U.S. v. Kirchhof

• Decision Date: 02 October 2007
• Docket Number: No. 06-5203.,06-5203.
• Citation: 505 F.3d 409
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter KIRCHHOF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

505 F.3d 409

UNITED STATES of America, Plaintiff-Appellee, v. Peter KIRCHHOF, Defendant-Appellant.

No. 06-5203.

United States Court of Appeals, Sixth Circuit.

Argued: April 20, 2007.

Decided and Filed: October 2, 2007.

ARGUED:

Marc S. Murphy, Stites & Harbison, Louisville, Kentucky, for Appellant. Madison T. Sewell, Assistant United States Attorney, Louisville, Kentucky, for

Appellee.

ON BRIEF:

Marc S. Murphy, Amber D. Nicely, Stites & Harbison, Louisville, Kentucky, for Appellant. Monica Wheatley, Terry M. Cushing, Assistant United States Attorney, Louisville, Kentucky, for Appellee.

Before: DAUGHTREY and GIBBONS, Circuit Judges; SCHWARZER, District Judge.^*

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendant-appellant Peter Kirchhof appeals the district court's sentence of 180 months following his guilty plea to one count of transporting child pornography over the internet in violation of 18 U.S.C. § 2252(a)(1) and one count of receiving child pornography over the internet in violation of 18 U.S.C. § 2252(a)(2). Kirchhof challenges his sentence on the ground that his sentence is substantively unreasonable. For the following reasons, we affirm the sentence of the district court.

I.

On February 16, 2005, an undercover agent with the Federal Bureau of Investigation in Buffalo, New York, entered an internet chat line titled "100reTeengirlSexPics." As summarized by a probation officer and as admitted by the defendant himself:

Advertised in the chat line was an f-serve [file server] offered by the mIRC nickname "EVERLAND" using the trigger "!everland." The advertisement carried [] the following statement "Enjoy yourself—free leech if your [sic] young and chat with me on webcam." Leech is a common term used on mIRC which means that if a user complies with the f-serve operator's requirements, the user is granted unlimited downloading privileges.

After sending corrupted files to the f-serve and reciprocally downloading files from "EVERLAND" that contained pictures of a minor engaged in sexually-explicit conduct, the FBI agent ascertained the location of the Louisville, Kentucky, residence associated with the f-serve computer's internet protocol address. Federal and state law enforcement officials executed a search warrant for that residence, the apartment of Kirchhof and his wife. During the search, officers seized Kirchhof's computer, which contained 992 child pornography images and 22 child pornography videos. At that time, the defendant also "admitted both to operating the f-serve to distribute the images and also to possession of the images that were found on his computer."

Kirchhof pled guilty to one count of transporting child pornography over the internet in violation of 18 U.S.C. § 2252(a)(1) and one count of receiving child pornography over the internet in violation of 18 U.S.C. § 2252(a)(2). At his sentencing hearing, Kirchhof introduced evidence that he was a 22-year-old German national who was an A-student at the University of Louisville and who had then been married for approximately a year-and-a-half to an American citizen. Kirchhof had no prior criminal record and, while a student, was employed as a teller at Fifth Third Bank. He lost that job, however, upon his arrest for the child pornography charges but was still earning money at the time of the hearing by serving as a teaching assistant at the University of Louisville.

The defendant further introduced evidence that he suffered from a recently-diagnosed obsessive-compulsive disorder ("OCD"), a condition for which he was receiving treatment, and one that "played a role in his computer compulsions." Other testimony at the sentencing hearing confirmed that Kirchhof was also then participating in a sex-offender treatment program, that he did not meet the psychological profile of a pedophile or a sexual predator, that the risk of his committing another similar crime was very low, and that federal prison guidelines would delay Kirchhof's participation in any Bureau of Prisons sex-offender treatment programs until the last 18 months of his sentence.

At the conclusion of the evidentiary hearing, the district judge determined that the appropriate sentencing guideline range for the offenses was 210-262 months in prison, which is not challenged on appeal. The district court sentenced the defendant to concurrent 180-month sentences, explaining:

This is a case which I believe is not about pornography. . . . This is more a case about child abuse. . . . It's not about the public display of personal acts. It's really about the public display of criminal acts.

. . . .

As in all criminal acts, different steps certainly have different degrees of criminality, and that doesn't make necessarily, though, the lesser steps—they are less significant, but they can be equally important, and in this case there's a strong reason to believe that the existence of Internet trading of child pornography does create in essence a virtual community of traders and users, and I don't think it's an exaggeration to say that the existence of this community on the Internet validates and normalizes the behavior of an entire group that the rest of us if we looked at it would find completely abhorrent to the essential values of our society. That's not just me talking, of course. That's what Congress also determined in enacting the statute that they did.

Moreover, I think it is true that the continued availability of this material desensitizes everyone to the consequences of it in a very real way. . . .

I'm not saying that's something that the defendant here thought about or wanted to do, but the fact is that his conduct enabled all that to happen. The defendant has said that he was unaware that collecting and trading the material was illegal, or maybe he wasn't even sure it was bad. That was meant to be a statement suggesting his guilt was not as bad as it might otherwise be, but on reflection I think it's actually a statement that highlights the problem, and that is that people are unaware of how bad this is and how their involvement in what they believe not to be a criminal aspect of the activity enhances, enables and perpetuates the industry, if you will.

I think particularly important in this moment—you know, there are lots of ways to stop activity that we abhor. We can catch all the people that do it, but one of the big things is deterrence. When you are deterring, it is a sad fact that the interests of justice as we might perceive them to an individual clash with the interests of—that society has for looking at justice in a larger way. I think that is probably true in this particular instance because one could say, well, the defendant will never do this again. . . .

But I think we have to look at it at various different times and places, and we are at this time and this place, at a huge, huge problem, and unless we make it clear to all those out there that are doing it secretly on the Internet and who are not caught and may think that because they are on the Internet in their home that they are doing something that is innocent, that this is something we don't condone, we don't excuse, and in fact that we condemn, and the best way we know to deter that future activity is to say so out loud with a long sentence. . . .

It may be true that the defendant is a productive member of society, and hopefully he will be a productive member of society in the future. My experience in these cases is that many of the people who do these things are outwardly productive members of society, and they fool themselves into thinking that they are and that what they are doing is somehow permitted or consented to or otherwise. . . .

Although the district court sentenced him to a term 14% below the low-end of the guidelines range, Kirchhof now appeals to this court, arguing that the sentence is unreasonable and that the district judge attempted to send a message to the entire child pornography industry rather than tailoring the sentence to the individual defendant appearing before him.

II.

Both district courts imposing sentences and appellate courts reviewing sentences are to be guided by the factors set forth in 18 U.S.C. § 3553(a). United States v. Jackson, 408 F.3d 301, 304 (6th Cir.2005). Post-Booker, the discretion of a district court in handing down a sentence has been enhanced, and a sentence will be upheld on appeal if that sentence is "reasonable."¹ Id. This reasonableness inquiry has both a procedural and a substantive component. See United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005).

A.

The goal of the procedural reasonableness requirement is to ensure that a sentencing court explains its reasoning to a sufficient degree to allow for reasonable appellate review. United States v. Dexta, 470 F.3d 612, 614 (6th Cir.2006). If the record demonstrates that the sentencing court addressed the relevant factors in reaching its conclusion, the court need not explicitly consider each of the § 3553(a) factors or engage in a rote listing or some other ritualistic incantation of the factors. Id. at 614-15. At oral argument Kirchhof conceded that he only challenges the substantive reasonableness of his sentence. Indeed, a review of the record shows that the district court explicitly addressed nearly all of the § 3553(a) factors and provided a detailed explanation of its reasoning. For this reason, Kirchhof's sentence is procedurally reasonable.

B.

"A sentence is substantively unreasonable if 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." United States v. Husein, 478 F.3d 318, 332 (6th Cir.2007) (internal quotation marks omitted). The law of this circuit draws a distinction between sentences that are within the recommended guidelines range and those outside of that range. Dexta, 470 F.3d at 615. When a district court...