United States v. Grober

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 09-1318

____________

UNITED STATES OF AMERICA,

Appellant

v.

DAVID GROBER

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No. 09-2120

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UNITED STATES OF AMERICA

v.

DAVID GROBER,

Appellant

____________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Crim. No. 2-06-cr-00880-001)

District Judge: Honorable Katharine S. Hayden

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Argued: June 29, 2010

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Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges

(Opinion Filed: October 26, 2010)

____________

George S. Leone, Esq.

Caroline A. Sadlowski, Esq. (Argued)

Office of the United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

Counsel for Appellant/Cross-Appellee

Peter Goldberger, Esq. (Argued)

50 Rittenhouse Place

Ardmore, PA 19003-2276

Counsel for Appellee/Cross-Appellant

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OPINION OF THE COURT

____________

BARRY, Circuit Judge

It is an unassailable proposition that “[c]hild pornography

harms and debases the most defenseless of our citizens.” United

States v. Williams, 553 U.S. 285, 307 (2008). We believe that,

and the District Court believed that. Nonetheless, the Court was

deeply concerned about the sentence the government said the

Court should impose on defendant David Grober under the child

pornography Guidelines. It recognized, on the one hand, the

tension between a mechanical application of those Guidelines

and the “outrageously high” sentence – indeed, the “truly

remarkable punishment” – of 235-293 months of imprisonment

they advised, and, on the other, a fair and reasonable sentence

that does justice. Determined to take a long and hard look at the

child pornography Guidelines in an effort to understand why

Congress and the Sentencing Commission did what they did and

whether it made sense both as an objective matter and as to the

defendant, the Court embarked on a careful study of how the

Guidelines range urged on it by the government came to be. It

took evidence over twelve days, heard extensive oral argument

and considered extensive written submissions, and rendered a

lengthy oral opinion at sentencing and a forty-six page written

opinion thereafter explaining in great detail how it arrived at

what it believed to be the correct sentence for this defendant.

All of this is to be much admired.

There is a flip side, however, when a district court

devotes such an extraordinary amount of time and attention to an

issue so clearly troubling it and so freely expresses its concerns

on the record, reaching out for whatever might assist it in

assuaging those concerns. The flip side is this: in the unusual

case, such as this, in which a district court arguably does too

much rather than too little, there is much more grist for the mill,

as here the government points to everything the District Court

did and did not do and everything it should and should not have

done. After this microscopic examination – but without ever

challenging the substantive reasonableness of the ultimate

sentence imposed – the government has found what it describes

as procedural error. We will affirm.

I. Background

In December 2005, acting on a tip from America Online

regarding child pornography attached to emails involving David

Grober’s account, law enforcement officers of the State of New

Jersey executed a search warrant at Grober’s home and

discovered what was eventually determined to be approximately

1500 images and 200 videos of child pornography among an

even larger collection of adult pornography. In October 2006, a

federal grand jury returned an indictment charging Grober with

one count of receiving and distributing child pornography and

one count of possessing child pornography. Grober was offered

a plea to possession only, and he declined, as he had also done

pre-indictment.

3

In September 2007, two weeks before the scheduled trial

date and after plea negotiations had broken down, a superseding

indictment was returned, charging Grober with two counts of

transportation of child pornography, in violation of 18 U.S.C. §

2252A(a)(1); three counts of receipt of child pornography, in

violation of 18 U.S.C. § 2252A(a)(2)(A); and one count of

possessing material containing images of child pornography, in

violation of 18 U.S.C. § 2252A(a)(5)(B). On October 4, 2007,

Grober pled guilty to all six counts without a plea agreement,

admitting that on July 9, 2005, he sent an email containing a

video of child pornography (Count One); on July 27, 2005, he

received an email containing an image of child pornography

(Count Two), and sent back an email containing approximately

seventeen images of child pornography (Count Three); on

August 16, 2005, he received two separate emails, each

containing an image of child pornography (Counts Four and

Five); and in December 2005, he collected images and videos

containing child pornography from the Internet and stored and

possessed this material on computer hard drives and compact

discs (Count Six).

Under U.S.S.G. § 2G2.2(a)(2), Grober’s base offense

level (after grouping) was 22, which, with a criminal history

category of I, resulted in a Guidelines range of 41-51 months

imprisonment. With the enhancements to § 2G2.2 that appeared

applicable, however, Grober’s offense level increased to 40.

The eighteen levels of enhancements were comprised of two

levels for material involving prepubescent minors or minors

under age twelve (§ 2G2.2(b)(2)); five levels for distributing

material to receive a thing of value, but not for pecuniary gain (§

2G2.2(b)(3)(B)); four levels for material portraying sadistic or

masochistic conduct or other depictions of violence (§

2G2.2(b)(4)); two levels for the use of a computer (§

2G2.2(b)(6)); and five levels for possessing more than six

hundred images of child pornography (§ 2G2.2(b)(7)(D)). After

a two-level downward adjustment for acceptance of

responsibility under § 3E1.1(a), Grober’s offense level became

38 and his advisory Guidelines range became 235-293 months

4

imprisonment, a range that it is undisputed was correctly

calculated and that even our dissenting colleague does not argue

was not “draconian.” (Dissent at 17, 21).

The District Court, clearly troubled by the sentence of

imprisonment that this Guidelines range produced, held hearings

over twelve days between July and December 2008. Numerous

witnesses testified – Special Agent Michell Chase, who

examined Grober’s child pornography collection; Professor

Douglas Berman, a law professor proffered by the defense as an

expert on the Guidelines over vigorous government objection;

several mental health professionals; and the mother of two boys

who had been sexually abused and featured in pornography

found in Grober’s collection. The Court also reviewed in open

court a selection of fourteen images and ten videos provided by

the government in support of the § 2G2.2 enhancements, as well

as victim impact statements.

On December 8, 2008, the District Court held the final

(thirteenth) day of hearings. Grober and his family and some

friends addressed the Court and the Court heard extensive

argument, after which it sentenced Grober to the mandatory

minimum sentence of five years imprisonment, as well as three

years of supervised release. The Court explained why it had

done what it did and subsequently issued a lengthy opinion in

support of the sentence, describing its efforts to “actively seek[]

some rationale for the harsh sentence” recommended by the

Guidelines and advocated by the government. United States v.

Grober, 595 F. Supp. 2d 382, 390 (D.N.J. 2008). It noted that

the government had declined to produce a witness, such as a

representative from the Sentencing Commission, to discuss the

basis for § 2G2.2, and that it found Professor Berman’s

testimony to be helpful. “It was through Professor Berman’s

testimony,” the Court explained, “that [it] initially gained an

understanding of the role Congress has played in the increased

penalties for child exploitation offenses and how intertwined the

guidelines for child exploitation offenses have become with

various pieces of legislation.” Id. at 391. The Court considered

5

as well a paper written by an assistant federal public defender,

Troy Stabenow, entitled Deconstructing the Myth of Careful

Study: A Primer on the Flawed Progression of the Child

Pornography Guidelines, that criticized § 2G2.2.

The District Court also examined a handful of district

court opinions that had expressed concern about the child

pornography Guidelines and had found that those Guidelines

were not based on empirical data. See United States v. Johnson,

588 F. Supp. 2d 997 (S.D. Iowa 2008); United States v. Baird,

580 F. Supp. 2d 889 (D. Neb. 2008); United States v. Hanson,

561 F. Supp. 2d 1004 (E.D. Wis. 2008); United States v. Shipley,

560 F. Supp. 2d 739 (S.D. Iowa 2008). The Court agreed with

those courts that Ҥ 2G2.2 leads to a sentence that is too severe

in a downloading case.” Grober, 595 F. Supp. 2d at 394. It

concluded:

To review, then, the Court has learned that actual

working judges have decided to give these child

pornography guidelines less weight in

downloading cases; an experienced law professor

with a widely used sentencing blog has been

unable to probe the Commission’s thinking why it

sentences downloaders this way; and an influential

article makes persuasive arguments against the

rationality of § 2G2.2 in downloading cases. Also,

reported cases demonstrate that bad people

involved with child pornography can get long

sentences without using § 2G2.2 as the basis.

Id. at 397.

The District Court discussed several additional reasons

why it believed § 2G2.2 to be flawed. First, it found that most

of the enhancements are essentially inherent in the crime and,

thus, apply in nearly every case. Special Agent Chase testified

that, of the 180 investigations she had conducted, every one

involved 600 or more images, the use of a computer, and a

6

prepubescent minor, and eighty percent had at least one image

depicting sado-masochistic conduct. When the enhancements

are added to the base offense level of 22 – increased from 17 in

2004 – the Guidelines, in the Court’s view, produced “an

outrageously high sentence.” Id. Second, the Court found that

the enhancements promote sentencing disparities. It stated that

in 2006, the median prison term for federal child pornography

offenses was sixty-three months imprisonment, indicating that

sentencing courts were imposing significant sentences, but not

as high as recommended by § 2G2.2. The Court expressed

concern that the government’s charging discretion and plea

negotiations unfairly affect defendants such as Grober who do

not initially plead guilty, and compared Grober to another

defendant it had sentenced to thirty months imprisonment for

possession of child pornography after he pled guilty without

delay and pursuant to a plea agreement. Because of intervening

changes to the Guidelines and Grober’s initial decision to go to

trial, Grober’s Guidelines range was over two hundred months

higher than the earlier defendant’s. Third, the Court described

how, given the nature of child pornography, it can be very

difficult for the defense to rebut the government’s

characterization of the egregiousness of a defendant’s conduct or

dispute the government’s evaluation of the defendant’s

collection compared to the collections of others, both of which

may bear on the applicability of § 2G2.2’s enhancements.

Thus, the District Court held that the sentencing range §

2G2.2 recommended for Grober would not be applied.

Although it recognized “the importance of the guidelines to a

rational sentencing protocol,” it was “convinced that for a

typical downloading case, which this one assuredly is, the

applicable guideline, § 2G2.2, cannot be given deference and

produces an unreasonable sentencing range even before

considering the sentencing factors in [18 U.S.C.] § 3553(a).” Id.

at 402. The Court found that “Grober’s case is squarely within

the heartland of downloading cases. Instead it is truer to say that

7

§ 2G2.2, the designated guideline for the typical downloading

case, is what falls outside of the heartland.” Id. at 403.1

The District Court then carefully considered the

sentencing factors set forth in 18 U.S.C. § 3553(a) as applied to

Grober. It first discussed the nature and circumstances of the

offense, finding that Grober’s core conduct was consumption of

child pornography and that there was no evidence that he had

engaged in any improper conduct with a child. The Court made

clear that it did not “minimize what David Grober did, or his

towering insensitivity to the underlying acts portrayed, or the

concept that voyeurs re-victimize the children in the images by

looking at them,” while also acknowledging that it “cannot make

Grober a surrogate for the monsters who prey on child victims

through actual contact.” Id. at 404. The Court was impressed by

Grober’s history and characteristics, noting the immense support

he had continuously received from his family, friends,

neighbors, and rabbi.

1

This is more than a “typical downloading case,” and we

understand the District Court to have been referring to it in that

manner as a form of shorthand. Grober’s shorthand for

“downloading” in terms of his case is somewhat more accurate:

a case “centering on personal possession of illicit images

obtained on line, and involving no production or distribution

other than noncommercial bartering.” (Grober’s Second-Step

Br. at 48.) Here, as our dissenting colleague recognizes, the

noncommercial bartering consisted of Grober sending and

receiving a handful of emails that contained depictions of child

pornography. While the Court recognized, as do we, that Grober

pled guilty to the offenses of receipt and transportation of child

pornography, which Congress has chosen to penalize more

severely than possession, Grober is not in any sense a large-scale

distributor of child pornography; indeed, the dissent references

Grober’s admission to “sending two e-mails containing eighteen

images.” (Dissent at 10).

8

With respect to the seriousness of the offense, the District

Court considered the victim impact testimony given by the

mother of two boys abused in images that Grober possessed.

The Court found that a prison sentence of five years, the

mandatory minimum sentence, affords adequate specific and

general deterrence, as it would send a clear message about “how

catastrophic the consequences are to those who download child

pornography.” Id. at 409. It next concluded that, based on the

testimony of the mental health professionals, “Grober presents a

very low risk of harm to society” and there is no real risk that he

would physically abuse children in the future. Id. at 409-10.

The Court also noted that Grober appeared to have benefitted

greatly from therapy – therapy which addressed, among other

things, the fact that he had been sexually abused as a child. In

terms of avoiding sentencing disparities, the Court considered

average sentences imposed in other child pornography cases.

Finally, considering § 3553(a)’s admonition that sentences be

“sufficient but not greater than necessary,” the Court found, “as

a matter of conscience,” that any term of imprisonment above

the five-year mandatory minimum would be “unfair and

unreasonable.” Id. at 411-12.

The government appealed, and Grober cross-appealed.

The government argues that the District Court committed

procedural error by not adequately addressing its arguments

before rejecting the sentencing range § 2G2.2 recommended for

Grober. Importantly, the government does not argue that the

Court lacked the authority to disagree with § 2G2.2 on policy

grounds or that the sentence the Court imposed is substantively

unreasonable. Grober argues that the District Court incorrectly

believed that it was required to impose the statutory mandatory

minimum sentence.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 18 U.S.C.

§ 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742

and 28 U.S.C. § 1291.

9

We review sentences for abuse of discretion, and review

them for both procedural and substantive reasonableness.

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en

banc). Where a claim of procedural unreasonableness has been

made, we must ensure “that the district court committed no

significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts, or

failing to adequately explain the chosen sentence – including an

explanation for any deviation from the Guidelines range.” Id.

(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). For a

sentence to be procedurally reasonable, a district court must

demonstrate “meaningful consideration of the relevant statutory

factors and the exercise of independent judgment,” United States

v. Grier, 475 F.3d 556, 571-72 (3d Cir. 2007) (en banc), and

“respond to colorable arguments with a factual basis in the

record,” United States v. Merced, 603 F.3d 203, 224 (3d Cir.

2010). A major variance from the Guidelines requires a more

significant justification than a minor one. Gall, 552 U.S. at 50.

We will affirm a procedurally sound sentence as substantively

reasonable “unless no reasonable sentencing court would have

imposed the same sentence on that particular defendant for the

reasons the district court provided.” Tomko, 562 F.3d at 568.

“Our responsibility on appellate review of a criminal sentence is

limited yet important: we are to ensure that a substantively

reasonable sentence has been imposed in a procedurally fair

way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir.

2008).

The government does not challenge the District Court’s

authority to vary, as the Court did, from the advisory Guidelines

range based on its policy disagreement with § 2G2.2, nor does

the dissent. See Spears v. United States, -- U.S. --, 129 S. Ct.

840, 843 (2009) (per curiam); Kimbrough v. United States, 551

10

U.S. 85, 91, 101 (2007).2 When a district court does so,

however, it must provide “a reasoned, coherent, and sufficiently

compelling explanation of the basis for [its] disagreement.”

Merced, 603 F.3d at 220 (internal quotation marks and citation

omitted) (finding procedural error in the district court’s failure to

adequately explain its apparent policy disagreement with the

Guidelines’ career offender provision). We explained in Merced

that

[a] “sufficiently compelling” explanation is one

that is grounded in the § 3553(a) factors. The

authors of the Guidelines, no less than district

courts, have been tasked with ensuring that

criminal sentences meet the goals of sentencing set

forth in § 3553(a). Rita v. United States, 551 U.S.

338, 348 (2007) (explaining that “both the

2

Other courts of appeals have held that Kimbrough and

Spears apply to policy disagreements with Guidelines outside of

the crack cocaine context. See, e.g., United States v. Corner,

598 F.3d 411, 415 (7th Cir. 2010) (en banc) (“We understand

Kimbrough and Spears to mean that district judges are at liberty

to reject any Guideline on policy grounds – though they must act

reasonably when using that power.”); United States v. Engle,

592 F.3d 495, 502 (4th Cir. 2010) (“[D]istrict courts may ‘vary

from Guidelines ranges based solely on policy considerations,

including disagreements with the Guidelines’” (quoting

Kimbrough, 552 U.S. at 101)); United States v. Cavera, 550

F.3d 180, 191 (2d Cir. 2008) (en banc) (“As the Supreme Court

strongly suggested in Kimbrough, a district court may vary from

the Guidelines range based solely on a policy disagreement with

the Guidelines, even where that disagreement applies to a wide

class of offenders or offenses.”); United States v. Rodriguez, 527

F.3d 221, 227 (1st Cir. 2008) (“[Kimbrough] makes plain that a

sentencing court can deviate from the guidelines based on

general policy considerations.”).

11

sentencing judge and the Commission . . . carry

out the same basic § 3553(a) objectives, the one, at

retail, the other at wholesale.”). Thus, the

Guidelines reflect the Sentencing Commission’s

“rough approximation of sentences that might

achieve § 3553(a)’s objectives.” Id. at 350. If a

district court concludes that those objectives are

not achieved by a sentence within the . . .

Guideline range, and that belief is driven by a

policy disagreement with the [particular

Guidelines] provision, then the court must explain

why its policy judgment would serve the § 3553(a)

sentencing goals better than the Sentencing

Commission’s judgments. In doing so, he should

take into account all of the sentencing factors, not

just one or two of them in isolation. We require

this explanation so that, on appeal, we can

determine whether the court’s disagreement is

valid in terms of the § 3553 factors, the Sentencing

Guidelines, and the perception of fair sentencing.

Id. at 221 (select internal quotation marks, citation, and

alterations omitted). The explanation must be “thorough” and

more than a “conclusory statement of personal belief.” Id.

(citations omitted); see also United States v. Lychock, 578 F.3d

214, 220 (3d Cir. 2009) (“To the extent that [the district court’s]

assertions reflect a policy disagreement with the Guidelines

recommendations, such a disagreement is permissible only if a

[d]istrict [c]ourt provides ‘sufficiently compelling’ reasons to

justify it.” (quoting Gall, 552 U.S. at 50)); United States v. Goff,

501 F.3d 250, 257 (3d Cir. 2007).

Additionally, the Supreme Court has indicated that

“closer review may be in order when the sentencing judge varies

from the Guidelines based solely on the judge’s view that the

Guidelines range fails properly to reflect § 3553(a)

considerations even in a mine-run case.” Kimbrough, 551 U.S.

at 109 (internal quotation marks and citation omitted); see also

12

Spears, 129 S. Ct. at 843 (stating that Kimbrough implies that an

“‘inside the heartland’ departure . . . may be entitled to less

respect”). Notably, the Kimbrough Court concluded that “closer

review” there was unnecessary because the crack cocaine

Guidelines at issue “do not exemplify the Commission’s

exercise of its characteristic institutional role.” 552 U.S. at

109.3 Similarly here, as we will describe, the Commission did

not do what “an exercise of its characteristic institutional role”

required – develop § 2G2.2 based on research and study rather

than reacting to changes adopted or directed by Congress.

III. Was Procedural Error Committed?

The government is explicit: it is not arguing substantive

reasonableness on this appeal, i.e., it does not oppose the

sentence itself – five years imprisonment. Rather, its argument

as to “the issue” before us is one of procedural error only:

“Whether the District Court committed numerous procedural

errors when it categorically rejected U.S.S.G. § 2G2.2 without

adequately addressing the government’s well-supported

arguments about the rationales of Congress and the Sentencing

Commission, which are embodied in the Guideline.”

3

In Kimbrough, the Supreme Court found that the Sentencing

Commission did not use its typical empirical approach in

developing the crack/powder cocaine Guidelines, but instead

modeled those Guidelines on the Anti-Drug Abuse Act of

1986’s ratio scheme that treated every gram of crack cocaine as

the equivalent of 100 grams of powder cocaine with respect to

mandatory minimum sentences. The Commission later

determined, “[b]ased on additional research and experience with

the 100-to-1 ratio,” that the disparity “fails to meet the

sentencing objectives set forth by Congress . . . .” Kimbrough,

552 U.S. at 97 (citation omitted).

13

(Government’s First-Step Br. at 1.)4 We will first discuss the

District Court’s recognition of the rationale behind the penalties

for child pornography offenses and its consideration of the

government’s arguments in support of § 2G2.2, and then

describe various court decisions and Sentencing Commission

reports that issued after the Court’s decision in this case and

support the Court’s analysis. As we will explain, we conclude

that the Court adequately considered the government’s

arguments and set forth a sufficiently compelling justification

for the sentence it imposed. We will then discuss some of the

specific procedural errors alleged by the government and echoed

by the dissent. While we agree that the Court erred in some

respects, we do not find any significant procedural error

warranting remand.

A. The District Court Adequately Addressed the

Government’s Arguments Regarding the Rationale

for § 2G2.2

It is clear, and the government does not argue otherwise,

that the District Court properly calculated the Guidelines range,

treated that range as advisory, fully considered the § 3553(a)

factors as applied to Grober, and did not base its sentence on any

clearly erroneous facts. See Gall, 552 U.S. at 51. The Court

explained at great length, both at sentencing and in its written

opinion, the reasons it was concerned about § 2G2.2 in general

and as applied to Grober in particular, and why it selected the

sentence it did.

4

Parenthetically, we do not understand the government to

mean by its use of the word “rejected” that the District Court did

not consider § 2G2.2. Rather, we understand the government to

be arguing that the Court rejected the sentencing range § 2G2.2

recommended for Grober without adequately addressing the

government’s arguments, an argument belied by a reading of the

record and the Court’s oral and written sentencing opinions.

14

As its primary contention, the government faults the

District Court for not “adequately addressing” its arguments

about the rationale behind § 2G2.2, i.e., the rationale for the

penalties § 2G2.2 counseled, but clarifies that it “does not argue

that the District Court here was too terse, but instead that the

reasons it did provide were erroneous.” (Fed. R. App. P. 28(j)

letter, April 16, 2010.) And it tells us, in its briefing, that “every

single reason proffered by the Court for rejecting [§ 2G2.2’s

advisory sentencing range] was wrong” and “[t]herefore the

Court procedurally erred in declining to consider those

guidelines.” (Government’s Third-Step Br. at 2.) But if all of

the reasons were wrong, a fortiori the Court considered § 2G2.2

and the government simply disagrees with what the Court said.

That, it seems to us, does not fit neatly into a claim of

procedural unreasonableness. Indeed, to the extent there is such

a thing as a “typical” procedural unreasonableness challenge,

that challenge would be to a sentencing proceeding in which a

district court failed to explain its reasoning, certainly not the

case here. See, e.g., Merced, 603 F.3d at 211; Lychock, 578 F.3d

at 219; Goff, 501 F.3d at 262. Even accepting the government’s

characterization of the issue before us, the District Court did not

commit “significant procedural error.” Gall, 552 U.S. at 51.

While it is fair to say that the District Court could have

said more in direct response to the government’s arguments

highlighting the rationale behind the Guidelines, there can be no

doubt from the thousands of pages of transcript and briefing and

opinion that the Court considered these arguments.5 It clearly

5

Although the government criticizes the District Court for

quoting opinions where courts had “been unable to locate any

particular rationale for [§ 2G2.2’s enhancements] beyond the

general revulsion that is associated with child exploitation-

related offenses,” the Court did not itself find that there was no

rationale supporting the Guidelines. See Grober, 595 F. Supp.

15

recognized the concept that abused children are re-victimized

whenever the records of their abuse are viewed, Grober, 595 F.

Supp. 2d at 404, and described the statements of the mother who

testified that “her children become ‘victims again’” every time

the images of their abuse are viewed, id. at 408. The Court also

explicitly noted that Congress established the mandatory

minimum sentence for receipt and transportation of child

pornography “on the basis that the exchanging through trading

images contributes to the growth of child pornography and

harms increasing numbers of children.” Id. at 404. Thus, the

government’s suggestion at oral argument before us that the

Court failed to acknowledge that Congress increased penalties

“because the market for child pornography, as it increases,

creates more harm to children by creating more images of child

pornography” (Oral Arg. Tr. at 25), or, stated differently, that

increased penalties for those who receive and transport child

pornography will decrease the demand for and, thus, the

production of child pornography, is directly belied by the

Court’s opinion in this case. The Court also noted an additional

harm, albeit one not at issue in this case, that “[C]ongress sought

to punish: the seduction and blandishment of children into being

victimized by using computer images.” Grober, 595 F. Supp. 2d

at 404. The Court understood and adequately acknowledged the

rationale behind the child pornography penalties and does not, as

the government urges, need to “start from scratch.” (Oral Arg.

Tr. at 10.)6

2d at 392 (quoting Shipley, 560 F. Supp. 2d at 744); id. at 393

(quoting Johnson, 588 F. Supp. 2d at 1003).

6

We have previously described the unspeakable harm

suffered by the children featured in these images and the

perpetuation of this harm caused by the distribution of the

permanent record of their abuse. Goff, 501 F.3d at 259-60.

Unlike Goff, this is not a case where the District Court failed to

appreciate the seriousness of the offense.

16

B. Subsequent to Sentencing in this Case, the Sentencing

Commission Has Issued Reports and Other Courts

Have Issued Opinions that Support the District

Court’s Decision

It must be remembered that between the time of Grober’s

plea of guilty in October 2007 and his sentencing in December

2008, the District Court was proceeding in largely uncharted

territory. There was very little out there, in large part because

district courts were just beginning to see how the then-recent

and dramatically escalating features of the Guidelines

calculations in child pornography cases would play out in the

cases before them, particularly given the fact that, as a result of

United States v. Booker, 543 U.S. 220, 245 (2005), the

Guidelines were no longer mandatory. And so the Court

reached out to wherever and whomever it believed could provide

the information it needed to sentence Grober appropriately.

The District Court considered, for one thing, the

Stabenow paper, which appeared in mid-2008, and Professor

Berman’s testimony as to it, which confirmed, in the Court’s

view, the reliability of Stabenow’s research. That paper –

Deconstructing the Myth of Careful Study: A Primer on the

Flawed Progression of the Child Pornography Guidelines –

comprehensively traced the history of § 2G2.2 and supported,

with a fair amount of research, Stabenow’s conclusion that §

2G2.2 was seriously flawed, and why. District courts fairly

quickly began to seize upon what Stabenow had found because

they now had reason to believe that their concerns about § 2G2.2

had some basis in fact. And by December 2008, when sentence

was imposed on Grober, district courts were increasingly citing

the paper and it had become, as the Court described it,

“influential.” Grober, 595 F. Supp. 2d at 397. Were Stabenow

to be an unobjective source, as the government claims that he is,

we would not place much, if any, reliance on his paper. We

17

cannot, however, fault the Court for doing so because of the

paucity of material available to it at the time.7

Since then, not only have numerous district courts across

the country similarly found § 2G2.2 flawed, see, e.g., United

States v. Diaz, -- F. Supp. 2d --, 2010 WL 2640630 (E.D. Wis.

2010) (collecting cases); United States v. Riley, 655 F. Supp. 2d

1298 (S.D. Fla. 2009); United States v. McElheney, 630 F. Supp.

2d 886 (E.D. Tenn. 2009); United States v. Beiermann, 599 F.

Supp. 2d 1087 (N.D. Iowa 2009); United States v. Phinney, 599

F. Supp. 2d 1037 (E.D. Wis. 2009),8 but so, too, has the Court

of Appeals for the Second Circuit, United States v. Dorvee, --

F.3d --, 2010 WL 3023799 (2d Cir. 2010), reh’g en banc denied

(2d Cir. Aug. 31, 2010). Also supporting the District Court’s

conclusions is, among other reports, the recently issued

Sentencing Commission’s Report on the history of the child

pornography Guidelines, an extensive and extraordinarily

thorough study, indeed. Were any of this available at the time of

Grober’s sentencing, the Court could even more “adequately”

have addressed and disposed of “the government’s well-

7

It is unnecessary for purposes of this Opinion to parse

Stabenow’s paper and determine if the government is correct as

to the inaccuracies to which it points. Although our dissenting

colleague disagrees that such analysis is unnecessary, he does

not point to any inaccuracies in the paper. We also note that the

Court of Appeals for the Second Circuit has recently cited

Stabenow’s paper in its opinion critiquing § 2G2.2. United

States v. Dorvee, -- F.3d --, 2010 WL 3023799, at *9 (2d Cir.

2010), reh’g en banc denied (2d Cir. Aug. 31, 2010)..

8

But see United States v. Cunningham, 680 F. Supp. 2d 844

(N.D. Ohio 2010) (discussing the history of § 2G2.2 and the

Stabenow paper and rejecting the notion that § 2G2.2 should not

be afforded deference).

18

supported arguments” and, likely, would not have needed to

consider Stabenow’s research or permit the defense to call

Professor Berman.9

1. The Sentencing Commission’s Reports and

Data

The Sentencing Commission’s Report on the history of

the child pornography Guidelines – issued in October 2009,

almost a year after sentence was imposed in this case – supports

the District Court’s decision by highlighting Congress’s role in

developing § 2G2.2 and its laser-like focus on the child

pornography Guidelines, particularly in the last several years.

See United States Sentencing Commission, The History of the

Child Pornography Guidelines (Oct. 2009), available at

http://www.ussc.gov/general/20091030_History_Child_Pornogr

9

An illustration makes the point rather clearly. In one of the

first district court opinions to discuss Stabenow’s paper, Judge

Lynn Adelman relied almost exclusively on the paper to find

that “given all of the flaws in the guideline,” and particularly the

numerous enhancements the defendant faced, he could not, after

considering the § 3553(a) factors, conclude that the guideline

range of 210-262 months for a plea to transporting child

pornography deserved deference – it was “far greater than

necessary to satisfy the purposes of sentencing in this case.”

Hanson, 561 F. Supp. 2d at 1005. In one of the most recent

district court opinions, Judge Adelman did not even mention the

Stabenow paper, given that he now had, as we describe in text,

the 2009 Sentencing Commission’s Report on the history of the

child pornography Guidelines, the Second Circuit’s opinion in

Dorvee, and a virtual string citation to opinions by judges across

the country who have “recogniz[ed] the flaws” in § 2G2.2 and

“have declined to impose sentence within the range it

recommends.” Diaz, -- F. Supp. 2d at --, 2010 WL 2640630, at

*3.

19

aphy_Guidelines.pdf. The Report describes the development of

the child pornography Guidelines, which have been

substantively amended nine times since 1987, and repeatedly

highlights the role that Congress has played. For example, the

Report states that

Congress has demonstrated its continued interest

in deterring and punishing child pornography

offenses, prompting the Commission to respond to

multiple public laws that created new child

pornography offenses, increased criminal

penalties, directly (and uniquely) amended the

child pornography guidelines, and required the

Commission to consider offender and offense

characteristics for the child pornography

guidelines.

Id. at 54; see also id. at 1 (“Congress has been particularly active

over the last decade creating new offenses, increasing penalties,

and issuing directives to the Commission regarding child

pornography offenses.”); id. at 6 (“Through creating new

offenses, enacting new mandatory minimums, increasing

statutory maximums, and providing directives to the

Commission, Congress has repeatedly expressed its will

regarding appropriate penalties for child pornography

offenders.”). The Report states that, in the Commission’s effort

to “to implement congressional intent,” it “reviewed sentencing

data, considered public comment on proposed amendments,

conducted public hearings on proposed amendments, studied

relevant literature, and considered pertinent legislative history.”

Id. at 7. It is clear from the Report, however, that the

Commission was constantly reacting to Congress’s repeated

directives, and the penalties for child pornography offenses that

were steadily, and often dramatically, increasing. The result is a

Guidelines provision where, as the Commission found, if the

base offense level was any higher, the typical offender sentenced

for receipt of child pornography would face a higher Guidelines

20

range than the typical offender convicted of conspiracy to

commit murder and kidnapping. Id. at 47-48.

We will briefly recount some of the history set forth in

the Report. When § 2G2.2 was first promulgated by the

Commission in 1987, it had a base offense level of 13 – nine

levels lower than it is today for transportation, distribution, and

receipt offenses – and contained only two enhancements, one for

material depicting a child less than twelve years old (two levels)

and one for the retail value of the material distributed (at least

five levels). The Commission promulgated § 2G2.4 in 1991 to

address the then-recently federalized crime of possession, and

proposed to set the base offense level at 10 – eight levels lower

than it is today – and included only a two-level enhancement for

material depicting a prepubescent minor or child under the age

of twelve. Members of Congress were vocal in expressing their

concern that the Guidelines ranges were not high enough for

child pornography offenders – these were “smut peddlers” and

“pedophiles” – but the Commission defended the Guidelines,

noting that they “continue to require substantially tougher

penalties than typically were imposed under pre-guidelines

practice” and that data suggested that judges and prosecutors

thought “that the offense level for the least serious forms of

conduct under § 2G2.2 was too severe.” Id. at 21. Congress

specifically directed the Commission, however, to make a

variety of changes to § 2G2.2 and § 2G2.4, including raising the

base offense levels to at least 15 and 13, respectively.

In 1995, Congress again specifically directed the

Commission to raise the base offense level for child

pornography offenses by at least two levels and include at least a

two-level enhancement if a computer was used to transport the

child pornography. The Commission complied, but expressed

concern that the computer enhancement would apply broadly,

and without any distinction between offenders who used a

computer to widely disseminate child pornography and those

who “email[ed] images to a single voluntary recipient.” United

States Sentencing Commission, Report to the Congress: Sex

21

Offenses Against Children at 30 (June 1996), available at

http://www.ussc.gov/r_congress/SCAC.pdf. This Report to

Congress also noted significant downward departure rates (for

reasons other than substantial assistance) for sentences imposed

under the child pornography Guidelines: 23% under § 2G2.2 and

13% under § 2G2.4.

In 2003, Congress, apparently without seeking any input

from the Commission, which, of course, it was not required to

do, passed the Prosecutorial Remedies and Other Tools to End

the Exploitation of Children Today Act (“PROTECT Act”),

which resulted in several significant changes to the child

pornography statutes and Guidelines, including “the first and

only time to date [Congress] directly amended the guidelines.”

The History of the Child Pornography Guidelines at 38. As the

Second Circuit recently noted, the former United States Attorney

for the Eastern District of New York described this statute as

“the most significant effort to marginalize the role of the

Sentencing Commission in the federal sentencing process since

the Commission was created by Congress.” Dorvee, -- F.3d --,

2010 WL 3023799, at *9 (quoting Alan Vinegrad, The New

Federal Sentencing Law, 15 Fed. Sent’g Rep. 310, 315 (June

2003)).

The PROTECT Act added the “image table” to both §

2G2.2 and § 2G2.4 which raised the offense level based on the

number of images at issue, ranging from a two-level increase for

at least ten images to a five-level increase for 600 or more

images. It additionally added to § 2G2.4 a four-level increase

for material portraying sadistic or masochistic conduct or other

depictions of violence (which the Commission included in §

2G2.2 in 1990). The Act also added a five-year mandatory

minimum sentence for receipt and trafficking, and raised the

statutory maximum from fifteen to twenty years for receipt and

trafficking and from five to ten years for possession. The Act

included general directives to the Commission to review the

Guidelines, and in response, the Commission conducted several

studies. The Commission concluded, for example, that the new

22

amendments would more than double the average sentences

under § 2G2.2 (from 42.8 months to 88.8 months) and nearly

double the average sentences under § 2G2.4 (from 28 months to

54 months).

Effective November 1, 2004, the Commission again

amended the Guidelines, consolidating § 2G2.4 into § 2G2.2. In

response to the new minimum and maximum penalties set by

Congress, the Commission set higher base offense levels for

possession (increased from 15 to 18) and trafficking/distribution

(increased from 17 to 22). The Report indicates that these

offense levels were set below the mandatory minimum because

“a majority of offenders sentenced under § 2G2.2 were subject

to specific offense characteristics that increased their offense

level.” The History of the Child Pornography Guidelines at 46

(citing the enhancements for computer use and material

involving a prepubescent child, to which, at the time, 89.4% and

91.4% of offenders, respectively, were subject).10 The

Commission was “concerned that setting the base offense level

any higher than 22 for trafficking and receipt offenses would

affect the proportionality of other guidelines,” and, could, for

example, call for a higher penalty than that typically imposed on

a defendant convicted of conspiracy to commit murder and

kidnapping. Id. at 47-48.

Importantly, the 2009 Report notes that the Commission

has identified a review of the child pornography Guidelines as a

policy priority, and that “[f]or the past several years, § 2G2.2

has had a high and increasing rate of downward departures and

below-guideline variances.” Id. at 8, 54. Sentencing data bears

10

These percentages have only increased. In 2009, 97.2% of

offenders sentenced under § 2G2.2 were subject to the computer

enhancement and 94.8% were subject to the prepubescent

material enhancement. Dorvee, -- F.3d at --, 2010 WL 3023799,

at *10.

23

out this observation. In fiscal year 2008, 35.7% of § 2G2.2

sentences were non-government-sponsored below-Guidelines

sentences, compared to 13.4% of such sentences for all

offenders. Id. at 8 n.33. In fiscal year 2009, the percentage is

even higher: 43.03% of § 2G2.2 sentences were non-

government-sponsored below-Guidelines sentences, compared

to 15.9% of such sentences for all offenders. United States

Sentencing Commission, 2009 Sourcebook of Federal

Sentencing Statistics, Tables 28 & N, available at

http://www.ussc.gov/ANNRPT/2009/SBTOC09.htm. It bears

mention, as well, that the Commission recently surveyed federal

district court judges regarding their experience with, and

opinions of, inter alia, the child pornography Guidelines, and

found widespread dissatisfaction with § 2G2.2. United States

Sentencing Commission, Results of Survey of United States

District Judges January 2010 through March 2010 (June 2010),

available at

ttp://www.ussc.gov/Judge_Survey/2010/JudgeSurvey_201006.p

df. Seventy percent of responding judges – and only judges who

had sentenced defendants after Kimbrough and Gall were to

respond to the questions with respect to § 2G2.2 – reported that

the Guidelines range for possession was too high, 69% said that

the range for receipt was too high, and 30% believed that the

range for distribution was too high.

2. The Second Circuit’s Decision in United States

v. Dorvee

We return to United States v. Dorvee, a recent and

important decision albeit one not addressed by the dissent, in

which the Second Circuit concluded that § 2G2.2 is

“fundamentally different” from other Guidelines and, unless it is

“applied with great care, can lead to unreasonable sentences that

are inconsistent with what § 3553 requires.” -- F.3d at --, 2010

WL 3023799, at *9. Holding that a 233-month within-

Guidelines sentence for the distribution of child pornography

was both procedurally unreasonable (on grounds not relevant

here) and substantively unreasonable because it was “manifestly

24

unjust,” id. at 98, the Court largely echoed the District Court

here. It found that the Commission did not use an empirical

approach to develop § 2G2.2, but instead amended it repeatedly

at the direction of Congress, sometimes reluctantly. Id. at 95-96

(noting the Commission’s criticism of the two-level

enhancement for use of a computer and its general statement that

“specific directives to the Commission to amend the guidelines

make it difficult to gauge the effectiveness of any particular

policy change, or to disentangle the influences of the

Commission from those of Congress” (quoting United States

Sentencing Commission, Fifteen Years of Guidelines

Sentencing: An Assessment of How Well the Federal Criminal

Justice System is Achieving the Goals of Sentencing Reform at

73 (2004), available at

http://www.ussc.gov/15_year/chap2.pdf).

The enhancements “cobbled together through this process

routinely result in Guidelines projections near or exceeding the

statutory maximum, even in run-of-the-mill cases.” Dorvee, --

F.3d at --, 2010 WL 3023799, at *10. The Dorvee Court noted,

as did the District Court here, that many of these enhancements

apply in almost all cases. See id. (noting that, of all the § 2G2.2

sentences imposed in 2009, 94.8% involved an image of a

prepubescent minor, 97.2% involved a computer, 73.4%

involved an image of sadistic, masochistic, or otherwise violent

conduct, and 63.1% involved 600 or more images); see also

United States v. Tutty, 612 F.3d 128, 132 (2d Cir. 2010) (noting

that 96.6% of offenders sentenced under § 2G2.2 in 2009

received an enhancement based on the number of images

possessed). Thus, “[a]n ordinary first-time offender is therefore

likely to qualify for a sentence of at least 168 to 210 months,

rapidly approaching the statutory maximum, based solely on

sentencing enhancements that are all but inherent to the crime of

conviction.” Dorvee, -- F.3d at --, 2010 WL 3023799, at *10.

Because the Guidelines do not distinguish between these “run-

of-the-mill” offenders and the most dangerous offenders, the

“result is fundamentally incompatible with § 3553(a).” Id. The

Dorvee Court further cited as proof of the “irrationality” of §

25

2G2.2 that a defendant who actually engages in sexual conduct

with a minor may be subject to a lower Guidelines range than

one who distributes child pornography. Id.

For these reasons, the Second Circuit concluded that this

“eccentric Guideline of highly unusual provenance” is not

worthy of the weight afforded to other Guidelines. Id. at *12;

see also Tutty, 612 F.3d at 133 (vacating 168-month within-

Guidelines sentence for receipt of child pornography and

directing district court on remand to consider the policy

considerations identified in Dorvee); United States v. Stone, 575

F.3d 83, 97 (1st Cir. 2009) (“[W]e wish to express our view that

[§ 2G2.2 is] in our judgment harsher than necessary. . . . [F]irst-

offender sentences of this duration are usually reserved for

crimes of violence and the like.”).

C. Section 2G2.2 Was Not Developed Pursuant to the

Sentencing Commission’s Characteristic Institutional

Role

We have recognized that “a Guideline is likely to reflect a

rough approximation of sentences that might achieve §

3553(a)’s objectives only when it is the product of empirical

data and national experience, guided by a professional staff with

appropriate expertise.” United States v. Arrelucea-Zamudio,

581 F.3d 142, 155 n.12 (3d Cir. 2009) (internal quotation marks

and citations omitted) (concluding that Sentencing Commission

implemented Guideline authorizing departure for “fast track”

programs in illegal reentry cases at congressional direction and

not based on empirical data and national experience). In

Kimbrough, the Supreme Court analyzed the crack cocaine

Guidelines, and held that they were based on statutory

mandatory minimum sentences rather than “empirical data and

national experience” and, thus, the Commission had not

exercised its “characteristic institutional role” in developing

them. 552 U.S. at 109 (citation omitted). A district court would

not, therefore, abuse its discretion by concluding that a within-

Guidelines sentence would not meet the sentencing purposes set

26

out in § 3553(a), even in a typical case. See Stone, 575 F.3d at

93 (noting that Kimbrough “recognized the fact that the crack

cocaine guidelines were based on congressional policy, rather

than empirical study by the Commission, as one ground

permitting a variant sentence”).

As described in the Commission’s 2009 Report, and as

discussed by the Second Circuit in Dorvee, and, by now,

numerous district courts, § 2G2.2 was not developed pursuant to

the Commission’s institutional role and based on empirical data

and national experience, but instead was developed largely

pursuant to congressional directives. See Dorvee, -- F.3d at --,

2010 WL 3023799, at *11 (concluding that § 2G2.2 does not

“exemplify the Commission’s exercise of its characteristic

institutional role” (quoting Kimbrough, 552 U.S. at 109-10));

United States v. Huffstatler, 571 F.3d 620, 622-23 (7th Cir.

2009) (“[P]erhaps for good reason, the government did not take

issue with [the] premise that the child-exploitation guidelines

lack an empirical basis” since the Commission acknowledged

that Congress has used a combination of mandatory minimum

increases and directives to the Commission to change child

pornography sentencing policy.).11 As one district court put it,

“the Commission probably did the best it could under difficult

circumstances, but to say that the final product is the result of

Commission data, study, and expertise simply ignores the facts.”

Diaz, -- F. Supp. 2d at --, 2010 WL 2640630, at *7.

Congress, of course, has retained the ultimate authority

over the Guidelines, and may enact directives to the

Commission which the Commission is obliged to implement.

Nonetheless, Kimbrough permits district courts to vary “even

where a guideline provision is a direct reflection of a

11

But see United States v. Pugh, 515 F.3d 1179, 1201 n.15

(11th Cir. 2008) (stating that § 2G2.2 does not “exhibit the

deficiencies the Supreme Court identified in Kimbrough”).

27

congressional directive.” Arrelucea-Zamudio, 581 F.3d at 150

(quoting Stone, 575 F.3d at 89); see also id. at 151 (“In sum, a

Guideline is not a statute. If Congress does not want district

courts to exercise their judicial function to sentence defendants

based on the facts and circumstances of each case under the

guidance of the § 3553(a) factors, then it has the power to amend

the pertinent statute.”).

D. The District Court Provided a Sufficiently Compelling

Justification for Not Applying the Sentencing Range

Recommended by § 2G2.2

Nonetheless, the Sentencing Guidelines “deserve careful

consideration in each case,” and because “they have been

produced at Congress’s direction, they cannot be ignored.”

Goff, 501 F.3d at 257. Here, after extensive consideration of §

2G2.2 and the § 3553(a) factors, the District Court determined

not to apply the Guidelines range recommended by § 2G2.2.

This was not an abuse of its discretion. The Court set forth an

explanation that we find to be sufficiently compelling, and well-

grounded in the § 3553(a) factors, to justify its decision. It

adequately explained why it found § 2G2.2 flawed and why it

varied from the recommended sentencing range to the ultimate

sentence it imposed, which, it bears repeating, the government

does not challenge. We also conclude that with the wealth of

resources that have become available since the sentencing in this

case, the Court’s decision now stands on even stronger ground.

Finally, although the government does challenge the Court’s

broad conclusions about § 2G2.2, it does not and cannot argue

that the Court did not adequately consider the § 3553(a) factors

as applied to Grober, as surely the Court did. (Oral Arg. Tr. at

54 (government stating that it does “not challenge the procedural

reasonableness of the Court’s examination of Grober’s personal

factors”)).12

12

Although our dissenting colleague criticizes the District

Court’s consideration of the nature and circumstances of the

28

We emphasize that we do not hold that § 2G2.2 will

always recommend an unreasonable sentence, and district courts

must, of course, continue to consider the applicable Guidelines

range. See 18 U.S.C. § 3553(a)(4); Gall, 552 U.S. at 49 (“As a

matter of administration and to secure nationwide consistency,

the Guidelines should be the starting point and the initial

benchmark.”). Moreover, if a district court does not in fact have

a policy disagreement with § 2G2.2, it is not obligated to vary

on this basis. See Arrelucea-Zamudio, 581 F.3d at 148-49

(citing United States v. Gunter, 462 F.3d 237, 249 (3d Cir.

2006)).

offense, 18 U.S.C. § 3553(a)(1), the government does not

challenge the procedural or substantive reasonableness of this

analysis as it applies to Grober.

29

Specific Allegations of Procedural Error

We nonetheless agree with the government and the

dissent that, at least in certain respects, the District Court

procedurally erred. Where we disagree is whether these errors,

singly or collectively, are significant enough to warrant remand.

We are convinced that they are not. For example, the Court

improperly faulted the government for not presenting a live

witness, such as a representative from the Sentencing

Commission, essentially to defend the child pornography

Guidelines. Even aside from the government’s argument that

this type of inquiry is legally impermissible, as a practical

matter, it is unworkable. Additionally, Professor Berman did

not demonstrate any particular expertise as to § 2G2.2, as

opposed to the Guidelines in general, as to which, we note, the

Court found his testimony helpful. In any event, the Federal

Rules of Evidence – including those governing the admission of

expert testimony – do not apply in sentencing proceedings,

Grier, 475 F.3d at 570 n.9; Fed. R. Evid. 1101(d)(3); see also

U.S.S.G. § 6A1.3(a), and it is surely not apparent that any harm

came as the result of this testimony. Indeed, our dissenting

colleague would not find reversible procedural error on this

ground alone. As we said at the outset, the Court sought to

engage in a “dialogue” with the Sentencing Commission and

defense witnesses about the history of and rationale for § 2G2.2

and considered Stabenow’s paper because there was so little out

there. That does not mean, however, that the Court did not also

rely on the extensive briefing provided by the parties and other

available resources, as clearly it did.

The government also challenges the District Court’s

characterization of Grober as a typical defendant sentenced

under § 2G2.2. It argues, first, that, because many child

pornography-related cases are for various reasons not prosecuted

federally, the typicality of a child pornography offender cannot

be determined by looking only at those charged federally. The

Court properly focused, however, on defendants sentenced under

§ 2G2.2 and did not purport to undertake an exhaustive analysis

30

of offenders who are charged in state court or never charged at

all. While, as we observed above at note 1, we agree with the

government and the dissent that the Court’s description of

Grober as a “downloading defendant” does not fully encapsulate

the crimes of receipt and transportation of child pornography to

which he pled guilty, the Court clearly comprehended the nature

of Grober’s conduct, and sufficiently addressed the distinct

harms caused by his trading images of child pornography.

Finally, we reach what, in the dissent’s view, is the “most

egregious” error – the District Court’s “frontal assault on the

plea bargaining system” and, indeed, its “rejection” of that

system. (Dissent at 5, 6, 8). The Court did no such thing. In

light of the fact that Grober twice had the opportunity to plead

guilty to only a possession count and did not do so, his case, to

be sure, is distinguishable from that of the “earlier defendant”

referenced, perhaps inappropriately, by the Court – the

defendant who quickly pled guilty to possession of child

pornography. However, insofar as the Court was alarmed by the

escalating offense levels implemented between the earlier

defendant’s guilty plea and Grober’s guilty plea, the comparison

is apt and illustrates in rather dramatic fashion why the Court

was concerned. That having been said, to the extent that the

dissent criticizes the Court for “penalizing the Government for

its role in the plea bargaining system” (Dissent at 7), it is unclear

what “penalty” the Court imposed, except the ultimate sentence

which neither the government nor the dissent argues was

substantively unreasonable.

Accordingly, we conclude that the District Court did not

commit any significant procedural error requiring remand.

IV. The Cross-Appeal

Grober’s cross-appeal need not detain us long. He

argues, first, that all six counts of conviction must merge into a

single continuing offense of possession to avoid violating the

Double Jeopardy Clause, see United States v. Miller, 527 F.3d

31

54, 72 (3d Cir. 2008), and, because the possession crime does

not carry a mandatory minimum sentence of imprisonment, that

he may be re-sentenced without regard to the five-year minimum

required for the other counts of conviction. Even if this

argument was not waived by his plea of guilty to all six counts

in the superseding indictment, see United States v. Broce, 488

U.S. 563, 570 (1989); United States v. Pollen, 978 F.2d 78, 84

(3d Cir. 1992), it surely cannot, under the circumstances of this

case, survive plain error review.

Grober argues, next, that a district court is not obligated

to impose a mandatory minimum sentence that it concludes is

greater than necessary to comport with the purposes of

sentencing, unless the applicable statutory provision specifically

provides that the Sentencing Reform Act does not apply. See 18

U.S.C. §§ 3551(a), 3553(a). We have previously rejected this

argument in analogous circumstances. See United States v.

Walker, 473 F.3d 71, 85 (3d Cir. 2007); United States v. Kellum,

356 F.3d 285, 289 (3d Cir. 2004). Accordingly, the District

Court properly recognized that it was statutorily bound to

impose a sentence of at least five years imprisonment in this

case.

V. Conclusion

As we have described, the District Court set forth, in a

thoughtful and carefully considered albeit at points imperfect

opinion, a sufficiently compelling explanation for its policy

concerns about § 2G2.2 and its justification for imposing a

sentence outside the range § 2G2.2 recommended. Because the

Court did not abuse its discretion in sentencing David Grober to

a term of five years imprisonment, we will affirm.

32

United States v. Grober, Nos. 09-1318, 09-2120

HARDIMAN, dissenting in part

I join my colleagues in recognizing the diligence and

seriousness of purpose shown by the District Court in sentencing

David Grober. I join them also in recognizing that the District

Court “erred in some respects.” Maj. Op. at 15. Because I am

convinced that the procedural errors committed by the District

Court are material, however, I must respectfully dissent.1

I.

After pleading guilty to six federal crimes, Grober’s

statutory imprisonment range was 60-240 months. His base

offense level was 22 and his criminal history category was I,

yielding an initial imprisonment range of 41-51 months under

the United States Sentencing Guidelines (USSG). Because he

qualified for five sentencing enhancements pursuant to USSG

§2G2.2, however, Grober’s base offense level rose to 40. After

a two-level downward adjustment for acceptance of

responsibility, Grober’s final Guidelines range was 235-293

months imprisonment, which was capped at 240 months by

virtue of the statutory maximum.

Despite the fact that Grober’s Guidelines range was

aligned with the statutory maximum, he was sentenced to the

statutory minimum of 60 months imprisonment. A variance of

this magnitude requires us to “consider the extent of the

deviation and ensure that the justification is sufficiently

1

I agree with my colleagues that the cross-appeal is

unmeritorious. Therefore, this dissent is limited to the

procedural reasonableness of Grober’s sentence.

compelling to support the degree of the variance.” United States

v. Merced, 603 F.3d 203, 216 (3d Cir. 2010) (quoting Gall v.

United States, 552 U.S. 38, 50 (2007)).

“The freedom to vary from the . . . Guidelines . . . is not

free. Its price is a reasoned, coherent, and sufficiently

compelling explanation of the basis for the court’s

disagreement.” Merced, 603 F.3d at 219-20 (quoting United

States v. Lychock, 578 F.3d 214, 220 (3d Cir. 2009)). “A

‘sufficiently compelling’ explanation is one that is grounded in

the 3553(a) factors.” Id. at 221. Because the Sentencing

Commission is charged with effectuating the objectives of §

3553(a), the District Court, in categorically rejecting § 2G2.2,

“must explain why its policy judgment would serve the §

3553(a) sentencing goals better than the Sentencing

Commission’s judgments. In doing so, [the court] should take

into account all of the sentencing factors, not just one or two of

them in isolation.” Id.

Since the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), district judges have wrestled with

the scope of their sentencing discretion. Although statutory

ranges established by Congress still circumscribe this discretion,

in many cases (like this one) those ranges are so broad that the

potential for unwarranted sentencing disparities looms large.

Accordingly, Booker and its progeny reflect the Supreme

Court’s ongoing support for the Guidelines as a critical starting

point and frame of reference as judges discharge their most

solemn duty: imposing criminal sentences. See, e.g., United

States v. Kimbrough, 552 U.S. 85, 108 (2007) (“While rendering

the Sentencing Guidelines advisory, we have nevertheless

preserved a key role for the Sentencing Commission.”); Gall,

2

552 U.S. at 49 (“As a matter of administration and to secure

nationwide consistency, the Guidelines should be the starting

point and the initial benchmark.”); cf. Booker, 543 U.S. at 311

(Scalia, J., dissenting) (“The worst feature of the scheme is that

no one knows--and perhaps no one is meant to know--how

advisory Guidelines and ‘unreasonableness’ review will

function in practice.”).

In view of the Supreme Court’s continuing support for

the Guidelines, we must ensure that district courts do not

evaluate the sentencing factors of 18 U.S.C. § 3553(a) in a way

that renders the Guidelines irrelevant. At least two reasons

animate this imperative. First, fidelity to Booker and its progeny

demands it. Second, should the courts of appeals fail to police

wildly disparate sentences, I fear that Congress will respond to

the evisceration of the Guidelines by prescribing statutory

sentencing ranges that will, in their detail, rival the 282 laws of

the Code of Hammurabi about which the District Court in this

case expressed such consternation.

II.

In Kimbrough v. United States, 552 U.S. 85, 91 (2007),

the Supreme Court held USSG § 2D1.1, like all other

Guidelines, to be advisory. In light of the uncertainty

surrounding the authority possessed by district courts to alter or

disregard the 100 to 1 crack/powder ratio, the Court in Spears v.

United States, 129 S. Ct. 840 (2009), “clarif[ied] that district

courts are entitled to reject and vary categorically from the

crack-cocaine Guidelines based on a policy disagreement with

those Guidelines.” Id. at 844. Apparently in light of Spears, in

this appeal the Government has conceded that district courts

3

may categorically reject USSG § 2G2.2.2 Nevertheless, the

District Court committed several missteps on its way toward

categorically rejecting § 2G2.2, and its wholesale rejection of

that Guideline rendered Grober’s sentence procedurally

unreasonable.

The Majority candidly acknowledges the District Court’s

errors in: (1) faulting the Government for not presenting a live

witness at sentencing to defend § 2G2.2; (2) taking testimony

from Professor Douglas Berman who, though an authority on

sentencing law and policy, conceded a lack of expertise with

2

The Government’s concession here is consistent with

Merced, where we observed that the notion that a Guideline

driven by Congressional mandate is not subject to categorical

rejection on policy grounds has fallen out of favor. Merced, 603

F.3d at 226. Although the Supreme Court endorsed such a

categorical rejection of the crack cocaine Guidelines (Spears),

I am not convinced the Supreme Court would so hold in respect

to the child pornography Guidelines. The storied history of the

100 to 1 crack/powder ratio is sui generis in my view. See

United States v. Pugh, 515 F.3d 1179, 1201 (11th Cir. 2008)

(“The [child pornography] Guidelines involved in Pugh’s case,

however, do not exhibit the deficiencies the Supreme Court

identified in Kimbrough.”). Rather than blithely assuming that

the Supreme Court would permit the categorical rejection of all

Guidelines as it did with USSG § 2D1.1, the better practice

would be for district courts to consider each Guideline and

enhancement on its peculiar merits (or demerits). This approach

maintains the best of Booker (allowing district courts to do

justice) without facilitating such wildly disparate sentences as to

invite a Congressional “fix.”

4

respect to § 2G2.2; (3) describing Grober as a “downloading

defendant”; and (4) comparing Grober to a dissimilar defendant

who was sentenced pursuant to a plea agreement. Maj. Op. at

31-32. After briefly explaining away each of these errors, the

Majority concludes “that the District Court did not commit any

significant procedural error requiring remand.” Id. at 33.

If the only error committed by the District Court had

been to hear testimony from Professor Berman, I would agree

with my colleagues. If the District Court had committed only

the first, or the third, or the fourth error noted above, we would

be presented with a closer case. But when the foregoing errors

are considered in the aggregate, as they must be, the District

Court committed reversible error.

A.

I begin with the fourth error cited by the Majority

because I find it the most egregious. In support of its decision

to disregard § 2G2.2, the District Court adverted to “its own

experience about the problematic nature of charging discretion

and plea arrangements” and likened Grober to an unnamed

“earlier defendant” who had pleaded guilty to one count of

possession pursuant to a plea agreement. Grober, 595 F. Supp.

2d 382, 399 (D.N.J. 2008).

Although much remains unknown about this “earlier

defendant,” we do know that his crime of conviction was

materially different than Grober’s. The “earlier defendant”

pleaded guilty to one count of possession. Grober, on the other

hand, pleaded guilty to six counts (one for possession, three for

receipt or distribution, and two for transportation) after rejecting

5

the Government’s first two plea offers, which included the

dismissal of the receipt and distribution charges. By contrasting

the Guidelines range Grober faced with the range faced by the

“earlier defendant,” the District Court concluded that applying

the enhancements recommended by the Probation Office and

advocated by the Government would result in sentencing

disparities.

But the disparities caused by, to use the District Court’s

words, “charging discretion and plea arrangements,” Grober,

595 F. Supp. 2d at 399, are endemic to all Guidelines and have

nothing to do with § 2G2.2 in particular.3 By rebuking the

Government for obtaining a superseding indictment after Grober

twice rejected the Government’s offers, the District Court

launched a frontal assault on the plea bargaining system.

Irrespective of the subject matter—whether it be child

pornography, drugs, securities fraud, or countless other federal

crimes—it is unremarkable that the Government tries to cajole

the guilty to fess up promptly. And those who do so are

rewarded with fewer or less significant charges, thereby earning

them more lenient sentences than those who are convicted after

a trial or an eleventh-hour plea. This is the essence of an

imperfect, but long-tenured system that has been endorsed by

the Supreme Court. See, e.g., Santobello v. New York, 404 U.S.

3

In United States v. Arrelucea-Zamudio, 581 F.3d 142

(3d Cir. 2009), we recognized that defendants who accept plea

offers are often subject to lower sentences than those who do

not. Id. at 157. Unlike the court in Arrelucea, which was

concerned with reducing sentencing disparities among like

defendants, here the District Court increased disparity by

treating defendants convicted of different offenses similarly.

6

257, 260 (1971) (finding that courts have long considered plea

bargaining to be “an essential component of the administration

of justice,” and if “properly administered, [the procedure

should] be encouraged”); Brady v. United States, 397 U.S. 742,

752 (1970) (describing the “mutuality of advantage” for both the

State and the defendant to plea bargain: “For a defendant who

sees slight possibility of acquittal, the advantages of pleading

guilty and limiting the probable penalty are obvious -- his

exposure is reduced, the correctional processes can begin

immediately, and the practical burdens of a trial are eliminated.

For the State there are also advantages -- the more promptly

imposed punishment after an admission of guilt may more

effectively attain the objectives of punishment; and with the

avoidance of trial, scarce judicial and prosecutorial resources are

conserved for those cases in which there is a substantial issue of

the defendant’s guilt or in which there is substantial doubt that

the State can sustain its burden of proof.”); see also GEORGE

FISHER, PLEA BARGAINING’S TRIUMPH: A HISTORY OF PLEA

BARGAINING IN AMERICA (Stanford University Press 2003)

(finding that plea bargains were commonplace in criminal trials

in the United States as early as 1800); MILTON HEUMANN, PLEA

BARGAINING: THE EXPERIENCES OF PROSECUTORS, JUDGES, AND

DEFENSE ATTORNEYS (University of Chicago Press 1978)

(describing strong support for plea bargaining among

prosecutors, defense attorneys, and judges familiar with the

system).

In sum, by comparing Grober to the “earlier defendant”

who accepted a plea agreement, the District Court impermissibly

penalized the Government for its role in the plea bargaining

system. This was reversible error.

7

B.

In addition to the District Court’s rejection of the plea

bargaining system, a significant evidentiary error tainted the

sentencing hearing. The District Court challenged the

Government to proffer a witness from the Sentencing

Commission to justify § 2G2.2 and to counter testimony from

Professor Berman regarding federal defender Troy Stabenow’s

paper: Deconstructing the Myth of Careful Study: A Primer on

the Flawed Progression of the Child Pornography Guidelines

(hereinafter Stabenow). In the words of the District Court:

“[I]insofar as the government might have established a dialogue

between Professor Berman and the Commission on the

Stabenow research or any other issue Professor Berman testified

about, it took a pass. So did the Commission . . . . Hence,

despite the Court’s invitation and many opportunities, the

testimony of Professor Berman is unrebutted by live testimony.”

Grober, 595 F. Supp. 2d at 391. As the Majority correctly

noted: “Even aside from the government’s argument that this

type of inquiry is legally impermissible, as a practical matter, it

is unworkable.” Maj. Op. at 32.

The Government was right to decline the Court’s

unorthodox invitation. It would have been no more proper for

the Government to have proffered a member of the Sentencing

Commission to opine regarding the history and purpose of §

2G2.2 than it would have been to proffer a Senator or

Representative to testify regarding the legislative history of the

child pornography laws. The Guideline promulgation process

is not subject to “discovery.” See, e.g., United States v. Leroy,

984 F.2d 1095, 1098 (10th Cir. 1993). The Commission so

advised the District Court in a letter attached as Appendix A to

8

the Court’s opinion, which stated:

The Act provides, in 18 U.S.C. § 3553(b)(1), that

in determining whether a circumstance was

adequately taken into consideration by the

Commission in formulating the guidelines, “the

court shall consider only the sentencing

guidelines, policy statements, and official

commentary of the Sentencing Commission.”

The legislative history of this provision makes

clear that Congress limited the court’s

consideration in this regard to preclude the

possibility of legal process directed at the

Commission, individual commissioners, or staff

in an effort to look beyond the sources specified.

See 133 Cong. Rec. 31,946 (1987) (statement of

Rep. Conyers) (“The purpose of the amendment

is to ensure that members of the Sentencing

Commission, as well as its records, are not subject

to subpoena at the sentencing of a convicted

defendant.”); 133 Cong. Rec. 33,110 (1987)

(statement of Sen. Thurmond) (“There was some

concern that failure to specifically designate the

materials that may be used . . . could result in

members of the Commission, or their notes or

other internal work products, being subpoenaed.

This was never intended by Congress.”).

Grober, 595 F. Supp. 2d at 412, app. A.

9

While the Government did not present live testimony to

rebut Berman or Stabenow, it did argue in its briefs that the

reasons supporting the creation and evolution of § 2G2.2 were

discernible. Although the Majority concludes that the District

Court “clearly” relied upon the briefs in this regard, Maj. Op. at

32, I find no record support for this conclusion. Accordingly, I

do not share the Majority’s view that the District Court truly

evaluated and rejected the Government’s arguments after due

consideration. Indeed, the District Court’s pejorative

characterization that both the Government and the Commission

“took a pass” suggests that the District Court placed nothing on

the Government’s side of the scale. And something outweighs

nothing every day of the week.

In its search for something, the District Court relied

extensively on Stabenow, which criticizes § 2G2.2 on several

levels. Regarding the District Court’s reliance on Stabenow,

the Majority states: “It is unnecessary for purposes of this

Opinion to parse the paper and determine if the government is

correct as to the inaccuracies to which it points.” Maj. Op. at 19

n.7. I disagree. Because Stabenow was foundational to the

District Court’s decision to disregard § 2G2.2, the Majority

should be obliged to engage the Government’s arguments to

ensure that Stabenow is, in fact, “sufficiently compelling” to

justify the Court’s divergence from the Guideline.

After the District Court knocked down its straw

man—i.e., the Government’s failure to provide a testimonial

defense of § 2G2.2—the only “evidence” that remained was

Stabenow, which offered an advocate’s blueprint for rejecting §

2G2.2 and the “unrebutted” testimony of Professor Berman. In

my view, this procedural error was sufficient to warrant vacatur.

10

C.

Next, I turn to the District Court’s repeated

mischaracterization of Grober’s crime as a typical

“downloading” offense. In declining to apply any of the

detailed enhancements found in § 2G2.2, the Court was

“convinced that for a typical downloading case, which this one

assuredly is, the applicable guideline . . . cannot be given

deference.” Grober, 595 F. Supp. 2d at 402. As the Majority

notes, however, “this is more than a ‘typical downloading

case.’” Maj. Op. at 9 n.1. Grober admitted sending two e-mails

containing eighteen images. This conduct formed the basis for

Counts One and Three at which Grober pleaded guilty to

transportation of child pornography, in violation of 18 U.S.C. §

2252A(a)(1). These two offenses—as distinguished from the

three counts of receipt of child pornography in violation of 18

U.S.C. § 2252A(a)(2)(A) and one count of possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), which

can properly be deemed “typical downloading” offenses—are

properly classified as transportation counts.4

4

Because Grober pleaded guilty to transportation

offenses, the Majority’s reference to the 2009 survey of United

States District Court Judges, which found that 70% of judges

found the Guidelines for receipt and possession of child

pornography too harsh, is inapt. The relevant statistic from this

study (assuming its validity) is its finding that 30% of judges

think the Guidelines punish distributors too severely. According

to this study, the percentage of judges who find that the

Guidelines punish the distribution of child pornography too

severely is smaller than the percentage of judges who find the

Guidelines too severe for: heroin, crack cocaine,

11

Congress considers the transportation of child

pornography a particularly egregious crime, and in recent years

has expressed its concern that “the development of the Internet

and the digital image . . . ha[s] permitted child pornographers to

disseminate their product exponentially, not only across

America, but around the world, with a few simple strokes of a

keyboard.” 151 Cong. Rec. 4236 (Feb. 24, 2003); see also 151

Cong. Rec. 20221 (2005) (finding that “a substantial interstate

market in child pornography exists, including not only a

multimillion dollar industry, but also a nationwide network of

individuals . . . [who] distribute child pornography with the

expectation of receiving other child pornography in return.”).

As the District Court recognized, Congress imposed a

mandatory minimum for transportation offenses based on its

finding that “the exchanging through trading images contributes

to the growth of child pornography and harms increasing

numbers of children.” Grober, 595 F. Supp. 2d at 404. Given

the Court’s acknowledgment of the policy reasons supporting

Congress’s distinction between distributors and possessors, its

repeated characterization of Grober as a “typical downloader”

whose crimes were those of “consumption” was inexplicably

dismissive of Congress’s substantial concerns.

The District Court’s mischaracterization of this case as a

“typical downloading case” is also troubling given the

Sentencing Commission’s historically dissimilar treatment of

possession and distribution offenses.5 The distinction between

methamphetamine, marijuana, and illegal entry offenses.

5

In stark contrast to Kimbrough—where the Commission

found that “the crack/powder sentencing disparity is generally

12

“simple receipt” and distribution offenses can be traced to the

Commission’s first set of Guidelines, promulgated in 1987,

which included a five-level enhancement for distribution for

monetary gain. USSC, The History of the Child Pornography

Guidelines, 11 (Oct. 2009) [History of the Guidelines].6 After

Congress criminalized possession of child pornography in 1991

and the Commission in response thereto proposed USSG §

2G2.4, which grouped together receipt and possession offenses,

the Chair of the Sentencing Commission assured Congress that

“defendants who peddle child pornography will be sentenced as

traffickers even if they successfully negotiate a plea to the lesser

offense of simple possession of child pornography.” Stabenow

at 7 (citing 137 Cong. Rec. H6736-02, Appendix B). The

Chairman’s letter stated that this difference in the severity of the

crimes “parallels the manner in which illegal drugs (or firearms)

receipt and possession are treated similarly under the guidelines,

while drug (or firearms) distribution or trafficking are treated

more severely.”7 Id.

unwarranted,” 552 U.S. at 97—here, the Commission’s finding

that distribution is a more severe offense than possession mirrors

Congressional findings.

6

Notably, even Stabenow acknowledges that in these

“first three years of the Guidelines regime [1987-1990], the

provisions of § 2G2.2 were the result of study at the

Commission, without obvious outside interference.” Stabenow

at 3 (2008).

7

Moreover, although a 1991 Congressional amendment,

which Stabenow discusses in depth, directed the Commission to

treat “simple receipt” as a crime to be sentenced under § 2G2.2,

rather than § 2G2.4, the amendment made no change to the §

13

The Commission’s inclusion of noncommercial bartering

of child pornography in its 2000 definition of distribution

followed a series of studies confirming the prevalence of

bartering, and its harm to children. In its 1990 Report to

Congress, the Commission noted that all the trafficking offenses

prosecuted up to that date had involved defendants who traded

images for pleasure, rather than for pecuniary gain. USSC,

Revised Report of the Working Group on Child Pornography

and Obscenity Offenses and Hate Crime, 17 (1990); see also

USSC, Sex Offenses Against Children: Findings and

Recommendations Regarding Federal Penalties, 10 (1996)

(“Many cases sentenced under this guideline involve trading

clubs or other barter types of exchanges.”). The Commission’s

proposed amendment was published in 1999 and included a

five-level enhancement for the distribution of child pornography

in exchange for a “thing of value.”8 It received only one

substantive public comment: The Federal Public and

Community Defenders recognized that “child pornographic

2G2.2 distribution enhancement. There is also no evidence that

the Commission’s eventual consolidation of § 2G2.2 and §

2G2.4 reflected any Commission opposition to the additional

distribution penalty, but rather addressed the Commission’s

concern that an “unwarranted disparity in sentences” existed for

the similar offenses of “simple receipt” and “simple possession.”

USSC, Sex Offenses Against Children: Findings and

Recommendations Regarding Federal Penalties at 34 (1996).

8

A “thing of value” is anything of valuable

consideration, e.g., child pornographic material received in

exchange for other child pornographic material bartered in

consideration for the material received. See § 2G2.2, cmt. 1.

14

material is a ‘thing of value’ and if received in a bartered

exchange for other child pornographic material, an enhancement

should apply.” History of the Guidelines at 34.

Thus, the Commission’s harsher treatment of trafficking,

and in particular non-pecuniary bartering such as the trading at

issue in this case, was the product of careful study and public

commentary, activities well within the “exercise of [the

Commission’s] institutional role.” Grober, 595 F. Supp. 2d at

393 (citing United States v. Shipley, 560 F. Supp. 2d 739, 745-

46 (S.D. Iowa 2008)). By failing to characterize Grober

properly as a distributor of child pornography, the District Court

gave little, if any, credence to the institutional expertise of the

Commission in developing Guidelines that treat distributors

more severely than mere possessors or receivers of child

pornography.

Moreover, the Commission’s adoption of higher penalties

for distribution offenses should be accorded no less deference

simply because of the ease with which files can now be traded

via e-mail or file sharing networks. Just as we do not treat less

severely the use of a firearm during the commission of a robbery

or the targeting of an elderly victim, both of which facilitate the

crime, so too should we not turn a blind eye to the devastating

effect of electronic distribution on the lives of abused children

merely because the distributor can inflict his injury by

transferring hundreds of files with the stroke of a key. See

United States v. Cunningham, 680 F. Supp. 2d 844, 853 (N.D.

Ohio 2010). In fact, the harsher penalties for online bartering

were adopted in part to target at-home traders who contribute

considerably to the electronic market for child pornography,

believing there to be little chance of detection from law

15

enforcement.

In both its extensive oral decision and its written opinion,

the District Court repeatedly referred to this as a “downloading

case.” Although the District Court referred intermittently to

Grober’s convictions for transporting child pornography, the

record belies any appreciation for the fact that these offenses are

qualitatively different and more severe than mere possession.

See Grober, 595 F. Supp. 2d at 382 (“The crime of conviction

in this case is David Grober’s downloading of child

pornography from the internet.”); id. at 391 (“The Court denied

the government’s motion to exclude and later to strike Professor

Berman’s testimony, because the Court believes it is vital to

gain some perspective on the operation of the sentencing

guidelines in these downloading cases.”); id. at 393 (“The

Stabenow chart is a one-page devastating commentary on

guidelines sentencing in downloading cases.”); id. (“The Court

agrees with the reasoning of Judge Pratt and Judge Adelman that

§ 2G2.2 leads to a sentence that is too severe in a downloading

case.”); id. at 391 (“[A]s the recent cases show, judges are

varying from the guidelines in typical downloading cases when

they measure the guidelines against the § 3553(a) factors.”); id.

at 402 (“The Court arrives at this point in the sentencing

analysis convinced that for a typical downloading case, which

this one assuredly is, the applicable guideline, § 2G2.2, cannot

be given deference and produces an unreasonable sentencing

range even before considering the sentencing factors in §

3553(a).”); id. (“[T]he Court finds that David Grober’s case is

squarely within the heartland of downloading cases.”); id. at 410

(“As indicated above, the government’s publication ‘Federal

Prosecution of Child Sex Exploitation Offenders, 2006’ states

that as of December 2007, the average sentence for the

16

downloading defendant is 63 months. From this same report

comes the information that David Grober is a very typical

downloading defendant.”).

The foregoing quotations demonstrate that the District

Court’s references to “downloading” were not merely a “form

a shorthand,” Maj. Op. at 9 fn.2. Rather, they evidence a

fundamental misapprehension of Grober’s crimes. This

constitutes reversible error. 9

D.

Finally, the District Court’s wholesale rejection of §

2G2.2 throws the wheat out with the chaff. I have no quarrel

with the concerns expressed by the District Court regarding the

draconian nature of Grober’s Guidelines range and the fact that

the enhancements for use of a computer (USSG § 2G2.2(b)(6))

and pre-pubescent minors (USSG § 2G2.2(b)(2)) would put

Grober into a category with 95% of those convicted of child

pornography offenses. But the District Court was wrong to

ignore: (1) the fact that Grober’s collection contained material

portraying sadistic and masochistic conduct (USSG §

2G2.2(b)(4)); (2) that Grober distributed child pornography for

the receipt, or expectation of receipt, of a thing of value (USSG

9

Although the Majority correctly notes that “Grober is

not in any sense a large-scale distributor,” Maj. Op. at 9 fn.2,

it points to no evidence that Congress intended receipt and

transportation crimes to apply only to large-scale enterprises.

Rather, Congress intended the increased penalties associated

with these crimes to apply to small-scale, home-based

distributors such as Grober. 151 Cong. Rec. 20221 (2005).

17

§ 2G2.2(b)(3)(B); and (3) that Grober possessed well over 600

images (USSG § 2G2.2(b)(7)(D)). While the District Court was

free to evaluate these facts pursuant to 18 U.S.C. § 3553(a), it

was not permitted to disregard them entirely.

At least three of our sister courts of appeals have noted

the trend towards granting downward variances in cases

involving § 2G2.2. See, e.g., U.S. v. Morace, 594 F.3d 340,

346-47 (4th Cir. 2010); U.S. v. Stall, 581 F.3d 276, 284 n.2 (6th

Cir. 2009); U.S. v. Huffstatler, 571 F.3d 620, 622-23 (7th Cir.

2009). Grober’s sentence is problematic, however, because

instead of assessing all of the relevant facts of Grober’s case as

part of its § 3553(a) analysis—including those facts that happen

to be embodied in § 2G2.2 enhancements—the District Court

rejected § 2G2.2 in toto. Having unmoored itself entirely from

this Guideline, the District Court begins (and ends) its

evaluation of the § 3553(a) factors by fixating on the five-year

statutory minimum. Consequently, the District Court’s variance

was both inadequately justified and, at least in part, based on

clearly erroneous facts, to wit: Grober was a “typical

downloader,” his collection was not “egregiously large,” and

Agent Chase was not qualified “to distinguish between ‘bad’

child pornography and ‘really bad’ child pornography,” Grober,

595 F. Supp. 2d at 401. See Gall v. United States, 552 U.S. 38,

51 (2007).

A survey of other district courts that have evaluated §

2G2.2 demonstrates the nature of the District Court’s error here.

While it is true that district courts have varied downward from

the Guidelines range—and sometimes substantially so—they

still considered case-specific facts underlying § 2G2.2

enhancements; they did not entirely disregard those facts along

18

with the Guideline. See, e.g., United States v. Beiermann, 599

F. Supp. 2d 1087, 1107 (N.D. Iowa 2009) (“[A] reasoned

alternative to the flawed guideline is for the sentencing judge to

begin with the base offense level, which reflects the mandatory

minimum statutory sentence, U.S.S.G. § 2G2.2(a), and then to

consider appropriately identified factors, such as those in §

2G2.2(b)(1), (3), (4), and (5), but to give those factors more

appropriate weight in the determination of a particular

defendant’s sentence. Such ‘cherry picking’ and reweighing of

factors from the guideline is appropriate—indeed, totally

consistent with the exercise of my discretion to apply the 18

U.S.C. § 3553(a) factors.”); United States v. Jacob, 631 F. Supp.

2d 1099, 1108 (N.D. Iowa 2009) (“While I reject the extent of

the enhancements based on these considerations [of specific

aggravating factors] in § 2G2.2 and § 2G2.1, I find that some

enhancement of the defendant Jacob’s non-guideline sentence

above the mandatory minimum is appropriate based on these

considerations.”); cf. United States v. Burns, 2009 WL 3617448,

*7–*8 (N.D. Ill. 2009) (“Here, the court declines to disregard

the Guidelines entirely and instead adapts them by beginning

with the base offense level (as it reflects a statutory minimum)

and then rejecting enhancements that the court determines exact

punishment that is duplicative of the underlying offense, or do

not otherwise effectively serve to distinguish less from more

culpable conduct. On the other hand, the court will apply an

enhancement or downward adjustment where it finds such an

adjustment appropriate based on Burns’s relevant individual

characteristics or other factors outlined in 18 U.S.C. §

3553(a).”).

Each of the aforementioned courts determined that

certain § 2G2.2 factors—e.g., the number of the images, the

19

sadism or masochism depicted in the images, the defendant’s

distributing activities—warranted a sentence above the statutory

minimum. See Burns, 2009 WL 3617448 at *13, *16

(incorporating a five-point “pattern of . . . exploitation”

enhancement as basis for a 72-month sentence); Beiermann, 599

F. Supp. 2d at 1107, 1117–18 (sentencing defendant to 90

months after “reweighing” and “cherry picking” Guidelines

factors); Jacob, 631 F. Supp. 2d at 1108 (reweighing the

sadistic, masochistic, or violent content and the distribution

factors as a basis for a 78-month sentence on transportation

count); see also United States v. Cunningham, 680 F. Supp. 2d

844, 853, 862 (N.D. Ohio 2010) (accepting § 2G2.2 and

imposing a within-Guidelines range sentence of 121 months);

United States v. McElheney, 630 F. Supp. 2d 886, 904 (E.D.

Tenn. 2009) (imposing a 78-month sentence because based on

the size and sadistic nature of the defendant’s collection and the

prepubescent victims, “the Court cannot conclude he is among

the least culpable of child pornography offenders”); United

States v. Noe, 2009 WL 3836707, *7 (D. Neb. 2009) (granting

variance but imposing an 84 month sentence rather than

statutory minimum); United States v. Johnson, 588 F. Supp. 2d

997, 1005 (S.D. Iowa 2008) (considering the “number and

nature of the underlying photographs” as basis for an 84-month

sentence); United States v. Noxon, 2008 WL 4758583, *3 (D.

Kan. 2008) (considering, in part, the defendant’s distribution

activities as basis for a 144-month sentence).

The two judges most heavily cited by the District Court

followed the procedure I just outlined. Judge Adelman in

United States v. Hanson considered the facts relevant to § 2G2.2

enhancements in arriving at a 72-month sentence for

transportation and receipt of child pornography, stating: “In

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order to acknowledge some of the aggravating factors in this

case, such as number and type of images, and to insure just

punishment, I did not impose a sentence at the minimum, as

defendant requested. The minimum should be reserved for the

most mitigated of cases.” 561 F. Supp. 2d 1004, 1012 (E.D.

Wis. 2008). Likewise, Judge Pratt in United States v. Shipley

accounted for the “horrific nature of some of the images” as well

as the defendant’s role as a distributor in “actively and

consistently perpetuating the market for this material” as bases

for a 90-month sentence for receipt of child pornography. 560

F. Supp. 2d 739, 745-46 (S.D. Iowa 2008).

The District Court’s wholesale rejection of all things

related to § 2G2.2—including even the legitimate concerns at

the heart of each enhancement—is quite atypical. In cases like

Grober’s, most courts that have imposed substantial downward

variances have given some weight to those aggravating factors

enunciated in § 2G2.2 as part of their § 3553(a) analyses.

Regardless of the validity of the District Court’s general policy

argument against § 2G2.2 enhancements as they fit within the

Guidelines scheme, the Court in this case erred in its § 3553(a)

analysis by minimizing and sidestepping significant facts about

Grober’s crime, seemingly in protest of the draconian nature of

§ 2G2.2 as a whole. See Arrelucea, 581 F.3d at 151, 156

(noting that it is a “judicial function to sentence defendants

based on the facts and circumstances of each case under the

guidance of the § 3553(a) factors”).

The District Court’s nullification of § 2G2.2 influenced

its curt discussion of the “nature and circumstances of the

offense,” which comprises a mere three paragraphs, in contrast

to its ten-paragraph discussion of the “history and characteristics

21

of the defendant.” Grober, 595 F. Supp. 2d at 404-408. Within

the “nature and circumstances of the offense” discussion, the

District Court brushes aside the size and content of Grober’s

child pornography collection (over 1500 pictures and 200

videos) without any mention of Special Agent Chase’s

testimony that this was the second largest collection out of 180

she had analyzed in her four-year career and that it included

“more children . . . involved in actual sexual activity, as opposed

to posing, than appeared in other collections she analyzed.” Id.

at 400, 404.10 Even if the § 2G2.2 enhancements for 600

images, prepubescent children, and masochistic content apply in

most cases and are therefore deserving of less weight than that

which the Guidelines affix to them, surely the enormity and

offensive nature of Grober’s collection is relevant enough to the

“nature and circumstances of the offense” to deserve more than

two dismissive sentences.11 See id. at 404 (“The Court also is

10

Like the District Court, the Majority minimizes

Grober’s transportation crimes by noting the small number of

images he distributed. Conversely, they fail to consider the

quantity and nature of the images in Grober’s collection in

their analyses of the nature and circumstances of his crime of

possession.

11

The Majority asserts that because “many of [§ 2G2.2’s]

enhancements apply in almost all cases,” these enhancements

are in fact built-in to the original offense. See Majority Op. at

19 (citing United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010)

(noting that 97.2% of child pornography cases in 2009 involved

images of prepubescent minors and 97.2% involved the use of

a computer)). But the Majority does not justify the District

Court’s disregard for those enhancements that apply only 73.4%

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not convinced that Grober’s child pornography collection is

egregiously large. He viewed a large amount of pornography

over three years, he hoarded images, and he kept his images

sloppily mixed in with other, legal files.”).

The District Court’s similarly dismissive treatment of

Grober’s status as a distributor rather than a mere possessor has

already been discussed at length, but warrants mention again

here because this mischaracterization further tainted the Court’s

§ 3553(a) analysis of the nature of the crime. See id. (“The

nature and circumstances of his offense are at the core related to

consumption.”).

In sum, even if it were proper to accept in its entirety the

District Court’s policy disagreement with § 2G2.2, the extent to

which it failed to account for significant facts that underlie §

2G2.2 enhancements reflects a deeply flawed analysis of the §

3553(a) factors. This “fail[ure] to adequately explain the chosen

sentence” and reliance on a number of “clearly erroneous facts”

requires vacatur and remand.

and 63.1% of the time (offenses involving images of sadistic,

masochistic, or otherwise violent conduct, and offenses

involving over 600 images, respectively). Given that 26.6% of

cases do not involve images of violence and 36.9% involve

fewer than 600 images, the fact that Grober’s collection was

both greater than 600 and included violent images demonstrates

beyond peradventure that his was not one of the “most mitigated

of cases.” See United States v. Hanson, 561 F.Supp.2d at 1012.

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III.

As I noted at the outset, the District Court labored

mightily to impose a just sentence upon David Grober. That

effort was animated by a candid fear that Congress’s zeal to

address the proliferation of child pornography has resulted in

penalties grossly disproportionate to the culpability attendant to

this type of crime. Even accepting that premise, it is still wrong

for a sentencing court to: (1) categorically reject the validity of

a Guideline by impugning generally the plea bargaining system;

(2) punish a party for failing to present “evidence” it never

should have presented in the first place; (3) mischaracterize a

defendant’s crimes of conviction; and (4) use a categorical

rejection of a Guideline as a proxy for ignoring some of the

relevant § 3553(a) factors. Because each of these errors is

manifest on this record, I would vacate Grober’s judgment of

sentence and remand for a new sentencing hearing.

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