannot refashion the sentence length
recommended by the Guidelines—a recommendation
based solely upon a federal offense—into a model com-
bined sentence for state and federal crimes. The aggregate
36 No. 12-2028
sentence takes into account much more culpable con-
duct than the Guidelines did and, accordingly, should
be much higher.
In light of the above, we find that the district court
more than justified a sentence that did not run fully
concurrently with Nania’s state sentences. The question
remains whether the district court’s reasons equally
justify a fully consecutive sentence, as opposed to a
partially concurrent one. Nania’s arguments, however,
do not address this point; they posit that only a fully
concurrent sentence would have been reasonable. At
oral argument, we nonetheless expressed concern that a
partially concurrent sentence might have been a more
finely-tuned decision. That said, we do not feel the
district court abused its discretion, nor that a partially
concurrent sentence would have ultimately made any
substantive difference in this case. We have already
explained why a sentence amounting to an assured
life term was reasonable punishment for Nania’s
crimes. After finding one assured life sentence
reasonable, we see no substantive difference between
that sentence and other terms that would have also
assured life in prison.
Nania’s sentence is indeed long, but long sentences
are no stranger to federal courts of appeals in child pornog-
raphy cases. See, e.g., United States v. Noel, 581 F.3d 490,
500-01 (7th Cir. 2009) (affirming 960-month sentence);
United States v. Sarras, 575 F.3d 1191, 1220-21 (11th Cir.
2009) (affirming 1,200-month sentence); United States
v. Betcher, 534 F.3d 820, 827-28 (8th Cir. 2008) (affirming
No. 12-2028 37
9,000-month sentence). The senseless acts of these
criminals damage children for the rest of their lives. The
government has thus understandably devoted con-
siderable resources to deterrence—and that distinct
objective warrants our attention. In that light, we find a
330-month consecutive sentence reasonable punishment.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM Nania’s sentence.
7-30-13