United States v. Nicholas Swank

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1081
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NICHOLAS B. SWANK,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 20-cr-40071 — Sara Darrow, Chief Judge.
____________________
ARGUED MAY 31, 2022 — DECIDED JUNE 27, 2022
____________________
Before SCUDDER, ST. EVE, and KIRSCH, Circuit Judges.
ST. EVE, Circuit Judge. In the late fall of 2020, Federal Bu-
reau of Investigation (“FBI”) agents apprehended Nicholas
Swank in Rock Island, Illinois. Swank had travelled from his
home in Iowa believing he was meeting a fifteen-year-old boy
for sex. In fact, Swank had fallen for a sting operation on a
popular mobile dating application. Swank pleaded guilty to
multiple federal offenses. At sentencing, the district court
2 No. 22-1081
imposed a within-Guidelines term of 210 months’ imprison-
ment.
Swank appeals his sentence, arguing the district court pro-
cedurally erred when it suggested the 18 U.S.C.
§ 3553(a)(2)(B) factor of adequate deterrence was “tethered”
to the Guidelines. We disagree. When read as a whole, the
transcript indicates that the district court followed the proper
procedure and did not err in determining the appropriate sen-
tence.
I. Background
On November 5, 2020, Nicholas Swank logged onto a da-
ting application under the username “lkng4younger.” This is
not the first time he had “looked” for “younger”—Swank, a
registered sex offender in Iowa, had acted on his sexual de-
sires for underage males before. Now, he began a conversa-
tion with a male user he believed was eighteen years old. Af-
ter eight days of sexually explicit online chatting, the user told
Swank he was fifteen. Unbeknownst to Swank, the user was
an undercover FBI agent.
Swank immediately drove from his home in Muscatine,
Iowa, to meet with the user in Rock Island, Illinois. FBI agents
arrested Swank once he arrived. Soon after, Swank confessed.
He admitted to exchanging sexually explicit images and mes-
sages with the user and crossing state lines with the intent of
bringing a fifteen-year-old male back to Iowa for sex. Swank
pleaded guilty to attempted enticement of a minor, travel
with intent to engage in illicit sexual activity, and soliciting an
obscene visual depiction of a minor.
At sentencing, the district court calculated a final offense
level of 32 and assigned Swank a criminal history category of
No. 22-1081 3
VI, setting a Guidelines range of 210 to 262 months’ imprison-
ment. Swank sought the statutory minimum 10 years. He
identified as mitigating the fact that he drove past the Rock
Island address twice without stopping and never left his ve-
hicle. Swank claimed this indicated he changed his mind
about meeting the minor and knew it was wrong to do so. By
the time FBI agents stopped Swank, he had already decided
to leave. Swank also argued that other, more egregious, sex
with a minor offenses may have carried a lower sentencing
range. The district court addressed both arguments as it con-
sidered the § 3553(a) factors.
The district court began by measuring the seriousness of
Swank’s offense. It noted that Swank spent a week seeking to
have sex with a younger male then drove almost an hour
across state lines when he came to believe the user he chatted
with was fifteen. The district court discounted Swank’s last-
minute change of heart, reasoning that the sexually explicit
communications of the preceding days and Swank’s belief re-
garding the user’s age indicate a real minor would have been
at great risk of harm. It then stated that its “biggest concern”
was the risk Swank posed to the public. The district court
found that a 210-month sentence was sufficient but not
greater than necessary because of Swank’s risk to recidivate
and the danger he presented to others. It listed Swank’s ex-
tensive criminal history: sexually assaulting his thirteen-year-
old stepbrother, failing to register with the Iowa Sex Offender
Registry on multiple occasions, and recently meeting a minor
on school property “in a manner that is almost exactly what
happened here.” This “pattern” of similar conduct added to
the district court’s concerns about the risk Swank posed to the
public. The district court then rejected Swank’s comparison to
other offenses, explaining that its sentencing decision needed
4 No. 22-1081
to account for similarly situated offenders who commit the
same offense. Believing Swank’s likeliness to reoffend “ex-
tremely high,” the district court had “no confidence that a var-
iance would be appropriate.”
The district court then turned to adequate deterrence.
What followed forms the basis of Swank’s appeal:
I do think that general deterrence is a factor here in
these types of offenses. I mean, you sat in a car for al-
most an hour and drove up here thinking about what
you were doing. You could have turned around earlier.
You didn’t. I, I – I struggle a little bit with [counsel’s]
argument about ten years is enough to be an adequate
general deterrent. It’s kind of -- probably for some peo-
ple, if it is going to be a general deterrent, a decade, 15
years, I mean, it is a little arbitrary, but it is the way that
our system works is it’s tethered to the reality of the
sentences and the ranges and everything like that. And
so if somebody knows that they will face a guideline-
range sentence in federal court if they commit this type
of offense, then that’s what I think is the appropriate
metric to base a general deterrent argument on. And I
think that if a variance is – for that could minimize the
general deterrent impact that the sentence could have.
The district court declined to grant a variance and imposed a
sentence at the low end of the Guidelines. Swank timely ap-
pealed his Guidelines sentence.
II. Analysis
We review de novo a district court’s sentencing proce-
dures. United States v. Pennington, 667 F.3d 953, 956 (7th Cir.
2012). A district court must “(1) correctly calculate the
No. 22-1081 5
applicable guidelines range; (2) give meaningful considera-
tion to the § 3553(a) factors and any nonroutine sentencing ar-
guments raised by the defense; and (3) state the factors on
which the sentence is based.” United States v. Greene, 970 F.3d
831, 834 (7th Cir. 2020) (citing Gall v. United States, 552 U.S. 38,
50 (2007)).
Section 3553(a) “contains an overarching provision in-
structing district courts to ‘impose a sentence sufficient, but
not greater than necessary,’ to accomplish the goals of sen-
tencing.” Kimbrough v. United States, 552 U.S. 85, 101 (2007)
(quoting § 3553(a)). This provision is known as the “parsi-
mony principle.” See Pennington, 667 F.3d at 956–57. If, after
weighing the § 3553(a) factors, a district court determines that
a sentence below the Guidelines range is sufficient, but not
greater than necessary, to accomplish the goals of sentencing,
it should give the below-Guidelines sentence. See id. at 957. A
district court errs when it imposes a Guidelines sentence an-
yway.
Swank’s argument is purely procedural. He suggests the
district court presumed a Guidelines sentence was reasonable
by “tether[ing]” general deterrence to the Guidelines range.
Indeed, district courts may not presume that a Guidelines
sentence is reasonable and doing so is a procedural error. Rita
v. United States, 551 U.S. 338, 351 (2007) (citing United States v.
Booker, 543 U.S. 220, 259–60 (2005)); Pennington, 667 F.3d at957–58. Swank maintains that, by justifying this tethering as
“the way that our system works,” the district court revealed
that it departed from the parsimony principle and applied the
presumption of reasonableness in its place.
A sentencing court’s comments are not made in isola-
tion—we look to the whole transcript to consider whether the
6 No. 22-1081
district court applied the § 3553(a) factors appropriately. See
United States v. Allday, 542 F.3d 571, 573–74 (7th Cir. 2008). If
the transcript indicates the district court properly applied the
§ 3553(a) factors, we may presume on appeal that a sentence
complies with the parsimony principle. United States v. Ar-
mand, 856 F.3d 1142, 1145 (7th Cir. 2017). When the district
court’s comments are too ambiguous to preclude the possibil-
ity that it applied the presumption of reasonableness, we
must vacate and remand for resentencing. See Pennington, 667
F.3d at 958 (observing that the district court cited the Guide-
lines as the only basis for declining to impose a below-Guide-
lines sentence); United States v. Johnson, 635 F.3d 983, 989–90
(7th Cir. 2011) (noting the district court’s soliloquy regarding
future acts of Congress indicated it might have gone below
the Guidelines range); United States v. Panice, 598 F.3d 426, 444
(7th Cir. 2010) (explaining that multiple statements show the
district court may have felt bound to the Guidelines).
Here, the district court’s comments do not undermine our
confidence that it applied the § 3553(a) factors appropriately.
The district court provided meaningful consideration of the
factors, addressed Swank’s arguments regarding a variance,
and stated the factors that formed the basis for Swank’s sen-
tence. It imposed a 210-month sentence because of Swank’s
risk to recidivate and the danger he posed to others. Com-
bined with Swank’s extensive criminal history exhibiting a
pattern of similar conduct, the district court determined that
Swank’s case did not call for a variance.
The district court’s clear statements rejecting a variance for
reasons unrelated to adequate deterrence resolve any ambi-
guity arising from its subsequent statements about general
deterrence. The transcript indicates the district court did not
No. 22-1081 7
“tether” its sentence to the Guidelines, let alone presume a
Guidelines sentence is reasonable. Instead, the district court’s
treatment of the § 3553(a) factors demonstrates it knew “how
our system works,” and believed a Guidelines sentence satis-
fied the sentencing goals of § 3553(a) in Swank’s case. The rec-
ord does not present sufficient ambiguity for us to disturb this
finding.
III. Conclusion
For these reasons, we affirm.