Adam A. Stone appeals his sentence of 17.5 years in federal prison on one count of knowingly transporting and shipping child pornography in interstate or foreign commerce, in violation of 18 U.S.C. §§ 2252A(a)(l) and 2256(8)(A). After careful review of the record, we affirm.
I. Background
We draw the facts from the presentence investigation report (“PSR”), the evidence presented in anticipation of the sentencing hearing, and the transcript of the sentencing hearing.
United States v. Torres-Velázquez,
Illinois police created a Yahoo! internet account in the name of “brownhairedgirLl.” The publicly available profile stated that “brownhairedgirLl” was a fifteen year-old girl. On February 10, 2005, Stone, acting under the username “adamstone78,” contacted “brownhairedgirLl” and asked if she had any “girl pics” to share. The police detective sent Stone a picture of a fully clothed girl. Stone asked “brownhairedgirLl” if she had ever seen a man naked, as well as if she had ever masturbated or watched a man do so.
On February 16, 2005, Stone contacted “brownhairedgirLl” again and asked her if *86 she had “any pics of other girls.” Stone asked “brownhairedgirLl” to view his photo album, which contained 241 images, including dozens of images that the police detective believed were minors engaged in sexually explicit conduct.
The next day, Stone contacted “brownhairedgirLl” again. He asked her about her sexual history, bra size, and for more pictures of herself. Stone also transmitted a web camera picture of himself, which the police detective used in confirming Stone’s identity.
On March 4, 2005, during another conversation, Stone provided a link to an online photo album. The album contained dozens of images of minors engaged in sexually explicit conduct.
After several other shorter communications from Stone, on April 1, 2005, Stone sent “brownhairedgirLl” a message stating, “I added 2 albums between yesterday and today, check em out.” The detective viewed the two new albums, which included many images of minors engaged in sexually explicit conduct.
On April 29, 2005, Stone again contacted “brownhairedgirLl” and offered to masturbate in front of his web camera. The detective then observed Stone masturbating.
After federal officers executed a search warrant at Stone’s residence in June 2005, Stone admitted that he had downloaded child pornography from the Internet and had shared that pornography in online photo albums. His computer was seized, and it was found to contain many images, including images of children under twelve and images involving sadistic and masochistic conduct.
More than two years later, on January 9, 2008, the government filed a one-count information charging Stone with violating 18 U.S.C. §§ 2252A(a)(l) and 2256(8)(A). 2 That same day, Stone waived the indictment and pled guilty to the information.
A PSR was prepared. It recommended a base offense level of 22. The PSR recommended applying a two-level enhancement because the material involved a prepubescent minor, see U.S.S.G. § 2G2.2(b)(2); a five-level enhancement because Stone distributed the material to someone he believed to be a minor, see id. § 2G2.2(b)(3)(C); 3 a four-level enhancement because the material included images of sadistic or masochistic conduct, see id. § 2G2.2(b)(4); a two-level enhancement because the offense involved the use of a computer, see id. § 2G2.2(b)(6); and a five-level enhancement because the offense involved more than 600 images, see id. § 2G2.2(b)(7)(D). 4 Crediting Stone with a three-level reduction for acceptance of responsibility, the PSR computed Stone’s total offense level at 37. Given Stone’s crim *87 inal history category of I, the advisory guidelines range was 210 to 240 months of imprisonment. 5
Stone did not object to these computations, but asked the district court to impose a below-guidelines sentence. First, Stone challenged the guideline range itself as unreasonable by arguing that the current version of U.S.S.G. § 2G2.2, which governed his offense, was shaped in part by congressional directives to the Sentencing Commission. Stone asserted that U.S.S.G. § 2G2.2 is flawed because this congressional input preempted the Commission’s ability “to do the job for which it was created.” He challenged, categorically, the rationale for the computer enhancement. He also noted that his guideline range exceeded that for second degree murder, and observed that it was not reasonable to sentence first-time offenders at a level near the statutory maximum.
Second, Stone argued that a guideline sentence was unreasonably harsh in his case. He argued that he downloaded pornography indiscriminately, had only a few sadistic or masochistic images, and did not seek them out. He noted that he had not physically harmed anyone, and was not shown to have distributed to any actual minors. Stone argued that in the two and a half years between his arrest and sentencing, he had sought employment, maintained a relationship with his fiancee, and renounced his prior actions. Stone argued that he posed no risk to anyone.
The government admitted that the guideline range was “extremely harsh,” but argued that a sentence at the low end of the guideline range would be appropriate, considering the facts that led to the enhancements.
The district court adopted the PSR’s calculations. Early in the hearing, the district court recognized it could impose a non-guideline sentence when it said it had “to determine whether to sentence [Stone] within the guidelines or outside the guidelines.” The district court later considered Stone’s challenge to the guidelines themselves:
But the defendant’s argument that the guidelines — that because the guidelines are a direct response to congressional mandates that somehow that diminishes their impact is not an argument that the court can accept. In many ways, the fact that the guidelines are a direct reflection of a congressional expression of popular will is an argument in favor, not against the imposition of a guideline sentence. Congress is, after all, the elected representatives of the people of this country, and they — it has made policy choices about this type of crime, and those choices are reflected in the guideline range. It is not this court’s constitutional role to second-guess congressional policy decisions simply because they’re expressed in the guidelines, and it is this court’s constitutional role to express the will of the people of this country as expressed by Congress. On this crime, the will of the people is, I must say, exceedingly clear.
Although the court recognized that “an argument can be made that Congress has been particularly punitive,” it concluded that Stone’s actions warranted severe punishment since he contributed to the market for child pornography and because of his conduct with “brownhairedgirLl.” The court then proceeded to discuss the guidelines further:
*88 I want to be clear. I’m not suggesting that I feel I am bound by the guidelines. I have the authority under Booker and under Jiménez-Beltre to go outside the guidelines. But in doing so, I am required to consider the guidelines themselves, the policies underlying the guidelines, and the need to avoid unwarranted sentencing disparities, and the policies themselves, as reflected by congressional directives, seem especially clear here.
The district court then analyzed the case, starting with the offender. It noted Stone’s lack of criminal history, intact family background, and the absence of any substance abuse problem. It commented that “there’s nothing in this defendant’s history or background that would predict he would be standing in front of this court facing a prison term of over 17 years.” The court later also noted Stone’s rehabilitative efforts.
The court turned to the offense. The court found Stone possessed a “staggering” volume of child pornography. The court noted exemplars of the child pornography that Stone possessed:
The two exemplars that were attached to the prosecution version, which the defendant admitted to, are abhorrent. There’s one in particular that shows a very young girl, maybe 5 years old or so, engaged in sex with an adult male. The picture depicts her placing her hands over her eyes as if to block out what was happening to her. The digital image is simply haunting, and that image calls force — forth in any adult an overwhelming need to protect that little girl. She is young, and she’s defenseless, and the adults who should be protecting her are violating her. So the court has considered the need to protect victims like that young girl in imposing a sentence today.
The district court also found that Stone encouraged the distribution of child pornography through his online sharing of albums, and found “disturbing” Stone’s conduct with “brownhairedgirLl.” The court had earlier described this conduct as “abuse” that endangered a minor.
The court weighed the factors:
This combination of circumstances requires, in the court’s view, a long term in prison. The factors include the age of the victims, the volume of the images, the defendant’s sharing of the images with others, the defendant’s sexual chat with a person he believed was 15 years old, and finally, the defendant’s engaging in actual sexual activity and transmitting that activity to a person he believed was 15.
With all these factors that militate in favor of a severe punishment, the court also notes there’s no allegation the defendant actually sexually abused any minor. He has no history of sexual abuse. His inappropriate conduct was wholly Internet-based.
The court expressed its hope that a better way could be found to deal with similar crimes in the future, but that “for right now, the congressional directive is very, very clear, as are the guidelines, and if you’ve done what you have done, the guidelines advise a very, very harsh sentence.” “[W]ith some reservations,” the court imposed a sentence at the bottom of the guideline range, 210 months.
Stone filed a timely notice of appeal.
II. Discussion
“We review the substantive reasonableness of a sentence for abuse of discretion, but we first consider whether the court below committed a ‘significant procedural error, such as ... treating the Guidelines as mandatory.’ ”
United States v. DeCologero,
A. Kimbrough Sentencing Discretion
1. Reviewing Kimbrough error
We review for abuse of discretion, and “procedural errors amounting to an abuse of discretion might include ‘failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.’ ”
United States v. Innarelli,
Kimbrough
“makes manifest that sentencing courts possess sufficient discretion under section 3553(a) to consider requests for variant sentences premised on disagreements with the manner in which the sentencing guidelines operate.”
United States v. Rodríguez,
Thus, after
Kimbrough,
a district court makes a procedural error when it fails to recognize its discretion to vary from the guideline range based on a categorical policy disagreement with a guideline.
United States v. Gibbons,
2. Stone’s Kimbrough argument
Stone argues that the district court erred in failing to recognize its discretion to disagree with the guidelines covering child pornography crimes, particularly the high base offense level, the computer enhancement, and the high overall offense level resulting from the combined imposition of the various enhancements. In particular, Stone argues that
Kimbrough
indicated that one ground for a district court to disagree with a guideline provision would be that the guideline was based on something other than the Sentencing Commission’s ordinary empirical approach.
See Kimbrough,
Stone makes a detailed historical argument, explaining that the child pornography guidelines are based on congressional directives, and not on the Commission’s empirical approach. He notes that since U.S.S.G. § 2G2.2 was adopted on April 13, 1987, the base offense level has increased from thirteen to twenty-two and the enhancements applicable to a defendant in Stone’s position from two to eighteen. 7 Stone also notes that a number of district courts have exercised their Kimbrough discretion to give the child pornography guideline range less deference. 8
3. Appraising the district court’s actions
The government does not challenge Stone’s argument that a sentencing judge has the discretion to reject the child pornography guidelines on this basis. Rather, the government argues that the district court understood its discretion and simply was not persuaded to use its
Kimbrough
power in this case. And, as is clear, the district court’s broad discretion obviously includes the power to agree with the guidelines.
Gibbons,
Thus, the issue for us to resolve is simply whether the district court failed to *91 appreciate its Kimbrough discretion or whether it understood but declined to use it. Stone argues that the district court explicitly held that it lacked the discretion to disagree with the applicable guidelines. Stone points to the sentencing hearing where the court said that Stone’s argument “is not an argument that the court can accept” and that it was “not this court’s constitutional role to second-guess congressional policy decisions simply because they’re expressed in the guidelines, and it is this court’s constitutional role to express the will of the people of this country as expressed by Congress.”
The government counters that the district court explicitly and repeatedly recognized that it was not bound by the guidelines. The government characterizes the above two comments as substantive rejections of Stone’s request to afford less deference to the guidelines since they were based on congressional policy. As to the first comment, the government argues that the sentencing court used the phrase “I cannot accept that” to mean “I reject that.” And the government notes another case where we have recognized this exact verbal distinction.
See DeCologero,
This is a closer case than others where we have been called upon to examine alleged
Kimbrough
error. The district court did not explicitly acknowledge its
Kimbrough
power. On the other hand, the district court never lamented its lack of discretion to categorically disagree with the guidelines. In the cases Stone relies upon, where we have remanded for resentencing in light of
Kimbrough
error, the sentencing court clearly expressed a belief that it lacked discretion.
Vanvliet,
In the absence of a clear statement showing
Kimbrough
error, we must review the “record as a whole” to assess the district court’s sentencing process.
See DeCologero,
Second, the district court clearly understood that it could impose a variant sentence under the advisory guidelines. Of course, it did not specifically state that it could vary based on a categorical disagreement with the guidelines. And it is true that a district court’s understanding that the guidelines are advisory does not necessarily demonstrate that the court understood its
Kimbrough
discretion.
Boardman,
Nonetheless, both the district court’s recognition of its power to impose a variant sentence and its rejection of the proposed ground for such a variance are relevant. Though the district court knew it could vary from the guidelines, it saw no reason to do so as it ultimately concluded that the harsh sentence fit the severe crime.
See, e.g., United States v. Saunders,
Here, the district court’s decision not to vary in light of its recognition that the guidelines were advisory makes it apparent that the district court did not believe that a guideline sentence was excessive as applied to Stone. Rather, the court felt *93 that the “combination of circumstances requires, in the court’s view, a long term in prison.” So, the record shows the district court was not struggling against the guidelines in a way that it very likely would have if it had believed it could not categorically depart, regardless of whether the guidelines’ application was too harsh. This conclusion is consistent with, and therefore bolsters our conclusion that the sentencing court simply did not accept Stone’s argument that it should disagree with the guidelines.
This leads to a third point. Stone argues that if we affirm we must stretch to interpret the district court’s statement that it is “not this court’s constitutional role to second-guess congressional policy decisions simply because they’re expressed in the guidelines” as saying “though it is this court’s role to second-guess such policy decisions, I chose not to.” But the matter is more nuanced. As we have noted above, a district court is free to agree with the guidelines (or, at least, some particular guideline). Part of this freedom must be a freedom to agree with the guidelines because the sentencing court believes that the guidelines express some societal wisdom beyond what an entirely unrestricted sentencing judge might possess. Thus, part of the sentencing court’s broad discretion must be the discretion to conclude that guidelines are convincing for various reasons, including that they reflect popular will.
Stone argues that this conclusion is inconsistent with
Kimbrough,
which recognized the fact that the crack cocaine guidelines were based on congressional policy, rather than empirical study by the Commission, as one ground permitting a variant sentence. But the converse of this proposition is not true. Even though a guideline is affected by congressional adjustment, a sentencing court may rely on it.
See Gibbons,
We conclude that the district court’s statements here are best understood as expressing the view that it continues to value congressional policy statements in sentencing. For example, when making the statements that Stone highlights, the court also said, “In many ways, .the fact that the guidelines are a direct reflection of a congressional expression of popular will is an argument in favor, not against the imposition of a guideline sentence.” The court continued by observing that Congress had made policy choices, reflected in the guidelines, about this type of crime. These additional remarks show that the court was expressing its decision *94 to agree with Congress, not any belief that it was required to defer to Congress. Specifically, the court’s use of the phrase “argument in favor” shows that it was open to considering categorical arguments for and against applying the guidelines. In sum, the district court certainly saw the guideline sentence as harsh, even “punitive.” But the court also observed that the offense was severe. Though the district court knew it could impose a variant sentence, it decided not to do so. Rather than conclude that the guidelines were too “punitive,” the district court believed that there was value in deferring to Congress’s calibration of severe penalty for serious offense. And, as we have explained, this is a determination it could make under its broad discretion.
In conclusion, though Stone can point to some quotes which appear to support his position, a review of the entire record has convinced us otherwise. The sentencing court considered Stone’s Kimbrough argument, did not explicitly doubt its own Kimbrough power, was not offended by the harsh sentence, but rather expressed a preference for using guidelines based on congressional policy choices in the context of evaluating the level of culpability equating a serious crime with a severe punishment. Thus, there was no procedural error.
B. Substantive Reasonableness
We turn to Stone’s challenge to the substantive reasonableness of his sentence.
1. Standard of review
The Supreme Court has given guidance on how a district court should arrive at a sentence: the court must compute the guidelines, which are the “starting point and the initial benchmark,” but which may not be presumed reasonable.
Gall,
In reviewing this ultimate determination, “we examine the district court’s contemporaneous oral explanation of the sentence, its near-contemporaneous written statement of reasons, and what fairly can be gleaned by comparing what was argued by the parties or proffered in the PSI Report with what the sentencing court ultimately did.”
United States v. Martin,
This substantive reasonableness review also applies to within-guidelines sentences.
United States v. Van Anh,
2. Discussion
Here, we see a “plausible rationale” and a “defensible result.” We start with the rationale. Our review of the sentencing transcript reveals that the district court considered the advisory guidelines, weighed the relevant factors, and explained why it thought a harsh sentence was appropriate. First, as is proper, the court computed the guideline range and heard Stone’s argument on how to value the guidelines’ advice. The court discussed Stone’s background and noted that it revealed no explanation for his conduct. The court acknowledged Stone’s post-offense efforts. The court also considered the circumstances of the crime, observing that it was troubled by Stone’s conduct with “brownhairedgirLl.” Though it recognized there was no allegation of actual abuse of a minor, it saw Stone’s actions towards “brownhairedgirLl” as abusive. Stone’s maintenance of online albums further “encouraged the distribution of child pornography to others.” The court especially noted one exemplar of a “very young girl” was “simply haunting” and called forth an “overwhelming need to protect” the victim. Considering that need, and that Stone’s actions encouraged distribution, the district court concluded that a long term was necessary. The court recognized that the enhancements led to a guideline range that was a “very, very severe punishment.” Again noting the “congressional directive,” the court, “with some reservations,” decided to impose a sentence at the bottom end of the guideline range.
As discussed above, the record thus reveals that the district court fully acknowledged the harshness of the sentence. Yet, Stone’s conduct with “brownhairedgirLl” and the nature and volume of his collection of pornography caused the district court to conclude that the guideline punishment reasonably fit the crime. It does appear that the district court drew some degree of comfort in this finding by placing value in the fact that Congress had also deemed Stone’s crime serious. But, as we have explained above, a district court may look to such sources to help inform its weighing
*96
of crime and punishment. The district court also considered and was unmoved by possible mitigating factors.
Cf. United States v. Olhovsky,
Though there can be no question that the result is stern, it is defensible. Stone’s high guideline range resulted from the many enhancements applied. Each of these enhancements captured an independent aspect of the wrongfulness of Stone’s actions. First, the material he possessed involved victims who were particularly young. Second, he distributed the material to someone he believed to be a minor. Third, the material he possessed contained sadistic images that the sentencing court could reasonably find to be more dangerous to society because of the suffering caused by their production. Fourth, he possessed a large volume of images. And finally, he used a computer. Though Stone challenges the fairness of this computer enhancement, we have explained that the district court has discretion to follow the guidelines. Were we to find the computer enhancement unreasonable on these facts, we would essentially be holding that district courts must always reject that enhancement. This we will not do. Thus, in this case, the sentencing enhancements fairly captured different dimensions of Stone’s conduct. And, beyond the facts underlying the enhancements, Stone’s conduct was not limited to simple distribution, but rather entailed probing sexual questions and a lewd performance for someone he believed to be a minor. The combination of harms caused by Stone’s conduct, as measured along these many dimensions, could reasonably lead a sentencing judge to find a need to impose a 17.5 year sentence.
Stone’s attack on this result fails to rise to the level of “fairly powerful mitigating reasons” showing unreasonableness. First, Stone argues that the district court gave undue weight to the guidelines.
See, e.g., United States v. Schmitt,
Second, Stone again attacks the guidelines as unreasonable. Stone observes that he is a first-time offender who fully accepted responsibility, but received a guideline range that would have exceeded the statutory maximum. He notes that his guideline range exceeds that for a child rapist or a second degree murderer. See U.S.S.G. § 2A3.1 (specifying a base offense level of 38 for criminal sexual abuse); id. § 2A1.2 (specifying a base offense level of 38 for second degree murder). We reject this argument. First, those offenses are *97 also subject to enhancements, which could increase the total offense level beyond that applicable to Stone. See id. § 2A3.1(b); id. § 3A1.1-3A1.4. Second, for the reasons explained above, the district court could find Stone’s conduct serious and warranting severe punishment. Using its discretion to look to guidance provided by Congress through the guidelines, the court could reasonably conclude that Stone’s actions represent a wrong of comparable magnitude to those charged with physical sexual abuse.
Stone also argues that his guideline range, which originally exceeded the statutory maximum, is unreasonably high as it will deter pleas and leave no room for punishing more serious offenders.
Cf. United States v. Ofray-Campos,
So, we conclude that Stone’s sentence is based on a plausible rationale and represents a defensible result. Stone has not met his -“heavy burden” in showing the sentence was outside the range of what is reasonable. Put another way, we are not left “with a definite and firm conviction that the district court committed a clear error of judgment.”
United States v. Autery,
IIL Conclusion
For the reasons stated, Stone’s sentence is affirmed.
We add a coda. Sentencing is primarily the prerogative of the district court, and the sentence imposed in this case is within permissible limits. There is no error of law and no abuse of discretion. That said — and mindful that we have faithfully applied the applicable standards of review — we wish to express our view that the sentencing guidelines at issue are in our judgment harsher than necessary. As described in the body of this opinion, first-offender sentences of this duration are usually reserved for crimes of violence and the like. Were we collectively sitting as the district court, we would have used our Kimbrough power to impose a somewhat lower sentence.
Affirmed.
Notes
. Section 2252A(a)(l) imposes criminal liability on any person who "knowingly mails, or transports or ships using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, any child pornography.” Section 2256 defines terms and provides, in part, that child pornography is "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where ... the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct.”
. This enhancement applies to distribution to a "minor,” but the application notes define "minor” to include a law enforcement officer posing as a minor. U.S.S.G. § 2G2.2 cmt. n. 1.
. For purposes of this enhancement, each video is counted as 75 images. U.S.S.G. § 2G2.2 cmt. n. 4 (defining "the number of images”).
. The guidelines called for a range of 210 to 262 months of imprisonment. However, the statutory maximum sentence is 20 years of imprisonment, 18 U.S.C. § 2252A(b)(l), reducing the guidelines range to 210 to 240 months.
.
But see United States v. González-Zotelo,
. Compare U.S.S.G. § 2G2.2 (1987) with U.S.S.G. § 2G2.2 (2008); see also Crime Control Act of 1990, Pub.L. No. 101-647, §§ 321-23, 101 Stat. 4789, 4817-18 (1990) (criminalizing the possession of child pornography and directing the Sentencing Commission to increase penalties if it deemed it appropriate); Treasury, Postal Service and General Government Appropriations Act of 1992, Pub.L. No. 102-141, § 632, 105 Stat. 834, 876 (1991) (enacting, apparently over Commission objection, a bill requiring the Commission to increase the base offense level to "not less than 15 and to provide at least a 5 level enhancement for "sexual abuse or exploitation of a minor"); Sex Crimes Against Children Prevention Act of 1995, Pub.L. No. 104-71, §§ 2-3, 109 Stat. 774, 774 (1995) (increasing the base offense level and creating a two-level enhancement for the use of a computer); Protection of Children from Sexual Predators Act of 1998, Pub.L. No. 105-314, §§ 501-07, 112 Stat. 2974, 2980-82 (1998) (directing the Commission to adopt various enhancements); Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub.L. No. 108-21, §§ 103, 401, 117 Stat. 650, 652-53, 667-76 (2003) (adopting a five-year mandatory minimum and a twenty-year statutory maximum sentence and directing the Commission to add additional enhancements based on the number of images distributed or possessed and to expand the sadistic and masochistic conduct enhancement); U.S.S.G. app. C., amend. 664 (raising the relevant base offense level from 17 to 22 and explicitly explaining that the increase was to calibrate with the new mandatory minimum).
.
See, e.g., United States v. Johnson,
. We also agree with the government that the district court used a similar construct earlier in the sentencing hearing to indicate that it "can't accept” the defendant’s suggestion that Stone might not have known that "brownhairedgirLl” was 15. While inferential reasoning based on a judge's speaking patterns are not the strongest support for affirming a sentence, it does reinforce our conclusion in this case.
. And we note that this very district court judge had, less than two months before Stone’s hearing, handed down a decision invoking its
Kimbrough
power.
United States
v.
Horta,
. For this reason, Stone gets no ultimate assistance from the decisions of other district courts that adopted arguments like the one Stone advances.