United States v. Grossman

513 F.3d 592, 2008 U.S. App. LEXIS 1037, 2008 WL 160612
Court of Appeals for the Sixth Circuit·Decided January 18, 2008·No. 06-2310·Published·Cited by 122 cases

Opinions

SUTTON, J., delivered the opinion of the court, in which MARTIN, J., joined. BOGGS, C.J. (p. 599), delivered a separate dissenting opinion.

OPINION

SUTTON, Circuit Judge.

Kurt Grossman pleaded guilty to possessing images of minors engaged in sexual activity. Because Grossman’s sentence of 66 months in prison and 10 years of supervised release, a substantial down[594]*594ward variance from the sentence recommended by the sentencing guidelines, is procedurally sound and reasonable in length, we affirm.

I.

In September 2004, the National Center for Missing and Exploited Children began investigating Grossman — 35 years old, married, with a two-year-old daughter— after receiving a report that he had engaged in “online enticement of children for sexual acts.” JA 42. The tip, reported by an individual who had communicated with Grossman in an online chat room, said that Grossman “loved to chat about his interests ... inelud[ing] child abuse, kinky kids, and older men for younger women.” Id. By May 2005, the investigation revealed that Grossman was an active member of an online group that shared child pornography. A case agent later discovered that Grossman had sent multiple emails containing child pornography from November 2004 to January 2005.

When case agents visited Grossman’s home, he agreed to talk to them. He denied having inappropriate physical contact with minors but admitted possessing and trading illicit pornography “for more than five years.” JA 43. Grossman consented to a search of his computer, which revealed thousands of images, including child and adult pornography.

On April 14, 2006, case agents arrested Grossman, after which he pleaded guilty to possessing images of minors engaged in sexual activity. See 18 U.S.C. § 2252(a)(4)(B). The base offense level for a violation of this law is 18. See U.S.S.G. § 2G2.2(a)(l). The presentence report recommended several increases to Gross-man’s offense level: two levels for images involving prepubescent minors, see id. § 2G2.2(b)(2); five levels for distributing images in return for things of value (more images), see id. § 2G2.2(b)(3)(B); four levels for sadistic images, see id. § 2G2.2(b)(4); two levels for using a computer, see id. § 2G2.2(b)(6); and five levels for an offense involving over 600 images, see id. § 2G2.2(b)(7)(D). Grossman also qualified for a three-level downward adjustment both for accepting responsibility, see id. § 3El.l(a), and for entering a guilty plea, see id. § 3El.l(b). These adjustments left Grossman with an offense level of 33 and a criminal history category of I, which intersect at a guidelines range of 135-168 months. Because Grossman’s plea agreement included just one count of conviction, that range was reduced, in accordance with U.S.S.G. § 5Gl.l(c)(l), to the statutory maximum of 120 months. See 18 U.S.C. § 2252A(b)(2).

After acknowledging that the probation department “correctly” calculated the guidelines range, the sentencing judge noted that he was “troubled” and “shocked” by the enhancements. JA 26-27. In his view, the guidelines produced a calculation that was “not fair” and “not reflective of what [Grossman] did.” JA 27. Concerned that the guidelines “[break] out an offense into very tiny increments that almost repeat one another,” id., and that some of the enhancements should be “knock[ed] off,” JA 28, he complained and “want[ed] the record to reflect,” JA 27, that “[t]his is what happens when you take judging, which is a judge’s job, and you give it to a commission and say, [a]dd mathematical calculations and come up with a presumed sentence from that,” id.

Returning to the task at hand, the judge recognized his duty to impose a sentence “sufficient but not greater than necessary” to comply with the § 3553(a) factors. 18 U.S.C. § 3553(a). The judge appreciated that the offense was “thoroughly disgusting and antisocial” and that certain aspects of Grossman’s psychological evaluation were “indeed troubling.” JA 29; see 18 [595]*595U.S.C. § 3553(a)(1). The judge understood that the sentence must “reflect the seriousness ... of this offense and [afford] adequate deterrence to criminal conduct and ... protect the public from further crimes that might be committed by this defendant.” JA 29; see 18 U.S.C. § 3553(a)(2)(A)-(C). He noted that Gross-man was an “educated man” who knew his actions against innocent children were “legally and morally wrong” and commended Grossman for appreciating that the true victims of his crime were the innocent children. JA 29; see 18 U.S.C. § 3553(a)(1), (7). The judge also considered Grossman’s need for “correctional treatment and educational and potentially medical treatment.” JA 29; see 18 U.S.C. § 3553(a)(2)(D). He then sentenced Grossman to a 66-month prison term followed by 10 years of supervised release.

II.

In reviewing sentences after Booker, we “first ensure that the district court committed no significant procedural error.” Gall v. United States, — U.S. —, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We then consider “the substantive reasonableness of the sentence imposed.” Id. The question in the end is whether the district court abused its discretion in sentencing the defendant. Id.

A.

District courts, as a matter of process, must properly calculate the guidelines range, treat the guidelines as advisory, consider the § 3553(a) factors and adequately explain the chosen sentence — including an explanation for any variance from the guidelines range. Id. In applying Congress’s mandate that sentencing courts must “consider” the § 3553(a) factors, we have not lost sight of the fact that the district court judges are involved in an exercise of judgment, not a ritual. United States v. McGee, 494 F.3d 551, 557 (6th Cir.2007). We thus have required courts only to provide enough detail to allow an appellate court to conduct “meaningful appellate review” and to conclude that the district court adequately considered the relevant statutory factors. Id. at 556.

Consistent with these requirements, the sentencing judge correctly calculated the guidelines range. He recognized that his “duty is to impose a sentence sufficient but not greater than necessary to comply with the purposes that Congress has set forth for sentencing in 3553(a).” JA 29; see Kimbrough v. United States, — U.S. —, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007). After applying the § 3553(a) factors, he “ma[d]e an individualized assessment based on the facts presented” as to what sentence Grossman should receive. Gall, 128 S.Ct. at 597.

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United States v. Grossman, 513 F.3d 592, 2008 U.S. App. LEXIS 1037, 2008 WL 160612 (6th Cir. 2008).

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