*3 ROGERS, Circuit Judges. ing Memorandum prepared by his attor- ney, “began Borho viewing adult pornogra- GILMAN, J., delivered opinion phy over the internet loneliness, due to his court, in BATCHELDER, which J., coupled with his inability increased joined. ROGERS, (pp. 916-19), J. delivered function sexually as a result of his depres- separate dissenting opinion. sion and other health issues.” He eventu-
ally began viewing child pornography over OPINION the internet. December of
RONALD LEE GILMAN, Borho took his Circuit computer to a Judge. repair shop, requesting that replaced hard drive be that all Norman pled guilty to three the files from the old hard be copied drive counts of distributing child pornography onto the new one. The computer techni- commerce, interstate in violation of 18 cian, while copying files, Borho’s observed 2252(a)(1), U.S.C. and to one count of what he believed to be images of child receiving child pornography that had pornography. This caused the technician traveled in commerce, interstate in viola- to notify the police. Louisville police The 2252(a)(2). tion of 18 U.S.C. The appli- responded by obtaining a search warrant cable United States Sentencing Guidelines to seize computer. After the investi- called for a sentence of between 210 and gating officers informed Borho that child 262 months of imprisonment, but the dis- pornography had been found on his com- trict imposed only sentence of puter, he immediately confessed. months. On appeal, government ar- A analysis forensic computer, gues that the sentence should be vacated conducted the Federal Bureau Inves- and remanded for resentencing because tigation (FBI), 5,000 revealed that over such a large downward variance from the depictions of child pornography specifi- in this case — is substan- cally, 4,816 image files and 691 movie tively agree. unreasonable. We The judg- files—had been downloaded. The FBI ment of the district court is therefore agent case concluded that there were at VACATED and REMANDED for resen- least 77 images prepubescent children tencing for the reasons set forth below.
and 21 images involving sadistic conduct. For example, one movie file found on Bo- I. BACKGROUND rho’s computer was a seven-second video Norman Borho ais lifelong resident clip depicting an anally adult male raping a Louisville, Kentucky. He is a decorated toddler. Another image depicts a young veteran, war having received two female, bronze Asian whose wrists have been stars distinguished service in the Viet- duct-taped ankles, to her being raped by nam War. After serving war, in the an he Moreover, adult male. analysis returned to Louisville and found steady showed that Borho had exchanged child employment working with mainframe com- pornography with others. Borho ultimate- puters. He has been unemployed, howev- ly pled guilty to three counts of distribut- er, since 2003. ing child pornography and one count of one who distinguish lines do vol- also He pornography. receiving child one private pornography views treatment a sex-offender untarily entered behavior, as such interactive has who May of program so on. sex, sex e-mail telephone Re- Presentence officer’s probation level offense a base (PSR) calculated port under relevant Enhancements of 22. whatsoever evidence is no There (1) a follows: added these engaged ever Mr. Borho some enhancement
two-level behaviors, he committed interactive children prepubescent involved images en- personally least his offense (2) a four-level age, believes Court way possible. gaged *4 images the of some because enhancement fact. important this is an (3) nature, a two-level in sadistic were sentence, the 72-month imposing Before (4) computer, a use of for the enhancement say: on to went court district the possessing for enhancement five-level other history, criminal had no [Borho] (5) a five- and depictions, than 600 more 1996. in DUI for conviction one than the distribution enhancement level veter- War Vietnam a decorated He was of value thing was pornography of history and long and stable an with room chat an internet to access (gaining from suffers He employment. profitable images), exchange to Borho permitted that conditions, which medical of a number Finally, gain. pecuniary although of- and depression his to contributed reduction a three-level received Borho that he indication there’s And fense. ofAll this responsibility. of acceptance con- any physical to have intended ever The of 37. level total in a offense resulted period time children, the tact with offi- probation the accepted court district short, that relatively crime of the the recommended of calculation cer’s lim- pornography in child trading [his] range. internet, on websites ited to held hearing was sentencing assess- risk offender sex comprehensive testified therapist His January of treat- to is amenable he indicates ment strong unusually had made Borho safety public risk poses low ment his overcoming addiction progress re-offending. risk of and low hearing additional After pornography. that a family concluded court then of Borho’s The members testimony from the low months, being at prosecution 210 of by arguments sentence closing range, was imposed applicable defense, end and the out in factors set analysis all of its when began too severe The sentence. ac- 3553(a) into were taken U.S.C. 18 follows: hand, found other theOn ways count. the distinctions Some all culpable least was not recog- offenses committing these these statutes. convicted defendants but guidelines, sentencing in the nized impose declined therefore the dis- some experience, Court’s this mandatory-minimum statutory ... comprehended are not tinctions a sentence imposed instead months 60 guide- example, For guidelines. by 5 followed imprisonment, 72 months’ who cre- person recognize lines govern- release. supervised more images [is] pornographic] ates timely appealed ment porno- receives one who than dangerous unreasonably low. it is the basis However, guide- image[s]. graphic 908
II. ANALYSIS
[gave] him by independently considering
faithfully
attempting to apply” each of
A. Standard of review
the sentencing factors in determining Bo
This court reviews sentences un
rho’s sentence.
See United States v.
der a reasonableness standard. United Davis,
(6th
491,
458
Cir.2006).
F.3d
495
Webb,
373,
Cir.2005). In
Booker,
United States v.
543 C.Substantive
reasonableness
220,
U.S.
738,
125 S.Ct.
factor.” Id. quotation and defendant two counts of bank fraud. omitted). marks Id. at 492. The district court determined that the applicable Guidelines range was B. Procedural reasonableness between 30 and 37 months imprison of government The concedes that the dis ment. Id. at 492-93. After considering trict court’s sentence in this pro 3553(a) case was the factors, sentencing the court cedurally reasonable. In arriving at the imposed a one-day prison sentence. Id. at sentence, the district court discussed the 493. In support of the sentence, lenient correctly calculated Guidelines range and the court referred to age&emdash;he Davis’s was balanced that against calculation the other years old at sentencing&emdash;and the fact 3553(a) factors. judge therefore that the crimes for which he was convicted “exercised the discretion that Booker had occurred 12 earlier. at Id. 494. reduc- a 60% to amounted month age “the defendant’s that noted It further Id. range. low end the from tion com- time between length and no extraor- that found Eighth Circuit of The the date offenses mission justify to existed dinary circumstances after consideration sentencing warranted the defendant’s variance, that such proper they were though even Booker as the as well history, criminal lack a downward for grounds consider to seized, al- drugs amount small (quo- Id. guidelines.” from departure by Guide- into account taken ready omitted). tation marks Id. lines. concluding that reversed, This court was range justi- applicable variance downward extreme imprison- months and 262 Id. between circumstances. extraordinary by fied of 72 court’s age The district- ment. that noted in Davis The court at variance downward represents a vari- months basis “legitimate be a may well range. Under end the low 66% from “[i]n held but ance,” id. required review little, any, proportionality gave end, justification court’s Davis, guidelines weight discernible corre- must be variance extreme from an deviating such explanations its government compelling. magnitude spondingly justify range fail compelling is no such Moreover, there such contends at 499. Id. the variance.” (1) the court view, It argues justification. variance, in court’s an extreme the Guidelines weight insufficient gave distinc- reasoned to make room left “no little or too (2) much too either gave range, variance Davis’s tions (3) 3553(a) factors, and worthy weight defen- various other, more variances *6 to the weight substantial giving then court erred Id. The may deserve.” dants actual sexual not have did Borho circuits fact that other from of cases number cited a chil- behavior with substantial, or interactive contact but still glaring, less where substantively dren. as vacated variances (collect- 499-500 at id. See
unreasonable. range 2. Guidelines cases). ing that concluded court district controlling now the Davis is Although Borho’s images sadistic existence that circuit, note we in this precedent more his crime make did computer it the before currently has Court Supreme and adults “sex between serious extraordi requiring of whether question find That inherently sadistic.” is children a sentence justify nary circumstances an weight, without or ing gives little the Guide substantially from varies that dis express to the explanation, adequate Unit See Booker. is consistent lines among make tinction Claiborne, 479 F.3d 439 v. ed States in images — pornographic types U.S. -, different 127 Cir.2006), granted, cert. U.S.S.G. See children. volving (2006). 551, L.Ed.2d 406 166 S.Ct. ma (“If involved 2G2.2(b)(4) the offense a held Claiborne, Eighth Circuit masochistic or sadistic portrays terial pos 15-month defendant’s violence, depictions other or conduct was base distributing cocaine sessing levels.”) This 4by increase where variance downward an unreasonable por child all that not suggested likewise sentencing called the Guidelines sadistic. equally nography months 46 37 of between 371, 384 Fuller, Fed.Appx. 77 15- at Claiborne’s F.3d prison. (6th Cir.2003) (holding “images of sex- result age, internet “number penetration ual of prepubescent girls ... images has become considerably less use- present [a] sufficient basis to find the ma- ful as a factor in distinguishing between terial portrayed images of ‘sadistic con- offenders.” Guidelines, on the other duct’ justifying the enhancement”). 4-level hand, call for a 5-level enhancement the possession of more than
Although images images. all of child pornogra- 2G2.2(b)(7). U.S.S.G. phy possessed nature disturbing, as a matter 5,000 more than images, common eight over sense one times would be hard as many pressed required as to distinguish trigger the en- between an im- age hancement. The where prepubescent two record shows children are engaged in sexual chose to disregard conduct num- clip video ber of depicting images an adult in arriving male anally raping Borho’s sen- tence, toddler. much This as did in distinction finding between sadistic all child nonsadistic pornography conduct is inherently was made by the sadistic. government when the Sentencing Commis- 3553(a)(6) Section requires sentencing sion added the four-level enhancement in courts to consider “the need to avoid un- 2003. See United States v. Williams, 411 warranted sentence disparities among de- Cir.2005). 679 n. 2 fendants with similar records who have
In addressing
issue,
this
been found guilty
of similar conduct.” Yet
court stated that
it had
“considered
court’s sentence indicates that
United States’ implication that
exis-
court would cease to use either the
tence of sadistic images on Mr.
number
of images or the type
images
computer make his crime more serious.”
relevant sentencing factors. This leaves
The government’s argument
open
was not sim-
the likelihood that
defendant,
oth-
ply an “implication,” however, but rather a
erwise similarly situated
Borho,
who
part of the Guidelines that the court
possessed
50 nonsadistic images would re-
required to consider in imposing a
ceive
sen-
the same sentence as someone who
Here,
tence.
although the
5,000
possessed
have
10,000
or even
images de-
“considered” this Guideline in that
picting
it ac-
sadistic behavior. Borho, more-
*7
cepted the overall
over,
Guidelines calculation, it
did not argue that he downloaded
clearly disregarded the pertinent
images
distinc-
just
on
few occasions,
a
or
he
that
tion
Congress
that
in
made
distinguishing
unintentionally downloaded a large num-
between sadistic and
images
nonsadistic
in ber of images at one
by
time
simply visit-
actually imposing
sentence,
Borho’s
ing
with
a Web site. The absence of arguments
no explanation save a rather conclusory of this nature suggests that Borho spent a
opinion that all sex between adults and
substantial amount of time downloading
children is inherently sadistic.
illegal
See
images.
Coll-
And a number of those
ington,
The argues also the least culpable defendants convicted district court had no basis for discounting these offenses. Adding only year one to the Guidelines enhancement regarding the the statutory mandatory-minimum sen- number of images. In imposing the sen- tence is simply adequate not present the tence, the district that, court stated as a case to prevent sentencing disparities in
911 en never the fact weight to possessed who A defendant future. the chil with behavior interactive gaged pornogra- child of nonsadistic image single little behavior But interactive a dren. subject to would example, phy, because actual crime to Borho’s pris- relevance of five mandatory minimum does guilty pled he to statute which Borho the what than less year on&emdash;only one chil behavior 2252(b)(1). interactive cover not 18 U.S.C. See received. relating “activities dren; covers it instead are now Guidelines Although exploita the sexual involving material to 245, Booker, 543 U.S. advisory, see only § 2252. minors.” 18 U.S.C. tion required court is 738, the district 125 S.Ct. reasoning has been line court’s v. States United them. consider least to at al appeals, courts rejected several Cir.2005) (6th 541, Gardner, F.3d 543 417 v. States United See pre-Booker. beit courts Booker, sentencing (“Following 321, Cir. Grosenheider, F.3d 334 200 United treat to obligated longer no find 2000) court’s (holding that mandato as Guidelines Sentencing States “inclination, had no that the defendant ing consid give to continue they must ry, but tendency” to abuse or predisposition, Guidelines.”). Here, eration out of case take his not “suffice to child did two enhancements found court pos child-pornography heartland” levels offense nine cumulatively added warrant down thus cases and session (the four- calculation Guidelines Wind, v. States United departure); ward images for sadistic enhancement level Cir.1997) (“Be 1276, 1278 the number enhancement the five-level account take into Guidelines cause the distinguish help to be of images) com as offense possession of a gravity inapplicable thus among offenders ing exploita forms serious with more pared sentence. appropriate determining an ato entitled is not tion, defendant] [the doing by the given reasons ground departure downward persuasive. asus however, strike so, do not tendency to commit, or have did not he vary from Although the crime.”); commit, a worse calculated properly Cir.1996) (2d Barton, application why the justifies adequately it was convict who a defendant (holding de particular enhancement pornog of child receipt knowing for the ed renders fendant 2252(a)(2) was U.S.C. raphy under circumstances, may high too departure a downward entitled sentencing enhancement disregard an not commit did he “merely because disagrees with simply crime”). additional policy. a matter enhancement *8 421, Funk, 477 F.3d v. States sis- reasoning United of our See the with agree We Cir.2007) dis the (6th (holding that nothing in Booker circuits, 428-30 see and ter Congress’s “rejectfing] sum, erred court both trict In point made. the diminishes penal harsher prescribe decision policy underlying statutes and the the offenders”). career views ties for who one distinguish between clearly en- one who private Guidelines, pornography analyzing 18 See behavior. interactive gages not distin- they do also stated court ex- sexual (criminalizing the 2251 § U.S.C. pornography one who views guish § 2251A children); 18 U.S.C. ploitation in interac- engages one who private of chil- buying or selling sex, (prohibiting e- telephone behavior, “such tive knowledge or the intent dren then gave sex, so on.” mail 912
the children will be to portray used sexual- the history and characteristics of the de ly explicit conduct); 18 U.S.C. specified 3553(a)(1). fendant as §in cf. 2252(a)(2) § (prohibiting the receipt of court noted that Borho had no criminal child pornography). The district history, other than a 1996 conviction for erred in opining the contrary. driving under influence, and that he
was a decorated Vietnam War veteran 3553(a) § Other factors with a stable employment history. It “very found significant that psycholo A dramatic variance, downward gist’s assessment was that Mr. however, is per or se even presump would have been anyone horrified if tively knew unreasonable. United v. about his arousal in presence Foreman, of child (6th 638, 436 F.3d Cir.2006) 644 pornography.” The court also noted that (holding that a sentence outside of the Guidelines&emdash;either major “diabetes lower&emdash;is depression higher or appear to have contributed to the develop “presumptively ”) unreasonable (emphasis ment of his pornography original). addiction.” But the district court must Moreover, gave offer substantial justification compelling based on weight to its conclusion that Borho “com 3553(a) relevant factors that is in mitted his offense in the personally least proportion to the extent the variance. engaged way possible.” Davis, Finally, the court 458 (“[T]he F.3d 496-97 question stated that comprehensive “the sex is offend whether extraordinary circumstances er risk assessment indicates he is justify amena the full variance.”). amount of the ble to poses treatment and low Although risk to requirement “there that the public safety and low risk of re-offending.” district court engage ain ritualistic incan See 18 U.S.C. 3553(a)(2)(C)-(D) (requir tation § 3553(a) of the factors it consid ing that the court ers,” consider the “pro need McBride, States v. tect the public from 470, further crimes Cir.2006), the district court’s defendant” and provide “to opinion defendant “should be sufficiently detailed to with needed educational reflect or vocational considerations listed Id, training, care, medical 3553(a).” or other correction We also note that al treatment in the most effective guidepost man for sentencing decisions post- ner”). Booker is the “parsimony requirement”&emdash; that the sentence imposed “sufficient, Borho’s sentence of 72 months’ but not greater than necessary, to comply imprisonment represents an extraordinary with the purposes” 3553(a)(2). §of Unit variance 66% below the bottom of the ed States v. Ferguson, 456 660, F.3d 667 applicable Guidelines range. See United (6th Cir.2006) (citation omitted). The pur States Meyer, poses 3553(a)(2) set forth §in relate Cir.2006) (describing as “extraordinary” a seriousness of offense, respect for the upward 50% deviation from the presump law, just punishment, adequate deterrence, tive Guidelines sentencing range). failWe public safety, and rehabilitation of the de to see how the facts upon relied by the fendant. district court present extraordinary cir
In arriving at sentence, Borho’s the dis cumstances justifying the large deviation trict court balanced applicable the Guide question. in Borho’s lack prior of criminal lines range, which is listed as a sentencing history, for example, was already taken factor § 3553(a)(4), under against the na into account in calculating applicable his ture and circumstances of the offense and Guidelines range by placing in him a crimi-
913
to afford
any,
if
weight,
what
and decide
United
also
I. See
of
category
history
nal
Duhon, 440
of Booker.”
(8th
light
in
them
352, 359
Ture,
F.3d
450
v.
States
v. Jack
States
(quoting United
at 717
F.3d
lack
Cir.2006)
defendant’s
the
(stating that
Cir.2005)).
(6th
301,
n. 3
305
son,
F.3d
408
re-
of
expression
his
history,
of criminal
cooperation
crime,
his
for his
morse
court
case,
district
the
present
In the
so extraordi-
“not
were
prosecutors
de
diabetes
Borho’s
concluded
sentence”
no-prison
a
to warrant
nary as
to
addiction
in
part
a
his
played
pression
eva-
of tax
conviction
defendant’s
for the
into
factors
it took those
pornography,
585,
Cage, 451
v.
sion);
States
United
vari
the downward
granting
in
account
that, among
Cir.2006) (stating
596
of
condition
his medical
like
But
ance.
avoidance
factors,
defendant’s
the
other
or
a mental
is
diabetes,
depression
Borho’s
criminal
and lack
use
drug
ordinarily
continued
a
is not
condition
emotional
particularly
...
“factors
were
history
sen
a lower
imposing
ground
relevant
an
would warrant
ordinary”
the
out
U.S.S.G.
Guidelines.
tence under
in the
variance
extraordinary downward
address
failed to
court
The
§ 5H1.3.
sentence).
defendant’s
See
factors.
these
“discouraged” status
81, 95, 116
States,
U.S.
518
v. United
Koon
gave substantial
also
court
district
The
(“Dis
(1996)
392
2035,
L.Ed.2d
condi S.Ct.
health
adverse
to
weight
not ordi
are those
...
factors
couraged
in
engaged
that he
fact
and the
tions
in
determination
narily relevant
with chil
behavior
interactive
improper
outside
should
a sentence
in whether
Fifth Circuit
by the
As noted
dren.
Although
range.”)
guideline
applicable
Duhon, 440 F.3d
to
“freer hand”
a
court
district
taken
Cir.2006),
factors
similar
discouraged factors
for even
account
in
case
court
lower
by the
account
into
Davis, 458
see
post-Booker,
guilty
pled
defendant
it where
before
compelling
a
offer
498, must
it
F.3d at
pornogra
child
possessing
count
one
the basis
form
if those factors
justification
recommended
PSR
defendant’s
The
phy.
recom
from
variance
a substantial
33 of
27 to
sentencing
a Guidelines
the present
range.
court, mended
district
but the
prison,
months
explain
failed
case,
court
the Guide
calculating
independently
after
are
depression
or
diabetes
why Borho’s
months,
imposed
range at 15
lines
warranting
circumstances
extraordinary
Id.
probation.
60 months’
See
variance.
downward
substantial
(“An
char
5K2.0(a)(4)
offender
U.S.S.G.
took
factor
One
identified
circumstance
or other
acteristic
Duhon’s
reducing
into account
ordinarily rele
guidelines
...
statement
policy
injury. A
his back
is
departure
determining whether
vant
Guidelines,
Sentencing
in the
contained
deter
to this
be relevant
warranted
physi-
defendant’s
however,
states
characteris
offender
only such
mination
ordinarily relevant
is “not
condition
cal
to an
present
circumstance
other
or
tic
may be
departure
determining whether
degree.”).
exceptional
Fifth
§ 5H1.4.
U.S.S.G.
warranted.”
also criti-
in Duhon
for resen-
remanded
reversed
Circuit
fail-
laws for
pornography
child
cized
aif
holding
tencing,
who
those
distinguish
by ing
deemed
which
any factors
“relies
on the
material
illegal
download
passively
or discour-
prohibited
to be
the Guidelines
molest
physically
who
and those
internet
provisions
these
address
should]
aged!,
*10
Duhon,
children.
which harm to is or minors has been We do not believe that any single justifi- involved. given cation by the district court for the (brackets Id. at 718 quotation marks downward variance in present case, omitted). nor justifications all taken case, In this Duhon, like aggregate, rises to the level of extraordi- gave great weight to nary the fact that required circumstances as by Davis. Borho’s conduct was largely passive Even taking into account application that there was no indication that the parsimony he requirement, would our affirming pursue ever interactive behavior court’s judgment as is would young children. It relied on this fact leave too little room “to make reasoned granting the downward variance. As distinctions” between Borho’s variance and Fifth Circuit in noted, Duhon however, variances other, “more worthy defen- Congress clearly distinguished be- dants Davis, deserve.” 458 F.3d at passive tween behavior and interactive be- Because the district court did not havior this area of the law. offer a compelling justification impos- passive behavior, therefore, justi- ing does not did, sentence that it we conclude that fy such a large downward variance. the sentence was substantively unreason- able.
The district court gave also substantial weight psychologist’s assessment Whether Borho’s sentence would still be that Borho would have been horrified had deemed substantively unreasonable anyone found out about his addiction to Booker is eventually to prohibit held child pornography. But like the other fac- requirement for a heightened justification tors above, discussed we do not believe of significant Guidelines variances is a this factor to be an extraordinary circum- much question. closer a point As of com-
915 at insubstantial, look one cannot tainly not recently af Circuit Eleventh the parison, isolation. his sentence length of the that was facts on similar sentence firmed a only 12 months received that he The fact from variance downward a substantial also manda statutorily required than the more reason standard a under Guidelines the a warranting conduct minimum—for tory propor a requiring not review ableness months 210 range of between Gray, Guidelines v. States United justification. tional a fur imprisonment of months Cir.2006) and 262 (affirming as (11th —is 1323 453 F.3d granted variance the that indication ther imposition court’s the district reasonable any extraor justified defendant, was to Borho the where sentence a 72-month conclude We dinary circumstances. applicable no man with 64-year-old court’s of the district nature the history of extreme had history and who criminal extraordinary absence of in the variance count to one guilty pled problems, health an unrea has resulted circumstances of distribution one count possession con this circuit’s sentence sonable the Guidelines where pornography child Davis, 458 F.3d See trolling precedent. 188 151 and a sentence called Cir.2006) (“In end, the district (6th the 499 imprisonment). months weight little, any, discernible gave hand, Circuit, other the on The Seventh explana and its guidelines the to requires extraordi circuit our which like to range fail deviating from tions vari substantial for a nary circumstances variance.”). the magnitude the justify 87of ance, a defendant’s affirmed contrast, in effect dissent, would count of one on a conviction months of show requirement away with Davis’s do where pornography of child distribution and would extraordinary circumstances ing a sentence be called for Guidelines the reasonable substantively as uphold instead imprisonment months’ and 135 tween 108 Borho that on imposed any sentence the low from (a variance downward 19% 6 court’s ranged between range). United applicable end of years. of 17.5 minimum (7th Cir. Baker, 987 v. States But such at 918-19. Op. Dissenting was variance 2006). This more modest Davis, effectively overrule would holding reasonable deemed to authority no have we an action lack of Baker’s discussion extended court’s Health Sec’y v. See Salmi take. religious age, young history, criminal Services, 689 Human and edu history, employment background, cannot Cir.1985) (“A this Court panel of special condi level, as as well cation panel.”). of another decision overrule reduce designed Baker imposed tions repeat become would that he risk dissent’s that the believe Similarly, we “sufficiently propor offender, deemed was away the “took Booker statement from deviation court’s to the tional Sentencing Commission power Id. at Guidelines.” of sentences reasonableness determine gave it range, and statutory sentence, within to Borho’s In contrast Dis sweeping. too judges” is only 21 Baker variance downward is The district Op. at 918. senting granted here The district months. to disre allowed, post-Booker, even variance a downward Borho we. Guidelines, and neither gard granted months, over times six 888, 892 Smith, 474 F.3d extraordi Baker, correspondingly although dis Cir.2007) (holding that Although the nary justification. treat courts are trict cer received of 72 months *12 advisory rather than mandatory as a result fence is not my I, what colleagues or or Booker, “as a court of appeal,” still we the United States Sentencing Commission, defer to these [Guidelines since they re would imposed, have our duty under Book- “nearly flect two decades of considered er is uphold nonetheless to the trial court’s judgment about the of appropriate is reasonable. sentences”) (citation quotation marks analyzed district court carefully and omitted). reasonably 3553(a) the § factors. The sure, To be on remand the district court especially focused on factor, the first still ample retains discretion to grant a “the nature and circumstances of the of variance. Even though age and health are fense and history and characteristics of generally discouraged factors, a sentence the defendant.” 3553(a)(1). § 18 U.S.C. of 210 months in Borho’s may case well In evaluating the nature and circum amount to sentence, a life and the district stances of offense, the district court court would not be unreasonable'in finding discussed the fact that Borho “committed that length of time to unduly be harsh in his offenses in the least ‘personally en light of the parsimony requirement. The gaged’ way possible.” might One reason narrow reason for remand here is that the ably question whether the fact that Borho extreme nature of deviation, without a not engage did in any “interactive” behav correspondingly compelling justification, ior children should grounds for a resulted a substantively unreasonable sentence, reduced such behavior sentence. We thus leave it to the district would have separate constituted a crime. court to explain what, if any, extraordinary Maj. Op. See at 911.1 But it is not neces circumstances justify a variance in this sarily unreasonable to take into account impose case and an appropriate sentence. the absence of aggravating activity even if such aggravating activity might be sepa III. CONCLUSION rately Indeed, criminal. the Guidelines For all of the above, reasons set forth themselves enhance for related activity we VACATE the judgment of the district is uncharged may but be criminal. court and REMAND for resentencing. See, e.g., (enhancement U.S.S.G. 2K2.1 possession firearm sentence for posses ROGERS, Circuit Judge, dissenting. sion “in connection with another felony I dissent because it was substantively offense”); see (en also U.S.S.G. 3A1.3 reasonable for the district court to sen- hancement restraint victim); tence a defendant to six in prison (enhancement 3C1.1 for obstruction of contributing in a way small to the justice); (enhancement market § 3C1.2 for reck for pictures of despicable and revolting less endangerment during flight); United crimes against children. While the sen- Comer, States v. majority reads the district court’s refer of such interactive conduct with other adults ence to "interactive behavior phone such as is relevant to Borho’s sentence because ex sex, sex, e-mail and so on” to refer perts to the have found ’body that “the legitimiz any absence of such interactive activity with ing stories' fostered among interaction children, which would separate constitute a key users is a component perpetuation in the However, crime. Borho suggests that this growth of child pornography.” When reference was to the absence any such the district court’s comments are read this all, activity interactive even with light, other the majority’s objection aspect to this adults, which would not separate constitute a the district court’s reasoning largely inap- crime. argues Borho’s brief that the posite. absence 553(a)(2)(C),based § 3 fendant,” 18 U.S.C. consider
Cir.1996) (sentencing court “very testimony that expert criminal uncharged or conduct acquitted expres- interpersonal out unlikely to seek Aideyan, conduct); fantasy.” any sexual Cir.1993) (“A sentencing sion of 74, 76 conduct, criminal prior may consider court considered Finally, the *13 It is corre- charged.”)- or not whether large and images of sadistic presence to reasonable spondingly computer. Borho’s images on of number crimi- related where sentence lesser give a fac- aggravating of account these Taking present. activity is not nal that determined court tors, account took into court also district The of all culpable “the least was not war decorated aas background violating these of defendants convicted employment long and stable with a veteran not entitled to statutes,” was therefore any prior crimi- of absence history and the minimum. statutory weight great placed court history. The nal I, and the sure, colleagues and my To be that contributed circumstances life on the Commission, impose would Sentencing this of crime. commission to Borho’s I can- But sentence. reasonable different expert testi- credited particular, court’s sen- district that not conclude to “addiction” concerning Borho’s mony different Very not reasonable. tence very late only began which pornography, reasonable, dif- be can sentences major depression life, result was a in his sentencing can go into that factors ferent accompanied diabetes, and was not exists no differently. There weighed be addition. sexual any other reason- perfectly of the most form Platonic “the considered court also district The Rea- crime. a particular able sentence sentencing of sentence kinds very different to can come minds sonable crime. 18 U.S.C. this to applicable range” is punishment to how much as conclusions that the 3553(a)(4). reasoned The court criminal act. particular warranted minimum five-year establishes statute fact, with determinations This contrasts Congress that indicating sentence, thereby determinations contrasts and also sufficient was a five believed aof elements whether law such The offenders. least some for at are at Fact finders met. have been crime to “avoid need noted district facts true set the one to ascertain pains disparities,” unwarranted Similarly exists. assumes everyone that, in the 3553(a)(6), observing U.S.C. the content ascertain courts when “circum- judgment, court’s as- crime, underlying of a elements the characteris- of the offenses stances is either activity that certain is sumption at in this case the defendant” tics of not; be both. it cannot or it criminal cases. kind of these end” lowest “the provides Congress when Thus reasoned Thus, crime, there particular for a punishments the recommended within a sentence enter punishment the “ideal” thing as is no such the stat- was near which range, ap- trying makers decision case, leave would in this utory maximum The the sentence. determining proach sen- severe more impose room to little con- us to requires Congress factors defendants egregious for more tences differently— weighed be simply can sider consid- court also the future. rea- differently by different actually very protect “to any need — the absence ered people. sonable the de- crimes from further the public Under the pre-Guidelines system, sen- appellate courts Supreme now—without tencing judges made the sentencing deter- Court try direction —to partially restore mination, often based on judge-found facts, power of the Sentencing Commission resulting in sentencing have been the expense of sentencing court discre- reasonable when viewed individually, but genie tion. The easily cannot so put be might which very different from sen- back the bottle. tences given by other judges. per- Yet that is what we are attempting if we ceived disparity system such a led say that a sentence is less reasonable the Guidelines. Under pr e-Booker Guide- farther gets from the Guidelines range. lines system, Congress provided that the It is true that we properly review sen sentencing determination within the statu- tences reasonableness, and that sen tory range would be largely made by the *14 tencing courts must consider a properly Sentencing Commission, only sharply advisory calculated Guidelines range. But curtailed discretion left to sentencing it cannot be sentence is unreason judges. Thus, for consistency purposes, purely able because of the degree that it Congress took power to determine varies from the Guidelines range. Such a what was a (within reasonable sentence principle conflicts directly too with what the statutory range) from individual sen- the Supreme Court has told us: sentenc tencing judges gave and it to the Sentenc- ing courts determine a reasonable sen ing Commission. tence, not the Sentencing Commission. Booker, the Supreme Court invalidat- While this court in Davis part in relied on ed pr e-Booker Guidelines system based the distance between the imposed sentence on the Sixth right Amendment to a jury and the range, Guideline we did not rely trial. Because pre-Guidelines system— entirely on that distance. A significant including sentencing based on judge-found factor in Davis was the fact that the one- unquestionably complied with day sentence in that facts— case left “no room to Amendment, Sixth and Congress because make reasoned distinctions between unquestionably has power to confine Davis’s and variance the variances that sentencing discretion to, if it other, wants invali- more worthy may defendants de dation of the system required serve.” United Davis, States v. 458 F.3d that some aspect of the pre-Guidelines sys- 491, (6th Cir.2006). Here the district tem, present in the system, court expressly addressed this concern be deemed to have necessary been to the when found that Borho was not the constitutionality of the pre-Guidelines sys- culpable” “least of defendants and imposed tem. That aspect was power of indi- a sentence that year was a full above the vidual sentencing judges, rather than Con- statutory minimum, thus leaving room for gress through the Sentencing Commission, meaningful distinctions for culpable less to determine the reasonableness of sen- defendants in the future. tences within statutory ranges. The district court expressly based its There can be no blinking what the Su- decision not to impose statutory mini- preme Court in did Booker. It took away mum sentence in this case on the fact that power of the Sentencing Commission possessed “sadistic” images and on to determine the reasonableness of sen- the “number of images” on Borho’s com- tences within the statutory range, puter. The district court thus did not find gave it to the district judges. is It neither those two “to enhancements be of help appropriate nor advisable for the lower in distinguishing among offenders and thus reason- court, is also six the district appropriate an determining inapplicable Booker, the district Under able. at 911. Maj. Op. sentence.” gets Commission Sentencing enhancement did state help the call. particularly “not make images is “sadistic” offenders” between distinguishing ful children adults between “sex en inherently sadistic” “ images’ ‘number for the hancement less considerably become useful fac offenders.” between distinguishing
tor majority’s difference rea court’s
characterization VINCENT, statements Plaintiff- the actual soning and Veronica this light subtle, significant Appellant, it is but v. holding United States recent court’s Cir.2007), which Funk, court’s where reversal
required CHICAGO, Ezek OF COLLEGES CITY “impermissible” an was based decision *15 Chicago Morris, Association iel the Guidelines. with disagreement policy Defendants-Appellees. Inc., Realtors, as sentencing Borho than Rather there,” did the as “enhancement 06-3082. No. Funk, Appeals, Court sen Borho’s here increased Circuit. Seventh enhance on the based tence length that the concluded ments but 29, 2007. March Submitted by recommended enhancements sentence the nature overstated the Guidelines 30, 2007. April Decided kind This actions. individual of aggravating consideration individualized man with the clearly consistent
factors is of Booker.
date distance
Apart from advisory Guide- and the imposed said that cannot simply range,
lines by the imposed unreasonable. any way was in
in this case reasonable only procedurally
It was also sub- but majority, by the
recognized every respect,
stantively reasonable being its exception arguable only Sentencing Com- what below
distance The seventeen- impose. would
mission Sentencing Com-
year minimum certainly reason- require would
mission de- nature heinous given
able the other On pornography. child
picted carefully out set
hand, reasons for the