United States v. Jonathan Stephens

986 F.3d 1004

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 2, 2021
• Docket: 20-1463
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 20-1463 UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JONATHAN STEPHENS, also known as JOHNATHAN STEPHENS, also known as JONATHAN WATTS, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:18-CR-00044-1 — Ronald A. Guzmán, Judge. ____________________

ARGUED DECEMBER 15, 2020 — DECIDED FEBRUARY 2, 2021 ____________________

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 Sentenc- ing Guideline range. On appeal, Stephens challenges his sen- tence. He contends that the district court improperly disre- garded the probation officer’s recommendation of a below- 2 No. 20-1463

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 porno- graphic 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 cate- gory 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 sug- gested that an upward variance could be appropriate because No. 20-1463 3

Stephens possessed such a large quantity of child pornogra- phy 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 guide- line 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-con- tact”) offender, Stephens was unlikely to “sexually offend in the future.” Finally, Stephens asserted, his autism spectrum disorder, avoidant personality disorder, and depression diag- noses reduced his need for deterrence. At the sentencing hearing, Stephens agreed to the guide- line 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 ex- plained, 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 submis- sions, 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, 4 No. 20-1463

more than anything I’ve ever heard of.” (To be clear, trans- porting or possessing one image of child pornography is a fel- ony. 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 [Ste- phens] 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 pro- fessed inability to understand was “chilling because it tells us that in the future, there is nothing to prevent him from con- tinuing to do this.” The court noted that Stephens was begin- ning to understand the consequences of his actions but said “it would be a grave risk” to impose a below-guideline sen- tence. The court also considered general deterrence, hoping to signal “that anyone who engages in this voluntary behavior is risking grave consequences.” No. 20-1463 5

II. Analysis Stephens raises three procedural challenges to his sen- tence, 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 disregard- ing such a recommendation, at least if the defendant relies on it. This argument is profoundly mistaken, and we are pub- lishing this as a precedential opinion to make this point. A district court need not address a probation officer’s recom- mendation 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 pro- bation officers is to provide invaluable information and in- sight 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 recommen- dations (as distinct from the PSR and its guideline calcula- tions). The court also decides how to weigh those recommen- dations. We have explained before that district courts are not re- quired to give any deference to a probation officer’s recom- mendation in a PSR, let alone to explain a disagreement on the record. See United States v. Schuler, 34 F.3d 457, 461 6 No. 20-1463

(7th Cir. 1994) (court not required to make findings about “in- appropriateness of [the probation officer’s] recommenda- tion”); United States v. Guadagno, 970 F.2d 214, 224 (7th Cir. 1992) (same, regarding a probation officer’s acceptance-of-re- sponsibility 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 persua- sive 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 le- gally 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 recom- mendation); Fed. R. Crim. P. 32(e)(3) (“By local rule or by or- der in a case, the court may direct the probation officer not to disclose to anyone other than the court the officer’s recom- mendation 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. Petersen, 711 F.3d 770, 778–79 (7th Cir. 2013), where in dicta we urged courts to consider re- leasing confidential sentencing recommendations to the par- ties. Different judges have different perspectives on the dis- cretionary choice whether to disclose confidential recommen- dations. 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. Petersen reiterated that a de- No. 20-1463 7

fendant does not have a legal right to see the confidential rec- ommendation, at least as long as the recommendation does not put new factual information before the court. Id. at 778. And Petersen reinforced that the choice about disclosing a rec- ommendation is up to the judge. Id. at 779. 1 Returning to this case, the district court did release the rec- ommendation to the parties, and Stephens was able to com- ment 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 Ste- phens had committed new child pornography crimes after the first seizure. The district court did not commit a procedural error when it did not address the probation officer’s recom- mendation when explaining Stephens’s sentence. B. Addressing Arguments in Mitigation Stephens next argues that the district court ignored his pri- mary mitigation arguments: his mental illnesses, his minimal risk of re-offending, and his policy disagreement with the child pornography sentencing enhancements. Resentencing may be required when the district court’s discussion of a prin- cipal mitigation argument is “so cursory that we are unable to

1 The qualification about not putting new factual information into the

recommendation is critical. A defendant has a due process right not to be sentenced on the basis of incorrect factual information. See, e.g., United States v. Tucker, 404 U.S. 443, 447 (1972); United States v. Miller, 900 F.3d 509, 514 (7th Cir. 2018); United States ex rel. Welch v. Lane, 738 F.2d 863, 864−65 (7th Cir. 1984). A confidential recommendation should not be turned into a back-channel for unreliable information that the defendant never has a chance to address. Federal Rule of Criminal Procedure 32 is designed to ensure procedural fairness in sentencing, particularly in par- agraphs (e) through (i), to prevent such errors. 8 No. 20-1463

discern the court’s reasons for rejecting the argument.” United States v. Vidal, 705 F.3d 742, 744 (7th Cir. 2013). Before we address the argument, we repeat our advice that at the end of every sentencing hearing, the court should spe- cifically ask whether it addressed sufficiently the defendant’s main arguments in mitigation. See United States v. Hancock, 825 F.3d 340, 343–44 (7th Cir. 2016); United States v. Donelli, 747 F.3d 936, 941 (7th Cir. 2014); United States v. Garcia-Segura, 717 F.3d 566, 569 (7th Cir. 2013) (encouraging courts to ask “whether [defendants] are satisfied that the court has ad- dressed their main arguments in mitigation” and if they as- sent, “a later challenge … would be considered waived”). This approach allows courts to correct possible procedural er- rors immediately, while their thinking is fresh, rather than wait for “correction after appellate review, a year or more of delay, and a new hearing after remand.” See United States v. Brown, 932 F.3d 1011, 1020 (7th Cir. 2019), quoting Donelli, 747 F.3d at 941. We also encourage defense attorneys and prosecutors to speak up proactively if a district court over- looks a major argument. District judges rightly rely on advo- cates to raise and emphasize the points that warrant their at- tention. As for Stephens’s mitigating arguments, the district court did not designate them each for separate discussion, but the transcript does not leave us questioning whether the court considered them adequately. First, the court said that it re- viewed the PSR and read the parties’ submissions and sup- plemental reports, which is often enough to show that it con- sidered the mitigation arguments. See United States v. Graham, 915 F.3d 456, 459 (7th Cir. 2019); United States v. Ramirez- Gutierrez, 503 F.3d 643, 646 (7th Cir. 2007). With respect to the No. 20-1463 9

mental illnesses and recidivism risk, the court thoroughly ad- dressed these while considering the factors under 18 U.S.C. § 3553(a). Stephens maintains that the district court silently passed over his recidivism and diminished-capacity arguments sup- ported by the report on his psychosexual evaluation. We read the record differently. The court concluded that Stephens’s di- minished capacity and risk of re-offending were aggravating factors, not mitigating factors. That signaled its unmistakable rejection of these contentions as mitigating. See United States v. Wade, 890 F.3d 629, 632 (7th Cir. 2018). While the court never explicitly mentioned Stephens’s diagnoses, it con- cluded that imposing a below-guideline sentence was a “grave risk” based, in part, on Stephens’s inability to under- stand the seriousness of his offense. Instead of crediting the psychologist’s finding that Ste- phens had a low risk of “sexually offending” as a pornogra- phy-only offender, the court looked at Stephens’s recent his- tory. The court emphasized that, “despite his statements and explanation in open court,” Stephens’s actions demonstrated that the initial seizure “had no deterrent effect whatsoever as [he] found the means to collect yet another 10,000 images.” Although the district court only “implicit[ly] or impre- cise[ly]” noted the psychologist’s evaluation at the hearing, its discussion still shows that the court “considered the argu- ment.” See United States v. Patel, 921 F.3d 663, 670 (7th Cir. 2019), quoting United States v. Tounisi, 900 F.3d 982, 987 (7th Cir. 2018). The district court was also not required to address Ste- phens’s policy argument that the guideline enhancements re- sulted in an artificially high sentence for his no-contact child 10 No. 20-1463

pornography offense. First, he never mentioned his (or the probation officer’s) policy view at the hearing. It was not a central argument. Second, a sentencing court may pass over generalized policy disagreements with the Guidelines. E.g., United States v. Schmitz, 717 F.3d 536, 541–42 (7th Cir. 2013). We have rejected appellate arguments based on a dis- trict court’s failure to address policy disagreements with the child-pornography guidelines. E.g., United States v. Grisanti, 943 F.3d 1044, 1053–54 (7th Cir. 2019); United States v. Oberg, 877 F.3d 261, 264 (7th Cir. 2017); United States v. Hancock, 825 F.3d 340, 344–45 (7th Cir. 2016). Stephens did not object to any specific increase to his guideline range; he agreed to the calculations. The court explained why it was appropriate to impose a sentence within that applicable range: Stephens’s of- fense went beyond “mere” child pornography because he col- lected a “staggering amount” of images depicting violent, traumatic, and sadistic abuse. C. Section 3553(a) Finally, Stephens argues that the district court did not meaningfully analyze the 18 U.S.C. § 3553(a) sentencing fac- tors. He contends that the court focused “solely” on the seri- ousness of his crime and did not inquire into his personal his- tory and characteristics, including his upbringing, lack of criminal history, age, mental health diagnoses, and his pre- payment of his large restitution obligation. At a sentencing, the judge must correctly calculate the range, address the par- ties’ principal arguments, consider the statutory factors, and explain the sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). But the court need not march through “every factor under § 3553(a) in a checklist manner;” only an “adequate No. 20-1463 11

statement” of the applicable factors is needed. United States v. Barr, 960 F.3d 906, 914 (7th Cir. 2020). The district court sufficiently analyzed the § 3553(a) fac- tors that “determined the sentence” it imposed. See United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). The court expressly addressed the nature and seriousness of Ste- phens’s offense, § 3553(a)(1) & (2)(A), the likelihood of recidi- vism, § 3553(a)(2)(C), and general deterrence, § 3553(a)(2)(B). It is not correct that the entire argument for affirming this sen- tence rests on the court “implicitly” addressing the factors. The court was not required to dwell on other factors that it did not find meaningful in this case. See Barr, 960 F.3d at 914. Stephens’s insistence that the court was required to specifi- cally mention his “history and characteristics” echoes the oft- rejected argument that the court must tick off each factor in- stead of drawing attention to those most important for the specific case. See id. Further, while Stephens’s written submission explored his personal history and characteristics at great length, he barely touched on them at the sentencing hearing. Although we have not said that only an oral presentation triggers a district court’s obligation to address an argument, it is hard to fault the court for not discussing in the hearing a topic the defend- ant scarcely mentioned in that hearing. See Grisanti, 943 F.3d at 1052 (“A party may not ‘invite’ error.”). For example, Ste- phens discusses on appeal the impact of his mother’s suicide when he was 16 and other aspects of his background. At the hearing, his attorney said that his upbringing was “not horri- ble” but “possibly not the best.” His attorney also briefly noted Stephens’s mental disorders and his ability to admit, 12 No. 20-1463

albeit belatedly, that he “has sexual feelings for female chil- dren.” From there, however, his attorney emphasized that the “basic thing” that should drive the sentence was the “likeli- hood of recidivism” and said that Stephens posed a lower risk based on recent behavioral treatment and time to “realize the magnitude and seriousness” of what he did. The attorney ad- mitted that Stephens would submit to a lifetime of supervised release to “make sure that there was someone to check on him, that somebody was monitoring him.” In the face of this presentation and the overall facts of the case, it is not hard to see why the district court focused primarily on the nature of the crime and the risk of recidivism. Stephens is correct that the district court did not specifi- cally discuss much of what he argued in writing before the hearing. But the procedural protections are designed “to al- low for meaningful appellate review and to promote the per- ception of fair sentencing.” Gall, 552 U.S. at 50. Here, the rec- ord shows clearly why the court imposed a within-guideline sentence. Stephens collected a vast quantity of images, some portraying sadistic abuse. He continued to amass them de- spite the previous seizure. His inability or unwillingness to understand his conduct and how it affected the victims made it more likely that he would reoffend. Because the district court expressed a clear view on Stephens’s rehabilitative po- tential, we have no reason to seek further explanation. As we said in United States v. Castaldi, 743 F.3d 589, 595 (7th Cir. 2014), “the district judge made his thinking clear enough.” AFFIRMED.