United States v. Henderson, 2011 U.S. App. LEXIS 8880

An undercover FBI agent downloaded child pornography from Henderson's Limewire-shared files and agents then searched his residence, seizing computers and storage devices.
Henderson admitted possession of child pornography and stated he knew it was illegal, was bipolar and not medicated, and described a pattern of collecting and cataloguing material.
PSR calculated offense level 30 under U.S.S.G. § 2G2.2, with enhancements for prepubescent material, distribution, violence, computer use, and quantity; three points for acceptance of responsibility yielded a total offense level of 30.
Henderson's criminal history placed him in Category II; guideline range was 108–120 months, capped at 120 by the 10-year maximum, with probation recommending 70 months plus lifetime supervised release.
Henderson urged a Kimbrough-style variance arguing the § 2G2.2 guidelines were policy-driven and not empirically grounded, seeking a far lower sentence.
At sentencing, the district court noted the Kimbrough argument but stated it would not accept it, instead varying downward three levels to 78 months, citing history and characteristics.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the district court required to recognize and exercise Kimbrough discretion?	Henderson argues the court failed to acknowledge or properly apply Kimbrough discretion.	The government maintains the court could decide independently whether to apply Kimbrough without explicit guidance.	Remand to determine if Kimbrough discretion was recognized and exercised.
Did the court procedurally err by not adequately explaining policy disagreement with § 2G2.2?	Henderson contends the court did not articulate a policy-based reason for departing from the guidelines.	The government contends only that the court may variably depart; rationale need not be perfectly articulated at length.	Remand for proper explanation of any policy disagreement.
Is a Kimbrough-based variance from § 2G2.2 appropriate in child pornography cases?	Henderson argues the policy disparities justify a non-Guidelines sentence.	The government maintains Congress-directed enhancements and the Commission's work justify adherence to § 2G2.2.	Court must remand to evaluate whether such variance is appropriate in this case.

Kimbrough v. United States, 552 U.S. 85 (2007) (district courts may vary from advisory guidelines on policy grounds)
Spears v. United States, 555 U.S. 261 (2009) (policy disagreement can justify variance from crack-cocaine guidelines in minerun cases)
Gall v. United States, 552 U.S. 38 (2007) (guidelines are advisory; focus on reasonableness and proper consideration of § 3553(a))
Rita v. United States, 551 U.S. 338 (2007) (guidelines provide starting point; need reasonable justification for departures)
Pepper v. United States, 131 S. Ct. 1229 (2011) (post-Booker authority to disregard guidelines only if reasonable; require explanation of policy rationale)
Dorvee, 616 F.3d 174 (2d Cir. 2010) (child-porn guidelines are prone to unreasonable sentences if not applied with care)
Grober, 624 F.3d 592 (3d Cir. 2010) (district courts may depart from § 2G2.2 based on policy grounds with care)
Stone, 575 F.3d 83 (1st Cir. 2009) (child-porn guidelines may be departed from on policy grounds)
Pape, 601 F.3d 743 (7th Cir. 2010) (liberty to reject any Guideline on policy grounds with reasonableness)
Mitchell, 624 F.3d 1023 (9th Cir. 2010) (Kimbrough allows rejecting career-offender guidelines on policy grounds)
Corner, 598 F.3d 411 (7th Cir. 2010) (variances based on policy grounds permitted with caution)
Gonzalez-Zotelo, 556 F.3d 736 (9th Cir. 2009) (Kimbrough not applicable when unwarranted disparities arise from Congress-directed policies)