Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS October 23, 2024
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. Nos. 23-2155 & 23-2156
THOMAS CROSBY,
Defendant - Appellee. _________________________________
Appeals from the United States District Court for the District of New Mexico (D.C. No. 1:22-CR-00864-DHU-1) (D.C. No. 1:20-CR-01766-DHU-1) _________________________________
Tiffany L. Walters, Assistant U.S. Attorney, Office of the United States Attorney (Alexander M.M. Uballez, United States Attorney, with her on the briefs), Albuquerque, New Mexico, for Plaintiff – Appellant.
Amanda Skinner, Assistant Federal Public Defender, Office of the Federal Public Defender, Las Cruces, New Mexico, for Defendant – Appellee. _________________________________
Before HOLMES, Chief Judge, BALDOCK, and McHUGH, Circuit Judges. _________________________________
McHUGH, Circuit Judge. _________________________________
Appellant United States of America challenges the substantive reasonableness
of Appellee Thomas Crosby’s five-day, time-served sentence for possession of child Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 2
pornography. We agree the sentence was not substantively reasonable. Accordingly,
we vacate the sentence and remand to the district court for resentencing.
I. BACKGROUND
A. Facts
In 2018, Mr. Crosby served in the Air Force on active duty stationed at
Cannon Air Force Base in Clovis, New Mexico. In November 2018, federal agents
executed a search warrant on his home and seized his electronic devices after
investigating his IP address for possible engagement with child pornography. During
the search, the agents interviewed Mr. Crosby, and he admitted to possession of child
pornography and revealed that he began obtaining child pornography at the age of
sixteen. A subsequent search of Mr. Crosby’s electronic devices found over 4,000
files of minors, including prepubescent minors, engaged in sexually explicit conduct.
Mr. Crosby was administratively separated from the Air Force in June 2019,
and shortly thereafter, he returned to his hometown of Irwin, Pennsylvania. In
September 2020, Mr. Crosby was indicted in the District of New Mexico on one
charge of possession of visual depictions of minors engaged in sexually explicit
conduct, in violation of 18 U.S.C. §§ 2252(a)(5)(B), (b)(2), and 2256. Mr. Crosby
was arrested in October 2020, in Pennsylvania, pursuant to an arrest warrant issued in
the District of New Mexico, and he admitted to continuing to download child
pornography in the time since the 2018 seizure. The FBI executed a search warrant
on his home, seized his electronic devices, and after forensic examination, found
“approximately forty-six images and 166 videos of minors engaged in sexually 2 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 3
explicit conduct,” including “a video of a prepubescent child, approximately three
years old.” ROA Vol. I at 20. Following this arrest, Mr. Crosby was held in custody
for five days before being released on pretrial conditions. In May 2022, a grand jury
in the Western District of Pennsylvania indicted Mr. Crosby on one count of
possession of visual depictions of prepubescent minors engaged in sexually explicit
conduct in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2), and 2256. Pursuant to
Federal Rule of Criminal Procedure 20, jurisdiction over this case was transferred to
the District of New Mexico, and the proceedings in the two cases were consolidated.
B. Guilty Plea and Sentencing Memoranda
Mr. Crosby entered a guilty plea as to both charges in September 2022.
Probation prepared a presentence report (“PSR”), grouping together the two offenses.
Mr. Crosby’s total offense level was 28, which was calculated as follows. First, the
PSR calculated a base offense level of 18. The PSR then added four enhancements
for special offense characteristics: two points because “the material involved a
prepubescent minor or a minor who had not attained the age of 12 years,” pursuant to
U.S. Sentencing Commission Guidelines § 2G2.2(b)(2); four points because “the
offense involved material that portrays (A) sadistic or masochistic conduct or other
depictions of violence; or (B) sexual abuse or exploitation of an infant or toddler,”
pursuant to Guidelines § 2G2.2(b)(4); two points because “the offense involved the
use of a computer or an interactive computer service for the possession, transmission,
receipt, or distribution of the material or for accessing with intent to view the
material,” pursuant to Guidelines § 2G2.2(b)(6); and five points because “the offense 3 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 4
involved 600 or more images,” pursuant to Guidelines § 2G2.2(b)(7)(D). ROA
Vol. II at 11–12. The PSR also decreased the offense level by two points for
acceptance of responsibility and by one point for Mr. Crosby’s timely notification of
his intention to enter a guilty plea. Mr. Crosby had a total criminal history score of 0,
meaning he had a criminal history category of I. Accordingly, the PSR calculated
Mr. Crosby’s Guidelines range as 78–97 months.
In its sentencing memorandum, the Government requested a bottom-of-the-
Guidelines sentence of 78 months. Mr. Crosby filed a more substantial sentencing
memorandum, in which he argued that, considering his history and circumstances, a
non-custodial sentence was warranted. Mr. Crosby first argued that “[t]he specific
offense characteristics applied in this case do not accurately reflect the seriousness of
this offense relative to the typical child pornography possession case,” focusing on
the “[t]wo-level enhancement for the age of victims,” “[f]our-level enhancement for
sadistic/masochistic images,” “[f]ive-level enhancement for number of images,” and
“[t]wo-level enhancement for use of a computer.” Id. at 38–41.
Next, Mr. Crosby argued that the district court “should vary on policy grounds
because U.S.S.G. § 2G2.2 is not supported by empirical evidence about child
pornography offenses or offenders.” Id. at 41–58. On this point, Mr. Crosby
discussed how the Guidelines range had increased over time and submitted evidence
to dispute commonly held beliefs concerning child pornography offenders, such as
that (1) child pornography possessors use child pornography to abuse children,
(2) severe punishment for possession will impact the market and curb abuse of
4 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 5
children, and (3) severe sentences for possession deter would-be child abusers.
Mr. Crosby claimed that the 2004 Amendments to the Guidelines, which established
the Guidelines range he faced, were not based on empirical evidence or national
experience, and he argued that the original 1991 Guidelines range was more
appropriate. Finally, Mr. Crosby submitted a forensic psychiatric evaluation by
Dr. Michelle Joy concerning Mr. Crosby’s recent autism spectrum disorder (“ASD”)
diagnosis, the link between ASD and child pornography, Mr. Crosby’s low risk of
recidivism, and how Mr. Crosby could benefit from treatment.
C. Sentencing Hearings
During the first of two sentencing hearings, the parties presented their
arguments and Mr. Crosby presented his allocution. As to Mr. Crosby’s request for a
sentence of time served, the district court expressed concern over the variance
Mr. Crosby sought, especially given “the seriousness of the charges.” ROA Vol. I
at 51. The district court further noted the Government had made the discretionary
choice to consolidate the two convictions and that without the consolidation, a
second conviction would have warranted a ten-year minimum sentence under 18
U.S.C. § 2252A(b)(2). After Mr. Crosby gave his allocution, the district court
continued the sentencing hearing to consider the arguments and materials presented
by the parties before announcing a sentence.
At the continued sentencing hearing, the district court accepted the plea
agreement and adopted the PSR’s factual findings. Id. at 88. The district court then
explained that, after considering the reports and studies submitted by Mr. Crosby and 5 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 6
Dr. Joy’s forensic evaluation, it determined “that a lengthy custodial sentence is not
warranted in this matter.” Id. at 88. After listing the 18 U.S.C. § 3553(a) factors, the
district court made the following findings:
[Mr. Crosby] has no adult criminal convictions or juvenile adjudications. There’s no evidence or allegation that [Mr. Crosby] has ever molested children. The crime to which [Mr. Crosby] has pled guilty is serious and concerning, but the Court notes that [Mr. Crosby] was diagnosed with long-standing untreated autism spectrum disorder. Dr. Joy evaluated [Mr. Crosby] and presented several professional opinions regarding Mr. Crosby. Based on those opinions and the scientific studies relied on by Dr. Joy, the Court finds that [Mr. Crosby] has long suffered from untreated autism as well as having depression. As opined by Dr. Joy, to a reasonable degree of medical certainty, Mr. Crosby’s current crime is related to his diagnosis, his social deficits, and his restricted interests. Individuals with autism are vulnerable to engaging in child pornography. Their lack of social skills can lead to limited sexual intimacy and friendships turning to pornography for sexual activity. Significantly, [Mr. Crosby] does not suffer from pedophilia. Individuals who commit child pornography offenses are [at a] lower risk for recidivism than other sex offenders. Autistic individuals, like [Mr. Crosby], are likely to follow rules when set in place. In sum, his amenability to treatment, possibility of benefiting from specialized treatment, low risk of recidivism, and high vulnerability in prison make him a good candidate for community-based treatment.
Id. at 89–90.
The district court went on to note that Mr. Crosby “has been on conditions of
release since October 20, 2020, and during that time, he has participated in mental
health treatment. He is currently employed full-time. According to the U.S. Probation
Office, Mr. Crosby has also done well . . . with regards to compliance with his
conditions of supervised pretrial release.” Id. at 90–91. As to the enhancements that
led to his high Guidelines range, the district court noted that “[t]hese enhancements
[2G2.2(b)(2), (b)(4), (b)(6) and (b)(7)] capture conduct that is part of the vast
6 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 7
majority of child pornography possession offenses. The 2021 Sentencing
Commission report finds these enhancements were initially intended to target more
serious and more culpable offenders.” Id. at 91. Turning to the risk of recidivism, the
district court explained Mr. Crosby had “presented persuasive empirical research that
indicates more severe sentences do not reduce recidivism . . . The overwhelming
consensus is that treatment works; incarceration does not.” Id. And as to restitution,
the district court explained that “in order to have the ability to pay restitution to the
victims, [Mr. Crosby] needs to be employed.” Id. at 92.
The district court ultimately sentenced Mr. Crosby to “five days or time
served, whichever is less,” along with a fifteen-year term of supervised release. Id.
at 92. The district court then pronounced an extensive series of special conditions,1 in
addition to the mandatory and standard conditions of supervised release. The court
also ordered Mr. Crosby to pay each of the six identifiable victims $2,000 in
restitution. Neither party raised legal objections to the sentence at that time.
1 These special conditions include, inter alia, five years of GPS location monitoring; participation in an outpatient substance abuse treatment program; substance abuse testing; participation in a mental health treatment program; diligent use of all prescribed mental health medications; undergoing a sex-offense-specific assessment and participating in any subsequently recommended sex offender treatment; a prohibition on viewing or possessing material depicting sexually explicit content; a prohibition on unauthorized direct contact with minors; a restriction from engaging in occupations with direct access to children without prior approval; a prohibition from being within 100 feet of schoolyards, parks, playgrounds, arcades, or other places used primarily by children; a prohibition on volunteering in any activities involving supervision of children or adults with disabilities; and participation in the Probation Office’s Computer Restriction and Monitoring Program. 7 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 8
However, the Government timely appealed, challenging the sentence’s
substantive reasonableness.
II. STANDARD OF REVIEW
“We review a district court’s sentencing decision for substantive
reasonableness under an abuse-of-discretion standard, looking at the totality of the
circumstances.” United States v. Cookson, 922 F.3d 1079, 1090 (10th Cir. 2019)
(internal quotation marks omitted). “A district court abuses its discretion when it
renders a judgment that is arbitrary, capricious, whimsical, or manifestly
unreasonable.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009)
(quotation marks omitted). This standard applies “without regard to whether the
district court imposes a sentence within or outside the advisory guidelines range.” Id.
As such, “we do not apply a presumption of unreasonableness to sentences outside
the guidelines range.” Cookson, 922 F.3d at 1090. “Instead, we give due deference to
the district court’s decision that the § 3553(a) factors, on the whole, justify the extent
of the variance.” Id. at 1090–91 (internal quotation marks omitted). “That we might
reasonably have concluded a different sentence was appropriate is insufficient to
justify reversal of the district court.” Id. at 1091 (quotation marks omitted).
In conducting this review, we recognize that the district court “is in a superior
position to find facts and judge their import under § 3553(a) in the individual case.”
Gall v. United States, 552 U.S. 38, 51 (2007). “The judge sees and hears the
evidence, makes credibility determinations, has full knowledge of the facts and gains
insights not conveyed by the record.” United States v. Barnes, 890 F.3d 910, 915–16
8 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 9
(10th Cir. 2018) (quoting Gall, 552 U.S. at 51). And when, as here, “we review a
downward variance from the recommended guidelines range . . . even more solicitude
to the sentencing court is appropriate.” Id. at 916. At the same time, “[a] ‘major’
variance should have ‘a more significant justification than a minor one.’” United
States v. Lente, 759 F.3d 1149, 1158 (10th Cir. 2014) (“Lente II”) (quoting Gall, 552
U.S. at 50).
III. ANALYSIS
The Government challenges the substantive reasonableness of Mr. Crosby’s
sentence on the grounds it does not (1) reflect Mr. Crosby’s history and
characteristics and the nature and characteristics of his offense, pursuant to
§ 3553(a)(1); (2) reflect the seriousness of the offense, promote respect for the law,
or provide just punishment, pursuant to § 3553(a)(2)(A); (3) give weight to the need
for general deterrence, pursuant to § 3553(a)(2)(B); (4) reflect the need for
incapacitation, pursuant to § 3553(a)(2)(C); (5) properly reflect the sentencing range
established for this category of offense, in light of the district court’s policy
disagreement, pursuant to § 3553(a)(4); (6) avoid unwarranted sentencing disparities,
pursuant to § 3553(a)(6); and (7) consider the need for restitution to the victims and
the need to rehabilitate Mr. Crosby, pursuant to §§ 3553(a)(2)(D) and (a)(7).
Mr. Crosby responds that the sentence is not substantively unreasonable because it
9 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 10
reflects the seriousness of the offense, affords adequate deterrence, avoids
unwarranted sentencing disparities, and provides restitution.2
We agree with the Government that the sentence is substantively unreasonable
because the time-served sentence imposed does not account for retribution or general
deterrence pursuant to § 3553(a)(2)(A) and (B), reflect the sentencing range
established pursuant to § 3553(a)(4), nor avoid unwarranted sentencing disparities
pursuant to § 3553(a)(6).3 We first discuss the standards for reviewing the
reasonableness of a sentence, we next discuss our precedent that guides the outcome
in this case, and finally we turn to an analysis of why the sentence is substantively
unreasonable for failing to discuss the § 3553(a) factors of retribution, general
deterrence, avoiding unwarranted sentencing disparities, and reflecting the sentencing
range established by the Guidelines.
A. Sentencing Factors and Reasonableness Review
Section 3553(a) requires district courts to consider seven factors in sentencing:
(1) the nature and circumstances of the offense and the history and characteristics of
2 Mr. Crosby also argues that the Government is really making a procedural reasonableness argument—one it forfeited due to its failure to object to the sentence before the district court. We agree with the Government that this is a substantive reasonableness challenge. We discuss later the relationship between procedural and substantive reasonableness in the specific context of a sentencing decision that does not discuss all the § 3553(a) factors. 3 Because we remand for resentencing on this basis, we do not consider the remaining arguments on appeal concerning Mr. Crosby’s history and characteristics and the nature and characteristics of his offense (§ 3553(a)(1)), incapacitation (§ 3553(a)(2)(C)), restitution (§ 3553(a)(2)(D)), or rehabilitation (§ 3553(a)(7)).
10 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 11
the defendant; (2) the need for a sentence to reflect the “basic aims of sentencing,
namely (a) ‘just punishment’ (retribution), (b) deterrence, (c) incapacitation, and
(d) rehabilitation,” United States v. Walker, 844 F.3d 1253, 1256 (10th Cir. 2017);
(3) the kinds of sentences available; (4) the kinds of sentence and the sentencing
range established in the Guidelines; (5) Sentencing Commission policy statements;
(6) the need to avoid unwarranted sentencing disparities; and (7) the need for
restitution. 18 U.S.C. § 3553(a)(1)–(7).
District courts imposing sentences are charged with “engag[ing] in a holistic
inquiry of the § 3553(a) factors,” Lente II, 759 F.3d at 1174 (quotation marks
omitted), and “consider[ing] every convicted person as an individual,” Gall, 552 U.S.
at 52 (quoting Koon v. United States, 518 U.S. 81, 113 (1996)). A district court
should not rely solely on one § 3553(a) factor without addressing other relevant
factors. See Walker, 844 F.3d at 1259. At the same time, “the district court need not
afford equal weight to each § 3553(a) factor,” and we defer “not only to a district
court’s factual findings but also to its determinations of the weight to be afforded to
such findings.” Cookson, 922 F.3d at 1094 (quotation marks omitted).
“[W]e review sentences imposed by the district court for reasonableness.” Id.
at 1091. “[R]easonableness review has two aspects: procedural and substantive.”
See id. Review of procedural reasonableness considers “whether the district court
committed any error in calculating or explaining the sentence.” Id. (quotation marks
omitted). Review of substantive reasonableness turns on “whether the length of the
11 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 12
sentence is reasonable given all the circumstances of the case in light of the factors
set forth in 18 U.S.C. § 3553(a).” Id. (quoting Friedman, 554 F.3d at 1307).
We have acknowledged the “murky” nature of the distinction between
procedural and substantive reasonableness when a challenge is based on the district
court’s explanation of the § 3553(a) factors. Id. at 1091. This is because “the district
court’s explanation for a given sentence services a ‘dual purpose’”—it is both a
procedural requirement and an explanation “‘relevant to whether the length of the
sentence is substantively reasonable’ because ‘a sentence is more likely to be within
the bounds of reasonable choice when the court has provided a cogent and reasonable
explanation for it.’” Id. (citing Barnes, 890 F.3d at 917). “A limited, brief, or
inconsistent explanation” can hinder our review of a sentence’s substantive
reasonableness. Id. Therefore, we have concluded a sentence is substantively
unreasonable where the district court placed “nearly exclusive focus” on one
§ 3553(a) factor and did not explain the weight afforded to other factors, preventing
us from deferring to its determination that the sentence was supported by all the
§ 3553(a) factors. Id. at 1094–95.
B. United States v. Cookson
Our earlier decision in United States v. Cookson is instructive as to the
substantive reasonableness analysis in this case.4 Mr. Cookson was also charged with
4 Mr. Crosby argues that United States v. Cookson is inapposite, chiefly because “Mr. Crosby is not a ‘recidivist offender’” as Mr. Cookson was. Appellee’s Br. at 19–20 (citing 922 F.3d 1079, 1085 (10th Cir. 2019)). But as we will explain, the analysis in Cookson turned on the district court’s lack of explanation as to the 12 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 13
two counts of possessing child pornography under 18 U.S.C. § 2252A(a)(5)(B). Id.
at 1084. After Mr. Cookson entered into a plea agreement, a PSR calculated his base
offense level as 18 but increased that level to 28 based on similar enhancements to
those in this appeal, including material involving a prepubescent minor and the
possession of more than 600 images. Id. at 1084–85. After factoring in
Mr. Cookson’s criminal history, the PSR calculated a Guidelines range of 97–121
months’ imprisonment. Id. at 1085.
The Government argued the § 3553(a) factors supported a within-Guidelines
sentence of 97 months because, inter alia, Mr. Cookson had continued to view child
pornography after being caught, had examined the material for years, and was
involved in social networks associated with child exploitation. Id. at 1085.
Mr. Cookson requested a sentence of five years’ probation, highlighting his
rehabilitation from drug addiction and the fact he had held a steady job for twenty-
one months. Id. He also “highlighted a policy disagreement with the § 2G2.2
sentencing enhancements, noting they apply in the majority of cases and have been
criticized by the U.S. Sentencing Commission and various courts.” Id. At the
sentencing hearing, Mr. Cookson further elaborated that a “sentence of probation
would allow Mr. Cookson to continue contributing to society and personally moving
in a positive direction,” whereas “imprisonment would have Mr. Cookson go
weight given to § 3553(a)(2) factors, which was particularly stark in light of the major downward variance given to Mr. Cookson. See Cookson, 922 F.3d at 1092–96. This analysis bears directly on the arguments made in this appeal. 13 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 14
backwards rather than forwards.” Id. at 1086. The district court ultimately agreed
with Mr. Cookson and sentenced him to five years’ probation, discussing extensively
Mr. Cookson’s rehabilitation but not discussing other § 3553(a) factors including
deterrence, rehabilitation, incapacitation, and avoiding unwarranted sentencing
disparities. Id. at 1086–87, 1094.
On appeal, the Government challenged the sentence of five years’ probation as
substantively unreasonable, focusing much of its argument on the district court’s
failure to consider various § 3553(a) factors. Id. at 1090. We agreed that the district
court had focused its explanation of Mr. Cookson’s sentence “primarily in terms of
§ 3553(a)(1), specifically referencing Mr. Cookson’s (1) recovery from drug
addiction, (2) success in a new job, and (3) support from his family.” Id. at 1092. We
noted that while these factors “could reasonably support a downward variance, even a
large one, under 18 U.S.C. § 3553(a)(1),” where the court “made no mention of
deterrence, rehabilitation, or incapacitation in explaining Mr. Cookson’s sentence”
and did not address “unwarranted sentencing disparities,” we could not defer to the
district court’s reasoning and found the sentence substantively unreasonable. Id.
at 1093–94.
C. Application
Cookson largely compels the outcome here. As in Cookson, the district court
focused its explanation of the sentence almost entirely on § 3553(a)(1): the history
and characteristics of the defendant. The district court emphasized Mr. Crosby’s
previously undiagnosed ASD, his potential for rehabilitation outside of prison, and 14 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 15
the unlikeliness he will reoffend. However, the district court did not discuss several
of the § 3553(a) factors, specifically retribution, deterrence, avoiding unwarranted
sentencing disparities, and consideration of available sentences under the Guidelines.
In light of the significant downward variance from the Guidelines range to the five-
day time-served sentence, the district court was required to provide a “significant
justification” for its sentencing decision. Cookson, 922 F.3d at 1092 (quoting Gall,
552 U.S. at 50). The district court’s failure to discuss multiple Guidelines factors
impedes our review and compels the conclusion the sentence is not substantively
reasonable.
Mr. Crosby resists this conclusion, arguing the sentence was substantively
reasonable and that the district court’s “careful analysis of these factors provides
‘significant justification’ for the sentence imposed.” Appellee’s Br. at 13 (quoting
Gall, 552 U.S. at 50). We disagree—for the reasons explained below, we hold the
sentence was substantively unreasonable for not providing any reasoning concerning
retribution, general deterrence, preventing unwarranted sentencing disparities, and
considering the range of available sentences under the Guidelines.
1. Retribution
Section 3553(a)(2)(A) requires sentencing courts to consider the need for the
sentence “to reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense,” or in one word, “retribution.” Walker,
844 F.3d at 1256. There is no indication from the district court’s explanation that it
considered this factor, including in its imposition of restitution and supervised 15 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 16
release. While the district court mentions this factor and states it “evaluat[ed]” it, its
explanation focused on Mr. Crosby’s “amenability to treatment, possibility of
benefiting from specialized treatment, low risk of recidivism, and high vulnerability
in prison”; the district court’s policy disagreement with the Guidelines; and evidence
that a longer sentence would not reduce recidivism. ROA Vol. I at 89–90. The district
court acknowledged the seriousness of the offense at the first sentencing hearing, but
in imposing the sentence, it made no mention of the need to promote respect for the
law, or the need for just punishment. Therefore, the district court provided no
indication it considered the need for Mr. Crosby’s sentence to “reflect the seriousness
of [his] offense, to promote respect for the law, and to provide just punishment,”
rendering the sentence substantively unreasonable. 18 U.S.C. § 3553(a)(2)(A).
Mr. Crosby argues that the $12,000 restitution and fifteen-year supervised
release term imposed by the district court serve as just punishment and involve a
“substantial restriction of freedom.” Appellee’s Br. at 14 (quoting Gall, 552 U.S.
at 48). But the district court did not indicate it was imposing either restitution or
supervised release for retributive purposes. And even if it had, imposing supervised
release for retributive purposes would have been improper. We recently held that
“when a statute uses mandatory language to direct a court to consider some but not
all § 3553(a) sentencing factors, it is procedural error to consider an unenumerated
factor.” United States v. Booker, 63 F.4th 1254, 1260 (10th Cir. 2023). Of particular
relevance here, 18 U.S.C § 3583(c), which governs the imposition of supervised
release, directs courts not to consider § 3553(a)(2)(A). Id. at 1260. Thus, even if the
16 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 17
district court had stated that the fifteen-year term of supervised release was imposed
for retributive purposes, such a conclusion would have been procedurally improper.
2. General Deterrence
Section 3553(a)(2)(B) requires sentencing courts to consider the need for the
sentence “to afford adequate deterrence to criminal conduct.” This court has
previously recognized that “[g]eneral deterrence . . . is one of the key purposes of
sentencing.” Walker, 844 F.3d at 1257 (second alteration in original) (quoting United
States v. Medearis, 451 F.3d 918, 920 (8th Cir. 2006)). “This purpose becomes
particularly important when the district court varies substantially from the sentencing
guidelines.” Id. at 1258. But here, the district court did not give any indication it
considered whether Mr. Crosby’s sentence afforded adequate general deterrence,
which is particularly problematic where the district court deviated so far from the
Guidelines range.
To be sure, this court has affirmed downward variances when the district court
has expressly engaged in a “careful discussion” “walk[ing] through” each of the
§ 3553(a) factors, including “general deterrence advanced by their sentences.”
Cookson, 922 F.3d at 1094 (quoting Barnes, 890 F.3d at 914). In United States v.
Barnes, we affirmed a sentence where the district court expressly considered how the
sentence imposed “would properly deter similarly-situated [persons] who learn of the
facts surrounding this case and may be tempted to engage in similar conduct.” 890
F.3d at 918 (internal quotation marks omitted). This court has likewise noted that
failure to consider the factor of general deterrence may be a basis for finding a 17 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 18
sentence substantively unreasonable. Id. at 920 (citing United States v. Morgan, 635
F. App’x 423, 448 (10th Cir. 2015)).
Here, the district court’s failure to consider the general deterrence factor
compels the conclusion the sentence was substantively unreasonable. The district
court never once discussed the need for deterring anyone aside from Mr. Crosby from
engaging in this conduct, either in the May 2023 sentencing hearing or in the
pronouncement of sentence. True, the district court did discuss deterring Mr. Crosby
from future conduct. But nowhere in the district court’s discussion of the reasons
articulated for the sentence does the court address the need for the sentence to act as
a general deterrent to those who might otherwise seek to possess child pornography.
Given both the important role of general deterrence in sentencing and the significant
justification this court seeks in affirming a substantial variance, the district court’s
failure to demonstrate that this factor was adequately considered and properly
weighed makes the sentence substantively unreasonable.5
3. Avoiding Unwarranted Sentencing Disparities
Section 3553(a)(6) requires sentencing courts to consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” It is “a critical sentencing factor.” United
States v. Lente, 647 F.3d 1021, 1039 (10th Cir. 2011) (“Lente I”). Like all other
5 While Mr. Crosby briefly argues the restitution ordered provides general deterrence, he provides no support for this contention either in the district court’s order or in caselaw. 18 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 19
statutorily required considerations in sentencing, for this court to properly review the
consideration afforded to avoiding unwarranted sentencing disparities, the district
court must explain its reasoning in light of all the § 3553(a) factors. See Cookson,
922 F.3d at 1094. “Without any explanation from the district court on the weight it
afforded [this critical factor] in granting [the defendant] such a large variance, we
consider the sentence as substantively unreasonable.” Id.
While Mr. Crosby argues his ASD diagnosis and personal circumstances are
“extremely unique” and therefore justify the sentencing disparity, the district court
did not express this rationale. Appellee’s Br. at 18. In fact, the district court engaged
in no discussion at all as to whether Mr. Crosby’s sentence avoids unwarranted
sentencing disparities and if it does not, why that factor should or should not weigh
heavily in the district court’s determination. In the absence of that discussion, we are
left to conclude the sentence is substantively unreasonable.
Moreover, Mr. Crosby fails to identify any other case where a comparably
situated defendant received a time-served sentence for possession of child
pornography, weighing against a conclusion that this factor supports his sentence.
See Walker, 844 F.3d at 1258 (concluding that a time-served sentence for a bank
robbery committed by a career offender created an unwarranted sentencing disparity,
bolstered by the defendant’s failure to identify a single case with a similar sentence).
This court has previously suggested that when a major variance is at play, the district
court proclaims a substantively reasonable sentence when it considers “comparative
data regarding the degree of” a defendant’s mens rea and “a thorough survey of
19 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 20
sentences entered by other federal courts for similar conduct.” Lente II, 759 F.3d
at 1175. The district court’s failure to adequately consider this factor as well as its
failure to explain its reasoning creates a facially unwarranted sentencing disparity
and is thus substantively unreasonable.
4. Consideration of Available Sentences
Finally, § 3553(a)(4) requires sentencing courts to consider “the kinds of
sentence and the sentencing range established for . . . the applicable category of
offense committed by the applicable category of defendant as set forth in the
guidelines.” The Government argues that the district court’s policy disagreements
with the Guidelines do not justify the sentence imposed here, because even without
the application of the contested sentencing enhancements, the Guidelines sentence
would be higher than time served.6 We agree with the Government that the district
court failed to give a sufficient explanation of how its policy disagreements with the
enhancements justified giving a sentence below the Guidelines range applicable in
the absence of those enhancements.
The district court explained that, looking to the 2021 Sentencing Commission
report filed by Mr. Crosby, the enhancements applied to him “were initially intended
to target more serious and more culpable offenders.” ROA Vol. I at 91. True enough,
6 Without the enhancements, the parties agree the Guidelines would have recommended a sentence above time served. Mr. Crosby contends the range would be 6–12 months, but relies on outdated Guidelines. The Government counters that, even without the enhancements, the range would be 18–24 months based on the current Guidelines. 20 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 21
“[w]e have described arguments criticizing the § 2G2.2 enhancements as quite
forceful and have specifically cautioned district courts to carefully apply the child
pornography distribution guideline and remain mindful that they possess broad
discretion in fashioning sentences under § 2G2.2.” Cookson, 922 F.3d at 1093
(internal quotation marks omitted). But in Cookson, where the district court made
only a vague reference to its “policy disagreement” in imposing a sentence far below
the Guidelines range, we held the sentence imposed was substantively unreasonable.
Id.
Here, the district court did not explain why, even in the absence of these
enhancements, a sentence substantially lower than what the lowest possible
Guidelines range recommended was nonetheless appropriate. While we may not
“use[] the percentage of a departure as the standard for determining the strength of
the justifications required” or create a “presumption of unreasonableness for
sentences outside the Guidelines range,” Gall, 552 U.S. at 47, here, the district court
provided no justification as to why—even in light of its policy disagreements with
the enhancements—a sentence below the lowest possible Guidelines range was
appropriate. This renders the sentence substantively unreasonable.
D. A Note on Remand
Although we have determined Mr. Crosby’s sentence was substantively
unreasonable and remand for resentencing, we “do not foreclose the possibility that a
more detailed explanation from the district court of the weight it afforded § 3553(a)
factors other than § 3553(a)(1) could yield a similar, but substantively reasonable, 21 Appellate Case: 23-2155 Document: 70-1 Date Filed: 10/23/2024 Page: 22
sentence on remand.” Cookson, 922 F.3d at 1096. In Cookson, we observed that “the
heavier our reliance on the inadequacy of the district court’s explanation” in holding
a sentence substantively unreasonable, “the less our decision restricts the bounds of
reasonable choice available to the district court in crafting a sentence on remand.” Id.
at 1092. “A sentence deemed substantively unreasonable primarily because of an
explanation too brief or cursory to justify the extent of its variance from the
Guidelines might be substantively reasonable given a more detailed explanation.” Id.
The district court must provide a holistic discussion of the § 3553(a) factors to justify
a sentence such as the one it imposed here as substantively reasonable.
IV. CONCLUSION
For these reasons, we hold that Mr. Crosby’s sentence is substantively
unreasonable. We therefore VACATE the district court’s decision sentencing
Mr. Crosby to five days’ time-served and REMAND for resentencing.