United States v. Justin Hancock

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1779
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUSTIN HANCOCK,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CR 217 — Virginia M. Kendall, Judge.
____________________
ARGUED DECEMBER 8, 2015 — DECIDED JUNE 3, 2016
____________________
Before WOOD, Chief Judge, and BAUER and WILLIAMS, Cir-
cuit Judges.
WILLIAMS, Circuit Judge. Justin Hancock was sentenced to
120 months in prison for distributing child pornography. He
appeals his sentence on procedural grounds, arguing that
the district judge inadequately addressed his arguments be-
2 No. 15-1779
fore imposing his sentence. We disagree. Because the judge
adequately addressed Hancock’s arguments, we affirm.
I. BACKGROUND
In January 2012, an undercover law-enforcement agent
connected with Justin Hancock using peer-to-peer software.
Hancock had been using the software for about eighteen
months to download child pornography. Hancock granted
access to his files and shared his password, allowing the
agent to download child pornography from Hancock’s com-
puter.
Hancock pled guilty to knowingly transporting child
pornography. See 18 U.S.C. § 2252A(a)(1). He admitted that
he had about 1200 videos and 16,000 images of child pornog-
raphy, many of which “were graphic in nature and involved
sexual acts, including sexual intercourse, with prepubescent
children.” His plea agreement specifically mentioned images
and videos of prepubescent females performing oral sex on,
or being vaginally or anally raped by, adult males.
The parties agree that the Sentencing Guidelines recom-
mended a sentence between 151 and 188 months. Specifical-
ly, Hancock falls within criminal history category I and his
offense level is 34, calculated as follows:
• Base offense level 22. U.S.S.G. § 2G2.2(a)(2).
• Offense-level increases:
o 2 levels because the material involved prepu-
bescent minors. U.S.S.G. § 2G2.2(b)(2).
o 2 levels because Hancock distributed material.
U.S.S.G. § 2G2.2(b)(3)(F).
No. 15-1779 3
o 4 levels because the material portrayed vio-
lence or sadistic or masochistic conduct.
U.S.S.G. § 2G2.2(b)(4).
o 2 levels because Hancock used a computer.
U.S.S.G. § 2G2.2(b)(6).
o 5 levels because Hancock had more than 600
images. U.S.S.G. § 2G2.2(b)(7)(D).
• Offense-level reductions:
o 2 levels because Hancock accepted responsibil-
ity. U.S.S.G. § 3E1.1(a).
o 1 level because Hancock timely pled guilty, al-
lowing the prosecution and court to save re-
sources. U.S.S.G. § 3E1.1(b).
Hancock argued for a sentence of 60 months—less than
half of the low end of the Guidelines range. His principal ar-
gument was that the child-pornography Guidelines were
“seriously flawed.” His argument hinged on the undisputed
fact that technological advances have changed the practicali-
ties of child-pornography receipt and distribution. Hancock
argued, with factual support, that because of those techno-
logical advances, many offense-level increases prescribed by
the Guidelines apply to the vast majority of offenders, even
those whose conduct is typical, rather than unusually harm-
ful. As a result, he argued, the Guidelines improperly pre-
scribe one-size-fits-all sentences for child-pornography of-
fenders, despite their varying levels of culpability and dan-
gerousness. Hancock also provided the district court with
information about the sentences of seven other child-
pornography offenders, and urged the court to impose a sen-
tence that avoided an unwarranted sentencing disparity.
4 No. 15-1779
The district court imposed a sentence of 120 months. On
appeal, Hancock argues that the judge inadequately ad-
dressed his sentencing arguments.
II. ANALYSIS
A. Standard of Review and Legal Standard
“At the outset of the sentencing proceedings, the district
court must determine the applicable Guidelines range … .
The court then entertains the parties’ arguments regarding
an appropriate sentence, including whether the sentence
should be within the Guidelines range or not.” Molina-
Martinez v. United States, 136 S. Ct. 1338, 1342 (2016). The dis-
trict judge must “provide an explanation” that: (1) “shows
an appellate court that [the judge] has considered the parties’
arguments and has a reasoned basis for exercising [his or
her] own legal decisionmaking authority”; (2) “allow[s] for
meaningful appellate review”; and (3) “promote[s] the per-
ception of fair sentencing.” United States v. Estrada-Mederos,
784 F.3d 1086, 1090 (7th Cir. 2015) (internal citations and
quotation marks omitted).
District judges need only address arguments that are
“not so weak as not to merit discussion.” Id. Furthermore,
the requirement that the judge address the defendant’s ar-
guments “does not apply mechanically. We examine the to-
tality of the record, to see if the district judge meaningfully
considered the defendant’s principal mitigating arguments.”
Id. at 1091 (internal citations and quotation marks omitted).
Whether the judge did so is a question we review de novo.
Id. at 1090.
No. 15-1779 5
B. Hancock Did Not Waive His Argument
Before we discuss the merits, we must address the gov-
ernment’s contention that Hancock waived his current ar-
gument. In United States v. Garcia–Segura, 717 F.3d 566 (7th
Cir. 2013), we encouraged district judges to explicitly ask
whether the defendant’s arguments had been adequately
addressed:
In order to ensure that defendants feel that
they have had such arguments in mitigation
addressed by the court and to aid appellate re-
view, after imposing sentence but before advis-
ing the defendant of his right to appeal, we en-
courage sentencing courts to inquire of defense
counsel whether they are satisfied that the
court has addressed their main arguments in
mitigation. If the response is in the affirmative, a
later challenge for failure to address a principal mit-
igation argument … would be considered waived. If
not, the trial court would have the opportunity
to clarify whether it determined that the argu-
ment was so weak as not to merit discussion,
lacked a factual basis, or has rejected the ar-
gument and provide a reason why.
Id. at 569 (emphasis added) (internal citation and quotation
marks omitted).
In this case, after the district judge specified the sentence
that would be imposed, she asked, “Anything further?” In
response, Hancock’s attorney made three logistical recom-
mendations, but said nothing about the judge having inade-
quately addressed Hancock’s sentencing arguments. Relying
6 No. 15-1779
on Garcia–Segura, the government argues that Hancock
waived his current argument. We disagree.
“Waiver requires a defendant to intentionally surrender a
known right.” United States v. Speed, 811 F.3d 854, 857 (7th
Cir. 2016). As we have previously explained, a non-specific
question like “Anything else?” does not direct the defendant
to any specific issue, so a negative answer does not inten-
tionally surrender a known right. United States v. Morris, 775
F.3d 882, 885–86 (7th Cir. 2015) (“In this case, the district
court’s generic inquiry of ‘anything further?’ did not serve
the specific purpose we had in mind in Garcia-Segura.”); see
also Speed, 811 F.3d at 857 (“[W]e never intended [in Garcia-
Segura] to imply that a general ‘anything else?’ results in the
waiver of a specific right.”). So there was no waiver here. As
we did in Morris, “[w]e again encourage courts to ask de-
fense counsel ‘whether they are satisfied that the court has
addressed their main arguments in mitigation.’” 775 F.3d at
886 (citing Garcia-Segura, 717 F.3d at 569). This inquiry
should be a part of every sentencing hearing.
C. District Judge Adequately Addressed Hancock’s
Arguments
Factors Relevant to Non-Production Child-
Pornography Offenses
Hancock’s primary sentencing argument was that the
Guidelines’ offense-level increases for receipt, transport,
possession, or distribution of child-pornography, fit poorly
with modern practical realities. Because today most such
crimes are committed with Internet-connected computers,
amassing or distributing a huge and diverse collection is fast
and easy. The result is that many offense-level increases ap-
No. 15-1779 7
ply to the vast majority of offenders. So, Hancock argued,
the offense-level increases fail to account for offenders’ vary-
ing levels of culpability and dangerousness. In particular,
Hancock complained about the increases for using a com-
puter, possessing more than 600 images, possessing images
of prepubescent minors, and possessing images depicting
violence or sadistic or masochistic conduct. On appeal, Han-
cock says the district judge failed to adequately address this
argument.
That argument has at least two flaws. The first is that the
argument is not individualized to the facts of Hancock’s
case. It is a blanket attack against the Guidelines’ policy. We
have held that district judges—who, recall, are required to
begin the sentencing process by correctly calculating the
Guidelines range—need not even consider such an argument.
United States v. Schmitz, 717 F.3d 536, 542 (7th Cir. 2013)
(“[B]ecause an argument like Schmitz’s is a blanket challenge
to the guideline rather than one tailored to his unique char-
acteristics and circumstances, it is not one that the district
judge must explicitly address.”). A district court may address
such an argument, and may find it persuasive, “but if it is
not persuaded by the argument it may pass over it in si-
lence.” Id.; see also United States v. Aguilar-Huerta, 576 F.3d
365, 367–68 (7th Cir. 2009). In other words, the district judge
was “perfectly entitled to accept the penal philosophy em-
bodied in the current [child-pornography] guideline and
was not obligated to explain why she chose to do so.”
Schmitz, 717 F.3d at 542. 1
1 Hancock notes that the Sentencing Commission itself issued a re-
port in 2012 that questioned the wisdom of the child-pornography
Guidelines. At most, that supports the inference that Hancock’s policy
8 No. 15-1779
The second flaw in Hancock’s argument is that the judge
did consider and comment on his arguments. 2 Indeed, to
some extent, the judge accepted Hancock’s arguments and his
view of the evidence. For example, as urged by Hancock’s
lawyer, the judge found no evidence that Hancock had ever
molested a child, told someone to molest a child, told some-
one to produce child pornography, or sought “validation” of
his behavior from other offenders. The judge also accepted
Hancock’s argument that a relevant consideration is the ex-
tent to which an offender’s collection is or is not carefully
categorized (a factor not mentioned by the Guidelines). In-
deed, the judge found that the relative lack of categorization
of Hancock’s collection mitigated in favor of a lesser sen-
tence.
argument was good; but it was nonetheless a blanket policy argument on
which the court was not required to speak. We also note that the Guide-
lines have been amended several times since the report issued, without a
relevant change.
2 As the government concedes, the judge did not explicitly say any-
thing about § 2G2.2(b)(6)’s two-point increase for the use of a computer.
But as discussed above, she was not required to. We also note that the
Sentencing Commission report that Hancock repeatedly cites in support
of his view that the majority of child-pornography offenses are commit-
ted using Internet-connected computers states that “the perpetual nature
of the distribution of images on the Internet causes a significant, sepa-
rate, and continuing harm to victims” and that “[o]nce an image is dis-
tributed via the Internet, it is impossible to eradicate all copies of it or to
control access to it. The harm to victims is thus lifelong.” U.S. Sentencing
Commission, Report to the Congress: Federal Child Pornography Offenses 311
(2012), available at www.ussc.gov/sites/default/files/pdf/news/
congressional-testimony-and-reports/sex-offense-topics/201212-federal-
child-pornography-offenses/Chapter_12.pdf. The victim impact state-
ments in Hancock’s case reflect the same view.
No. 15-1779 9
Hancock made additional arguments, which the judge
considered, but ultimately rejected. He pressed that the
number of images that an offender possesses is irrelevant
because a large collection is so easily and quickly amassed.
The judge explicitly considered the argument but rejected it
as unsupported by the facts of Hancock’s case:
I know that the volume has been labeled by
[Hancock’s attorney] as being actually a factor
that we shouldn’t take into account because of
the ease at which it can be gathered. And I
think that’s probably an argument that it’s pos-
sible. No evidence has been presented to me
that that’s what occurred here, that there was
like a quick download that was maintained.
The judge did not reject the possibility that some other
defendant might make a meritorious argument along these
lines, but she found no facts from which Hancock could do
so. (Indeed, Hancock admitted he had been viewing child
pornography for at least twelve years and had been seriously
collecting it for at least a year and a half.)
Hancock also argued that his possession of particularly
heinous images should not be an aggravating factor because
many offenders possess such images and his own possession
of them was “incidental” to his downloading of images he
actually enjoyed (adult females with prepubescent children,
which he implicitly argues are less heinous). The judge ad-
dressed the argument, noting that Hancock wanted to “miti-
gate the aspect that the images were sadistic or of younger
children” on the ground that many offenders possess such
images. But the judge found it aggravating that Hancock
would “want to have near [him]” images of very young chil-
10 No. 15-1779
dren being molested and raped, even if those images were
not his specific focus. 3 So the judge considered Hancock’s
argument, but disagreed, as she was entitled to do. Cf. United
States v. Stinefast, 724 F.3d 925, 931–32 (7th Cir. 2013) (affirm-
ing sentence where “court’s discussion, while brief, reflects
its consideration and rejection” of the defendant’s argu-
ments); United States v. Diekemper, 604 F.3d 345, 355 (7th Cir.
2010) (noting “the fact that the district court acknowledged
[the defendant’s] argument is dispositive” because “as long
as a sentencing court considers the arguments made in miti-
gation, even if implicitly and imprecisely,” no procedural er-
ror occurs) (emphasis added).
Those examples suffice. Hancock argues that the district
judge inadequately considered his argument about what fac-
tors should aggravate or mitigate a non-production child-
pornography sentence. But a careful review of the sentenc-
ing transcript defeats his argument.
Unwarranted Sentencing Disparities
Hancock’s second argument concerned unwarranted sen-
tencing disparities. In his sentencing brief, he identified six
child-pornography offenders who had been recently sen-
tenced, and at the hearing, he identified a seventh. He ar-
gued that the judge should avoid an unwarranted sentenc-
ing disparity, but his argument was not much more specific
3Hancock’s lawyer described image collection this way: “You down-
load [a] folder. And then you get all those images. Whether you want
them all or not, you get them all. And then you throw out the ones you
[don’t] want and you look at the ones that excite you” (emphasis added).
But as the government pointed out, Hancock did not “throw out” the
particularly heinous images.
No. 15-1779 11
than that. The offenders Hancock identified received varying
sentences—between 60 and 180 months—because the facts of
their individual cases varied. Even to date, Hancock has not
identified an offender or group of offenders who received
more lenient sentences than he did despite similar or more
serious conduct.
Hancock’s lawyer acknowledged the lack of precision,
stating during the hearing that the comparison was “not sci-
entific” and that the court could not devise any guidelines
“from just looking at six cases.” He conceded that his analy-
sis revealed “no discernible pattern as to how the judges of
this district are dealing with the cases.” Hancock’s sentenc-
ing brief also noted the lack of a clear pattern, and urged on-
ly that the comparisons “provid[e] some information that
may be of assistance” to the district court. That is hardly a
“principal argument in mitigation” that the district court
was required to address. United States v. Castaldi, 743 F.3d
589, 598 (7th Cir. 2014) (“Castaldi cannot prove that his sen-
tence is unfair by pointing to a few other cases around the
country where similar or worse defendants received lighter
sentences, and this was not such a major part of his sentenc-
ing position as to trigger special obligations to explain … .”);
United States v. Martinez, 650 F.3d 667, 672 (7th Cir. 2011)
(“The key word, however, is principal—non-principal argu-
ments can be considered and rejected by the district court
without explicit discussion.”); United States v. Martinez, 520
F.3d 749, 753 (7th Cir. 2008). Hancock’s sentence was sub-
stantially below the low end of his Guidelines range, and it
fell right in the middle of the range of sentences imposed on
the offenders he identified. The district judge committed no
error by not explaining why Hancock’s sentence did not cre-
12 No. 15-1779
ate an unwarranted disparity with the sentence(s) of (one or
more of) those offenders.
III. CONCLUSION
We AFFIRM the judgment of the district court.