U.S. v. Newsom, 03-3366.

• Decision Date: 02 November 2005
• Docket Number: No. 03-3366.,03-3366.
• Citation: 428 F.3d 685
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest A. NEWSOM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 685

428 F.3d 685

UNITED STATES of America, Plaintiff-Appellee, v. Ernest A. NEWSOM, Defendant-Appellant.

No. 03-3366.

United States Court of Appeals, Seventh Circuit.

Submitted September 20, 2005.

Decided November 2, 2005.

Gayle Helart, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

William E. Marsh, Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.

Before BAUER, POSNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

After a trial, Ernest A. Newsom was convicted of one count of production of child pornography, 22 counts of receiving child pornography, and one count of possession of child pornography. His victims included his own daughter and his ex-girlfriend's daughter, who feature prominently in the images Newsom created, as well as unidentified children in hundreds of other pictures found on his computer. Our earlier opinion in Newsom's case rejected his Fourth Amendment argument seeking to suppress evidence recovered from his home and computer. See United States v. Newsom, 402 F.3d 780 (7th Cir.2005) (Newsom I).

The district court sentenced Newsom to 324 months in prison. Under the applicable statutes, Newsom faced between 10 and 20 years in prison for his conviction for producing pornography; up to 15 years in prison for each of his 22 counts of receiving child pornography; and up to five years in prison for his possession conviction. We concluded in Newsom I that the district court properly calculated the final sentencing range of 292-365 months under the now-advisory Sentencing Guidelines, although we disagreed with it about exactly how to group the offenses to reach that result. Id. at 784-86.

Since Newsom challenges the reasonableness of his sentence, we briefly recount the manner in which that range was calculated. Newsom had a criminal history category of I. His offenses, we found, should be organized into three groups—one for all the counts of receiving pornography, one for production of child pornography, and one for possession of child pornography. Of the three groups, production produced the highest offense level, 37, once enhancements were included. That included enhancements for involving a victim under the age of 12, involving a victim under Newsom's care and supervision, obstruction of justice for failing to appear for a plea hearing, and abusing a vulnerable victim who was asleep. Three more levels were added pursuant to the multiple count adjustment of U.S.S.G. § 3D1.4, creating a total offense level of 40. This resulted in the Guidelines range of 292 through 365 months, from which the district court picked a sentence of 324 months.

We ordered a limited remand so that the district court could inform us whether it considered the sentence to be appropriate, given that the Guidelines are no longer mandatory. See United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Paladino, 401 F.3d 471 (7th Cir.2005). As this court held in Paladino, if the district court indicates that it would impose the same sentence, that sentence will be affirmed against a plain-error challenge so long as it is reasonable. 401 F.3d at 484. Our review is deferential to the district court's judgment; "the question is not . . . what sentence we ourselves might ultimately have decided to impose on the defendant." United States v. Williams, 425 F.3d 478 2005 WL 2455110, *5 (7th Cir. Oct. 6, 2005). Furthermore, if a sentence is within the properly calculated Guidelines range, it is presumptively reasonable. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005).

In this case, the district court has informed us that it would impose the same sentence under the advisory Guidelines. By way of explanation, the district court pointed to Newsom's flight from the jurisdiction before trial, to the harm he inflicted on his victims, and to the protection of the rights of the children involved. As the district court noted, "Each receipt of an item of child pornography is as harmful as the next. Each receipt of child pornography provides another opportunity to profit from the intrusion into a child's privacy and development, operates to create relationships between various pornography manufacturers, and further extends the market for child pornography." The district court emphasized the importance of providing punishment that reflects the seriousness of the offense and affords adequate deterrence. The court's analysis addressed some but not all of the factors listed in 18 U.S.C. § 3553(a), including the "nature and circumstances of the offense," § 3553(a)(1), "the need . . . to reflect the seriousness of the offense," § 3553(a)(2)(A), deterrence, § 3553(a)(2)(B), and protecting the public, § 3553(a)(2)(C).

After receiving the district court's statement, this court invited both the government and Newsom to file any arguments concerning the disposition of this appeal; only Newsom responded. He challenges his sentence of 324 months as unreasonable on two grounds. First, he contends that the district court failed to consider his personal history and characteristics, as required by 18 U.S.C. § 3553(a)(1); second, he argues that the sentence is not reasonable because others who committed more heinous crimes were sentenced to shorter prison terms, which is inconsistent with § 3553(a)(6). Before Booker, the § 3553(a) factors could be considered only in limited circumstances; now the district courts must always consider these factors to determine if the advisory Guidelines range is appropriate. As we noted above, however, our role is not that of the sentencing court. "The question is not how we ourselves would have resolved the factors identified as relevant by section 3553(a)." Williams, 425 F.3d 478, 2005 WL 2455110, at *5. Furthermore, given the presumptive reasonableness of sentences within the Guidelines range, we have observed that it will be the rare sentence within the Guidelines range that "stands out as unreasonable." Id. For the reasons detailed below, we reject each of Newsom's arguments.

We look first at his assertion that the court failed properly to take his individual circumstances into account, including particularly his depression, alcohol abuse, and work history, as required by 18 U.S.C. § 3553(a)(1). He reads this court's decision in United States v. Dean, 414 F.3d 725 (7th Cir.2005), as holding that the court must address the defendant's personal characteristics if they are "decisive" to the sentence imposed. That is not quite what Dean said, however. Its exact language, insofar as it applies to Newsom's case, was as follows:

[T]he sentencing judge can discuss the application of the statutory factors to the defendant not in checklist fashion but instead in the form of an adequate statement of the judge's reasons, consistent with section 3553(a), for thinking the sentence that he has selected is indeed appropriate for the particular defendant.

Id. at 729. The opinion went on to say that explicit fact findings were required "if, though only if, contested facts are material to the judge's sentencing decision." Id. at 730.

In Newsom's case, we see no indication that there was a contested issue of fact relating to the personal characteristics Newsom has highlighted. It is unfortunate that the court did not mention these points in its order, since Newsom had relied heavily on them on remand, but the court must have thought this unnecessary because the government did not take issue with any of them. It is their significance that was contested. In our view, the only reasonable way to read the court's memorandum is as an indication of which facts the court did find material: Newsom's flight, his relationship of trust with and authority over two of his victims, and the seriousness of the offense. The Guidelines, which take those factors into account, normally should point the way toward a reasonable sentence consistent with § 3553(a). See Mykytiuk, 415 F.3d at 607.

Dean also held that the district court's obligation to explain the sentence it chose becomes greater "the farther the judge's sentence departs from the guidelines sentence." 414 F.3d at 729 (emphasis added). "When the judge exercises her discretion to impose a sentence within the Guideline range and states for the record that she is doing so, little explanation is required." Id. at 730 (quoting United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005)). Thus, to summarize, the district courts must resolve disputed material issues of fact that relate to particular § 3553(a) factors that a defendant brings to the court's attention; they must explain the conclusions they draw with respect to "decisive" characteristics; and, to the extent that they are departing from the sentence recommended by the Guidelines, they must set forth the justification for doing so. In this case, the district judge selected a sentence at the center of the Guidelines range and explained in his order on remand why he thought this was appropriate. We add for the sake of completeness that we too see nothing in Newsom's personal history that shakes our confidence in this conclusion.

Newsom's other argument is that his sentence was unreasonable because it violated the command of § 3553(a)(6) to take into account "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." While we find this a closer call, we conclude that the district court's weighing of the facts of Newsom's case against those of other cases is entitled to deference.

Prior to Booker, disparities resulting from the proper application of the Guidelines were not a permissible reason for a departure from a properly calculated sentencing range. See United States v. Meza, 127 F.3d...