United States v. Stephens

• Decision Date: 02 February 2021
• Docket Number: No. 20-1463,20-1463
• Citation: 986 F.3d 1004
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jonathan STEPHENS, also known as Johnathan Stephens, also known as Jonathan Watts, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

986 F.3d 1004

UNITED STATES of America, Plaintiff-Appellee,

v.Jonathan STEPHENS, also known as Johnathan Stephens, also known as Jonathan Watts, Defendant-Appellant.

No. 20-1463

United States Court of Appeals, Seventh Circuit.

Argued December 15, 2020

Decided February 2, 2021

Andrianna D. Kastanek, Jeannice Williams Appenteng, Attorneys, Office of the United States Attorney, Chicago, IL, for Plaintiff - Appellee.

Darryl A. Goldberg, Attorney, Law Offices of Darryl A. Goldberg, Chicago, IL, Christopher Grohman, Attorney, Taft Stettinius & Hollister LLP, Chicago, IL, for Defendant - Appellant.

Before Kanne, Hamilton, and Brennan, Circuit Judges.

Hamilton, Circuit Judge.

Appellant Jonathan Stephens pleaded guilty to transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1). The district court sentenced him to 151 months in prison, at the bottom of the applicable Sentencing Guideline range. On appeal, Stephens challenges his sentence. He contends that the district court improperly disregarded the probation officer's recommendation of a below-guideline sentence, his own primary arguments in mitigation, and the statutory sentencing factors set forth in 18 U.S.C. § 3553(a). We affirm.

I. Background

In December 2016, federal agents seized from Stephens's home fifteen electronic devices with over 184,000 pornographic images and videos of children. Two years later, before federal charges were filed, undercover officers discovered that Stephens in the meantime had downloaded at least 10,000 more images and videos of child pornography. The agents also determined that Stephens had used his computer to share some of the files.

Stephens was charged with five counts of transporting and possessing child pornography, and he ultimately pleaded guilty to one count of transporting in violation of 18 U.S.C. § 2252A(a)(1). A probation officer calculated the guideline range as 151 to 188 months in prison based on a total offense level of 34, see U.S.S.G. § 2G2.2, and a criminal history category of I. (Stephens had no criminal history points.)

Several offense characteristics increased the base offense level, including Stephens's use of a computer, knowledge of distribution, collection of more than 600 images, images with children under twelve years of age, and depictions of sadistic or masochistic abuse of children. See § 2G2.2(b). The officer separately recommended a below-guideline sentence of 108 months, however, reasoning that the two-level enhancement for using a computer is outdated. But the officer also suggested that an upward variance could be appropriate because Stephens possessed such a large quantity of child pornography and because the first search of his home had no deterrent effect as he went on to re-establish his collection.

Stephens asked the court to sentence him to the five-year mandatory minimum. In support, he relied on the probation officer's policy disagreement with the computer-based guideline enhancement. Stephens also argued that adopting a total of fifteen offense levels’ worth of enhancements would result in an artificially high sentence. See United States v. Dorvee , 616 F.3d 174, 184 (2d Cir. 2010). He also cited a psychosexual evaluation he underwent with a clinical psychologist, who concluded that, as a child-pornography only (i.e., "no-contact") offender, Stephens was unlikely to "sexually offend in the future." Finally, Stephens asserted, his autism

spectrum disorder, avoidant personality disorder, and depression diagnoses reduced his need for deterrence.

At the sentencing hearing, Stephens agreed to the guideline calculation and briefly reiterated his written arguments. He explained why he resumed amassing child pornography after officers initially seized his collection. He said that he had not yet been arrested and, at the time, believed: "I did nothing wrong, and I ... got bored." More recently, his attorney explained, Stephens had taken "significant steps" to "make sure he does not re-offend," including participating in a cognitive skills class, behavioral treatment

, and reflection.

After adopting the PSR's guideline calculations without objection, reviewing the supplemental reports and submissions, and hearing the parties’ arguments, the district court sentenced Stephens to 151 months in prison. The court began its reasoning with the "most blatant factor," the "seriousness of [Stephens's] offense." He collected "a staggering amount, more than anything I've ever heard of." (To be clear, transporting or possessing one image of child pornography is a felony. The Guidelines increase the offense level by two levels for 10 or more images, by three levels for 150 or more images, by four levels for 300 images or more, and by five levels for 600 or more images. Stephens possessed more than 320 times the 600 images needed to max out on the guideline factor.)

And the images went beyond "mere" child pornography, which is awful enough to warrant some of the most severe penalties under federal criminal law. These images depicted violent, traumatic, and sadistic abuse. The court's overriding apprehension was with "[t]he number of children seriously and irreversibly traumatized by the making of these pictures and videos."

The court was also "very concerned about [Stephens's] ability to rehabilitate." The initial seizure, "despite Stephens statements ... had no deterrent effect whatsoever as [Stephens] found the means to collect yet another 10,000 images." And, although the court doubted that Stephens could "realize the pure evil of these images," it emphasized that his professed inability to understand was "chilling because it tells us that in the future, there is nothing to prevent him from continuing to do this." The court noted that Stephens was beginning to understand the consequences of his actions but said "it would be a grave risk" to impose a below-guideline sentence. The court also considered general deterrence, hoping to signal "that anyone who engages in this voluntary behavior is risking grave consequences."

II. Analysis

Stephens raises three procedural challenges to his sentence, which we review de novo. United States v. Gill , 889 F.3d 373, 377 (7th Cir. 2018).

A. The Probation Officer's Recommendation

Stephens first argues that the district court erred when it did not explicitly address on the record the probation officer's separate recommendation of a below-guideline sentence. He contends that the court must articulate reasons for disregarding such a recommendation, at least if the defendant relies on it.

This argument is profoundly mistaken, and we are publishing this as a precedential opinion to make this point. A district court need not address a probation officer's recommendation at sentencing. Our ruling is not intended as any disrespect for the valuable work that probation officers do. All members of this panel have benefited from thoughtful advice from probation officers. A big part of the work of federal probation officers is to provide invaluable information and insight to district courts for sentencing decisions. Ultimately, however, probation officers work for the court. It is then up to the court to decide whether even to disclose their recommendations (as distinct from the PSR and its guideline calculations). The court also decides how to weigh those recommendations.

We have explained before that district courts are not required to give any deference to a probation officer's recommendation in a PSR, let alone to explain a disagreement on the record. See United States v. Schuler , 34 F.3d 457, 461 (7th Cir. 1994) (court not required to make findings about "inappropriateness of [the probation officer's] recommendation"); United States v. Guadagno , 970 F.2d 214, 224 (7th Cir. 1992) (same, regarding a probation officer's acceptance-of-responsibility endorsement); United States v. Heilprin , 910 F.2d 471, 474–75 n.7 (7th Cir. 1990) (court is "at all times perfectly free to disagree with the probation officer's position").

The probation officer's recommendation may be persuasive and even compelling on its merits. But there is no legal reason for requiring the court to give it any particular weight apart from its inherent persuasiveness. Defendants are not legally entitled to know probation officers’ recommendations. See Heilprin , 910 F.2d at 474 (no constitutional or statutory right to be informed of a probation officer's sentencing recommendation); Fed. R. Crim. P. 32(e)(3) ("By local rule or by order in a case, the court may direct the probation officer not to disclose to anyone other than the court the officer's recommendation on the sentence."). The district judge here was free to disclose the recommendation, but that disclosure did not trigger a new procedural requirement that the judge discuss the recommendation on the record.

Stephens contends that this court overturned the Heilprin line of cases in United States v. Peterson , 711 F.3d 770, 778–79 (7th Cir. 2013), where in dicta we urged courts to consider releasing confidential sentencing recommendations to the parties. Different judges have different perspectives on the discretionary choice whether to disclose confidential recommendations. There are reasonable arguments on both sides of that question, and the better course may differ from case to case. But there is no legal conflict here.

Peterson reiterated that a defendant does not have a legal right to see the confidential recommendation, at least as long as the recommendation does not put new factual information before the court. Id. at 778. And Peterson reinforced that the choice about disclosing a recommendation is up to the judge. Id. at 779.¹

Returning to this case, the district court did release the recommendation to the parties, and Stephens was able to comment on it. He did so, saying that the probation officer had considered a minimum sentence. But the officer increased the recommendation (though still below the range) because Stephens had committed new child...