U.S. v. Wachowiak

• Decision Date: 01 August 2007
• Docket Number: No. 06-1643.,06-1643.
• Citation: 496 F.3d 744
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Robert J. WACHOWIAK, Jr., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

496 F.3d 744

UNITED STATES of America, Plaintiff-Appellant, v. Robert J. WACHOWIAK, Jr., Defendant-Appellee.

No. 06-1643.

United States Court of Appeals, Seventh Circuit.

Argued November 1, 2006.

Decided August 1, 2007.

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

Nancy Joseph (argued), Federal Defender Services of Eastern Wisconsin, Inc., Milwaukee, WI, for Defendant-Appellee.

Before KANNE, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Judge Adelman sentenced 24-year-old Robert Wachowiak to 70 months' imprisonment for downloading and electronically "sharing" child pornography on his home computer. Wachowiak's sentence is considerably less than his advisory guidelines range of 121 to 151 months, and the government submits it is unreasonably low in light of the sentencing factors in 18 U.S.C. § 3553(a). In addition to discounting the seriousness of Wachowiak's offense, the government argues, the judge deviated from the sentencing guidelines on the basis of mitigating factors routinely present in child pornography possession cases or already reflected in Wachowiak's guidelines range. A 70-month sentence, the government maintains, lies beyond the outer limit of the district court's post-Booker sentencing discretion.

We affirm. Although lenient, this below-guidelines sentence survives review for reasonableness, a deferential standard that has both procedural and substantive aspects. See Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2465, 2468-70, 168 L.Ed.2d 203 (2007); United States v. Wallace, 458 F.3d 606, 609-10 (7th Cir.2006). The government concedes that Judge Adelman explicitly considered the litany of factors specified in § 3553(a), including the nature and severity of the crime, Wachowiak's history and characteristics, the advisory guidelines range, and the purposes of sentencing enumerated in § 3553(a)(2). The challenge mounted here is substantive, not procedural. We conclude that Judge Adelman's reasons for selecting a 70-month sentence — Wachowiak's "excellent" character, genuine remorse, susceptibility to treatment, low risk of recidivism, strong family support, and certain mitigating aspects of his offense—are rooted in § 3553(a), sufficiently individualized to the circumstances of this case, and generally associated with sentencing leniency. Given the seriousness of this crime, we might not have weighed these factors so heavily, but we cannot say Wachowiak's sentence is unreasonable.

I. Background

Wachowiak first came to the government's attention in 2004 when an undercover agent in Florida logged on to a popular file-sharing network and found numerous images of child pornography being "shared" from an IP address in Milwaukee. The government traced the IP address to Wachowiak's home computer, obtained a search warrant for his home, and seized his computer and external hard drive. Forensic examination of the computer and hard drive revealed hundreds of images of child pornography, nine depicting children in bondage and nineteen depicting children under the age of ten. Wachowiak was interviewed and admitted to using the network to receive and share child pornography files.

Wachowiak pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2), which carries a 5-year minimum and 20-year maximum sentence. His uncontested presentence report calculated an advisory guidelines sentencing range of 121 to 151 months. His offense level of 32 reflected 13 points worth of enhancements for using a computer, possessing images of prepubescent children, possessing images portraying sadism or masochism, and possessing more than 600 images. Wachowiak also received a three-point reduction for acceptance of responsibility. This was his first offense, so his criminal history was Category I.

At sentencing Wachowiak argued for the statutory minimum, 60 months, while the government asked for a guidelines sentence. Judge Adelman settled on 70 months, concluding the guidelines range of 121 to 151 months was greater than necessary to achieve the sentencing purposes of § 3553(a). In his oral sentencing remarks and later in a written opinion, the judge explained that he had rejected Wachowiak's proposed 60-month sentence as too low given the number and nature of the images, some of which depicted very young children, sadistic conduct, and known victims of sexual exploitation. United States v. Wachowiak, 412 F.Supp.2d 958, 960 (E.D.Wis.2006). The judge nevertheless found that several factors mitigated the severity of Wachowiak's offense, specifically: (1) Wachowiak never enticed or had improper contact with any child; (2) he was extremely cooperative with the government and gave a prompt and detailed confession; and (3) he never produced or purposely distributed any images (although he did "share" them through the file-sharing program). Id.

The judge went on to describe Wachowiak's character as "excellent," noting that (1) Wachowiak had neither a criminal record nor a history of drug use; (2) he was an honor roll student in high school; (3) he was a talented pianist employed as a liturgical musician and was pursuing a bachelor's degree in music education; (3) after resigning his liturgical music position following his arrest, he obtained a job as a bakery clerk at a local grocery; and (4) all of his employers "thought highly of him." Id. Judge Adelman also relied heavily on the opinions of two sex offender specialists who examined Wachowiak and assessed his recidivism risk as low. Roger Northway, M.S., a sex offender therapist, began treating Wachowiak shortly after his arrest; he submitted a report to the court based on his observations of Wachowiak during treatment and certain risk assessment tests he administered. Dr. Patricia Coffey, a licensed psychologist with expertise in sex predator evaluations for the State of Wisconsin, also examined Wachowiak. Both experts reported that Wachowiak posed a low risk for direct sexual contact with children and was a good candidate for treatment because he understood his impulses were wrong and wanted to control them. Id. at 961.

The judge also took note of the quality of Wachowiak's allocution, characterizing it as genuinely remorseful, reflecting "insight into his behavior" and "progress in treatment." Id. Wachowiak, the judge said, "was making every effort to combat his addiction to pornography and remain crime-free." Id. at 962. Finally, Judge Adelman cited Wachowiak's supportive family and friends who would assist in his rehabilitation.

Judge Adelman then explained why he thought a 70-month sentence better fulfilled the statutory sentencing purposes of § 3553(a) than a guidelines sentence. The latter, he concluded, would be greater than necessary to promote respect for the law and provide just punishment, § 3553(a)(2)(A), given Wachowiak's lack of criminal history and what the judge viewed as the mitigated seriousness of his offense. Id. The judge also concluded that 70 months would provide "adequate deterrence" under § 3553(a)(2)(B) because it was longer than sentences imposed on defendants for similar crimes in federal and state court.¹ The judge said a sentence "exceeding five years would deter others considering receiving this type of material." Id. A guidelines sentence of more than ten years was "greater than necessary to protect the public" under § 3553(a)(2)(C), the judge reasoned, because the experts concluded Wachowiak posed little risk of recidivism or "crossing the line" into actual improper contact with children. Lastly, the judge said a guidelines sentence would unduly delay Wachowiak's access to treatment. See § 3553(a)(2)(D).

Finally, Judge Adelman explained several aspects of Wachowiak's case that he believed were appropriate considerations under § 3553(a) but were not adequately factored into the guidelines calculation. First, he said the guidelines failed to fully account for Wachowiak's "sincere expression of remorse" and "otherwise outstanding character" by narrowly channeling these considerations into Wachowiak's "acceptance of responsibility" reduction under U.S.S.G. § 3E1.1 and criminal history Category I, respectively. Wachowiak, 412 F.Supp.2d at 963. Second, the judge said "the guidelines failed to account for the significant collateral consequences [Wachowiak] suffered as a result of his conviction," namely, the stigma of being a sex offender and his inability to pursue a career in his chosen profession of music education. Id. at 963-64. Third, the judge believed the guidelines failed to consider the positive role of Wachowiak's family members, who promised to aid in his rehabilitation and reintegration into the community and support his efforts to avoid reoffending. Id. at 964. Finally, the judge noted that the probation office had recommended that Wachowiak receive a sentence significantly below the guidelines range, which he characterized as "unusual." Id. at 964 n. 6.

In addition to the 70-month term of imprisonment, the judge imposed a three-year term of supervised release with various nonstandard supervision terms. Wachowiak is forbidden from associating with any minors without prior approval from his probation officer. He must submit all his financial records, computer passwords and pseudonyms, and permit periodic inspections of his computer. He may not access the Internet from any location without first notifying his probation officer.

The government appealed, challenging the 70-month sentence as unreasonably low.

II. Discussion

Under the advisory guidelines regime ushered in by United States v. Booker, we review Wachowiak's 70-month sentence for reasonableness. 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Rita, 127 S.Ct. at 2459. This abuse-of-discretion standard has both procedural and substantive aspects. Rita, 127 S.Ct. at 2465, 2468-70; Wallace, 458 F.3d at 609; United States v. Repking, 467 F.3d...