US v. Pape

• Decision Date: 15 April 2010
• Docket Number: No. 09-2336.,09-2336.
• Citation: 601 F.3d 743
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jason PAPE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

601 F.3d 743

UNITED STATES of America, Plaintiff-Appellee, v. Jason PAPE, Defendant-Appellant.

No. 09-2336.

United States Court of Appeals, Seventh Circuit.

Argued January 21, 2010.

Decided April 15, 2010.

Peter M. Jaros, Rita M. Rumbelow (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Michael W. Lieberman, Assistant Federal Public Defender (argued), Federal Defender Services, Madison, WI, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and CUDAHY and MANION, Circuit Judges.

CUDAHY, Circuit Judge.

Jason M. Pape pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and, on appeal, challenges his sentence. He was sentenced to 90 months' imprisonment followed by 20 years' supervised release. He now claims that the district court failed to address his non-frivolous arguments in support of a two-year sentence including a plea for leniency based on his personal history as an upstanding member of his community and his exceptional family responsibilities for his children, some of whom have disabilities. In addition, Pape contends that the district court failed to address his argument that disparities in the length of pornography sentences among different districts in Wisconsin and the purported lack of careful empirical study underpinning the child pornography Guidelines suggest that a sentence over two years is too high.

We affirm because the district court adequately considered Pape's arguments about his history and parenting responsibilities. Moreover, a district court is presumed to have considered arguments about unwarranted disparities if, as here, it sentences within or below the Guidelines, see United States v. Bartlett, 567 F.3d 901, 908 (7th Cir.2009). And, although district courts are certainly free to disagree with the child pornography Guidelines as applied to a particular case as long as the sentence imposed is reasonable, the district court here did not abuse its discretion when it implicitly rejected the imposition of a much lower sentence based on a disagreement with the Guidelines range.

I. Background

Pape has long been active in his Wisconsin community as a small-business owner and as a trustee for his church. He is also a father who helped care for his two children and three others he adopted when he married their mother, who was dying of cancer. Pape's stable caretaking was especially important to his adopted child, who suffered from autism. Prior to the indictment in the present case, Pape had no criminal history.

In 2008, Pape's daughter reported to the school guidance counselor that, while completing a homework assignment on her father's computer, she had discovered images of child pornography. Using the daughter's information, law enforcement executed a warrant and found images and movies of child pornography on Pape's computers and on a thumb drive, including depictions of children being sexually exploited while in bondage and prepubescent minors engaging in anal intercourse with adult males. Law enforcement, however, uncovered no persuasive evidence that he sexually abused his own children or actually abused any minors.¹ A grand jury returned an indictment charging Pape with possession of child pornography and containing a request for the forfeiture of his computer equipment. Pape eventually pleaded guilty to the possession count and agreed to forfeit the equipment.

At sentencing, the district court received letters containing testimonials to Pape's devotion to his children and to his selflessness towards members of the community. Pape asked for a sentence reduction based on the consequences of imprisonment to his family. The district court acknowledged Pape's positive role in his family and within the community, but also noted that Pape's ex-wife had described him as "manipulative, controlling, emotionally abusive, and obsessed with sex."

In support of his other arguments, Pape provided statistics describing the disparities in Wisconsin in sentencing for pornography crimes. According to the United States Sentencing Commission, in 2008, the mean sentence in the Western District of Wisconsin for pornography or prostitution offenses was 231.1 months (median 129 months), compared with 122.2 nationally (median 78) and 67.1 in the Eastern District of Wisconsin (median 60). Pape argued that these statistics prove that there are unwarranted disparities in sentencing across Wisconsin that the district court should have considered. Lastly, Pape highlighted concerns with the empirical underpinnings of the child pornography Guideline based, in part, on a 2008 paper by federal defender Troy Stabenow that was recently discussed by the Seventh Circuit in United States v. Huffstatler, 571 F.3d 620, 622-23 (7th Cir.2009). The government did not file a response but instead responded at the hearing to the arguments raised in the sentencing memorandum.

Before announcing its sentence, the district court explained, "I'm not here to balance the good and bad parts of people and say the good parts of this person outweigh the bad parts. I don't have the authority. I don't have the ability. That's to be done by somebody else. I am here to sentence what's bad, bad behavior." The district court then described Pape's positive and negative personal history and characteristics, explained its concerns with his family's inability to grasp that he had a problem with child pornography, and described the sadism depicted in the images as well as Pape's online conversations describing abuse of a close minor female relative. A few days after the sentence was imposed, the district court filed a written Statement of Reasons in which it restated its rationale for imposing its sentence and described the defendant's history and characteristics, his parenting, his works in the community and relevant offense conduct as well as related conduct. This appeal followed.

II. Standard of Review

Whether the district court followed proper sentencing procedure is a legal question reviewed de novo. United States v. Smith, 562 F.3d 866, 872 (7th Cir.2009). We must determine that the district court did not commit procedural error by, for example, failing to properly calculate the Guidelines range or by failing to consider the § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The district court is not required to consider every argument a defendant makes, but it must address the defendant's principal arguments that are "not so weak as to not merit discussion." United States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir. 2009) (quoting United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005)). If an argument of recognized legal merit has a factual basis but the district court fails to mention it, the court may have erred by failing to exercise its sentencing discretion. See Cunningham, 429 F.3d at 679.

Once a reviewing court has ensured itself that the sentencing procedure was proper, it reviews the substantive reasonableness of a sentence for an abuse of discretion and, on appeal, a correctly calculated, within-Guidelines sentence is entitled to a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). This presumption is also applied to below-Guidelines sentences. See United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008).

III. Discussion

Neither party objects to the calculation of the applicable Guidelines range of 97-120 months, which incorporates the 10-year statutory maximum for 18 U.S.C. § 2252(a)(4)(B). After reviewing the calculation, we have no reason to doubt that it was correctly computed. Instead, Pape argues that the district court ignored his four non-frivolous arguments in support of his recommendation for a two-year sentence. We address each one.

A. The district court properly addressed Pape's arguments concerning his personal history and characteristics and his family responsibilities.

First, Pape contends that the district court's statement, reproduced above, that it did not have authority to balance the good and bad parts of him was an admission that it did not consider the defendant's history and characteristics in sentencing him. It appears that the district court was merely stating that it was not authorized to render final judgment on the defendant's life and, in effect, emulate God at the Last Judgment. See United States v. Christiansen, 594 F.3d 571, 576-77 (7th Cir.2010) (rejecting an argument regarding a claim that the district court failed to consider the defendant's history and characteristics based on similar language used at the sentencing hearing). Moreover, the district court's oral statement is augmented by the Statement of Reasons the district court issued after the sentencing hearing. See United States v. Harris, 567 F.3d 846, 854 (7th Cir.2009) (evaluating both oral and written statements to determine whether the sentencing explanation was sufficient); Goldberg, 491 F.3d at 671 (same); cf. United States v. Baker, 445 F.3d 987, 991-92 (7th Cir. 2006) (declining to limit the appellate court's review to the written statement of reasons); but see United States v. Omole, 523 F.3d 691, 700 (7th Cir.2008) (finding that the sentence was unreasonable in part because the district court's statements at the sentencing hearing were contradicted by a subsequent written document that explained the court's reasons for deviating from the Guidelines). We have encouraged district courts to commit their sentencing decisions to paper in certain contexts to "create a surer path of communication with the reviewing court." See United States v. Higdon, 531 F.3d 561, 565 (7th Cir.2008). We must balance this suggestion with the acknowledgment that a district court must "state in open court the reasons for its imposition of the particular sentence." See 18 U.S.C. § 3553(c); see also ...