United States v. Phillippe, Kevin

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 12, 2006
Decided December 22, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2087
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Illinois.
v.
No. 05 CR 40072
KEVIN PHILLIPPE,
Defendant-Appellant. J. Phil Gilbert,
Judge.
ORDER
Kevin Phillippe pleaded guilty to using a computer to transport and ship
child pornography in interstate commerce, 18 U.S.C. § 2252A(a)(1). The district
court sentenced Phillippe to 210 months’ imprisonment. On appeal, Phillippe
argues that the district court did not adequately consider his personal
characteristics and his need for access to psychiatric counseling. Because the record
indicates that the court considered the relevant factors under 18 U.S.C. 3553(a), we
affirm.
Phillippe was arrested for using the internet to collect and trade child
pornography. He used his computer to automatically download over 15,000 images
from a network that trafficked in child pornography, and he allowed others in the
No. 06-2087 Page 2
network to obtain images from his computer. After he pleaded guilty, the probation
officer calculated a guidelines range of 210 to 240 months’ imprisonment.
At sentencing the court considered evidence and testimony about Phillippe’s
personal history and characteristics. Phillippe submitted letters from friends and
family urging that he be allowed to attend therapy, describing his traumatic
childhood and his parents’ divorce, and noting his regular church attendance and
membership in his church’s youth group when he was a child. A psychiatrist who
testified on behalf of Phillippe characterized him as a pedophile, but added that he
was “very treatable” if treated soon. The psychiatrist added that the best therapy
options for Philippe’s conditions were offered as part of an intensive program at a
Bureau of Prisons facility in North Carolina, though access to the intensive program
was restricted to inmates serving the last three years of their sentence (such
treatment would therefore not be available to Phillippe for fourteen years because
his guidelines range would run for more than seventeen years).
Phillippe requested a 60-month sentence (the statutory minimum) so that he
could have access to the treatment program as soon as possible. The court noted its
concern about Phillippe’s employment at a carnival, and that his willingness to
work near children may indicate that he poses a danger to the public if he were to
take “the next step of actually acting” on his fantasies. The court also
acknowledged Phillippe’s difficult family situation, but noted that his situation did
not excuse his actions. The court recounted several § 3553(a) factors, such as the
seriousness of the offense, the need to promote respect for the law and deter future
criminal conduct, the need to “provide just punishment for the offense,” Phillippe’s
history and characteristics, and the need to provide Phillippe with medical care and
psychological treatment. The court then alluded to the “stiff” sentencing range and
the letters from Phillippe’s friends and family, and determined that a sentence at
the bottom of the guidelines range was appropriate.
On appeal, Phillippe argues that the sentencing court failed to adequately
consider several § 3553(a) factors when it imposed a sentence within the guidelines
range. Phillippe first contends that the court would have realized he was not a
danger to society if it had more fully considered the psychiatrist’s testimony. See 18
U.S.C. § 3553(a)(2)(C). He argues that this testimony should have convinced the
court to sentence him below the guidelines range so that he could receive
psychiatric treatment sooner.
A sentencing court must give meaningful consideration to the § 3553(a)
factors, but the court is not required to make findings for each one. United States v.
Williams, 425 F.3d 478, 480 (7th Cir. 2005); United States v. George, 403 F.3d 470,
472-73 (7th Cir. 2005). And after considering the § 3553(a) factors, the sentencing
No. 06-2087 Page 3
judge is given broad discretion in imposing a sentence. United States v. Booker, 543
U.S. 220 (2005); United States v. Bullion, 466 F.3d 574, 575 (2006).
Here, the record indicates that the court did rely on the psychiatrist’s
testimony when considering Phillippe’s need for medical treatment. The court
referred to the treatment program suggested by the psychiatrist, noting that
although the intensive treatment program suggested by the psychiatrist is designed
for the last three years of the sentence, the entire facility specializes in helping
prisoners with Phillippe’s problems. It is true that the court did not specifically cite
to the psychiatrist’s testimony, but the court did recommend that Phillippe be
detained at the North Carolina facility so that he could be closer to the program
facilities that his psychiatrist recommended.
Phillippe also argues that the court did not meaningfully weigh his personal
background and characteristics under § 3553(a). Specifically, he argues the court
did not adequately consider the letters he submitted from his friends and family.
Although the district court said little about Phillippe’s personal
circumstances, it did state that it reviewed “all of the letters” and believed that
Phillippe was a “Jekyll and Hyde” with his “family and church and friends.” The
court added generally that other § 3553(a) factors “work against” him, such as the
seriousness of the offense, 18 U.S.C. § 3553(a)(2)(A), the need to promote respect for
the law, id., the need to provide just punishment for the offense, id., and the need to
provide adequate deterrence, id. § 3553(a)(2)(B). The record reflects that the court
did consider Phillippe’s personal characteristics, but weighed the other § 3553(a)
factors more heavily, as it was entitled to do, see United States v. Laufle, 433 F.3d
981, 988 (7th Cir. 2006).
Finally, Phillippe raises the frivolous argument that the district court erred
by relying on the fact that he took a job at a carnival when considering under
§ 3553(a) whether he posed a threat to society. He argues that the fact that he
worked at the carnival is not adequately supported by the record. It is true that the
district court cannot rely on a fact that is not substantiated in the record, see United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005), but Phillippe testified at
sentencing about his employment at a carnival.
AFFIRMED.