981 F.3d 579
7th Cir.2020Background
- McDonald pleaded guilty to transporting child pornography (emails with video attachments and file-sharing); his hard drive had ~5,000 images and 890 videos, including images of very young children and sadistic material.
- Probation calculated a Guidelines range of 151–188 months (total offense level 34, CH I); McDonald received a 3-level reduction for acceptance of responsibility.
- McDonald (age 62–63) sought a below-Guidelines sentence (statutory minimum five years), citing serious health problems (type I diabetes and significant coronary artery blockage) and arguing a longer term would likely be a de facto death sentence; he submitted medical records but no actuarial life-expectancy evidence to the district court.
- At sentencing the district court acknowledged McDonald’s age/health as mitigating “difficulties,” credited other mitigators (care for parents, animal rescues), but emphasized aggravating factors: large possession/distribution of child pornography, emails indicating active participation in online communities, photographing neighborhood children, wavering acceptance of responsibility, and risk of recidivism.
- The district court imposed a within-Guidelines sentence of 156 months and explained its decision by reference to the § 3553(a) factors and the Guidelines range.
- On appeal McDonald argued the sentence was substantively unreasonable (a de facto life sentence) and that the district court failed adequately to account for his age/health; he submitted actuarial data for the first time on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McDonald’s within-Guidelines 156-month sentence is substantively unreasonable given his age/health (de facto life sentence) | McDonald: diabetes and heart disease shorten his life expectancy; a >5-year sentence effectively is a life sentence and the court failed to justify it or expressly account for exact age/health | Government: within-Guidelines sentence is presumptively reasonable; McDonald failed to present actuarial evidence below; district court considered age/health and relied on §3553(a) factors (seriousness, recidivism risk) | Affirmed: presumption of reasonableness applies; McDonald waived actuarial evidence by not presenting it below; district court adequately considered §3553(a) factors and explained its sentence |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (2007) (within-Guidelines sentences are presumptively reasonable)
- United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005) (same presumption in this circuit)
- United States v. Miller, 832 F.3d 703 (7th Cir. 2016) (litigants may not present new evidence for first time on appeal)
- United States v. Dingle, 862 F.3d 607 (7th Cir. 2017) (release at advanced age is not necessarily a de facto life sentence)
- United States v. Wurzinger, 467 F.3d 649 (7th Cir. 2006) (average life-expectancy reductions may not predict an individual’s expectancy; courts must assess whether defendant-specific risk of dying in custody rebuts reasonableness)
- United States v. Cunningham, 883 F.3d 690 (7th Cir. 2018) (district court need only adequately explain sentence with reference to § 3553(a))
- United States v. Volpendesto, 746 F.3d 273 (7th Cir. 2014) (upholding de facto life sentence where court found risk of recidivism and lack of respect for law)
- United States v. Gross, 437 F.3d 691 (7th Cir. 2006) (distributing child pornography is seriously harmful because it creates market for abuse)