U.S. v. Smith

Decision Date17 April 2009
Docket NumberNo. 08-1477.,08-1477.
Citation562 F.3d 866
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Larry G. SMITH, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Joshua P. Kolar, Attorney (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

James E. Foster, Attorney (argued), Funk & Foster, Hammond, IN, for Defendant-Appellant.

Before MANION, ROVNER, and SYKES, Circuit Judges.

MANION, Circuit Judge.

Larry G. Smith pleaded guilty to one count of distributing child pornography in violation of 18 U.S.C. § 2252(a)(2) after law enforcement officers discovered more than 3,000 images of child pornography on Smith's computer hard drives, which had been set up to share the images over the internet. The district court sentenced Smith to 240 months' imprisonment. Smith appeals his sentence. We affirm.


Larry Smith first came to the attention of law enforcement officials when an FBI agent entered an internet chat room devoted to preteen sexual pictures. Inside the chat room, the agent was able to exchange dummy files (files that could not be opened but had names suggesting that they contained child pornography) for actual images and videos of child pornography. Further investigation revealed that the computer operating the server which distributed the child pornography was located at Smith's house.

When, in the early morning hours, agents executed the warrant they obtained to search the house, they found Smith in his bedroom with a 16-year-old girl. They also found two books about Adolph Hitler and satanic rituals, a loaded handgun, and six computers. One of the computers' hard drives contained approximately 3,114 images of child pornography, while another computer had over 500 images on its hard drive. The pictures included many of prepubescent children—as young as two years old—violently being forced to engage in sexual conduct, several of prepubescent children in bondage with their genitals exposed, and two of an animal engaging in a sex act with a young girl. In addition to the images, the hard drives also contained 40 videos of child pornography. One video featured two screaming children being raped by an adult; another depicted a naked three-year-old girl being forced to perform a sex act on an adult male.

Smith was indicted and his trial scheduled for January 17, 2006. After several continuances, Smith moved on July 20, 2006, for funds under the Criminal Justice Act ("CJA") to retain a psychological expert. The court granted his request on August 1, 2006. Following several more continuances, Smith pleaded guilty on March 2, 2007, to the third count of the indictment, distributing child pornography in violation of 18 U.S.C. § 2252(a)(2).

Smith's sentencing proceeded in four parts over a four-month span. At the first hearing, held October 4, 2007, Smith presented the expert testimony of Robert Hundt, a licensed clinical social worker and certified addictions counselor. Relying upon a "psychosexual assessment" of Smith he had previously completed, Hundt opined that Smith was treatable and therefore should only be incarcerated for a short time. Hundt admitted, however, that little research—and no credible testing—was available to aid in determining whether someone like Smith posed a risk of committing future offenses involving child pornography. He also stated that he had "absolutely no[ ]" idea what the appropriate amount of punishment was for Smith.

The district court held a second hearing on November 15, 2007. At that hearing, the district court determined Smith's guidelines offense level was 38, yielding a sentencing range of 235 to 293 months' imprisonment. The court then invited Smith's attorney to "address and comment" on any of the 18 U.S.C. § 3553(a) factors. When a discussion of the district judge's role in sentencing vis-à-vis the guidelines arose shortly thereafter, the district court had the following exchange with Smith's counsel, Mr. Foster:

THE COURT: I say the Court can go higher or I can go lower than the guidelines. That's not the party[.] I can go higher or lower for several reasons, for no other reason that I disagree that they're fair, or that there are reasons why I should be higher or lower. But, again, that's not a departure.

MR. FOSTER: Right.

THE COURT: The word "depart" insinuates to me that the guidelines are ironclad. I don't consider them to be ironclad.

Shortly after that exchange, Foster appeared to advocate that the district court had the authority to completely disregard the guidelines. The district judge jumped in:

THE COURT: Technically, Mr. Foster, I don't know that I agree with you on that. I think all that tells me is that it's up to me to decide what's a fair sentence.

MR. FOSTER: Up to you to decide what's a fair sentence with total disregard for the guidelines. ... And I believe that with Rita and Miranda after that, that a district court judge at this stage can simply enter a sentence with no concern—

THE COURT: I don't think I have to ignore the guidelines, Mr. Foster.

MR. FOSTER: You don't have to.

THE COURT: I can consult them. I can look at them. I can determine whether they enlighten me as to what a fair sentence is. Or if I want to ignore them, I still have to—the bottom line, I have to make a determination what a fair sentence would be.

MR. FOSTER: Right.

THE COURT: The guidelines are advisory.

The discussion then turned to Hundt's qualifications. The district judge stated that he "had some difficulty accepting" Hundt as an expert because Hundt was neither a psychiatrist nor psychologist, and the defense had not shown that he was "qualified to make the diagnosis and the prognosis that he was making." The court then gave Foster an opportunity to flesh out Hundt's qualifications and took a ten-minute recess. After the break, Foster stated that he wanted to address why the court should accept Hundt as a non-scientific expert. The court responded:

You can address it. But like I said, I will go through it, but if you are going to address why you think Mr. Hundt is an expert, I want to know why he's an expert, what he said, and how he drew the conclusion because there are a lot of comments that he made from a self-answered questionnaire by the defendant. And from that it appeared, at least—and I'm going back from recollection right now, that one diagnosed the problem which he may be able to do, psychologists do that to some degree, and then talks about his cure and everything else. I didn't hear any expertise on that, whether or not prison is going to be good for him or bad for him, and whether or not he can be cured in prison.

Having spelled out his concerns about Hundt's qualifications, the district judge then launched into this aside:

Now, my experience from dealing with people that I have sent to institutions is that the institutions have experts in all these fields, and they determine whether people are treatable, how long they're treatable, and if they're cured, then they can—they can release somebody I had given life to at any time. I can't make them hold onto a person. Once he hits the Bureau of Prisons, it's up to the Bureau of Prisons how long they're going to keep them up to the maximum that I give.

Smith's attorney quickly attempted to correct the district judge, explaining that since the abolition of parole boards, a person may not be released early from a federal prison short of having served 85% of his sentence. The district judge, referencing a pre-guidelines case as the basis of his understanding, reiterated that he thought "the Bureau of Prisons ha[s] a lot of say," but noted "that's neither here nor there."

The possibility of Smith being released earlier than the 85% threshold was discussed one more time near the end of the November 16 hearing:

MR. FOSTER: Are we—and you said maybe they'll let him loose early. Judge, I don't believe they will.

THE COURT: I said they could.

MR. FOSTER: They could. They could.

THE COURT: I don't have any basis to say they're going to let him out early.

For the remainder of the sentencing proceedings, the subject of whether Smith might be released earlier than upon serving 85% of his sentence was never broached.

Unable to convince the court of Hundt's qualifications, Foster moved for a continuance to find another expert. The court denied the motion:

THE COURT: Mr. Foster, respectfully, I've given numerous continuances on this case. I gave you time to go out and get an expert. I even authorized funding for the expert.

MR. FOSTER: Correct.

THE COURT: Every time I come up and tell you, well, that expert is not believable or does not meet the necessary qualifications based upon what he said, his background didn't impress me insofar as his testimony is concerned, I'm not going to keep giving you continuances until, you know, you find somebody either I get tired of saying I'm not impressed by him or that, you know, you're satisfied with. That's not the way it works, Mr. Foster. I gave you a chance to go there and get somebody.

Before the second sentencing hearing concluded, the court and Foster had yet another discussion about 18 U.S.C. § 3553(a) and its relationship with the guidelines. The court observed that, before Booker, "[i]t was a lot stricter." The court also pointed out "that the guidelines [are] only advisory, and I can take a look at them as to what a fair sentence will be." To those observations, Foster replied: "I guess what I'm saying is I couldn't have stood here pre-Booker and with integrity ask you to ignore these guidelines, which is what I'm asking you to do. ..." The court responded: "You could've done it. You may not have gotten as far as you do today. It might be a polite way of saying we agree."

The court held a third sentencing hearing the next day and gave the government an opportunity to respond to the sentencing issues raised by the defense. The court did not convene again until...

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