United States v. Freeman

415 F. App'x 721
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 18, 2011
DocketNos. 09-4035, 09-4063
StatusPublished
Cited by1 cases

This text of 415 F. App'x 721 (United States v. Freeman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Freeman, 415 F. App'x 721 (7th Cir. 2011).

Opinion

ORDER

Tammy Waiters and Raymond Freeman appeal from their respective sentences of 360 months’ imprisonment after they both pleaded guilty to producing child pornography with Watters’s seven-year-old son. Watters maintains that her sentence is unreasonably high. Freeman’s appointed lawyer, however, has moved to withdraw because he cannot identify any nonfrivo-lous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). For the following reasons, we affirm Watters’s sentence, grant Freeman’s lawyer’s motion to withdraw, and dismiss Freeman’s appeal.

In 2008 Watters lived in a house with several people, including Freeman and Watters’s seven-year-old autistic son, RW. Over the course of the year, Freeman and Watters produced six pornographic videos depicting one or both adults engaging in sexual conduct with RW and directing RW to perform sexual acts with them. In 2009 a girl visiting Freeman’s son at the house noticed some DVDs bearing suggestive titles and RW’s name. She took two of the videos, watched them, and told Freeman’s son that she intended to turn over the videos to the police. Freeman’s son told his father, who presumably informed Wat-ters because she promptly asked another resident of the house to hide some of the videos in their attic. The police arrived with a search warrant and seized many of the videos; Watters’s housemate turned the hidden videos over to the police several days later. The Illinois Department of Children and Family Services removed RW from the home.

The police arrested Freeman and Wat-ters, and a grand jury charged them with producing child pornography, 18 U.S.C. § 2251(a), and criminal forfeiture, 18 U.S.C. § 2253. Both initially pleaded not guilty but changed their pleas to guilty without plea agreements. At sentencing the court assessed Watters’s total offense level at 46 and Freeman’s at 44, both of which were reduced to the maximum offense level of 43. See U.S.S.G. § 5A, cmt. n.2. Watters had a category I criminal history and Freeman was category IV, yielding an advisory guidelines range for both of life imprisonment. But their guidelines sentences dropped to 360 months, the statutory maximum under 18 U.S.C. § 2251(e). The judge ultimately [723]*723sentenced each to 360 months. Watters surrendered her parental rights to RW.

1. Watters’s Appeal

On appeal Watters first argues that the sentencing judge erred because he presumed her guidelines sentence of 360 months was reasonable and did not treat the guidelines as purely advisory. But her argument lacks merit because the court did not state that it applied any such presumption or that it was compelled to follow the guidelines. A sentencing judge must calculate the guidelines range accurately so that it can be drawn upon for insight, but the judge must ultimately tailor a particular sentence based on the 18 U.S.C. § 3553(a) factors without having a “thumb on the scale” in favor of the guidelines. United States v. Sachsenmaier, 491 F.3d 680, 685 (7th Cir.2007). Here, the court accurately calculated the guidelines and then explained that the § 3553(a) factor of deterrence predominated its decision because Watters had no mitigating physical or mental condition that made her unable to control herself. After describing the offense as one of the worst cases of child abuse it had seen, the court said it considered Watters to be a danger to the community and decided to impose a maximum sentence to deter her and others from committing the same crime. It did not presume that the sentence was reasonable merely because it was within the guidelines.

Watters also challenges her sentence on the grounds that a 360-month guidelines sentence is unreasonably high for a first-time sex offender. But we have repeatedly rejected challenges to sentencing based solely on policy disagreements with the child pornography guidelines. See United States v. Coopman, 602 F.3d 814, 819 (7th Cir.2010); United States v. Huffstatler, 571 F.3d 620, 624 (7th Cir.2009). Sentencing judges may currently impose sentences below the guidelines range to avoid injustice, and any ultimate solution is the responsibility of Congress and the Sentencing Commission, not the courts. United States v. Mantanes, 632 F.3d 372, 376-77 (7th Cir.2011).

Watters next contends that the district court did not properly apply the § 3553(a) factors because it did not address her arguments in mitigation that she had almost no criminal history and had accepted responsibility by pleading guilty and giving up her parental rights. But a court is not required to address every potential sentencing factor like a checklist; it must offer only an adequate statement of reasons for the sentence it chooses. Coopman, 602 F.3d at 819; United States v. Shannon, 518 F.3d 494, 496 (7th Cir.2008). Here, the court reasonably explained Watters’s sentence based on its predominant concern with deterring her and others from committing the same crime. Her claims about accepting responsibility and her criminal history were stock sentencing arguments, which the court was free to reject without discussion. United States v. Tahzib, 513 F.3d 692, 695 (7th Cir.2008).

Watters also argues that the court overlooked her argument in mitigation that as a child she was a victim of sexual abuse, which distorted her understanding of sexuality and caused her to abuse RW. But the court rejected that as a basis for leniency because many abusers were once victims themselves and Watters displayed no present physical or mental condition that might have impeded her ability to control herself. Watters insists that the court should not have made that determination -without hearing testimony from a psychological expert. But a sentencing court is charged with making an independent decision and should not accept the opinion of a psychological expert regarding a defendant’s culpability unless it comports with the court’s own judgment of the § 3553(a) factors. [724]*724See United States v. DeSilva, 613 F.3d 352, 356-57 (2d Cir.2010). More importantly here, the defendant is responsible for producing evidence that supports a lower sentence; a defendant who fails to do so is “at the mercy of the instincts and intuitions of the sentencing judge.” United States v. Beier, 490 F.3d 572, 574 (7th Cir.2007).

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Bluebook (online)
415 F. App'x 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-freeman-ca7-2011.