APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Crim. No. 2-06-cr-00880-001) District Judge: Honorable Katharine S. Hayden.
The opinion of the court was delivered by: Barry, Circuit Judge
Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges.
It is an unassailable proposition that "[c]hild pornography harms and debases the most defenseless of our citizens." United States v. Williams, 553 U.S. 285, 307 (2008). We believe that, and the District Court believed that. Nonetheless, the Court was deeply concerned about the sentence the government said the Court should impose on defendant David Grober under the child pornography Guidelines. It recognized, on the one hand, the tension between a mechanical application of those Guidelines and the "outrageously high" sentence -- indeed, the "truly remarkable punishment" -- of 235-293 months of imprisonment they advised, and, on the other, a fair and reasonable sentence that does justice. Determined to take a long and hard look at the child pornography Guidelines in an effort to understand why Congress and the Sentencing Commission did what they did and whether it made sense both as an objective matter and as to the defendant, the Court embarked on a careful study of how the Guidelines range urged on it by the government came to be. It took evidence over twelve days, heard extensive oral argument and considered extensive written submissions, and rendered a lengthy oral opinion at sentencing and a forty-six page written opinion thereafter explaining in great detail how it arrived at what it believed to be the correct sentence for this defendant. All of this is to be much admired.
There is a flip side, however, when a district court devotes such an extraordinary amount of time and attention to an issue so clearly troubling it and so freely expresses its concerns on the record, reaching out for whatever might assist it in assuaging those concerns. The flip side is this: in the unusual case, such as this, in which a district court arguably does too much rather than too little, there is much more grist for the mill, as here the government points to everything the District Court did and did not do and everything it should and should not have done. After this microscopic examination -- but without ever challenging the substantive reasonableness of the ultimate sentence imposed -- the government has found what it describes as procedural error. We will affirm.
In December 2005, acting on a tip from America Online regarding child pornography attached to emails involving David Grober's account, law enforcement officers of the State of New Jersey executed a search warrant at Grober's home and discovered what was eventually determined to be approximately 1500 images and 200 videos of child pornography among an even larger collection of adult pornography. In October 2006, a federal grand jury returned an indictment charging Grober with one count of receiving and distributing child pornography and one count of possessing child pornography. Grober was offered a plea to possession only, and he declined, as he had also done pre-indictment.
In September 2007, two weeks before the scheduled trial date and after plea negotiations had broken down, a superseding indictment was returned, charging Grober with two counts of transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1); three counts of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A); and one count of possessing material containing images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On October 4, 2007, Grober pled guilty to all six counts without a plea agreement, admitting that on July 9, 2005, he sent an email containing a video of child pornography (Count One); on July 27, 2005, he received an email containing an image of child pornography (Count Two), and sent back an email containing approximately seventeen images of child pornography (Count Three); on August 16, 2005, he received two separate emails, each containing an image of child pornography (Counts Four and Five); and in December 2005, he collected images and videos containing child pornography from the Internet and stored and possessed this material on computer hard drives and compact discs (Count Six).
Under U.S.S.G. § 2G2.2(a)(2), Grober's base offense level (after grouping) was 22, which, with a criminal history category of I, resulted in a Guidelines range of 41-51 months imprisonment. With the enhancements to § 2G2.2 that appeared applicable, however, Grober's offense level increased to 40. The eighteen levels of enhancements were comprised of two levels for material involving prepubescent minors or minors under age twelve (§ 2G2.2(b)(2)); five levels for distributing material to receive a thing of value, but not for pecuniary gain (§ 2G2.2(b)(3)(B)); four levels for material portraying sadistic or masochistic conduct or other depictions of violence (§ 2G2.2(b)(4)); two levels for the use of a computer (§ 2G2.2(b)(6)); and five levels for possessing more than six hundred images of child pornography (§ 2G2.2(b)(7)(D)). After a two-level downward adjustment for acceptance of responsibility under § 3E1.1(a), Grober's offense level became 38 and his advisory Guidelines range became 235-293 months imprisonment, a range that it is undisputed was correctly calculated and that even our dissenting colleague does not argue was not "draconian." (Dissent at 17, 21).
The District Court, clearly troubled by the sentence of imprisonment that this Guidelines range produced, held hearings over twelve days between July and December 2008. Numerous witnesses testified -- Special Agent Michell Chase, who examined Grober's child pornography collection; Professor Douglas Berman, a law professor proffered by the defense as an expert on the Guidelines over vigorous government objection; several mental health professionals; and the mother of two boys who had been sexually abused and featured in pornography found in Grober's collection. The Court also reviewed in open court a selection of fourteen images and ten videos provided by the government in support of the § 2G2.2 enhancements, as well as victim impact statements.
On December 8, 2008, the District Court held the final (thirteenth) day of hearings. Grober and his family and some friends addressed the Court and the Court heard extensive argument, after which it sentenced Grober to the mandatory minimum sentence of five years imprisonment, as well as three years of supervised release. The Court explained why it had done what it did and subsequently issued a lengthy opinion in support of the sentence, describing its efforts to "actively seek some rationale for the harsh sentence" recommended by the Guidelines and advocated by the government. United States v. Grober, 595 F. Supp. 2d 382, 390 (D.N.J. 2008). It noted that the government had declined to produce a witness, such as a representative from the Sentencing Commission, to discuss the basis for § 2G2.2, and that it found Professor Berman's testimony to be helpful. "It was through Professor Berman's testimony," the Court explained, "that [it] initially gained an understanding of the role Congress has played in the increased penalties for child exploitation offenses and how intertwined the guidelines for child exploitation offenses have become with various pieces of legislation." Id. at 391. The Court considered as well a paper written by an assistant federal public defender, Troy Stabenow, entitled Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, that criticized § 2G2.2.
The District Court also examined a handful of district court opinions that had expressed concern about the child pornography Guidelines and had found that those Guidelines were not based on empirical data. See United States v. Johnson, 588 F. Supp. 2d 997 (S.D. Iowa 2008); United States v. Baird, 580 F. Supp. 2d 889 (D. Neb. 2008); United States v. Hanson, 561 F. Supp. 2d 1004 (E.D. Wis. 2008); United States v. Shipley, 560 F. Supp. 2d 739 (S.D. Iowa 2008). The Court agreed with those courts that "§ 2G2.2 leads to a sentence that is too severe in a downloading case." Grober, 595 F. Supp. 2d at 394. It concluded:
To review, then, the Court has learned that actual working judges have decided to give these child pornography guidelines less weight in downloading cases; an experienced law professor with a widely used sentencing blog has been unable to probe the Commission's thinking why it sentences downloaders this way; and an influential article makes persuasive arguments against the rationality of § 2G2.2 in downloading cases. Also, reported cases demonstrate that bad people involved with child pornography can get long sentences without using § 2G2.2 as the basis.
The District Court discussed several additional reasons why it believed § 2G2.2 to be flawed. First, it found that most of the enhancements are essentially inherent in the crime and, thus, apply in nearly every case. Special Agent Chase testified that, of the 180 investigations she had conducted, every one involved 600 or more images, the use of a computer, and a prepubescent minor, and eighty percent had at least one image depicting sado-masochistic conduct. When the enhancements are added to the base offense level of 22 -- increased from 17 in 2004 -- the Guidelines, in the Court's view, produced "an outrageously high sentence." Id. Second, the Court found that the enhancements promote sentencing disparities. It stated that in 2006, the median prison term for federal child pornography offenses was sixty-three months imprisonment, indicating that sentencing courts were imposing significant sentences, but not as high as recommended by § 2G2.2. The Court expressed concern that the government's charging discretion and plea negotiations unfairly affect defendants such as Grober who do not initially plead guilty, and compared Grober to another defendant it had sentenced to thirty months imprisonment for possession of child pornography after he pled guilty without delay and pursuant to a plea agreement. Because of intervening changes to the Guidelines and Grober's initial decision to go to trial, Grober's Guidelines range was over two hundred months higher than the earlier defendant's. Third, the Court described how, given the nature of child pornography, it can be very difficult for the defense to rebut the government's characterization of the egregiousness of a defendant's conduct or dispute the government's evaluation of the defendant's collection compared to the collections of others, both of which may bear on the applicability of § 2G2.2's enhancements.
Thus, the District Court held that the sentencing range § 2G2.2 recommended for Grober would not be applied. Although it recognized "the importance of the guidelines to a rational sentencing protocol," it was "convinced that for a typical downloading case, which this one assuredly is, the applicable guideline, § 2G2.2, cannot be given deference and produces an unreasonable sentencing range even before considering the sentencing factors in [18 U.S.C.] § 3553(a)." Id. at 402. The Court found that "Grober's case is squarely within the heartland of downloading cases. Instead it is truer to say that § 2G2.2, the designated guideline for the typical downloading case, is what falls outside of the heartland." Id. at 403.*fn1
The District Court then carefully considered the sentencing factors set forth in 18 U.S.C. § 3553(a) as applied to Grober. It first discussed the nature and circumstances of the offense, finding that Grober's core conduct was consumption of child pornography and that there was no evidence that he had engaged in any improper conduct with a child. The Court made clear that it did not "minimize what David Grober did, or his towering insensitivity to the underlying acts portrayed, or the concept that voyeurs re-victimize the children in the images by looking at them," while also acknowledging that it "cannot make Grober a surrogate for the monsters who prey on child victims through actual contact." Id. at 404. The Court was impressed by Grober's history and characteristics, noting the immense support he had continuously received from his family, friends, neighbors, and rabbi.
With respect to the seriousness of the offense, the District Court considered the victim impact testimony given by the mother of two boys abused in images that Grober possessed. The Court found that a prison sentence of five years, the mandatory minimum sentence, affords adequate specific and general deterrence, as it would send a clear message about "how catastrophic the consequences are to those who download child pornography." Id. at 409. It next concluded that, based on the testimony of the mental health professionals, "Grober presents a very low risk of harm to society" and there is no real risk that he would physically abuse children in the future. Id. at 409-10. The Court also noted that Grober appeared to have benefitted greatly from therapy -- therapy which addressed, among other things, the fact that he had been sexually abused as a child. In terms of avoiding sentencing disparities, the Court considered average sentences imposed in other child pornography cases. Finally, considering § 3553(a)'s admonition that sentences be "sufficient but not greater than necessary," the Court found, "as a matter of conscience," that any term of imprisonment above the five-year mandatory minimum would be "unfair and unreasonable." Id. at 411-12.
The government appealed, and Grober cross-appealed. The government argues that the District Court committed procedural error by not adequately addressing its arguments before rejecting the sentencing range § 2G2.2 recommended for Grober. Importantly, the government does not argue that the Court lacked the authority to disagree with § 2G2.2 on policy grounds or that the sentence the Court imposed is substantively unreasonable. Grober argues that the District Court incorrectly believed that it was required to impose the statutory mandatory minimum sentence.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
We review sentences for abuse of discretion, and review them for both procedural and substantive reasonableness. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). Where a claim of procedural unreasonableness has been made, we must ensure "that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence -- including an explanation for any deviation from the Guidelines range." Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). For a sentence to be procedurally reasonable, a district court must demonstrate "meaningful consideration of the relevant statutory factors and the exercise of independent judgment," United States v. Grier, 475 F.3d 556, 571-72 (3d Cir. 2007) (en banc), and "respond to colorable arguments with a factual basis in the record," United States v. Merced, 603 F.3d 203, 224 (3d Cir. 2010). A major variance from the Guidelines requires a more significant justification than a minor one. Gall, 552 U.S. at 50. We will affirm a procedurally sound sentence as substantively reasonable "unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided." Tomko, 562 F.3d at 568. "Our responsibility on appellate review of a criminal sentence is limited yet important: we are to ensure that a substantively reasonable sentence has been imposed in a procedurally fair way." United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008).
The government does not challenge the District Court's authority to vary, as the Court did, from the advisory Guidelines range based on its policy disagreement with § 2G2.2, nor does the dissent. See Spears v. United States, -- U.S. --, 129 S.Ct. 840, 843 (2009) (per curiam); Kimbrough v. United States, 551 U.S. 85, 91, 101 (2007).*fn2 When a district court does so, however, it must provide "a reasoned, coherent, and sufficiently compelling explanation of the basis for [its] disagreement." Merced, 603 F.3d at 220 (internal quotation marks and citation omitted) (finding procedural error in the district court's failure to adequately explain its apparent policy disagreement with the Guidelines' career offender provision). We explained in Merced that [a] "sufficiently compelling" explanation is one that is grounded in the § 3553(a) factors. The authors of the Guidelines, no less than district courts, have been tasked with ensuring that criminal sentences meet the goals of sentencing set forth in § 3553(a). Rita v. United States, 551 U.S. 338, 348 (2007) (explaining that "both the sentencing judge and the Commission . . . carry out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale."). Thus, the Guidelines reflect the Sentencing Commission's "rough approximation of sentences that might achieve § 3553(a)'s objectives." Id. at 350. If a district court concludes that those objectives are not achieved by a sentence within the . . . Guideline range, and that belief is driven by a policy disagreement with the [particular Guidelines] provision, then the court must explain why its policy judgment would serve the § 3553(a) sentencing goals better than the Sentencing Commission's judgments. In doing so, he should take into account all of the sentencing factors, not just one or two of them in isolation. We require this explanation so that, on appeal, we can determine whether the court's disagreement is valid in terms of the § 3553 factors, the Sentencing Guidelines, and the perception of fair sentencing.
Id. at 221 (select internal quotation marks, citation, and alterations omitted). The explanation must be "thorough" and more than a "conclusory statement of personal belief." Id. (citations omitted); see also United States v. Lychock, 578 F.3d 214, 220 (3d Cir. 2009) ("To the extent that [the district court's] assertions reflect a policy disagreement with the Guidelines recommendations, such a disagreement is permissible only if a [d]istrict [c]court provides 'sufficiently compelling' reasons to justify it." (quoting Gall, 552 U.S. at 50)); United States v. Goff, 501 F.3d 250, 257 (3d Cir. 2007).
Additionally, the Supreme Court has indicated that "closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge's view that the Guidelines range fails properly to reflect § 3553(a) considerations even in a mine-run case." Kimbrough, 551 U.S. at 109 (internal quotation marks and citation omitted); see also Spears, 129 S.Ct. at 843 (stating that Kimbrough implies that an "'inside the heartland' departure . . . may be entitled to less respect"). Notably, the Kimbrough Court concluded that "closer review" there was unnecessary because the crack cocaine Guidelines at issue "do not exemplify the Commission's exercise of its characteristic institutional role." 552 U.S. at 109.*fn3 Similarly here, as we will describe, the Commission did not do what "an exercise of its characteristic institutional role" required -- develop § 2G2.2 based on research and study rather than reacting to changes adopted or directed by Congress.
III. Was Procedural Error Committed?
The government is explicit: it is not arguing substantive reasonableness on this appeal, i.e., it does not oppose the sentence itself -- five years imprisonment. Rather, its argument as to "the issue" before us is one of procedural error only: "Whether the District Court committed numerous procedural errors when it categorically rejected U.S.S.G. § 2G2.2 without adequately addressing the government's well-supported arguments about the rationales of Congress and the Sentencing Commission, which are embodied in the Guideline."
(Government's First-Step Br. at 1.)*fn4 We will first discuss the District Court's recognition of the rationale behind the penalties for child pornography offenses and its consideration of the government's arguments in support of § 2G2.2, and then describe various court decisions and Sentencing Commission reports that issued after the Court's decision in this case and support the Court's analysis. As we will explain, we conclude that the Court adequately considered the government's arguments and set forth a sufficiently compelling justification for the sentence it imposed. We will then discuss some of the specific procedural errors alleged by the government and echoed by the dissent. While we agree that the Court erred in some respects, we do not find any significant procedural error warranting remand.
A. The District Court Adequately Addressed the Government's Arguments Regarding the Rationale for § 2G2.2
It is clear, and the government does not argue otherwise, that the District Court properly calculated the Guidelines range, treated that range as advisory, fully considered the § 3553(a) factors as applied to Grober, and did not base its sentence on any clearly erroneous facts. See Gall, 552 U.S. at 51. The Court explained at great length, both at sentencing and in its written opinion, the reasons it was concerned about § 2G2.2 in general and as applied to Grober in particular, and why it selected the sentence it did.
As its primary contention, the government faults the District Court for not "adequately addressing" its arguments about the rationale behind § 2G2.2, i.e., the rationale for the penalties § 2G2.2 counseled, but clarifies that it "does not argue that the District Court here was too terse, but instead that the reasons it did provide were erroneous." (Fed. R. App. P. 28(j) letter, April 16, 2010.) And it tells us, in its briefing, that "every single reason proffered by the Court for rejecting [§ 2G2.2's advisory sentencing range] was wrong" and "[t]herefore the Court procedurally erred in declining to consider those guidelines." (Government's Third-Step Br. at 2.) But if all of the reasons were wrong, a fortiori the Court considered § 2G2.2 and the government simply disagrees with what the Court said.
That, it seems to us, does not fit neatly into a claim of procedural unreasonableness. Indeed, to the extent there is such a thing as a "typical" procedural unreasonableness challenge, that challenge would be to a sentencing proceeding in which a district court failed to explain its reasoning, certainly not the case here. See, e.g., Merced, 603 F.3d at 211; Lychock, 578 F.3d at 219; Goff, 501 F.3d at 262. Even accepting the government's ...