UNITED STATES OF AMERICA, Plаintiff-Appellant, v. ANDY CHERRY, Defendant-Appellee.
No. 06-5579
United States Court of Appeals for the Sixth Circuit
Argued: March 9, 2007; Decided and Filed: May 11, 2007
File Name: 07a0170p.06
Before: DAUGHTREY and ROGERS, Circuit Judges; OBERDORFER, District Judge.*
Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 05-00093—John G. Heyburn II, Chief District Judge. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
COUNSEL
ARGUED: Madison T. Sewell, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellant. Michael R. Mazzoli, COX & MAZZOLI, Louisville, Kentucky, for Appellee. ON BRIEF: Terry M. Cushing, Monica Wheatley, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellant. Michael R. Mazzoli, COX & MAZZOLI, Louisville, Kentucky, for Appellee.
ROGERS, Circuit Judge. The Government appeals the below-Guidelines sentence that the district court imposed on defendant Andy Cherry as a result of Cherry’s guilty plea to four counts of distributing child pornography, nine counts of receiving child pornography, and one count of possessing child pornography. The applicable Guidelines range called for a sentence of 210 to 262 months’ imprisonment. The district court, after considering the factors in
When FBI agents executed a search warrant at a North Carolina home on March 8, 2005, the target оf the investigation cooperated with federal authorities, informing the FBI that he had received several e-mail messages containing child pornography from an e-mail address belonging to Andy Cherry. When FBI agents executed a search warrant at Cherry’s place of business, they retrieved from Cherry’s computer e-mails between Cherry and the North Carolina target; most of the e-mails did not have text in the body of the e-mail, just attachments of images of child erotica, child pornography, and adult pоrnography. Agents also discovered zip disks holding 28 child pornography movies, 193 child pornography still images, seven sadistic images of child pornography, and one sadistic child pornography movie. Agents also recovered the text of an online chat conversation between Cherry and an individual going by the name of “The Zonka.” In the chat text, Cherry described in graphic detail molesting his children and stated that he molested his sons only while they were young and that it was “wild how you can get away with that before the age of memory.” Cherry also discussed molesting his nieces, who were at the time 5, 7, 11, and 12 years of age. As a result of the chat text, local child welfare authorities investigated Cherry’s alleged abuse of his sons and nieces, but authorities eventually closed the case because of a lack of evidence of abuse. Cherry denied having actually harmed any of the children and explained the claims made in his end of the online conversation by describing how he met a woman online who claimed to have been sexually abused by her father, The Zonka, and indicating that he had attempted to bait The Zonka into talking about the abuse. However, the Probation Office did not find this explanation to be credible.
Cherry began seeing Dr. Mary Gannon for counseling in July 2005 and entered an inpatient treatment center in November 2005. Cherry pleaded guilty to four counts of distributing child pornography, nine counts of receiving child pornography, and one count of possessing child pornography. Under
Cherry’s sentencing hearing was held on March 17, 2006. Dr. Mary Gannon, Cherry’s therapist, testified that Cherry began seeking treatment from her in July 2005 and had bеen to around 31 sessions. Dr. Gannon opined that Cherry suffered from a sexual disorder not otherwise specified—“a maladaptive use of sexual fantasy and sexual behavior to self-regulate one’s mood and use it as a coping strategy to deal with life stresses.” Dr. Gannon testified about Cherry’s childhood sexual experimentation with other young boys when Cherry was about 9 or 10 and about Cherry’s sexual relationship with a girlfriend when Cherry was in high school. These experiences, according to Dr. Gannon, “seemed to have caught his attention and seemed to have been a major way to regulate his mood.” Dr. Gannon also described the nature of sexual addiction and noted that the anonymous nature of the internet can increase the chances of risk-taking behavior on the part of the addict. Dr. Gannon stated that Cherry had taken responsibility for his actions and had progressed in therapy. Regarding Cherry’s explanation for his online conversation with The Zonka, Dr. Gannon explained that it was likely Cherry’s attеmpt to enhance the relationship with the woman he met online and that Cherry’s discussions about abusing his own sons was a way for Cherry to get The Zonka to share the same kind of information.
The district court also heard testimony from David Breeding, a therapist and approved provider of sex offender evaluation and treatment services under Kentucky law. Breeding testified that Cherry was in the lowest risk category for sexual offenders and that, in his opinion, Cherry was not a pedophile. However, Breeding admitted that there were no models to ascertain the risk that an offender will commit an internet offense.
Maggie Schroeder, a family services clinician with the Kentucky Cabinet for Health and Family Services, testified that the investigation into the allegations that Cherry abused his children or his nieces was closed and that investigations by multiple government agencies uncovered no evidence of abuse. When asked on cross-examination about the fact that Cherry had claimed to have committed the abuse “before the age of memory,” Schroeder testified that children abused at an age young enough that they would be unable to remember the abuse will often “act out” sexually as a result of the abuse and that Cherry’s children did not act out in any way suggesting any abuse in their pasts.
The district court accepted all of the Probation Office’s recommended enhancements except for the five-level enhancement for the alleged pattern of activity involving the sexual abuse of a minor. Thе district court concluded that the evidence that Cherry abused his children or nieces was not very strong and that Cherry’s online claims “certainly could have been just hype,” conclusions that the Government does not challenge on appeal. The district court then calculated the relevant Guidelines range applicable to an offense level of 37, rather than 42; the range under the Guidelines was 210 to 262 months of imprisonment.
The district court acknowledged that the applicable Guidelines rаnge was a consideration in determining the appropriate sentence. In discussing the seriousness of the crime, the district court clearly recognized that the crime is serious, that offenders like Cherry enable the production of child pornography, and that the seriousness of the crime is reflected in the harshness
Regarding the consideration of a need to protect society, the district court concluded that Cherry was possessed with “self-knowledge” of his actions and presented little risk of reoffending. The district court also discussed the need for education or corrective treatment. Noting that Cherry would gеt little treatment in prison, the district court counted this factor in favor of a low sentence, especially in light of Cherry’s demonstrated desire for treatment. The district court imposed a sentence of imprisonment for 120 months, well below the bottom of the applicable Guidelines range, but double the five-year mandatory minimum Cherry requested.
The district court gave the Guidelines sufficient weight and reasonably weighed the factors in
a sentence which fits the mandate of [
The sentence in this case is both procedurally and substantively reasonable. The Government does not argue on appeal that the sentence is procedurally unreasonable and we find no legal basis on which to conclude that the sentence is substantively unreasonable, even though we reviewing judges might have reasonably imposed a tougher sentence. We have held a sentence substantively unreasonable “when the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent
The court shall impose a sentence sufficient, but not greater than necessary to comply with the purposes set forth in
paragraph (2) . . . . [And] shall consider— (1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educationаl or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines;
. . .
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; . . . .
The district court reasonably considered the nature and circumstances of the offense and the history and characteristics of the offender.
The district court also reasonably considered the need to afford adequate deterrence.
The district court also considered the need for the sentence imposed to protect the public from Cherry.
With respect to
Importantly, the district court was well aware of the kinds of sentences available
We cannot agree with the Government’s contention that the sentencing court “ignored” Cherry’s conduct. A below-Guidelines sentence does not ipso facto amount to “ignoring” or failing to consider the conduct supporting the enhancements. To be sure, a set of facts that operates to enhance a sentence simultaneously counsels against a variance. Such is the nature of an enhancement. But it does not follow that the presence of an enhancement means that the crime is so serious that a variance is inherently unreasonable. Such reasoning, however attractive, is inconsistent with the advisory nature of the Guidelines mandated by Booker, in the wake of which we have stated repeatedly that a below-Guidelines sentence is not presumptively unreasonable. See, e.g., Collington, 461 F.3d at 808. Accepting the Government’s argument would effectively result in such a presumption.
The essence of the Government’s argument appears to be that the 120-month sentence imposed here cannot be reasonable becausе it results in such a relatively low sentence—relative, that is, to the Guidelines range of 210 to 262 months. Cherry is, in the Government’s opinion, a run-of-the-mill offender, and the variance in this case does not comport with
parsimony provision of
It is true that thе district court should not have considered the length of time covered by the superseding indictment in imposing a variance. The district court, in its written explanation for Cherry’s below-Guidelines sentence, noted that “the time frame charged in the Superseding Indictment is relatively short.” Although some of the conduct in the indictment covers a brief period of time, the sentencing memorandum Cherry submitted to the district court states that “[s]tarting in about 2002 or 2003, Andy began to download child
In sum, the district court, in imposing a sentence 43% below the applicable Guidelines range, stressed repeatedly the seriousness of Cherry’s offense, took into account the kinds of sentences available (and concluded that the minimum was too lenient), considered Cherry’s willingness to get help and his progress in counseling, and considered Cherry as an individual entitled to an individualized sentence below the Guidelines.2 Although we might have adhered to the Guidelines or imposed a harsher sentence were we in the position of the sentencing court, our review is not de novo and we cannot conclude that the sentence imposed by the district court is substantively unreasonable.
Our decision in United States v. Davis, 458 F.3d 491, 496 (6th Cir. 2006), does not require a different result. In Davis, we rejected as unreasonable a sentence representing a 99.89% variance from the bottom of the applicable Guidelines range, reasoning, in part, that the rationale for a variance must be compelling in proportion to the extent of the downward variance. Our decision in Davis that a variance of almost 100% was substantively unreasonable on the facts of that case does not require the same result in the instant case involving a 43% variance supported by relevant considerations under
how this court is to review the careful and reasoned decision of the district court. See United States v. Buchanan, 449 F.3d 731, 740-41 (6th Cir. 2006) (Sutton, J., concurring) (“If the trial court appreciates that the guidelines are advisory, fairly considers the 3553(a) factors in announcing its sentence and adheres to the other procedural requirements of a reasonable sentence, that
Nor does this court’s recent decision in United States v. Funk, 447 F.3d 421 (6th Cir. 2007), require reversal. In Funk, this court reversed a below-Guidelines sentence where the district court’s decision was based on an “impermissible” policy disagreement with the Guidelines. Id. at 430. However, this case is unlike Funk because the district court in this case did not simply conclude that the Guidelines were of no use in calculating the sentence imposed, but rather concluded that the Guidelines range resulted in a sentence greater than necessary to achieve the purposes in
The sentence imposed is reasonable in light of the factors in