United States v. Henderson

pursuant to Cir- reheard en banc case be three-judge panel Rule 35-3. The

cuit precedent by shall not be cited

opinion Ninth any court of the Circuit. America,

UNITED STATES

Plaintiff-Appellee, HENDERSON,

Ronald Webster

Defendant-Appellant.

No. 09-50544. Appeals,

United States Court

Ninth Circuit. 8, 2010.

Argued and Submitted Dec. April

Filed Kennedy, Federal Public De- Henderson’s computer. Agents Sean K. then exe- Locklin, fender, H. Deputy and James cuted a search warrant at Henderson’s Defender, Angeles, Los Federal Public agents residence. The seized four comput- CA, defendant-appellant. for the digital storage ers and various other de- sharing vices. The file function was en- Jr., Bitotte

Andre United States Attor- abled on laptop computer Henderson’s Willett, ney, Denisse D. Assistant United contained the “Limewire” software. Gannon, Attorney, and Anne States C. As- Ana, Attorney, sistant United States Santa search, At the time of the Henderson CA, Yohalem, Mark R. Assistant United made numerous agents. statements to the CA, Attorney, Angeles, Los for the Henderson stated that he por- had child plaintiff-appellee. nography and that he put was the one who

it laptop computer. on his He said he that possession por- understood of child nography ais crime. He revealed he bipolar but that he was not taking then medication. He agents also told the FLETCHER, Before: BETTY B. he is obsessed with completing collec- BERZON, MARSHA S. and CONSUELO tions—for example, he collects recordings CALLAHAN, Judges. M. Circuit Stones, Rolling as well as coins. Henderson further stated that he had Opinion by FLETCHER; B. Judge (cid:127) been collecting child pornography for BERZON; by Judge Concurrence about years. two He catalogued his collec- Concurrence Judge CALLAHAN.

tion and saved the child files OPINION CDs, on numerous some of which con- tained over a images. pref- thousand His FLETCHER, B. Judge: Circuit erence was for teenagers female between challenges Ronald Henderson the dis- years 13 and 15 old. Henderson also stat- trict court’s failure to exercise the discre- ed that he knew that sharing he was his tion accorded it in Kimbrough v. United and, fact, files noticed people download- ing child pornography from computer. his (2007), L.Ed.2d 481 to vary from the Sen- total, the files that Henderson offered tencing Guidelines based dis- sharing 8,765 consisted of video and agreements with them and simply files, image approximately of which based on an individualized determination were of identified victims. Eleven of those they yield an excessive sentence files, files were video some of them depict- particular case. Because it is unclear ing prepubescent girls engaged in sexual judge whether the district recognized and discretion, acts. exercised his we re-

verse resentencing. and remand for search, During the agents also dis- BACKGROUND photographs covered two in an envelope. They pictures girls were of two under the

An agent, undercover, FBI working age of 18 whom Henderson admitted to peer-to-peer used the network software having picked up in Oregon some ten “Limewire” to view images lists of years brought before. Henderson videos located on them Ronald Henderson’s computer with him to his apartment Huntington and available for downloading. Beach, agent downloaded California. approximately Although Henderson containing files them, was, from wanted to have sex with he he neglect, abuse and and on the said, meaning sexual gentleman” apparently “a — played not have sex with them. When that his mental health disorder that he did role housework, Henderson girls did not do explained offense. She that after tickets and sent them them bus bought following the death of his father a car after he Oregon, some two weeks back to passenger, in which he was a accident up. picked had them raped was first when he Henderson old, male, years by an adult while on a five single pled guilty to Henderson seven, indictment, religious retreat. When he was of child in the count physically sexually in violation of 18 U.S.C. Henderson was and pornography 2252(a)(5)(B). for sen- preparation In by boyfriend. his mother’s The abused Office tencing, the United States Probation man forced Henderson into bed naked and investigation re- presentence prepared him attempt forced to have sex with his (PSR). Using the child port Later, teen, mother. as Henderson was Guideline, the PSR cal- U.S.S.G. by a group molested of older female teens. The PSR culated the offense level 18. After his mother was deemed unfit to raise two levels because Henderson’s files added him, placed Henderson was a series of minor, one prepubescent contained at least homes, foster homes. one of those 2G2.2(b)(2); levels be- pursuant two sexually by Henderson was molested his distribution, the offense involved cause foster mother when he was between 16 2G2.2(b)(3); four levels be- pursuant years and old. that the offense involved material cause probation The officer also noted that sadistic or masochistic conduct or portrays hospitalized epi- Henderson was for manic is, violence, vaginal that depictions other well sodes twice as twice minors, prepubescent pur- penetration time, During diagnosed he was 2G2.2(b)(4); §to two levels because suant (the bipolar disorder I most extreme computer, involved the use of a the offense form) prescribed psychiatric and medi- 2G2.2(b)(6); five pursuant levels cation. Between when he was re- offense involved 600 or more because the jail, when he was 2G2.2(b)(7). leased The images, pursuant pretrial supervision on for the in- placed acceptance PSR deducted three levels offense, in a total of- Henderson did not have ac- responsibility, resulting stant level of 30. fense cess to medication. criminal-history

Henderson had three probation reported The officer drug-related convic- points based on two secondary symptoms Henderson also has tions, history placing him in criminal cate- disorder, compulsive obsessive gory II. out, collect, caused Henderson to search documents, catalogue entire sets of

Based on a total offense level of 30 and a II, history memorabilia, calculated criminal the PSR and information. The officer sentencing range to be 108 to Henderson’s it is unknown the exact explained months, high by with the end limited obsessive degree to which Henderson’s statutory maximum. 10-year of- compulsive disorder contributed his fense, that it have resulted his officer recommended that probation The accumulating types more and more diverse im- be sentenced to 70 months Henderson may have of child than he by a lifetime term of prisonment followed acquired. probation officer otherwise supervised probation release. The officer distinguished factor opined that this heavily relied for her recommendation from other defendants. significant history physical Henderson Henderson’s memorandum, gov- The district court imposed In its 78-month that the district court requested ernment sentence a lifetime followed term of Henderson to low-end Guide- sentence supervised release. months and a lines sentence of 108 lifetime argues Henderson that his sentence is supervised release.

term procedurally erroneous due to the district requested Henderson that he be sen- court’s refusal to accept his imprisonment tenced to 36 months fol- argument guidance absent from this court. seven-year supervised lowed term of argues He also that the sentence is sub- Citing Kimbrough release. v. United stantively unreasonable. STANDARD OF REVIEW (2007), he argued L.Ed.2d 481 the Our of sentencing review deci Guideline, U.S.S.G. sions is limited to determining whether given weight should be little be- they are reasonable. Gall United developed cause it was not following an States, 38, 46, 586, 552 U.S. 128 S.Ct. empirical approach in response to Con- (2007). Only procedurally L.Ed.2d 445 directives, gressional comport and does not erroneous substantively unreasonable 3553(a) with 18 U.S.C. even in a mine- sentence will be set aside. United States run argued case. Henderson also that the (9th 1077, v. Apodaca, 641 F.3d 1080-82 3553(a) factors warranted a reduced sen- Cir.2011); Carty, United States v. tence because of his childhood abuse and (9th Cir.2008). 984, F.3d history of mental illness. government responded reviewing In sentences for reasonable- properly ness, Congressional based on di- we “must first ensure that the dis- that sentencing rectives courts are not free trict court significant proce- committed no ignore. error, dural ... treating such as Gall, mandatory....” Guidelines as At sentencing hearing, the district U.S. at 128 S.Ct. Assuming 586. judge court it was stated the first time he the district court’s sentencing decision is had encountered the Kimbrough argu- sound, procedurally we then He consider the ment. said: substantive reasonableness of the sentence going I’m to need direction from the imposed under an abuse-of-discretion stan- Ninth I accept Circuit before those oth- dard. Id. arguments, you er so perhaps can in- clude appeal. accept- this I’m not standard, In applying this we re argument you along made those view the interpretation district court’s lines, going vary but I am looking Sentencing novo, ap Guidelines de its at looking my the chart and at past plication of the Guidelines to the facts for conduct in similar cases I believe a discretion, abuse of findings and its factual three-level downward variance is in or- Garro, for clear error. United States v. der, giving range us a of 78 to 97 (9th Cir.2008). 517 F.3d months, pick and I will the low end of months, that which is 78 which is a DISCUSSION variance, three-level a variance that I. Kimbrough Sentencing Discretion relatively high tends to be compared In Kimbrough v. my 552 U.S. practices usual these cases but I justified (2007), think 128 S.Ct. particularly by L.Ed.2d 481 the his- tory and characteristics of the defendant Court considered whether here. authority district courts have to consider hand, On the other while the Guidelines disparity between powder binding, of crack and closer review longer treatment are no Guidelines’ on a sen deciding offenses when cocaine judge be order when the 558. 128 S.Ct. tence. Id. solely varies from the Guidelines based that while emphasized analysis, the Court judge’s view that the Guidelines on the advisory, are Sentencing Guidelines 3553(a) “fails to reflect range properly continues to Sentencing Commission in mine-run considerations” even case. Id. system. in the criminal keya role hold ... Ibid. Sentencing courts 128 S.Ct. 109, 128 Id. at S.Ct. 558. “ ‘starting as the must treat Guidelines held, however, that the crack- The Court ” initial benchmark.’ Id. and the point “present cocaine no occasion Gall, (quoting 128 S.Ct. discussion of this matter be- elaborative 586). Congress estab exemplify do not cause those Guidelines to formulate and the Commission lished exercise of its character- the Commission’s sentencing stan constantly refine national In formulating istic institutional role.” Id. charge, the Carrying out its Id. dards. ranges for crack cocaine of- the Guideline important institution “fills an Commission fenses, looked to the man- the Commission lack to capacity courts al role: It has minimum for cocaine of- datory sentences empirical on data its determinations base fenses, ratio that treated adopted which a pro a experience, guided and national equiva- every gram of crack cocaine as the appropriate expertise.” fessional staff with 558(internal cocaine, 108-09, powder quota grams lent of 100 at 128 S.Ct. Id. omitted). Therefore, “in the ordi empirical data and tions did not take account of case, recommenda nary the Commission’s experience. national Id. Yet the Commis- ‘reflect a sentencing range a will tion of reported crack/pow- sion itself has that the of sentences rough approximation disparity produces disproportionately der ” 3553(a)’s objectives.’ Id. might achieve i.e., sanctions, crack harsh sentences for 109, 128 (quoting Rita v. Unit S.Ct. 558 “greater necessary” than cocaine offenses 350, States, 338, 127 S.Ct. ed 551 U.S. light purposes sentencing in of the set (2007)). The Court 168 L.Ed.2d 203 3553(a). §in Id. at 128 S.Ct. forth sentencing recognized nonetheless held that “it 558. The Court therefore ... “greater familiarity with judges have for a an abuse of discretion would be de case and the individual the individual sentencing when district court to conclude him than the fendant before Commission crack/pow- that the particular defendant Rita, (quoting court.” Id. appeals or the ‘greater disparity yields der a sentence 2456). 357-58, In 127 S.Ct. 3553(a)’s necessary’ pur- achieve than institutional light of these “discrete in a case.” Id. poses, even minerun held that different strengths,” Court Spears v. United are due a levels of deference (2009), 840, 172 L.Ed.2d 596 vary from Guide court’s decision “Kimbrough ... holds clarified that Court doing so: lines based on its reason respect to the crack cocaine that with vary from district court’s decision [A] Guidelines, categorical disagreement may attract advisory Guidelines variance from the Guidelines is with and greatest respect when em- Id. at 843. The Court suspect.” “outside particular case judge finds “That was indeed the stated: phatically ‘heartland’ to which the Commission of dis- recognition point Kimbrough: apply.” intends individual Guidelines S.Ct., authority vary Rita, U.S., trict courts’ at 2465. policy Sentencing:

crack cocaine Guidelines based on An Assessment of them, disagreement simply and not How Well the Federal Criminal Justice on an determination based individualized System Achieving is the Goals Sentenc- they yield an in (2004) excessive sentence (“Fifteem-Year As- Reform particular ease.” Id. 842^43. ”), http://www.ussc.gov/15_year/ sessment 15_year_study_full.pdf.

Kimbrough’s rationale is not limit inception At the of the sim- ed to crack-cocaine Guidelines. See Mitchell, ple possession of child pornography United States v. 624 F.3d (9th Cir.2010) (“As Guideline, not a crime and the relevant Booker, through Kimbrough, Court was limited to “transporting, re- instructed, Spears and as other cir ceiving, trafficking” or offenses. (1987). erack/pow cuits that have confronted the U.S.S.G. 2G2.2 The base offense der variance the sentence of a career level for these crimes was 13. See id. accepted offender have and clarified possession The crimes of possession law, sentencing judges their circuit can with intent to sell were added 1990. See reject Guideline, any Sentencing provided Crime Control Act of Pub.L. 101— reasonable.”) that the imposed sentence 647, 323, (1990). 104 Stat. 4818-19 (emphasis original). See also United responded by adding a Corner, (7th 598 F.3d new Guideline at 2G2.4 to address re- Cir.2010) (“We understand Kimbrough and ceipt of child pornography, Spears to mean that judges are at trafficking while continued to be covered liberty reject any Guideline §by Sentencing Comm’n, 2G2.2. U.S. The grounds though they reasonably must act — History the Child Pornography Guide- of using power.”) when that (emphasis in (2009) (“Child lines 18-19 History Pom. original). Moreover, as we will now ex Rep’t”), http://www.ussc.gov/full.pdf. Fol- plain, history of the child lowing amendments, those the base offense that, Guidelines reveals like the crack-co level for trafficking 13, offenses was to be caine Guidelines at in Kimbrough, issue by increased two levels if the material the child pornography Guidelines were not prepubescent involved a minor or a minor developed “exemplify[ing] manner age under the of years; by twelve up to [Sentencing] Commission’s exercise of its five if levels the offense involved distribu- characteristic institutional role.” Kim tion; and four levels if the material brough, 109, 558, so portrayed sadistic or masochistic conduct judges enjoy liberty must the same depictions or other of violence. See depart from them based on reasonable (Nov. C, App. U.S.S.G. amend. 372 policy disagreement they do from the 1991). The base offense receipt level for crack-cocaine Guidelines discussed in Kim possession was 10 and there was a two- brough. level enhancement if the material involved prepubescent minor or a minor under II. History The of Pornography the Child age of twelve. See id. Guidelines In objection over the “Much the Com policymaking like in the area of mission, drug see Child Porn. trafficking, Congress History Rep’t has used a mix 20-21, mandatory Congress minimum directed the penalty increases Commission and penalties directives to the to increase Commission to for child pornography change sentencing policy for Treasury, sex offenses.” offenses. See Postal Service Comm’n, U.S. Sentencing Years and General Appropriations Government Fifteen 102-141, C., computer. App. See Act, No. U.S.S.G. amend. Pub.L. (1991). (Nov. things, 1,1996). Among other Stat explicitly ordered the Commis Congress report Congress, In its the Commis- receiving pornography include sion to that explained analysis supported sion traf governed section that computer for an enhancement use of transporting; to increase ficking and participation production solicit transport for receiving, offense level base criticized pornography, otherwise and to ing, trafficking at least and computer enhancement because two-level of a five-level enhancement for such add distinguish it failed serious commercial activity involving patterns for fenses from more run-of-the-mill distributors minor; exploitation of a sexual abuse or Comm’n, users. U.S. Sex Of- the base offense level and to increase Against Findings Children: and fenses this possession to at least 13 and to add to Regarding Recommendations Federal number of enhancements for the offense 25-30, (1996), http://ftp. Penalties 37-38 History Porn. possessed. items Child ussc.gov/r_congress/SCAC.PDF. 23-24; Ap General Government Rep’t Congress Commission recommended §Act 632. propriations maximum statutory increase sentences for di- congressional to these response production of child and dou- rectives, amended 2G2.2 statutory ble the maximum offenders receipt were to offenses providing sex prior convictions abuse 2G2.2, raising the be under sentenced Id., Summary crimes. Executive ii. level from to and add- base offense Congress The Commission informed the pattern activity enhance- a five-level considering it was consolidating (Nov. C, App. amend. 435 ment. U.S.S.G. remedy 2G2.4 dis- 27, 1991). The Commission also amended parity receipt possession between of- by limiting it to of child at 41. fenses. Id. raising level pornography, the base offense responded legislation adding 10 to a two-level to add directed Commission enhance- possession more than enhancement for of computer per- for the use to ments of amend. items. Id. 436. suade, induce, entice, or coerce facilitate 1995, Congress again In directed child; transport penal- of a to increase increase for child penalties Commission to any case in the defendant ties which by increasing crimes the base pornography pattern activity; in a and engaged of by adding two and offense levels levels clarify that included distribu- distribution a com- enhancement for use of two-level Protection nonpecuniary gain. tion for See puter. Against Children See Sex Crimes from Sexual Predators Act of Children of Act of No. 104-71 Prevention Pub.L. 505-507, §§ Pub.L. No. 105-314 (1995). 2-3, §§ Congress 109 Stat. 774 (1998). Stat. prepare also directed Commission report analysis against and sex offenses 2000, the passed In Commission an pornography and child for sub- children the 1998 Sexu- amendment consistent with Congress. mission to Id. 6. Act. Predators The amendment revised al § enhancement 2G2.2 the distribution Congress’s carried out The Commission detailing levels of enhance- by varying increasing offense by the base directive ment, ranging general from a two-level trafficking 17 for offenses from 15 to levels to a enhancement by enhancement seven-level 15 for and possession, from 13 to and pornogra- use of who distributed child adding a two-level enhancement for for those C, U.S.S.G.App. persuade him or her to amend. 664. The phy to a minor to Com- conduct. U.S.S.G. of- engage in sexual mission added a two-level decrease for (Nov. 2000); C, App. amend. 592 Child whose were limited to fenders offenses Rep’t at Section History Porn. 35-36. or child receipt pornography solicitation of unchanged. 2G2.4remained See id.1 or and who did not intend to distribute traffic such material.2 Id. In Prosecu- Congress enacted the Other to End sum, torial Remedies and Tools pornography In the child Guide- Today Exploitation of Act Children substantively have been nine lines revised (the Act”), which established “PROTECT years during their times existence. mandatory five-year minimum sentence Rep’t Pom. History Child 54. Most offenses, increased traffieking/receipt Congressionally-man- the revisions were statutory maximum from to 20 empirical dated not the result of an offenses, years traffieking/receipt and study. As the itself ex- Commission has statutory for pos- increased the maximum “The plained, frequent mandatory mini- years. from five to session offenses ten legislation mum specific directives Act, Pub.L. No. 108-21 See PROTECT the Commission to amend the [Guidelines (2003). 117 Stat. it difficult gauge make the effectiveness Act, Congress PROTECT the first particular any policy change, —for or di- only time time and the to date—made sentangle the influences the Commission direct to the amendments Guidelines. from those of Congress.” Fifteen-Year History Rep’t Pom. The Child 38. Assessment 73. The has added 2G2.4 an enhance- “[sentencing also noted that courts have for possession ment of four levels of im- expressed ... perceived comment on the ages of sadistic masochistic conduct. severity of the [G]uide- 401(i); §Act See PROTECT U.S.S.G. through below-guidelines lines increased 2003). C, App. (April It amend. departure variance and downward rates.” also amended both 2G2.2 and History Rep’t Child Pom. adding an varying enhancement between Commission therefore established two five levels based on the number of review the child pornographic images. the child Id. priorities. of its Id. one mandatory To conform to the new mini III. Kimbrough Sentencing Discretion higher statutory mum sentences and maxi- Child Pornography Cases Act, ma introduced PROTECT During oral argument, government Commission raised base levels offense traffieking/receipt recognized that offenses from 18 to district courts have au- 22 and to posses thority disagree the base offense levels for pornog- with child C, sion from 15 18. App. raphy history to U.S.S.G. Guidelines. theAs and the (Nov. 1, 2004); amend. 664 reports Child Porn. Commission’s own and assess- History Rep’t demonstrate, at 46. The Commission also ments these Guidelines § § consolidated are, 2G2.4 into 2G2.2. See the child Guidelines ato responded 1. The Commission to its concerns 2. have There been no more to amendments patterns activity about § enhancement and relevant to issue 2G2.2 under consider Guideline, however, those in the Sexual Predators Act 2001 ation here. The now enacting guideline (Repeat § a new newly-created making 4B1.5 covers offense it un Minors). Dangerous Against produce “morphed Sex Offender to lawful im distribute C, (Nov. 1, App. See ages” U.S.S.G. amend. of an 615 minor. See identifiable PROTECT 304; History Rep't § Child Act Porn. at 50. 2001).

963 that, crack cocaine extent, the Commis- hold similar not the result of large Guidelines, may vary courts from institu- district of its characteristic sion’s “exercise Guidelines, role,” that it requires which base tional them, disagreement on policy data and na- based with “empirical on determinations and not on frequent simply manda- based an individualized experience,” but of tional they yield that an excessive legislation specific minimum con- determination tory Spears, in a particular sentence case.4 See gressional directives to 843; Kimbrough, Kimbrough, 129 S.Ct. at 552 U.S. at amend the Guidelines.3 109-10, 128 558.5 We S.Ct. 128 S.Ct. 558. U.S. therefore authority Congress exhibit the deficiencies the Court 3. to issue That ”). Kimbrough to the Commission is identified in directives beyond peradventure. See United established holding Kimbrough 5.Our that allows district LaBonte, 751, 757, v. States vary courts on from Guidelines based (1997) ("Con- 137 L.Ed.2d disagreements Congressional policies ex delegated signifi- gress has to the Commission pressed directives to the Commission formulating guidelines cant discretion jurispru also consistent with this court's offenders____ sentencing convicted federal dence, Mitchell, see 624 F.3d at 1028- be, however, may it Broad as discretion that, 30(holding Kimbrough, under courts specific bow to directives of Con- must may reject the career offender (internal omitted). quotations gress.”) 4B1.1, policy disagreement with based on (Commission 994(a) must 28 U.S.C. also them), and that of several circuits. See of our that are promulgate Guidelines "consistent Stone, (Kimbrough supplies 575 F.3d at any pertinent provisions of with all Federal vary authority district courts with from the clear, statute....”). Kimbrough As makes policy on a even where a Guidelines basis however, the fact that the Guidelines conform provision is a direct reflection of a Congressional directives does insulate directive); Grober, Congressional 624 F.3d at challenge. them from (same); Corner, 608 411, United States v. 598 F.3d (7th Cir.2010) (en banc) (same). 415-16 holding, join we of our In so several sister Dorvee, extension, and, by We See United States v. note that Mitchell our circuits. (2d Cir.2010) holding (holding today are not with Unit 184-86 inconsistent F.3d Gonzalez-Zotelo, "fundamentally different” from ed v. 556 F.3d 736 2G2.2 is (9th and, Cir.2009). "applied that a unless it is held other Guidelines Gonzalez-Zotelo care, justify de great judge lead to district a downward can unreasonable parture range as an “un that are inconsistent with what Guideline sentences Grober, disparity” meaning requires”); States v. within warranted (§ (3d Cir.2010) 3553(a)(6), disparity 18 U.S.C. where the 624 F.3d 608-09 developed Congressionally-author pursuant to the Commis- the result of was not sentencing policy. explained in ized We had sion's characteristic institutional role case, may, obligated courts are not an earlier United States v. Marcial-San (9th Cir.2006), it); tiago, vary that such basis from United States 447 F.3d Stone, (1st Cir.2009) (ac- disparities F.3d not be unwarranted because could had, statute, required cepting argument the Com defendant’s the child promulgate providing pornography Guidelines are based on con- mission to Guideline directives, departure gressional and not on the Com- downward for defendants program empirical approach; district the fast-track and so had concluded mission's courts Guidelines). resulting disparities disagree with the were not unwarrant- may therefore 3553(a)(6). meaning § Pape, v. 601 . ed within the See See also United States F.3d Cir.2010) (7th (district only courts id. at held that "are at 717-19. 749 Gonzalez-Zotelo liberty reject any policy Kimbrough not with Mar Guideline inconsistent Marcial-Santiago cial-Santiago grounds though they reasonably act and therefore must — (internal quota- precedential using power.”) remained law. See when Gonzalez Zotelo, Mitchell, omitted). by con United v. F.3d at tions But see States 739-41. trast, (11th Kimbrough depar n. 15 held that authorized Pugh, 515 F.3d Cir. 2008) (child per- not on tures from the Guidelines based Guidelines "do not argument it. emphasize ignore that we do not hold is free to On the We always will re application contrary, 2G2.2 proce- a district court commits and that sult in an unreasonable sentence dural appreciate error it fails to when its courts must continue to consid Kimbrough vary discretion to from the range as er the Guidelines “the applicable child pornography Guidelines based on a benchmark,” and the starting point initial categorical policy disagreement with them. Gall, U.S. at 128 S.Ct. 586. See Tutty, v. 612 F.3d 552 U.S. at Kimbrough, S.Ct. (2d Cir.2010); Stone, United States policy disagree 558(noting despite its (1st Cir.2009). Only F.3d when we ment with the crack cocaine are that the appreci- satisfied district court “began properly the district court cal Kimbrough ated its discretion will we con- advisory culating considering sider the substantive reasonableness of the range.”). Sentencing courts sentence imposed. continue to all of must also consider 3553(a) deciding upon factors the sen CONCLUSION 558(de- 110-11, tence. id. See judge The district in Henderson’s case scribing approvingly the district court’s was squarely presented question with the 3553(a) of the relevant discussion factors Kimbrough of whether applies. discretion question” that the “ultimate stating is issue, however, His ruling on the is un- reasonable). whether the sentence was clear. While he stated that he needed Finally, sentencing must courts continue to guidance suggested from this court and explain adequately their choice the sen argument Henderson raise the in his tence, including policy disagreement their appeal, he also indicated that he was not 2G2.2, meaningful with ap allow accepting argument that he must exer- pellate promote and to percep review Thus, cise Kimbrough discretion. we are Gall, tion sentencing. of fair unable to ascertain whether the district 50, 128 court procedural committed error fail- emphasize further We that district ing to appreciate its Kimbrough discretion obligated vary courts not are from the to vary from the child pornography Guide- child pornography Guidelines on lines, 2G2.2, grounds, on policy grounds have, fact, they if do not recognized, whether it but declined to ex- policy disagreement with them. ercise that discretion. We therefore re- Stone, 93(“the 575 F.3d at district court’s mand to district court to resentence broad the power discretion includes exercising Kimbrough discretion. agree pornography] [child REVERSED and REMANDED. [Guidelines”); Grober, (“if 624 F.3d a district does court fact have a BERZON, Judge, concurring: Circuit policy disagreement §with it is not I fully Judge concur Fletcher’s opin- basis”); obligated vary on this Pape, only ion for the I empha- court. write 601 F.3d at 749 (affirming sentence where unjust size that and sometimes bizarre re- district court understood its Kimbrough it). §if discretion, applied by sults will follow declined to exercise This district special observation does mean that courts without a awareness presented court history, the Guideline’s anomalous disparities agreements ceived unwarranted within the with the Guidelines used to cal- 3553(a)(6)

meaning ap- with Guidelines culate the sentence the defendant before cases, Mitchell, plied in other on based dis- court. 624 at See F.3d 1027-29. States, 38, 52, 128 v. United 552 U.S. opinion and else- Gall in the court’s chronicled (2007) Stabenow, (quota- Troy See Deconstruct- L.Ed.2d where. omitted), A Primer a Myth Study: impose and to sentence no ing the tion of Careful Progression the Child necessary” the Flawed than achieve “greater on of (un- 3553(a)’s 1 2009 Pornography Jan. objectives. See 18 U.S.C. comment).1 at- briefly I draw Gall, published 3553(a); at see also of the odd features to two of tention (noting “the need to avoid both which were discussed of similarities among [defen- unwarranted in the Second Circuit’s greater length situated”). similarly who were dants] Dorvee, States opinion United Second, explained, as the Circuit Second (2d Cir.2010). See id. at 186-88. F.3d sen- longer § 2G2.2 often recommends First, unduly an deferential application or for those receive distribute tences who majority of will lead to the vast of 2G2.2 images applicable of minors than near being sentenced to offenders for those actu- Guidelines recommend who term. Because of statutory maximum ally engage sexual conduct with minors. involvement, the history Congressional of Dorvee, 616 at 187. Such a result F.3d child offense for of base level given one of particularly illogical, is already relatively high a pornography is frequently justifications for advanced (compared to 10 for same offense or harshly penalizing those who distribute 1991). of a Enhancements the use child possess pornography the concern mi- prepubescent of computer, depictions could, that such individuals if not re- nors, masochistic portrayal of sadistic or deterred, sexually and later abuse strained and the involvement of over conduct think, a children —one would much more of apply majority in a images of which —all See, e.g., offense. 149 Cong. serious Rec. in more apply and of which cases some 2003) (statement (daily Apr. ed. S5114 up create an than 90% of them—add Hatch) (“Congress long of Sen. Orrin level of 31. See effective base offense recognized pornography pro- that child Commission, distinct, disturbing, three and last- duces Specific and Use Offense First, harms to children. child our Year As Characteiistics Fiscal 2009.2 appetites pedo- pornography whets result, acceptance absent a reduction prompts them to act out their philes ordinary responsibility, first-time of- an perverse sexual fantasies real children. guideline range easily could face fender Second, it is a pedophiles tool used words, of 108 135 months—in other inhibitions of children. break down the at, extending beyond, guideline range Third, an im- child creates statutory upper edge the extreme harm on the chil- measurable indelible (The statutory maximum is ten range. it.”). are to manufacture dren who abused mandatory minimum. See years, with no worse, we must live with For better 2252(b)(2)). Dorvee, 18 U.S.C. Cf. it is on the books and so must be 2G2.2: Such concentration F.3d 186-87. “ ‘starting and initial bench- point statutory nearly all near offenders ” judges mark’ significant tension maximum stands convicted of- those judge’s “to consider duties individual,” v. United fenses. every person an convicted http://ftp.ussc.gov/gl_freq/09_ http://www.fd.org/pdOib/ Available 1. Available (last 19, 2011). (last 20porn% 20july% 20revision.pdf Apr. glmexgline.pdf visited child% 19, 2011). Apr. visited 966 85, 108, 558, guidelines

U.S. 128 S.Ct. 169 L.Ed.2d rests with and even (2007) Gall, 49, 552 (quoting 481 U.S. Congress delegates authority when its 586). But, Guideline, any like 128 S.Ct. Commission, the that discre- merely advisory. District specific tion “must bow to the directives who, judges having after considered Congress.” general principle, As it conclude that constitutes bad court disregard is not free to encouraged it reject advice should be Guideline, by sentence or established Con- 113, Kimbrough, such. See U.S. directly gress either or the through Com- (Scalia (em- J., concurring) S.Ct. solely mission the disagrees because court phasizing that “the district court is free to Rather, with the or sentence Guideline. application own make its reasonable the Supreme clear, as the Court made 3553(a) (after factors, reject due and in determining ap- court consideration) the advice the Guide- propriate sentence consider Guide- lines”). lineage, line’s nature and but must set forth its reasons for the imposition of the CALLAHAN, Judge, concurring Circuit sentence in the individual case.1 Without result: such an explanation, neither nor the we agree my colleagues I that because public will be able to determine whether judge’s ruling the district on the extent to the sentence constitutionally reason- which he could exercise his discretion able. departing from the Guidelines for child clear, pornography was not a remand is Supreme Court has allowed some- appropriate. I separately write because I of an thing exception to general ap- this disagree majority’s suggestion proach for the Guideline for crack cocaine. disagree the district court is free to States, Kimbrough v. United 552 U.S.

with the Guidelines child pornography 85, 558, (2007) 128 S.Ct. 169 L.Ed.2d 481 on policy grounds explaining without States, Spears 261, v. United 555 U.S. I disagreement. do disagree because I 840, (2009). 129 S.Ct. 172 L.Ed.2d 596 find that the Guidelines for child pornogra However, § 2G2.2 Guideline phy are similar to crack cocaine Guide of child pornography sufficiently is not Supreme line considered Court States, Guideline, similar to 85, the crack cocaine v. United 552 U.S. (2007) 128 S.Ct. 169 L.Ed.2d lineage, its nature or to fit comfortably States, Spears v. United 555 U.S. 129 within exception. this The crack cocaine 840, 172 (2009). S.Ct. L.Ed.2d “employed Guideline a 100-to-l ratio that yields for crack sentences offenses three to majority, As noted Supreme longer six times than those offenses involv- LaBonte, Court in v. United States equal powder.” amounts [cocaine] U.S. 117 S.Ct. 137 L.Ed.2d (1997), Kimbrough, recognized ultimate 128 S.Ct. 558. authority establishing Moreover, sentences and the Commission over a number 38, 46, 1. In v. United Gall judge U.S. The Court further stated "a district (2007), 169 L.Ed.2d 445 give must serious consideration extent following Court stated that any departure Guidelines and Booker, 220, 260-62, explain unusually must his conclusion an (2005), 160 L.Ed.2d 621 "the unusually ap- lenient an harsh sentence is advisory, appellate Guidelines are now propriate particular in a case with sufficient review of decisions is limited to justifications.” Id. " determining they whether are 'reasonable.' with, to in- along Congress’s the decisions consistently opposed use of years of Id. this ratio. crease the for of child sentences pornography. contrast, for the Guidelines convic- pornography are possessing for tions It follows that a court considerably nuanced than the 100— more simply disagrees that it with the state ratio for crack cocaine.2 Further- to-1 child pornography Guidelines on majori- the more, may gleaned be minimum, grounds. At a some further the opinion, the for ty’s necessary. with, explanation is agreed gone or at least part most of, engage travel the Guideline 2G2.2 facilitate the minor 2. United States conduct, provided: prohibited by in sexual increase Involving Trafficking in the Sexual Material levels. Minor; Receiving, Exploitation Trans- (F)Distribution of a other than de- distribution Soliciting, Advertising Shipping, or porting, (A) (E), through scribed in subdivisions in- Exploitation Involving the Sexual Material by crease 2 levels. Minor; Possessing Involving Material aof (4) If offense involved material Exploitation of a the Sexual Minor portrays or or sadistic masochistic conduct Traffic; Possessing In- Intent to Material violence, by depictions other of increase volving Exploitation of a Minor Sexual levels. (a) Base Level: Offense (5) engaged pattern If defendant in a of (1) if the is convicted of 18 defendant activity involving the ex- sexual abuse or 2252(a)(4), 1466A(b), U.S.C. minor, ploitation by levels. of increase 2252A(a)(5), 2252A(a)(7). or (6) If a com- the offense involved the use of (2) otherwise. puter computer or an interactive service for (b) Specific Offense Characteristics transmission, possession, receipt, dis- or (A) (a)(2) (B)-the (1) applies; If subsection material, accessing or for tribution of was limited to the re- defendant’s conduct material, by intent to view increase involving ceipt material or solicitation minor; 2 levels. (C) exploitation sexual of a (7) in, If involved— the offense not intend to traffic or the defendant did distribute, material, (A) images, by decrease 2 lev- but than such least 10 fewer levels; by els. (2) increase prepubescent If the material involved (B) images, at least 150 but fewer than had not minor or who attained minor levels; by 3 increase by age years, of 12 increase levels. (C) images, at least 300 but fewer than (3) (Apply greatest) If the in- offense levels; by increase volved: (D) images, by 5 lev- 600 or more increase (A) gain, pecuniary in- Distribution els. by the of levels from the crease number (c)Cross Reference (Theft, Property §in Destruc- table tion, 2B1.1 n (1) causing, If the offense involved trans- Fraud) corresponding to the retail seeking porting, permitting, offering or or material, by of the than 5 value less advertisement, by to en- notice or a minor levels. explicit gage sexually for the conduct (B) receipt, expecta- or Distribution for the purpose depiction producing a visual value, receipt, thing tion of but not purpose such or for the of trans- conduct by pecuniary gain, increase levels. depiction mitting visual of such con- a live minor, (C) by 5 Distribution to a increase duct, Exploiting apply (Sexually § 2G2.1 levels. Explicit Sexually Minor Production (D) a minor that was in- Distribution to Material; Per- Visual Custodian or Printed induce, entice, or persuade, tended to Explic- Engage Sexually mitting Minor to engage any illegal coerce minor Conduct; Minors to it Advertisement for activity activity, illegal other than covered Production), resulting Engage if of- (E), increase levels. under subdivision greater than fense that determined (E) level a minor that was intend- Distribution to induce, entice, coerce, above. persuade, ed to — indicate, -, example, Pepper court wheth- should comput- er it with “the two-level disagrees 179 L.Ed.2d 196 enhancement,” omitted). (2011) “the seven-level en- er (parallel citations those who distribute child hancement for However, implicit the limitations in this a minor him persuade statement are made clear Justice Brey- conduct,” in sexual “an engage or her to er when he emphasizes in his concurring of four levels for possession enhancement in opinion Pepper: of sadistic or masochistic con- images permits disregard law the the court duct,” varying enhancement be- or “an only the Guidelines where it is “rea- five levels on tween two and based the Booker, sonable” a court do so. pornographic images.” number of child 261-262, 738; supra, 125 S.Ct. Gall opinion majority pp. Although States, 38, 51-52, 552 U.S. may the have expressed Commission some (2007); S.Ct. L.Ed.2d Kim- concern the first of with these enhance- brough v. United 552 U.S. ments, any it is not clear that it con- 128 S.Ct. 169 L.Ed.2d 481 cerns of the other any enhancements. (2007). And an appellate court must be suggest This is not to that the sentenc- guided by sentencing objec- the basic may disagree particu- court not with a tives the statutes create the lar aspect sentencing on Guideline determining whether, in in policy grounds. Supreme Court has disregarding the the sen- recently explained: tencing court has unreasonably. acted sure, recognized To be we have that the added) (emphasis S.Ct. (paral- post Commission -Booker continues to omitted). lel citations sentencing A court important an role” “filll] institutional be- may “impose a non-Guidelines sentence capacity cause has the “[i]t courts lack a disagreement based on with the Commis- to base its empirical determinations on only sion’s views” “in appropriate cases” experience, data guided by and national where “the Commission’s views rest on a professional staff with appropriate ex- wholly unconvincing policy rationales not pertise.” Kimbrough, sentencing reflected statutes Con- (internal quotation ... S.Ct. gress enacted.” omitted). marks Accordingly, we have These statements our inform under- instructed that district must still courts standing of Court’s explana- give “respectful consideration” to the Spears, tion in authorized (and now-advisory Guidelines their ac- sentencing vary court “to from the crack statements). policy companying Id. at on policy cocaine Guidelines based dis- 558,.... amicus ac- As agreement them, and not simply however, knowledges, our post-Boofcer on based an individualized determination decisions make clear that a district court they yield an excessive sentence in a may in appropriate impose cases non- particular case.” Guidelines sentence disagree- based on a (italics original). S.Ct. at 843 ment The Su- with the Commission’s views. See 109-110, 558,.... preme Court appears stating id. at to be that a That particularly where, here, is need not link policy disagreement true court its as wholly Commission’s views un- with the 100-to-l rest on ratio to the individual convincing policy rationales reflected characteristics of particular not defendant. However, sentencing statutes en- the Court did state that the acted. court does not to set have forth its why explain policy court must Without such disagreement. policy 3553(a) appellate court de- sen- judgment can an would serve how statement stan- termine, the deferential goals even under than the tencing better is review, the sentence whether so, dard In doing judgments. Commission’s of the explanation An reasonable? account he should take into all of important particularly disagreement factors, just one or two of with a disagrees court when require this ex- them isolation. We other the 100- than Guideline that, appeal, can so we planation ratio, “disregard court to-1 disagree- whether the court’s determine for it is only where ‘reasonable’ is valid in terms the ment Pepper, a court do so.” factors, Sentencing the (Justice Breyer concurring). sentencing. fair perception 100-to-l ratio at issue simple Unlike Id. Kimbrough, Guidelines for convic- Accordingly, agree I the mat- while of child possession tions be ter should remanded the district provisions a mixture of based contain I cannot resentencing, agree court for action, some legislation and Commission majority’s suggestion the Guide- questioned the Commission which lines for which the Commission has endorsed others inherently “Kimbrough come within to, none of which have been acceded discretion.” “wholly by the Court to be held unconvincing re- policy rationales in the statutes

flected Id. at 1247. Without a state-

enacted.” court’s reasons

ment of of a sentence that does imposition Guidelines, we cannot applicable

follow the the sentence is reason-

determine whether ZAMANOV, Petitioner, able. Fuad procedure along adopt I would v. lines set forth Third Circuit HOLDER, Jr., Attorney Eric H. Grober, v. F.3d United States General, Respondent. (3rd Cir.2010): the Guidelines reflect 07-72340. No. approximation of “rough Commission’s Appeals, United Court 3553(a)’s might achieve sentences that Ninth Circuit. objectives.” [Rita 2456, 168 338] [127 at 350 March 2011.* Submitted (2007)].... L.Ed.2d If a district 203] [ Filed April objectives that those are court concludes by a sentence within not achieved range, and belief is

... Guideline disagreement

driven provision, then

[particular Guidelines] * 34(a)(2). R.App. Fed. panel unanimously case is P. concludes this argument. without oral suitable decision

Case Details

Case Name: United States v. Henderson

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 29, 2011

Citation: 649 F.3d 955

Docket Number: 09-50544

Court Abbreviation: 9th Cir.