495 F.3d 860 (7th Cir. 2007), 06-2207, United States v. Schmitt

Docket Nº:06-2207.
Citation:495 F.3d 860
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. William P. SCHMITT, Defendant-Appellee.
Case Date:August 07, 2007
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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495 F.3d 860 (7th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellant,


William P. SCHMITT, Defendant-Appellee.

No. 06-2207.

United States Court of Appeals, Seventh Circuit.

August 7, 2007

Argued June 5, 2007.

Appeal from the United States District Court for the Eastern District of Wisconsin. No.05-CR-181-J.P. Stadtmueller, Judge.

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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). Every-one 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

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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.


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...

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