Case Information
*1 Before P OSNER , W OOD , W ILLIAMS , Circuit Judges . W ILLIAMS Circuit Judge
After delivering compact disc full pornography FBI informant, Corey Stine fast was arrested home was searched. When agents completed search, they discovered collection over 190,000 images pornography, including im ages depicting molestation infants. eventually charged violation U.S.C. § 2252A(a)(2)(A). He pled guilty *2 ‐ charge received guideline months.
On appeal, Stinefast presents three challenges to his sen tence. He first contends during his sentencing hearing prosecutor improperly referred to inadmissible po tentially incriminating statements purportedly made psychiatric expert comment led his unreasonably lengthy prison term. We disagree. prosecutor’s remark rise level impropriety necessary constitute plain error and, even if it did, failed show it influenced district court’s sentencing decision. next argues trict procedurally erred failing address ar gument his disorders stemming from his own history limited his ability refrain from engaging pornography related activity. We see no error. brief mention issue sufficient given minimal evidence presented substantiate argument. Finally, asserts imposed unreason ably high think arrived reasona ble based thorough examination rele vant sentencing factors specific aspects background vast amount pornography possession. As none issues merit, affirm.
I. BACKGROUND May federal agents began working coop erating individual (“CI”) after discovering large amount during search residence. Hoping secure favorable treatment government, CI *3 informed agents part of a group who met in per son and the internet view and trade child pornography. The CI identified Corey Stinefast and his co defendant Jose Garcia the other members group.
On August 25, 2009, CI, equipped with hidden re cording device, met up with Stinefast and Garcia at Six Flags Great America in Gurnee, Illinois. The three men wandered around park several hours, stopping periodically allow Stinefast surreptitiously record and photograph young boys. Eventually, group left park and stopped at car parking lot. Stinefast retrieved disc his car and handed it Garcia. Garcia then gave disc CI who promptly delivered it federal agents. disc provided contained numerous images and videos pornography.
Not long after theme park meeting, FBI agents arrest ed his home executed search warrant. Dur ing search, agents discovered excess 190,000 images hundreds videos depicting pornography. Stine fast’s collection included, among other items, images depict ing molestation infant. government eventually charged one count violation U.S.C. § 2252A(a)(2)(A).
On March notified government intent present expert evidence relating mental ease bearing issue guilt under Federal Rule Criminal Procedure 12.2(b). In response, government filed motion own expert examine evaluate condition. agreed order, granted motion set forth conditions under which examination would take place.
Soon after the government’s expert completed her exam ination, filed notice that he had withdrawn disease defense along with motion to preclude government’s expert from communicating with govern ment, court, or anyone else about her examination Stinefast. The government asked court to deny motion because relief sought might interfere with expert’s mandatory reporting obligations under Illinois law to extent such obligations were triggered during Stine fast’s examination. See, e.g., ILCS 5/4 (requiring psychia trists with reasonable cause believe known them their professional may be suffering from file report Illinois Department Children Family Services). reply, contended government’s reference expert’s putative reporting obligations amounted disclosure had admitted abus ing children during examination. contended disclosure prohibited under both Fifth Amendment Federal Rule Criminal Procedure 12.2(c)(4). court granted motion large part later ordered government’s expert refrain from her report court or Assistant Attorneys assigned case.
not directly address whether government’s arguments constituted improper disclosures information Stine fast’s examination violation Rule 12.2(c)(4). When Stine fast’s counsel suggested may difficulty ignoring implication re vealed sexually abused children during examina tion, noted “[w]ell, I can certainly distinguish between what admissible what is admissible.” *5 Stinefast eventually pled guilty to pornog ‐ raphy.
At sentencing, maintained he dimin ‐ ished capacity at time he committed offense ren dered him less culpable than ordinary offender. The sources Stinefast’s purported were his low IQ and various psychological disorders (e.g., depres sion, anxiety, and post traumatic stress disorder) he claimed were result abuse suffered hands his older brother. relied upon a psycholog ical evaluation from year documented his accusations well as diagnoses for his health ailments. According to Stinefast, his disorders and lack intelligence rendered him more amenable tributing and militated in favor a less er in his case.
In sentencing presentation, government highlight ed Stinefast’s criminal history, inability refrain from crimi nal behavior, seriousness offense in requesting range recommended Guidelines. particular, government focused conviction in Wisconsin state two counts causing expose genitals. According complaint case, confronted two young boys public washroom pulled down their swimsuits view their genitals. Wisconsin sentenced brief period incarceration ordered him complete sex fender treatment. government argued ability refrain from sexually exploiting children despite brief jail time treatment suggested lengthy prison term necessary specifically deter *6 future offenses. Prosecutors highlighted volume amassed support its request higher sentence.
At conclusion its argument, government re ferred earlier dispute regarding statements during evaluation by government’s ex pert:
[Government]: And one last thing– The Court: Yes.
[Government]: –for just record, your Honor. The Court: Yes.
[Government]: Months months and months ago, there discussion held on record regarding psychosexual evaluation Mr. gov ernment. And as discussed record months months ago, Court, as you acknowledged, fully capable hearing some things considering them deciding not consider them.
And I wanted put forth record today anything Court heard during those hearings re garding—for instance, obligation make certain disclosures—you are not considering as part your sentence. Court: I am considering those part my sentenced months’ im
prisonment, term incarceration more than five years greater than top Guidelines range months. justifying guidelines sentence, *7 cited the amount Stinefast accu ‐ mulated, the particularly disturbing nature some the images, Stinefast’s continued sexual exploitation chil ‐ dren despite earlier run criminal justice sys ‐ tem. also rejected argument that he de ‐ served reduced because trauma caused by abuse endured during hood. Stinefast now appeals.
II. ANALYSIS Stinefast presents number challenges related With regard sentencing hearing, Stinefast contends prosecution acted improperly by remind ing may revealed prior acts during examination by government’s ex pert. maintains commit ted procedural sentencing error by failing consider argument. Furthermore, con tends guideline substantively unreasonable.
A. Plain Error Resulted Prosecutor’s Com ments Sentencing argues prosecutor engaged miscon
duct during sentencing hearing referring purported damaging statements expert. When defendant argues prosecutor made im proper comment first time appeal, review claim under plain error standard. United Turner 2011). To succeed under plain error standard, first must show prosecu tor’s comments “were obviously or clearly improper.” *8 8 12 2435 States v. Jones , F.3d 847, (7th Cir. 2010). If the remarks were blatantly improper, must demonstrate the statements prejudiced him. v. Washing ton , 2005).
We do not think the prosecutor’s comment was clearly improper. describes the prosecutor’s remark as an attempt to inflame the judge’s passions by referring to Stine fast’s inadmissible statements the government’s expert re garding prior instances molestation. comment seems better construed, however, attempt protect the rec ord on appeal by asking the court confirm it not consider the government’s representations regarding this sensitive issue when imposing Given comments issue are ambiguous at best, we are not inclined find prosecutor’s statement was clearly improper. See Donnelly DeChristoforo U.S. (1974) (“[A] should not lightly infer prosecutor intends ambiguous remark have most damaging meaning”). note, however, protecting record in way unnecessary under circumstances. While appre ciate government’s attempts make our jobs easier clarifying issues trial court, district court’s earli er rulings subject should have alleviated any concerns about district reliance anything may said government’s expert. Months before sen tencing, issued minute order which it expressly ordered expert not distribute her examination report “to any party, including court.” Moreover, resolving separate dispute about report, judge stated open report “is going be used against Mr. Stinefast.” light preex *9 isting clarity record on this issue, we think gov ‐ ernment may been little too cautious raising sensitive issue at sentencing proceeding.
Even if we found prosecutor’s comment be im proper, however, Stinefast’s claim would not succeed be cause he cannot show prejudice. We are convinced district court judge not take prosecutor’s problematic statements into account imposing Judges often hear improper argument other forms inadmissible evidence they are presumed disregard when deciding matters importance. See Harris v. Rivera , U.S. (1981). To overcome this presumption conscientiousness part district judges, party must present some evi dence statement influenced decisionmak ing. Shukri 2000). In case, district court explicitly stated “I am not considering those part my sentence” after prosecu tor mentioned Stinefast’s incriminating statements expert. see no reason take word. absence any indication district predicated her sentencing decision pur ported admissions, must reject prosecutorial misconduct challenge.
B. Error Resulted District Court’s Considera tion Diminished Capacity Argument contends failed give meaningful consideration argument was less deserving punishment because offense product capacity. “In selecting appropri ate sentence, courts are expected address princi pal, nonfrivolous arguments mitigation”; failure do so *10 10 12 2435 constitutes procedural error. United States v. Chapman , 694 F.3d 908, 913 14 (7th Cir. 2012). But “the judge’s failure discuss immaterial or insubstantial dispute relating proper sentence would be worst a harmless error.” United States v. Cunningham , F.3d 673, 679 (7th Cir. 2005). maintains erred in failing address effect mental condition on ability refrain from engaging offense conviction. As a general matter, courts may impose a lesser based on defendant’s diminished capacity. States v. Miranda , F.3d (7th Cir. 2007). A defendant may be entitled lower this basis if, example, defendant has “a significantly impaired ability to…control behavior defendant knows wrongful” shows this lack restraint “contributed substan tially commission offense[.]” U.S.S.G. § 5K2.13. So order warrant lower punishment due dimin ished capacity, there must be some “showing de fendant’s reduced capacity contributed com mission offense; link cannot be assumed.” Unit ed Frazier 1992). think discussion, while brief, reflects consideration rejection argument. As acknowledges, discuss relationship between disorders offense:
I will accept your representation representa tion doctor report you were sexually abused. And no doubt has impact you. And no doubt during time period you were struggling your own problems be *11 ing sexually abused as child. But knowing what that did you, you turned around victimized chil dren.
As excerpt above shows, acknowledged Stinefast’s serious mental health issues but decided they no effect his willingness refrain from pornography. Instead, reasoned was more deserving punishment because he continued develop market for pornography despite knowing harm inflicted children involved its production distribution.
Moreover, discussion argument was more than sufficient given lack evidentiary support. Although presented evidence showing he sus tained serious psychological trauma victim sexual abuse, there was no evidence all linking his condition his offense conduct. psychiatric evaluation submitted contained diagnoses post traumatic stress order, depression, anxiety resulting his sexual abuse. But report connect these health is sues Stinefast’s fascination with children gener ally or specific instance distribu tion led conviction. Indeed, report noted absence evidence sexually attracted children. Moreover, despite suggestions report showed lacked intellectual wherewithal ap preciate unlawful quality actions, same report states “Mr. above average or well average intelligence[.]” lack evidence establish ing link between disorders offense conviction rendered *12 12 12 ‐ 2435 argument immaterial. See United States v. Portman , 599 F.3d 633, 639 (7th Cir. 2010) (“[A] legal capacity find ing also requires a causal link between crime”); see, e.g., United States v. Beier , 490 F.3d 572, 574 (7th Cir. 2007) (affirming sentence when defendant not “present any evidence suggesting a low ‐ normal IQ, or learning disabilities, break down person’s resistance becoming…a producer pornography”). Although attorney argued this connection existed this case, these unsupported assertions are evidence cannot take place expert reports or other scientific ev idence needed establish such link. United States v. Chap man , 694 F.3d 908, 914 ‐ 15 (7th Cir. 2012). Under circum stances, even if found any error resulting dis trict court’s discussion argument, it would be harm less. Cunningham , 429 F.3d 679.
C. Sentence Was Reasonable argues passing above guidelines sentence unreasonable. review reasonableness sentencing decision under an cretion standard. Gall v. United States , 552 U.S. 38, 46 (2007). “We will uphold an above guidelines so long offered adequate statement reasons, consistent 18 U.S.C. § 3553(a), imposing sen tence.” United States v. Taylor , F.3d 1166, (7th Cir. 2012) (quoting United States v. Adebe , F.3d (7th Cir. 2011)). If imposes above guideline sentence, “must provide justification explains supports magnitude variance.” Bradley 2012). “An guidelines more likely be reasonable if it is *13 ‐ based on factors sufficiently particularized individual circumstances case rather than factors common fenders with like crimes.” Jackson 2008) (internal quotation marks omit ted). are convinced district court appropriately ex
ercised its discretion by selecting above guidelines sen tence for Stinefast. In deciding impose term incarcera tion more than five years greater than top Stinefast’s guidelines range, court considered number section 3553(a) factors concluded they warranted more severe sentence in this case. With respect Stinefast’s personal characteristics, court focused Stinefast’s mas sive collection pornography reasoned his insatiable demand for materials likely contributed production other images involving exploi tation children. court also cited particularly turbing quality collection, including images infants being sexually abused, as favoring higher In addition, court noted criminal history, particularly his previous convictions for causing children expose their genitals, aggravating factors. Moreover, relied heavily need for specific deterrence in imposing higher Stinefast. In discussing issue, found shown incorrigi bility viewing even after serving jail time completing sex offender treatment connection prior convictions. summary, discretion determining these certain considerations unique warranted guidelines case. *14 .
III. CONCLUSION judgment A FFIRMED