U.S. v. Borho
| Decision Date | 15 May 2007 |
| Docket Number | No. 06-5288.,06-5288. |
| Citation | 485 F.3d 904 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Norman BORHO, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Mazzoli, Louisville, Kentucky, Rob Eggert, Louisville, Kentucky, for Appellee.
Before: BATCHELDER, GILMAN, and ROGERS, Circuit Judges.
GILMAN, J., delivered the opinion of the court, in which BATCHELDER, J., joined. ROGERS, J. (pp. 916-19), delivered a separate dissenting opinion.
Norman Borho pled guilty to three counts of distributing child pornography in interstate commerce, in violation of 18 U.S.C. § 2252(a)(1), and to one count of receiving child pornography that had traveled in interstate commerce, in violation of 18 U.S.C. § 2252(a)(2). The applicable United States Sentencing Guidelines called for a sentence of between 210 and 262 months of imprisonment, but the district court imposed a sentence of only 72 months. On appeal, the government argues that the sentence should be vacated and remanded for resentencing because such a large downward variance from the Guidelines range in this case is substantively unreasonable. We agree. The judgment of the district court is therefore VACATED and REMANDED for resentencing for the reasons set forth below.
Norman Borho is a lifelong resident of Louisville, Kentucky. He is a decorated war veteran, having received two bronze stars for distinguished service in the Vietnam War. After serving in the war, he returned to Louisville and found steady employment working with mainframe computers. He has been unemployed, however, since 2003.
Borho spent significant time in recent years caring for his sister, who had several forms of cancer that resulted in her death in early 2004. According to the Sentencing Memorandum prepared by his attorney, Borho "began viewing adult pornography over the internet due to his loneliness, coupled with his increased inability to function sexually as a result of his depression and other health issues." He eventually began viewing child pornography over the internet.
In December of 2004, Borho took his computer to a repair shop, requesting that the hard drive be replaced and that all of the files from the old hard drive be copied onto the new one. The computer technician, while copying Borho's files, observed what he believed to be images of child pornography. This caused the technician to notify the Louisville police. The police responded by obtaining a search warrant to seize the computer. After the investigating officers informed Borho that child pornography had been found on his computer, he immediately confessed.
A forensic analysis of Borho's computer, conducted by the Federal Bureau of Investigation (FBI), revealed that over 5,000 depictions of child pornography—specifically, 4,816 image files and 691 movie files—had been downloaded. The FBI case agent concluded that there were at least 77 images of prepubescent children and 21 images involving sadistic conduct. For example, one movie file found on Borho's computer was a seven-second video clip depicting an adult male anally raping a toddler. Another image depicts a young Asian female, whose wrists have been duct-taped to her ankles, being raped by an adult male. Moreover, the analysis showed that Borho had exchanged child pornography with others. Borho ultimately pled guilty to three counts of distributing child pornography and one count of receiving child pornography. He also voluntarily entered a sex-offender treatment program in May of 2005.
The probation officer's Presentence Report (PSR) calculated a base offense level of 22. Enhancements relevant under the Guidelines were added as follows: (1) a two-level enhancement because some of the images involved prepubescent children under 12 years of age, (2) a four-level enhancement because some of the images were sadistic in nature, (3) a two-level enhancement for the use of a computer, (4) a five-level enhancement for possessing more than 600 depictions, and (5) a five-level enhancement because the distribution of pornography was for a thing of value (gaining access to an internet chat room that permitted Borho to exchange images), although not for pecuniary gain. Finally, Borho received a three-level reduction for acceptance of responsibility. All of this resulted in a total offense level of 37. The district court accepted the probation officer's calculation of the recommended Guidelines range.
Borho's sentencing hearing was held in January of 2006. His therapist testified that Borho had made unusually strong progress in overcoming his addiction to pornography. After hearing additional testimony from members of Borho's family and closing arguments by the prosecution and the defense, the district court imposed sentence. The court began its analysis as follows:
Some of the distinctions between ways of committing these offenses are recognized in the sentencing guidelines, but in this Court's experience, some of the distinctions are not comprehended . . . in the guidelines. For example, the guidelines recognize that a person who creates pornograph[ic] images [is] more dangerous than one who receives pornographic image[s]. However, the guidelines do not distinguish between one who views pornography in private and one who has interactive behavior, such as telephone sex, e-mail sex and so on.
. . .
There is no evidence whatsoever that Mr. Borho has ever engaged in these interactive behaviors, and he committed his offense in the least personally engaged way possible. The Court believes this is an important fact.
Before imposing the 72-month sentence, the district court went on to say:
[Borho] had no criminal history, other than one conviction for DUI in 1996. He was a decorated Vietnam War veteran with a long and stable history and profitable employment. He suffers from a number of medical conditions, which contributed to his depression and offense. And there's no indication that he ever intended to have any physical contact with children, that the time period of the crime was relatively short, that [his] trading in child pornography is limited to websites on the internet, that the comprehensive sex offender risk assessment indicates he is amenable to treatment and poses low risk to public safety and low risk of re-offending.
The district court then concluded that a sentence of 210 months, being at the low end of the applicable Guidelines range, was too severe when all of the factors set out in 18 U.S.C. § 3553(a) were taken into account. On the other hand, it found that Borho was not the least culpable of all defendants convicted under these statutes. The court therefore declined to impose the statutory mandatory-minimum sentence of 60 months and instead imposed a sentence of 72 months' imprisonment, followed by 5 years of supervised release. The government has timely appealed the sentence on the basis that it is unreasonably low.
This court reviews sentences under a reasonableness standard. United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that the Sentencing Guidelines, which were previously mandatory, are now only advisory. Id. at 245, 125 S.Ct. 738. Accordingly, "a district court is permitted to vary from those guidelines in order to impose a sentence which fits the mandate of [18 U.S.C. §] 3553(a)." United States v. Collington, 461 F.3d 805, 808 (6th Cir.2006).
We review sentences for both procedural reasonableness and substantive reasonableness. Id. "A sentence may be procedurally unreasonable if the district judge fails to consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration." Id. (quotation marks omitted). In addition, a sentence may be substantively unreasonable "when the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent factor." Id. (brackets and quotation marks omitted).
The government concedes that the district court's sentence in this case was procedurally reasonable. In arriving at the sentence, the district court discussed the correctly calculated Guidelines range and balanced that calculation against the other § 3553(a) factors. The judge therefore "exercised the discretion that Booker [gave] him by independently considering and faithfully attempting to apply" each of the sentencing factors in determining Borho's sentence. See United States v. Davis, 458 F.3d 491, 495 (6th Cir.2006).
"Because the question at hand is whether the sentence is reasonable in light of the § 3553(a) factors, because one of those factors requires consideration of the guidelines sentencing range, § 3553(a)(4), and because the guidelines ultimately purport to account for most, if not all, of the § 3553(a) factors, . . . our review starts with the sentencing estimate provided by the Sentencing Commission for certain types of crimes and certain types of criminals." Id. at 496. The sentence imposed by a district court is therefore accorded a presumption of reasonableness when it is within the Guidelines range. Id.
Conversely, where the district court "independently chooses to deviate from the advisory...
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