U.S. v. Schmitt

Decision Date07 August 2007
Docket NumberNo. 06-2207.,06-2207.
PartiesUNITED STATES of America, Plaintiff-Appellant, v. William P. SCHMITT, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Kelly B. Watzka (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellant.

Richard H. Parsons, Johanna M. Christiansen (argued), Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and MANION and WOOD, Circuit Judges.

WOOD, Circuit Judge.

William Schmitt pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A). Everyone agreed that, if the Sentencing Guidelines were to be followed, his sentence would fall between 63 and 78 months' imprisonment. Schmitt, however, argued that the only reasonable sentence for him would be below that range. At his sentencing hearing, he showed convincingly that the overwhelming majority of defendants charged with the same crime in the state courts covering the same area as the Eastern District of Wisconsin received sentences far lower than 63 months. Indeed, only nine of 104 defendants sentenced in the previous five years in those counties received any prison time at all. Schmitt argued to the district court that it should take this evidence into account and sentence him below the guideline minimum. The district judge disagreed and imposed a guideline sentence of 63 months. Schmitt appeals his sentence, arguing that 18 U.S.C. § 3553(a)(6) requires district courts to consider the disparity between state and federal sentences in choosing a sentence. He also asserts that the district court erroneously believed that the guidelines are mandatory in cases involving child pornography and accordingly afforded too much weight to the guidelines in this case. We agree with Schmitt in part. Although the district court correctly rejected Schmitt's argument about federal/state disparities, we cannot be confident that it approached the guidelines in the way that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and now Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), require. We therefore vacate the sentence and remand for resentencing.

I

In March 2004, the Norwegian government, attempting to identify potential possessors and distributors of child pornography, began investigating the global use of computer-based, peer-to-peer file sharing programs. In the course of that investigation, Schmitt's internet protocol address was identified as having shared at least seven files containing child pornography. The Norwegians shared this information with the U.S. Federal Bureau of Investigation ("FBI"), which then pursued its own investigation. Schmitt later admitted to FBI agents that he had downloaded movies and photographs depicting child pornography; a subsequent search of Schmitt's computer confirmed that fact. Schmitt was charged in a three-count indictment and pleaded guilty to the third count.

After factoring in a number of sentencing enhancements not relevant to this appeal, the court concluded that Schmitt's guideline range was 63-78 months' imprisonment. He asked the district court to impose only a term of probation, however, for a number of reasons. Schmitt's primary claim was that sentencing him to probation was necessary to reduce or eliminate the disparity between Wisconsin state sentences for child pornography possession and federal sentences for the same crime. Schmitt also argued that his particular crime was more innocuous than other child pornography offenses, since he did not purchase or produce the material, did not expose others to it, and did not sexually assault any children. In addition, Schmitt attempted to demonstrate that his crime was aberrational; that generally he was a productive and upstanding member of his community, he had strong and stable familial connections, and he volunteered extensively before his incarceration. He also sought counseling and psychological treatment for his interest in child pornography and underwent two psychological evaluations by doctors who each concluded that Schmitt did not pose any risk of engaging in sexual or dangerous misconduct in the future.

The district court was not persuaded to sentence Schmitt below the guidelines. It rejected his principal argument that it was either required or entitled to consider any disparity between state and federal sentencing in determining Schmitt's sentence. It also concluded that the rest of Schmitt's evidence was not compelling enough to warrant a sentence below the guidelines. The court emphasized on numerous occasions that Congress, by passing the PROTECT Act in 2003, which targeted child sex offenses, manifested an intent to prevent district judges from departing from the guidelines in such cases. Because "Congress has spoken" in this area, the court thought, the favorable evidence offered on Schmitt's behalf did not permit the judge to impose a below-guidelines sentence.

II

On appeal, Schmitt argues first that the district court should have considered the sentence Schmitt might have received had he been charged with the same crime in Wisconsin state court. Section 3553(a)(6) requires sentencing courts to weigh "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. . . ." Schmitt asserts that this provision applies not only to disparities within the federal system, but also to disparities between sentences imposed in state court and those handed down in federal court. Stark disparities in the latter setting exist, as Schmitt showed with thorough and compelling evidence that similarly-situated defendants in Wisconsin state court nearly uniformly received sentences far lower than those prescribed in the federal guidelines. Schmitt acknowledges that his argument lacked merit before Booker. See United States v. Schulte, 144 F.3d 1107, 1111 (7th Cir.1998) ("[A] disparity between federal and state sentences does not take a case out of the heartland of cases contemplated by the Sentencing Commission."). He argues, however, that Booker afforded district judges the flexibility to consider, and attempt to minimize, differences between state and federal sentences. We review de novo questions of law involving the interpretation of a provision of the guidelines, see United States v. Stitman, 472 F.3d 983, 986 (7th Cir.2007).

According to the Sentencing Commission, one of the principal purposes of the guidelines was to establish "uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar conduct by similar offenders." U.S.S.G. Ch. 1, Pt. A(3), intro. comment. (emphasis added). Since, as we recognized in Schulte, "[t]he Guidelines have no effect on a state legislature's freedom to impose criminal punishments that differ from the federal government's sanctions for the same conduct . . . [a] disparity is not `unjustified' simply because the federal and relevant state governments impose different punishments on similar conduct." 144 F.3d at 1110-1111. Indeed, adjusting federal sentences to accord with those imposed for similar crimes in state court would undermine the goal of uniformity within the federal system, to the extent that the states have adopted different sentencing philosophies. Id. at 1111 ("If courts were to depart from the sentences mandated by the Guidelines in deference to numerous and varying standards in the state systems, they would eviscerate the uniformity in federal sentencing that is the raison d'etre of the Sentencing Reform Act of 1984."); see also United States v. Haynes, 985 F.2d 65, 70 (2d Cir.1993) ("Allowing departure because a defendant might have been subjected to different penalties in state court would make federal sentences dependent on the law of the state in which the sentencing court was located, resulting in federal sentencing that would vary from state to state. To adopt this rationale for departure would surely undermine Congress' stated goal of uniformity in sentencing.").

The force of that reasoning survives Booker. Cf. United States v. Wallace, 458 F.3d 606, 608 (7th Cir.2006) ("A bad reason for departing pre-Booker remains a reason that, at least as a matter of advice from the guidelines, is still bad . . ."). In United States v. Wurzinger, 467 F.3d 649, 653-54 (7th Cir.2006), we considered a post-Booker claim that the sentencing judge should have taken into account the fact that Wurzinger's co-conspirators received more lenient sentences in state court. We held:

Courts should reduce "unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," 18 U.S.C. § 3553(a)(6), but in most cases "disparities are at their ebb when the Guidelines are followed," United States v. Boscarino, 437 F.3d 634, 638 (7th Cir.2006). Reducing a federal prisoner's sentence to accord with that of a similarly situated state convict may decrease one sentencing disparity but simultaneously enlarges another: that between the federal convict and all similarly situated federal convicts. Id. Because penalties vary from state to state, sentence reductions to approach state penalties similarly vary with the state in which the federal sentencing court sits, unjustifiably creating disparities among federal convicts.

See United States v. Branson, 463 F.3d 1110, 1112 (10th Cir.2006); United States v. Williams, 282 F.3d 679, 681-82 (9th Cir.2002). We cannot say that the court's failure to narrow the gap between Wurzinger and his co-conspirators was unreasonable. See also Branson, 463 F.3d at 1112 ("Federal and state authorities have concurrent jurisdiction over various offenses and may apply disparate punishments to similar conduct. Adjusting federal sentences to conform to those imposed...

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