*1 3553(а)(6). offender, ry and was not a career ar- he under See v. gues that a Shrake, (7th Cir.2008). downward variance to not 515 F.3d pursuant more than 192 months to 18 Accordingly, Haley Mr. and Ms. Davis are 3553(a)(6) U.S.C. is warranted because not codefendants with “similar records in culpable she was more the instant of- guilty who have been found of similar con- upset fense. We find this insufficient to duct” and the district court did not abuse the district court’s exercise of discretion. granting discretion a downward ground. variance on this 18 U.S.C. Although a may district court con 3553(a)(6). sentencing disparities sider between co- defendants, Smart, 518 F.3d at “dis AFFIRMED. parate sentences are allowed where the disparity explicable by is the facts on the
record,” Davis, United States v. 437 F.3d (10th Cir.2006) (internal
989, 997 quota omitted). Here,
tions the bulk of the
sentencing disparity easily explained
by the fact that Haley Mr. is a career offender and Ms. Davis is not. That America, UNITED STATES alone constitutes an 18-level enhance Plaintiff-Appellant, ment, which in this case an translates to increase of 216 to 270 in months range.1 Guidelines Mr. Haley attempts HUCKINS, Scott James Defendant- disparity by
to diminish arguing that Appellee. Ms. Davis culpable was more because No. 07-3220. Ms. Davis was separate involved three drug deals over several months and that United Appeals, States Court of he acting at Ms. Davis’s direction. Tenth Circuit. Smart, See 518 F.3d at (describing culpability how differences in may offset June 2008. in acceptance
differences of responsibili
ty). true, that may While be we think place the district court could greater
emphasis on his career offender status Davis,
and follow the Guidelines. See status,
ed in the reflects a of con
trolled substance involvement and other
serious offenses. disparity explained by is further
fact that Ms. Davis received downward
adjustment in her accept- offense level for
ing responsibility. Her accept decision to
responsibility and assist the
does not an disparity create unwarranted Haley qualify If Mr. did not as a career would have been 46-57 offender and remained at an offense level of months. VI, history category 16 and criminal *2 KELLY, HOLLOWAY,
Before GORSUCH, Judges. Circuit *3 KELLY, Judge. Circuit Defendant-Appellee Scott James Huc- pleaded guilty kins posses- to one count of sion of child pornography in violation of 18 2252(a)(4)(B), § U.S.C. and one count of forfeiture, 2253(a)(3). criminal § 18 U.S.C. Although applicable United States (“U.S.S.G.” Sentencing Guidelines “Guidelines”) (2006) range was 78 to months, court, the district after weighing factors set fоrth 18 U.S.C. 3553(a), sentenced Mr. Huckins to 18 imprisonment years’ months’ super- and 3 release, $1,000, vised him fined and re- quired him to computer forfeit his equip- ment. The appeals, arguing that it substantively unreasonable for the district grant court to a downward jurisdiction variance. Our arises under 28 3742(b), U.S.C. 1291 and 18 U.S.C. and we affirm.
Background 6, 2005, April On agents of the Federal Investigation Bureau of went to Mr. Huc- Wichita, kins’s residence in Kansas. Mr. Huckins was not home but his father was present. agents The informed Mr. Huc- kins’s father that Mr. Huckins’s credit card hаd been used to purchase a member- ship to a website that hosted child pornog- raphy. Mr. gave Huckins’s father * Submitted on the briefs: Eric F. Mel- agents verbal consent to search for child gren, Attorney; Alan G. pornography on Mr. computer, Huckins’s Metzer, Assistant United Attorney, States which was located in Mr. Huckins’s bed- Wichita, KS, Plaintiff-Appellant. room. Mr. Huckins was contacted tele- O’Hara, O’Hara, Charles A. O’Hara & phone gave the agents verbal consent Wichita, Kansas, for Defendant-Appellee. to search computer.
* examining appellate 34(a); After R.App. 34.1(G). the briefs and rec- P. 10th Cir. R. The ord, panel unanimously has determined cause therefore is ordered submitted without argument materially that oral would not assist argument. oral appeal. the determination See Fed. of this I, in a im- category of resulted a “pre-search” executed agents The 78 to 97 prisonment range of months. utility on Mr. Huckins’s program computer images of child computer uncovered initially objected Huckins to three of Mr. real images were of pornography. enhancements but the PSR’s offense-level inter- shipped in and had been children objections. withdrew those He also later Mr. the internet. commerce via state variance filed a motion for downward and sent to computer was seized Huckins’s 3553(a). In his pursuant 18 U.S.C. Regional Computer of America Heart motion, argued among Mr. Huckins Laboratory for forensic exami- Forеnsics years at the things, he was old other im- *4 That examination uncovered nation. and time of time of crime at the of ages pornography, pictures child of sentencing, virtually had no criminal he victims, file a pornography known child record, employed, cooperated had been history an internet sharing program, and to the law enforcement and consented with visited. child sites displaying pornography search, year until and a was not indicted a at [ApltApр. 10] computer, after the FBI he half seized his immediately guilty, sought psycho- pleaded for possession indicted Mr. Huckins was and to therapy charged, once made efforts and criminal forfei- pornography of child life, becoming involved correct his such as pleaded 2006. He on November ture stopping and excessive relationships by way plea of a guilty charges to both a drinking. He also noted as result Following agreement on March pleading guilty, registered оf he will be a a guilty plea, presentence Huckins’s Mr. his life. offender for the remainder of sex (“PSR”) report prepared. was investigation [Aplt-App. 25-28] of a total offense level The PSR calculated Huckins’s opposed The Mr. of a base offense level which included motion, that a within the arguing sentence 2G2.2(a)(l), § a 2- to pursuant U.S.S.G. The appropriate. was range pursuant to enhancement level that Huckins’s explained Mr. 2G2.2(b)(2) § the offense involved because irrеlevant, his was age cooperation was minors prepubescent containing material for in the reduc- already accounted 3-level of age who not attained the minors had responsibility of acceptance tion for his pursuant years, 4-level enhancement and not seek timely guilty plea, he did 2G2.2(b)(4) in- §to offense because unlawful treatment until after his medical or ma- portraying material sadistic volved activity was discovered. conduct, enhancement a 2-level sochistic 2G2.2(b)(6) the district sentencing, com- At Mr. Huckins’s pursuant to because a initially that it intended to was indicated puter computer service court or interactive months, transmission, which re- a sentence of possession, impose used for material, end of the Guidelines represented a 5- the low of the ceipt or distribution expressed to but concerns about pursuant range, then enhancement level 2G2.2(b)(7)(D) Although length in- of such a sentence. offensе because seri- the nature and containing recognized child the court images over 600 volved offense, Mr. Huc- videos, it found including 14 a 2-level ousness pornography, 3El.l(a) other child distinguishable ac- case from pursuant to kins’s reduction previ- it had cases over which pornography and a 1-level ceptance responsibility, 1.1(b) it was con- ously presided, and stated that pursuant 3E for en- reduction variance to a timely sidering a downward plea. The offense tering guilty government ad- The a criminal of 36 to months. together with level of oppose court that it would not child at 71. pornography.” vised session of Id. downward variance down to months. In the court doing, so noted that Aplt.App. at 73. there are over 100 are children that in these involved videos and stills who parties presented argu-
The then their have been victimized and whose lives ments, and Mr. Huckins made his allocu- beyond any- have been wrecked almost After, responded tion. the cоurt that it ability one’s to find And redemption. ready impose not sentence. The Congress what was concerned discussed court that it was troubled enacting penalty about in provisions case because Mr. not fit Huckins did you dry for this law. The idea is if can characteristics of the defendant typical market, up the then be a there will not possesses child pornography who and that product, perhaps need for prosecuted year he was until a and a dry will industry up. that’s а Whether computer. half after the seizure wise course or not my is not call also noted that Mr. Huckins was Congress’s, make. It is what and it is cooperative enforcement, very with law *5 I think that put it’s done. to Mr. Huc- and it referenced the letters it received on probation, offense, given kins on the of Mr. recognizing behalf Huckins. While significance minimize of would the the offense, the nature and the seriousness of offense itself. So I don’t think that’s explained court the that “the apprоpriate. circumstances of the defendant seem to me weigh every heavily to bit as the as nature Id. at 71-72. and seriousness of the I think offense. However, explained the court once that sentence, the hope,
that I if it’s would to it the got “past pen- offense itself and the just sentence, a only be has to fit not the possible, [i.e.,] guide- alties that are the crime but the offender.” at 67. Id. With lines,” and examined the “individual and the court sentencing continued for the type of offense that he com- actually one week. mitted,” a different kind of picture resumed, sentencing
When
court an-
emerged.
the
Id. at 69. The court
that
stated
nounced it
a
impose
record;
intended to
sentence Mr. Huckins had no real criminal
of 18 months. The
began
expla-
court
going through
he was
a
period
difficult
of Mr.
nation
Huckins’s sentence
indi- his
experiencing significant
life and
de-
cating that it took a significant amount of pression at the time he
the
committed
in deciding
offense;
time
what
an ap-
constituted
the offense was
a
committed over
propriate sentence in
case. As
period
a
short
of time and there
no
had been
starting point,
offense;
the court discussed that it
repeat of the
during the time that
recognized the nature and seriousness of
him,
waited
prosecute
to
possessing child pornography as well as
and,
he obtained licenses
employment
for
penalties
the serious
Congress has im-
through
efforts,
his оwn and
family’s
posed
that offense. The court ex-
significant improvements
life;
made
in his
pressed that it did
“downplay
not want to
occupy position
he did not
a
with
trust
significance
problem
children;
or Con-
displayed
and he
exceptional re-
gressional action in
at
anyway.” Id.
sponsibility and remorse for his actions.
Indeed, the
expressly rejected
pro-
court
a
Balancing
findings against
these
the seri-
bationary
“given Congress’s
offense,
sentence
clear
of the
ousness
the court
a
imposed
reflecting
statement
the attitudes of the
imprisonment
sentence of 18 months’
fol-
of this
people
country
pos-
with
to
respect
by years’
lowed
supervised
release.
2,
imposed
July
Although
sentences
judgment was entered on
Final
correctly
calculated
government timely appealed. within
Guidelines
and the
presumed
argues
range may
ap
that the
be
reasonable on
appeal,
On
justify
imposed
did
findings
peal,
court’s
not
sentences
outside
district
request
for a
may
Mr. Huckins’s
presumed
Guidelines
be
granting
that
sentence
In
variance and
viate Discussion give the extent of the deviation” but “due district decision Booker, deference court’s After States v. United 3553(a) factors, whole, on a L.Ed.2d 125 S.Ct. 543 U.S. justify the the variance.” Id. (2005), extent of we review reasonableness decisions, inside, simply cannоt reverse because we We sentencing “whether reasonably arrived a differ outside, might have just significantly or outside sentence. Id. afford the district under deferential ent We range[,] it v. court this level of deference because has abuse-of-discretion standard.” Gall — States, -, advantage S.Ct. institutional unquestionable U.S. an United (2007). 586, 591, “A appellate L.Ed.2d over an court consider wheth it justify its discretion when facts of district abuses er the an individual case 3553(a). judgment arbitrary, that is ca- rendеrs under Id. at 597-98. variance whimsical, manifestly unrea- pricious, Muñoz-Nava, required district court
sonable.”
*6
(inter-
(10th Cir.2008)
1137,
“specific
deviating
a
reason” for
provide
F.3d
1146
524
omitted).
from the
18 U.S.C.
quotations
nal
Reasonableness
Guidelines.
3553(c)(2);
Angel-Guz
§
States v.
comprised
procedural
is
of
com-
United
review
(10th Cir.2007).
man,
1007,
F.3d
1016
component.
and a substantive
506
ponent
Smart,
800,
of
adequate explanation
An
the chosen
v.
518 F.3d
803
Cir.2008).
(10th
meaningful appellate
Procedural
reasonable-
sentence allows for
fair
promotes
perception
and
the
of
addresses whether the district court
review
ness
Gall,
sentencing.
incorrectly
“[A]
or failed
calculate
1319
—
(2)
States,
offenses;
to these
602;
prior
criminal record
v.
U.S.
Kimbrough United
time
575,
going through
a difficult
with
-,
558,
That
say
Smart,
(10th
is not to
ed
800,
that deviations
States v.
518 F.3d
from the
require
Guidelines do not
appro Cir.2008)
that,
Gall,
(holding
after
“sen-
priate justification.
For example, sen
tencing
may
review
not be
rigid
based on a
vary
tences that
from the Guidelines mathematical formula that uses the per-
solely
“based
judge’s
on the
that the
view
centage
departure
aof
as the
standard
fails properly to reflect
determining
strength
justifica-
of the
3553(a)
require
considerations” will
close
(in-
tions required
specific
for a
sentence”
scrutiny. See Kimbrough,
tude in a contested ASSOCIATION,
GULF FISHERMEN’S
Plaintiff-Appellant, GUTIERREZ, M. in his official
Carlos Secretary
capacity as of the United Commerce, Department Na
States Atmosphere Oceanic and Ad
tional
ministration, National Marine Fisher Service, Defendants-Appellees.
ies
No. 07-12903. Appeals,
United States Court
Eleventh Circuit.
June Mastry, II, Mastry,
Gary Mike Michael Counselor, P.A., Attorney Peters- St. & *10 FL, burg, Plaintiff-Appellant.