Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding D.C. No. 8:08-cr-00174-AG-1
The opinion of the court was delivered by: Opinion by Judge B. Fletcher;
Argued and Submitted December 8, 2010-Pasadena, California
Before: Betty B. Fletcher, Marsha S. Berzon, and Consuelo M. Callahan, Circuit Judges.
Concurrence by Judge Berzon; Concurrence by Judge Callahan
B. FLETCHER, Circuit Judge:
Ronald Henderson challenges the district court's failure to exercise the discretion accorded it in Kimbrough v. United States, 552 U.S. 85 (2007), to vary from the Sentencing Guidelines based on policy disagreements with them and not simply based on an individualized determination that they yield an excessive sentence in a particular case. Because it is unclear whether the district judge recognized and exercised his Kimbrough discretion, we reverse and remand for resentencing.
An FBI agent, working undercover, used the peer-to-peer network software "Limewire" to view lists of images and videos located on Ronald Henderson's computer and available for downloading. The agent downloaded approximately 15 files containing child pornography from Henderson's computer. Agents then executed a search warrant at Henderson's residence. The agents seized four computers and various other digital storage devices. The file sharing function was enabled on Henderson's laptop computer that contained the "Limewire" software.
At the time of the search, Henderson made numerous statements to the agents. Henderson stated that he had child pornography and that he was the one who put it on his laptop computer. He said he understood that possession of child pornography is a crime. He revealed that he is bipolar but that he was not then taking medication. He also told the agents that he is obsessed with completing collections-for example, he collects recordings by the Rolling Stones, as well as coins.
Henderson further stated that he had been collecting child pornography for about two years. He catalogued his collection and saved the child pornography files on numerous CDs, some of which contained over a thousand images. His preference was for female teenagers between 13 and 15 years old. Henderson also stated that he knew that he was sharing his files and, in fact, noticed people downloading child pornography from his computer. In total, the files that Henderson offered for sharing consisted of 8,765 video and image files, of which approximately 80 were of identified victims. Eleven of those files were video files, some of them depicting prepubescent girls engaged in sexual acts.
During the search, the agents also discovered two photographs in an envelope. They were pictures of two girls under the age of 18 whom Henderson admitted to having picked up in Oregon some ten years before. Henderson brought them with him to his apartment in Huntington Beach, California. Although Henderson wanted to have sex with them, he was, he said, "a gentleman"- apparently meaning that he did not have sex with them. When the girls did not do housework, Henderson bought them bus tickets and sent them back to Oregon, some two weeks after he had picked them up.
Henderson pled guilty to the single count in the indictment, possession of child pornography in violation of 18 U.S.C. § 2252(a)(5)(B). In preparation for sentencing, the United States Probation Office prepared a presentence investigation report (PSR). Using the child pornography Guideline, U.S.S.G. § 2G2.2, the PSR calculated the offense level at 18. The PSR added two levels because Henderson's files contained at least one prepubescent minor, pursuant to § 2G2.2(b)(2); two levels because the offense involved distribution, pursuant to § 2G2.2(b)(3); four levels because the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, that is, vaginal penetration of prepubescent minors, pursuant to § 2G2.2(b)(4); two levels because the offense involved the use of a computer, pursuant to § 2G2.2(b)(6); and five levels because the offense involved 600 or more images, pursuant to § 2G2.2(b)(7). The PSR deducted three levels for acceptance of responsibility, resulting in a total offense level of 30.
Henderson had three criminal-history points based on two drug-related convictions, placing him in criminal history category II.
Based on a total offense level of 30 and a criminal history II, the PSR calculated Henderson's sentencing range to be 108 to 120 months, with the high end limited by the 10-year statutory maximum.
The probation officer recommended that Henderson be sentenced to 70 months imprisonment followed by a lifetime term of supervised release. The probation officer relied heavily for her recommendation on Henderson's significant history of physical and sexual abuse and neglect, and on the role that his mental health disorder played in the offense. She explained that after the death of his father following a car accident in which he was a passenger, Henderson was first raped when he was five years old, by an adult male, while on a religious retreat. When he was seven, Henderson was physically and sexually abused by his mother's boyfriend. The man forced Henderson into bed naked and forced him to attempt to have sex with his mother. Later, as a teen, Henderson was molested by a group of older female teens. After his mother was deemed unfit to raise him, Henderson was placed in a series of foster homes. In one of those homes, Henderson was sexually molested by his foster mother when he was between 16 and 18 years old.
The probation officer also noted that Henderson was hospitalized for manic episodes twice in 1995, as well as twice in 1997. During that time, he was diagnosed with bipolar disorder I (the most extreme form) and prescribed psychiatric medication. Between 2003, when he was released from jail, and 2008, when he was placed on pretrial supervision for the instant offense, Henderson did not have access to medication.
The probation officer reported that Henderson also has secondary symptoms of obsessive compulsive disorder, that caused Henderson to search out, collect, and catalogue entire sets of documents, memorabilia, and information. The officer explained that it is unknown the exact degree to which Henderson's obsessive compulsive disorder contributed to his offense, but that it may have resulted in his accumulating more and more diverse types of child pornography than he may have otherwise acquired. The probation officer opined that this factor distinguished Henderson from other defendants.
In its sentencing memorandum, the government requested that the district court sentence Henderson to a low-end Guide- lines sentence of 108 months and a lifetime term of supervised release.
Henderson requested that he be sentenced to 36 months imprisonment followed by a seven-year term of supervised release. Citing Kimbrough v. United States, 552 U.S. 85 (2007), he argued that the child pornography Guideline, U.S.S.G. § 2G2.2, should be given little weight because it was not developed following an empirical approach but in response to Congressional directives, and does not comport with 18 U.S.C. § 3553(a) even in a mine-run case. Henderson also argued that the § 3553(a) factors warranted a reduced sentence because of his childhood abuse and history of mental illness.
The government responded that § 2G2.2 was properly based on Congressional directives that sentencing courts are not free to ignore.
At the sentencing hearing, the district court judge stated it was the first time he had encountered the Kimbrough argument. He said:
I'm going to need direction from the Ninth Circuit before I accept those other arguments, so perhaps you can include this in the appeal. I'm not accepting the argument you made along those lines, but I am going to vary and looking at the chart and looking at my past conduct in similar cases I believe a three-level downward variance is in order, giving us a range of 78 to 97 months, and I will pick the low end of that which is 78 months, which is a three-level variance, a variance that tends to be relatively high compared to my usual practices in these cases but I think is justified particularly by the history and characteristics of the defendant here.
The district court imposed a 78-month sentence followed by a lifetime term of supervised release.
Henderson argues that his sentence is procedurally erroneous due to the district court's refusal to accept his Kimbrough argument absent guidance from this court. He also argues that the sentence is substantively unreasonable.
Our review of sentencing decisions is limited to determining whether they are reasonable. Gall v. United States, 552 U.S. 38, 46 (2007). Only a procedurally erroneous or substantively unreasonable sentence will be set aside. United States v. Apodaca, No. 09-50372, ___ F.3d ___, 2011 WL 1365794, at *2-3 (9th Cir. April 12, 2011); United States v. Carty, 520 F.3d 984, 993 (9th Cir 2008).
In reviewing sentences for reasonableness, we "must first ensure that the district court committed no significant procedural error, such as . . . treating the Guidelines as mandatory . . . ." Gall, 552 U.S. at 51. Assuming that the district court's sentencing decision is procedurally sound, we then consider the ...