United States v. Larkin

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-2619

UNITED STATES OF AMERICA

v.

ANGELA LARKIN,

Appellant

Appeal from the United States District Court

for the Middle District of Pennsylvania

(No. 4:04-cr-0071-001)

The Honorable John E. Jones, III, District Judge

Submitted Under Third Circuit LAR 34.1(a)

February 23, 2010

Before: SCIRICA and CHAGARES, Circuit Judges,

and RODRIGUEZ,* District Judge

(Opinion filed: December 10, 2010 )

Anne C. Shapiro, Esquire

Shapiro & Becker, P.C.

114 Market Street

Lewisburg, PA 17837

Attorney for Appellant

Dennis C. Pfannenschmidt , Esquire

United States Attorney

Middle District of Pennsylvania

Frederick E. Martin, Esquire

Assistant United States Attorney

Herman T. Schneebeli Building

240 West Third Street, Suite 316

Williamsport, PA 17707-6465

Attorneys for Appellee

*

The Honorable Joseph H. Rodriguez, Senior United States

District Judge for the District of New Jersey, sitting by

designation.

2

OPINION OF THE COURT

RODRIGUEZ, Senior District Judge

I. INTRODUCTION

Pursuant to a plea agreement, appellant Angela Larkin 1

entered a plea of guilty to a violation of 18 U.S.C. § 2251(a) for

producing child pornography. Larkin’s criminal conduct

involved, inter alia, the trading of photographs which contained

visual depictions of her daughters, then ages two and five, over

the internet to known pedophiles.2 The District Court sentenced

Larkin to the statutory maximum term of incarceration of three

hundred sixty months, to be followed by a life term of

supervised release. Larkin appeals her sentence arguing that: (1)

the District Court erroneously concluded that visual depictions

of B.L. rendered her a “second victim” meriting a two-level

sentencing enhancem ent pursuant to U .S.S.G . §

2G2.1(c)(1)(2003); (2) the government violated the terms of the

plea agreement; (3) the District Court’s application of a five

1

Larkin is also known as “Angela McCullen,” “Martina

McCullen,” and “Angela J. Main.” As a matter of convenience,

we will refer to her as either “Larkin” or “Appellant.”

2

We will refer to the two year old daughter as “M.M.” and

the five year old daughter as “B.L.”

3

level upward departure under U.S.S.G. § 5K2.0 violates the ex

post facto clause; and (4) the sentence was unreasonable.

For the reasons we discuss below, we will affirm the final

judgment of sentence of the District Court.

II. BACKGROUND

The investigation that led to the arrest and prosecution of

Angela Larkin began in Waco, Texas, where authorities

discovered a sexually explicit video of a minor on the computer

of Phillip Roberts. The video contained close up shots of the

child’s genitalia and pubic regions and was titled “Peanut,”

which is a nickname Larkin called M.M. In addition, “chat”

history logged on the computer revealed that certain pictures

were sent to Mr. Roberts by an individual, later identified as

Larkin, who used the screen name “neon-angeleyes.” Larkin

sent sexually explicit photographs to Mr. Roberts and indicated

that the depictions were of her daughter and that she had

received a sum of money from him for their production.

The origin of the video file was traced to Cameron

County, Pennsylvania. The Pennsylvania State Police were

contacted and began an investigation jointly with agents from

the Federal Bureau of Investigation. Angela Larkin was arrested

by the Pennsylvania State Police and the Federal Bureau of

Investigation for trafficking pictures of her daughter in violation

of 18 U.S.C. § 2251(a). A two count indictment charging

violations of 18 U.S.C. §§ 2251(a) (production of a sexually

explicit visual depiction of a minor) and 2251(b) (production of

4

a sexually explicit visual depiction of a minor that was produced

using materials shipped through interstate commerce) followed,

to which Larkin entered not guilty pleas. The grand jury

subsequently returned a superceding indictment, which charged

Larkin with traveling through interstate commerce with co-

defendant Richard King 3 with the intent to engage in a sex act

with M.M., in violation of 18 U.S.C. §§ 2 and 2241(c).

Pursuant to a plea agreement, Larkin entered a plea of

guilty to only the production charge, a violation of 18 U.S.C. §

2251(a). The plea agreement required Larkin to assist in the

investigation and prosecution of the unlawful activities of others

and, in exchange for her promised assistance, the government

would consider filing a Motion for Downward Departure

pursuant to U.S.S.G. § 5K1.1 on her behalf. Notwithstanding

this possibility, the plea agreement contemplated a sentencing

guideline range between 121 and 151 months, if the mandatory

minimum of 180 months was inapplicable.

The Pre-Sentence Report prepared on May 17, 2006 also

calculated Larkin’s guideline range based upon an offense level

of 34 and a criminal history category of II, which differed from

3

King, who was sentenced prior to Larkin, received the same

sentence as Larkin, which included three hundred sixty (360)

months imprisonment.

5

the calculations in the plea agreement.4 The Probation Office

calculation included the fact that B.L. was a second victim as

well as a possible enhancement for the use of a computer in the

commission of the offense, pursuant to U.S.S.G § 2G2.1(b)(3).

The resulting guideline range was 168-210 months

imprisonment.

Larkin advanced several objections to the Pre-Sentence

Report including the propriety of categorizing B.L. as a second

victim, w hether the enhancement pursuant to §

2G2.1(b)(3)(B)(1) was applicable, and the inclusion of the

mental health evaluations of her minor children. Larkin also

alleged that the government violated the plea agreement by

briefing some of these issues. On October 6, 2006, the District

Court ruled on Larkin’s objections to the Pre-Sentence Report

and found no violation of the plea agreement by the government.

With respect to the objections, the District Court concluded that

the photographs of B.L. rendered her a second victim and that

it could consider the mental evaluations of the minor victims for

sentencing purposes. But, the District Court found that the

enhancement pursuant to § 2G2.1(b)(3)(B)(1) was inapplicable.

In the meantime, Larkin provided assistance to the

government in the prosecution of other sex offenders. As a

result, on January 21, 2009, the government filed a Motion for

4

The plea agreement stated Larkin’s criminal history fell in

Category I, but the Probation Office’s calculation placed her

criminal history in Category II.

6

Downward Departure pursuant to U.S.S.G. § 5K1.1 and 18

U.S.C. § 3553(b). The parties submitted additional sentencing

memoranda in March 2009, and, at the direction of the District

Court, filed supplemental briefs addressing, inter alia, possible

upward departures. The District Court not only rejected the

government’s recommendation for a downward departure, in an

opinion issued on May 11, 2009, it also advised the parties of its

intention to depart upward.

Larkin’s sentencing hearing took place on May 22, 2009,

at which time representatives for her two minor daughters

presented testimony. The District Court sentenced Larkin to the

maximum term of confinement of 360 months imprisonment.

Larkin timely appealed.

III. JURISDICTION

The District Court exercised jurisdiction pursuant to 18

U.S.C. § 3231. A final judgment of sentence was entered on

May 22, 2009. We have appellate jurisdiction pursuant to 18

U.S.C. § 3742(a), as well as 28 U.S.C. § 1291.

IV. DISCUSSION

A. Whether the Photographs of B.L. Qualify as

Pornographic Under 18 U.S.C. § 2256(2)(B)(iii)

Larkin pleaded guilty to a violation of 18 U.S.C. §

2251(a), which criminalizes the use of a minor to engage in

sexually explicit conduct for the purpose of producing visual

depictions of that conduct for distribution in interstate

7

commerce through the use of a computer. Larkin’s charged

offense conduct relates to photographs of M.M., her then two-

year-old daughter. Of the several images generated by Larkin

in the commission of this offense, there are five relevant to this

appeal. The question presented is whether photographs of B.L.,

Larkin’s then five-year-old daughter, were appropriately

characterized by the District Court as “sexually explicit” so as

to warrant considering B.L. as a second victim for purposes of

calculating Larkin’s sentencing guideline range.

The District Court examined these photographs and

answered the question affirmatively. While any factual

determinations made by the District Court are reviewed for clear

error, Kosiba v. Merck & Co., 384 F.3d 58, 64 (3d Cir. 2004),

the question of whether the photographs of B.L. depict

lascivious conduct is one of statutory interpretation subject to de

novo review. United States v. Knox, 32 F.3d 733, 744, 753 (3d

Cir. 1994).

The definition of the term “sexually explicit” conduct is

set forth in 18 U.S.C. § 2256(2)(B) and includes:

(i) graphic sexual intercourse, including

genital-genital, oral-genital, anal-genital, or

oral-anal, whether between persons of the same or

opposite sex, or lascivious simulated sexual

intercourse where the genitals, breast, or pubic

area of any person is exhibited;

(ii) graphic or lascivious simulated;

8

(I) bestiality;

(II) masturbation; or

(III) sadistic or masochistic abuse; or

(iii) graphic or simulated lascivious exhibition of

the genitals or pubic area of any person.

18 U.S.C. § 2256(2)(B)(i)-(iii). The parties agree that the

photographs before us potentially implicate only subsection (iii).

A determination of whether these photographs depict lascivious

conduct as defined by the statute is guided by a number of

considerations, including, but not limited to, the six factors

identified in United States v. Dost, 636 F. Supp. 828, 832 (S.D.

Cal. 1986), which we formally adopted in United States v.

Villard, 885 F.2d 117, 122 (3d Cir. 1989). Under this test, we

consider:

1) whether the focal point of the visual depiction

is on the child's genitalia or pubic area;

2) whether the setting of the visual depiction is

sexually suggestive, i.e., in a place or pose

generally associated with sexual activity;

3) whether the child is depicted in an unnatural

pose, or in inappropriate attire, considering the

age of the child;

4) whether the child is fully or partially clothed,

or nude;

9

5) whether the visual depiction suggests sexual

coyness or a willingness to engage in sexual

activity;

6) whether the visual depiction is intended or

designed to elicit a sexual response in the viewer.

Id. Considered generally, these are the hallmarks of lascivious

conduct. But the Dost factors are not dispositive and serve only

as a guide. See Doe v. Chamberlin, 299 F.3d 192, 196 (3d Cir.

2002) (citing Knox, 32 F.3d at 746 n.10 (stating that the list of

considerations outlined in Dost is not exhaustive)).

In addition to the considerations detailed in Dost, we are

guided by Black’s Law Dictionary, which defines “lascivious

exhibition” as “a depiction which displays or brings forth to

view in order to attract notice to the genitals and pubic area of

children, in order to excite lustfulness or sexual simulation in the

viewer.” Knox, 32 F.3d at 745 (citing Black’s Law Dictionary

882 (6th ed. 1990)). We may also consider “any other relevant

factors given the particularities of the case.” Id. at 746 (citing

Villard, 855 F.2d at 122). With these considerations in mind,

we begin our review of the five photographs of B.L.5

5

Importantly, the District Court concluded that Larkin was

the photographer of the five images of B.L. We review this

determination for clear error. Kosiba, 384 F.3d at 64. While

our review of the record does not reveal any definitive statement

by Larkin admitting to taking these photographs, there is enough

10

The first photograph depicts M.M. and B.L. sitting on a

couch. The girls are fully clothed in age-appropriate, loose

fitting dresses. Both girls have their right hands positioned near

their crotch area. B.L.’s right hand appears to be resting on her

right upper thigh, while M.M.’s hand is placed between her legs.

Their skirts are gathered between their legs, but only enough to

expose the skin just above their knees. As to their countenance,

B.L. is smiling while M.M. looks anxious. We will refer to this

photograph as the “couch photograph.”

The second photograph depicts B.L. stepping into the tub,

while M.M. looks on. Both girls are nude and the buttocks of

M.M. are in the foreground. The faces of the girls are not

captured in this photograph. The third photograph depicts both

girls naked and in a bathtub. B.L. is sitting in the tub and her

attention is focused on an object that she is manipulating with

evidence in the record related to her involvement with the

photographs that could have provided the basis for the District

Court’s conclusion that she was in fact, the photographer.

Specifically, the Pre-Sentence Report notes that Larkin admitted

to the FBI that she had taken photographs of her daughter to sell

to interested pedophiles over the internet. Also, in the course of

her cooperation with the government, she never identified

anyone else as the photographer who captured the images of her

daughters who were the subject of her plea agreement. Based

on these facts, the District Court’s conclusion that Larkin took

the photographs is not clearly erroneous.

11

her hands. M.M. is looking directly into the camera and is

crouching down, appearing to be in the act of sitting. We will

refer to these photographs collectively as the “bathtub

photographs.”

In the last two photographs, B.L. is alone, naked, and

looking directly into the camera. Photograph number four is

taken with the camera turned at a ninety degree angle producing

a full length and close-up body depiction of her entire nude

body. In photograph number five, B.L.’s head is in the upper

right corner of the picture with her feet in the bottom left corner

producing a diagonal frame of the image. We will refer to these

pictures as “photograph number four” and “photograph number

five,” respectively.

In analyzing the photographs for the tell-tale markers of

pornography, we apply the Dost factors. Our analysis begins

with photograph number five, which depicts B.L. standing in the

bathtub, leaning up against a shower wall. It depicts the

presence of all but one of the Dost factors, because the

photograph does not focus on B.L.’s genitalia.

Next, the setting of the photograph is a shower and is

arguably sexually suggestive in this case, marking the presence

of factor two. B.L. does not appear to be in the act of bathing,

there is no water in the bathtub, and she does not appear wet.

Standing alone, the setting is not commonly associated with

sexual activity. But showers and bathtubs are frequent hosts to

fantasy sexual encounters as portrayed on television and in film.

12

It is potentially as much of a setting for fantasy sexual activity

as is an adult’s bedroom. See Villard, 885 F.2d at 124 (noting

that a bed or a mattress is often associated with sex, but on its

own is not suggestive of sexual activity). Here, the fact that

B.L. is standing in the tub coupled with her unnatural pose and

the angle of the photograph suggests that the bathtub/shower, in

this instance, was meant to convey to the intended viewer that

the shower is a location for a potential sexual encounter with

B.L. Cf., Doe v. Chamberlin, 299 F.3d 192 (no sexually

suggestive setting in photographs of teenage girls showering

after a day on the beach that did not include depictions of

unclothed genitals).

Factors three (pose), four (nudity), and five (sexual

coyness), are considered simultaneously because they overlap.

Here, B.L.’s pose is unnatural for a child of her age and it gives

us pause. The positioning of her head as resting on her

shrugged shoulders as she attempts a smile appears to be at the

direction of the photographer rather than a natural pose for a

child of her age. Also, the diagonal framing of this photograph

is unusual and adds to the sexual suggestiveness of the pose.

This angle conflicts with what one would normally expect in a

photograph taken by a parent for the purpose of capturing

innocent candid shots of their child during bath-time; instead, it

is more akin to a professional “photo shoot” where the “model”

poses for the photographer. In addition, B.L. is completely

nude, although this is not unusual given that she is in a bathtub.

The depiction in photograph number five presents a close

13

call. Standing alone, the presence of Dost factors two, three,

four, and five may not support a finding of lasciviousness in this

photograph. However, considered together, these factors take

this picture out of the normal catalog compiled by parents of

young children. Ultimately, it is Dost factor six that tips the

balance on the side of qualifying the photograph as exhibiting

lascivious conduct. Larkin trafficked this photograph over the

internet to an interested pedophile, whom she acknowledged

“would find them sexually stimulating because of his

predilection for young children.” Appellant’s Brief at 18. This

conduct distinguishes Larkin’s case from the facts underpinning

our decision in Chamberlin, because Larkin designed the image

depicted in this photograph to arouse. 299 F.3d 192 (citing

United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987)

(A photograph that is intended to elicit a sexual response is one

that is “presented by the photographer as to arouse or satisfy the

sexual cravings of a voyeur.”)).

We caution that “lasciviousness is not a characteristic of

the child photographed but of the exhibition which the

photographer sets up for an audience that consists of himself or

like minded pedophiles.” Wiegand, 812 F.2d at 1244. Villard

instructs that the focus must be on the intended effect, rather that

the actual effect, on the viewer. 885 F.2d at 125.

Child pornography is not created when the

pedophile derives sexual enjoyment from an

otherwise innocent photo. As the Ninth Circuit

stated, “Private fantasies are not within the

14

statute’s ambit.” [United States v. Wiegand,] 812

F.2d at 1245. When a picture does not constitute

child pornography, even though it displays nudity,

it does not become child pornography because it

is placed in the hands of a pedophile, or in a

forum where pedophiles might enjoy it. Faloona

v. Hustler Magazine, Inc., 607 F. Supp. 1341

(N.D.Tex. 1985) (nude pictures of children did

not constitute child pornography when published

in “legitimate” Sex Atlas or in “raunchy” Hustler

magazine, because they did not depict children

engaged in sexual conduct).

Villard, 885 F.2d at 125.

Larkin engineered photograph number five for the

purpose of eliciting a sexual response.6 We hold that the

depiction in photograph number five meets the definition of

“lascivious” as defined by 18 U.S.C. § 2251(2)(B)(iii).

6

We reject Larkin’s allegation that the “more likely scenario

is that [she] already possessed these pictures of her daughters

and later discovered that they would be sexually exciting to

pedophiles.” Appellant’s Brief at 18-19. Larkin admittedly

traded pictures over the internet to entice men for sex and for

her own pecuniary gain. She was aware of her patrons’

preferences and she catered to them. Supplemental Appendix

(“Supp. App.”) at 78-79. The image in photograph number five

is engineered to achieve those goals.

15

We now turn to photograph number four, which captures

B.L. standing at close range against what appears to be a wall.

Nothing but B.L.’s entire nude body, with an emphasis on her

breasts, is depicted in this photograph. Although the genitals are

visible because the child is naked, factor one is not present

because the focus is not on the genitalia. Likewise, factor two

is not helpful because the setting cannot be discerned, as the

image of the child fills the frame of the photograph.

We are concerned with the pose of the child. This does

not appear to be a candid shot given that it is a full length close

up depiction of a naked child who is standing with her arms at

her side. B.L.’s pose appears unnatural; she is sheepishly

looking into the camera, her shoulders slightly shrugged, and

she appears to be pushing her arms against her sides to give the

impression that she has developing breasts. Contrary to Larkin’s

contention, photograph number four is not the type traditionally

taken by parents eager to preserve memories of their child. As

to factor four, B.L. is completely nude. Factor five is not

present as B.L.’s expression is unremarkable and cannot be

characterized as portraying sexual coyness, or a willingness to

engage in sexual activity.

We have the same concern with this photograph as we

expressed in our analysis of photograph number five; standing

alone, none of the identified Dost factors sufficiently

demonstrate lasciviousness. But “given the particularities of the

case,” the presence of the sixth factor, which when coupled with

the other factors, tips the scale in favor of categorizing the

16

image as lascivious. Knox, 32 F.3d at 746 (citation omitted).

Photograph number four was sent over the internet by

Larkin to known pedophiles, including Thomas Redeker, with

the title of “[B.L.’s] Boobies.” Supp. App. at 78-79. The

image in photograph number four is intended to elicit a sexual

response by making it appear that B.L. has developing breasts

within the same image as her unclothed genitals. Redeker

confirmed that Larkin knew his preferences and was certain that

Larkin sent him the image in photograph number four for his

sexual pleasure. He also told agents from the Federal Bureau of

Investigation that Larkin courted him by stating “I know what

you like” and “[s]ee what you are missing.” Id.

We are careful to note that our holding with respect to

this image should not be construed to broaden the definition of

“sexually explicit” to include images of a minor’s breasts.

Instead, consistent with our holding in Knox, “‘lascivious

exhibition of the genitals or pubic area’ of a minor necessarily

requires only that the material depict some ‘sexually explicit

conduct’ by the minor subject which appeals to the lascivious

interest of the intended audience.” 32 F.3d at 747 (emphasis

added). Here, the close-up image of B.L. standing in a manner

that accentuates and calls attention to her breasts while nude

sufficiently depicts lascivious conduct because its intent was to

elicit a sexual response from Redeker.

Considered together, factors three, four, and six

demonstrate the presence of conduct that would appeal to the

17

lascivious interest of an audience of pedophiles and, in

particular, Redeker. Id. We hold that photograph number four

depicts “lasciviousness” as defined by 18 U.S.C. §

2251(2)(B)(iii).

In sum, we find that the depictions contained in

photograph number five and photograph number four meet the

definition of lascivious conduct as defined in 18 U.S.C. §

2251(2)(B)(iii). As a result, we hold that the District Court

properly considered B.L. as a second victim in calculating

Larkin’s guidelines.7

B. Whether the Government’s Conduct Violated the

Terms of the Plea Agreement

Larkin’s contention that the government violated the plea

agreement presents a question of law subject to plenary review.8

7

Whether the images contained in the first three photographs

depict “sexually explicit conduct” is questionable. Because we

hold that the visual depictions of B.L. contained in photographs

four and five satisfy the definition contained in 18 U.S.C. §

2251(2)(B)(iii), it is unnecessary to determine whether the

conduct captured in the first three photographs also falls within

the statute’s ambit.

8

During the first Pre-Sentence Conference, the government

agreed with the Probation Office’s qualification of Larkin’s

criminal history as Category II, essentially stating that the

18

United States v. Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir.

1989) (citing United States v. Miller, 565 F.2d 1273 (3d Cir.

1977)).

Strict compliance with the terms of a plea agreement is

not only vital to the efficient function of our criminal justice

system, but also required to preserve the integrity of our

constitutional rights. Santobello v. New York, 404 U.S. 257,

262-63 (1971).

This phase of the process of criminal justice, and

the adjudicative element inherent in accepting a

plea of guilty, must be attended by safeguards to

insure the defendant what is reasonably due in the

circumstances. Those circumstances will vary,

but a constant factor is that when a plea

agreement rests in any significant degree on a

promise or agreement of the prosecutor, so that it

Category I qualification in the plea agreement was erroneous.

Appendix Volume II (“App. Vol. II”) at 139 (“we were wrong

about that too.”). On appeal, the government states that Larkin

failed to object to this statement. To the extent that the

government is implying that Larkin waived appellate review of

this issue by failing to object, Larkin’s reticence does not

constitute waiver. See Moscahlaidis, 868 F.2d at 1360 (“Even

if we agree that appellant did not properly object to the plea

agreement violation at the sentencing hearing, such a failure

does not constitute a waiver.”) (citations omitted).

19

can be said to be part of the inducement or

consideration, such promise must be fulfilled.

Id. In applying Santobello, we strive to find a balance between

the constitutional rights of a defendant and the integrity of the

plea agreement. “Because the defendant, by entering into the

plea, surrenders a number of her constitutional rights, ‘courts are

compelled to scrutinize closely the promise made by the

government in order to determine whether it has been

performed.’” United States v. Nolan-Cooper, 155 F.3d 221, 236

(3d Cir. 1998) (quoting United States v. Hayes, 946 F.2d 230,

233 (3d Cir. 1991)).

It is well settled that an analysis of whether there is a

violation of the plea agreement proceeds under contract law

standards. Nolan-Cooper, 155 F.3d at 236. In considering

whether the government kept its promise, “we will not permit

the government to rely upon a ‘rigidly literal’ approach to the

construction of the terms of the plea agreement.” United States

v. Badaracco, 954 F.2d 928, 939 (3d Cir. 1992) (quoting

Moscahlaidis, 868 F.2d at 1361). Rather, our consideration here

is whether the government’s conduct falls within the range of

expectations reasonably understood by Larkin when she entered

her plea of guilty. See Badaracco, 954 F.2d at 939 (Courts are

to consider “whether the government’s conduct is inconsistent

with what was reasonably understood by the defendant when

entering the plea of guilty.”).

We undertake our review in three steps. Moscahlaidis,

20

868 F.2d at 1360; see also Nolan-Cooper, 155 F.3d at 235.

First, we consider the relevant paragraphs from the plea

agreement and a description of the alleged improper conduct of

the government. Id. Second, we evaluate the conduct and

determine whether it violates the government’s obligations

under the plea agreement. Id. If it is determined that the

government breached its duty under the plea agreement, our

third and final step is to fashion the appropriate remedy. Id.

The relevant portions of the plea agreement are as

follows. Paragraph 11 includes a contemplated application of

the United States Sentencing Guidelines (“guidelines”) to

Larkin’s conduct which results in a guideline range between 121

and 151 months imprisonment. This assessment determines that

§ 2G2.1(b)(3)(B)(I), an enhancement for the use of a computer

in the commission of the crime, does not apply to Larkin’s

sentencing conduct. Also contemplated is the applicability of

certain enhancements totaling eight levels and the possibility of

an adjustment under U.S.S.G. § 2G2.1(c) for a second victim.9

9

These enhancements include a 4 level age enhancement §

2G2.1(b)(1), a 2 level enhancement for parental relationship, §

2G2.1(b)(2), and a 2 level adjustment for obstruction of justice

§ 3C1.1. There is no disagreement between the parties that

these recommendations were contained in the plea agreement;

however, Larkin contends that the government was bound to

recommend the guideline calculation contained in Paragraph 11

of the plea agreement, which calls for a total offense level of 32

21

Paragraph 11 further states:

The defendant understands that none of these

recommendations is binding upon either the

United States Probation Office, which may make

different findings as to the application of the

United States Sentencing Commission Sentencing

Guidelines to the defendant’s conduct. The

defendant further understands that the United

States will provide the Court and the United

States Probation Office all the information in its

possession which it deems relevant to the

application of the United States Sentencing

Commission Sentencing Guidelines to the

defendant’s conduct.

App. Vol. II at 112-13, ¶11 (emphasis added).

Paragraph 27 of the plea agreement states:

Nothing in this agreement shall restrict or limit

the nature or content of the United States’s

motions or responses to any motions filed on

behalf of the defendant. Nor does this agreement

in any way restrict the Government in responding

to any request by the court for briefing, argument

or presentation of evidence regarding the

with the possible applicability of § 2G2.1(c), for involvement of

a second victim, Larkin’s then five year old daughter.

22

application of the Sentencing Guidelines to the

defendant’s conduct, including but not limited to,

requests for information concerning possible

sentencing departures.

Id. at 121, ¶27 (emphasis added).

Paragraph 15 provides:

The defendant also understands that the United

States will provide to the United States Probation

Office all information in its possession which the

United States deems relevant regarding the

Defendant’s background, character, cooperation,

if any, and involvement in this or other offenses.

Id. at 115, ¶ 15.

Paragraph 18 provides:

At the sentencing, the United States will be

permitted to bring to the Court’s attention, and the

Court will be permitted to consider, all relevant

information with respect to the defendant’s

background, character and conduct, including the

conduct that is the subject of charges which the

United States has agreed to dismiss, and the

nature and extent of the defendant’s cooperation,

if any. The United States will be entitled to bring

to the Court’s attention and the Court will be

entitled to consider any failure by the defendant to

23

fulfill any obligation under this agreement.

Id. at 116-17, ¶18.

According to Larkin, the government breached the plea

agreement in various stages of the proceedings in this case.

First, when it provided the United States Probation Office with

a letter from a psychologist which supported the Probation

Officer’s suggestion that an upward departure for severe

psychological injury may be applicable. Second, when it

provided argument in favor of the application of an

enhancement pursuant to U.S.S.G. § 2G2.1(b)(3) despite an

agreement that the enhancement was inapplicable. Finally, by

arguing in its Response to Defendant’s Objections to the Pre-

Sentence Report, Sentencing Memorandum and Supplemental

Sentencing Memorandum, that upward departures may be

warranted. We will address these allegations in turn.

1. The Letter of the Psychologist

Larkin contends that the government violated the terms

of the plea agreement by submitting a letter from a psychologist,

which supported the application of an upward departure based

upon the severe injury likely suffered by Larkin’s daughters as

a result of her conduct, to the United States Probation Officer

charged with preparing the Pre-Sentence Report.

The plea agreement plainly states that the government

may “provide the Court and the United States Probation Office

all information it deems relevant to the application of the United

24

States Sentencing Commission Sentencing Guidelines to the

defendant’s conduct.” Id. at 113, ¶ 11. A letter from a

psychologist detailing the impact of Defendant’s conduct on her

daughters’ mental health is relevant to Larkin’s conduct

assessment and application of the Guidelines. In addition, while

the government may be precluded from arguing in favor of an

enhancement based upon these facts, passing this information

along to the Probation Officer is within its obligations set forth

in Paragraph 17, which details the right of the victims to be

heard. See, e.g., United States v. Stemm, 847 F.2d 636, 639

(10th Cir. 1988) (“Disclosure of information as to the nature of

the offense and each defendant’s role is proper and within the

Government’s duty to provide, despite a promise that the

Government would make no recommendation as to sentence.”)

(citations omitted).

Paragraph 17(b) expressly permits the government to

consult with the victims and to make the views of the victims

“regarding sentencing known to the Court.” App. Vol. II at 116,

¶ 17. In addition, the record demonstrates that Larkin was

informed on several occasions that the government was not

precluded from providing the Court and/or the Probation Office

with relevant information and that Paragraph 17 meant “that the

victims . . . can present their views to the court through our

office.” Id. at 146 (Pre-Sentence Conference May 2006); Supp.

App. at 107 (Sentencing Memorandum); App. Vol. II at 216

(Sentencing Hearing May 2009). The conduct of the

government was permitted under a plain reading of the plea

25

agreement and should have been reasonably expected by Larkin.

Indeed, Larkin agreed that the government could present

evidence related to the impact her conduct had on her daughters.

THE COURT: Well, you always have the right to

object to it. And, you know, as it goes to a victim

impact statement, you know setting aside your

more technical argument that the United States

can’t present any testimony on potential

enhancements, which I think we’ve dealt with, I

don’t think you can argue that they can’t present

victim impact information.

MS. SHAPIRO: No, I don’t think I can.

Supp. App. at 72 (Pre-Sentence Conference August 25, 2008).

More importantly, the government never expressly

argued in favor of an enhancement on this ground, nor can its

actions fairly be construed as an implicit violation of the terms

of the plea agreement. As a result, we find that the government

did not breach the plea agreement by supplying the Probation

Office with the psychologist report.

2. The Enhancement Pursuant to U.S.S.G. § 2G2.1(b)(3)

Larkin next argues that the government violated the plea

agreement by supplying briefing on the applicability of the

sentencing enhancement pursuant to U.S.S.G. § 2G2.1(b)(3).

Paragraph 11 of the plea agreement specifically states that

U.S.S.G. § 2G2.1(b)(3) is inapplicable. Neither in the written

26

submissions filed with the District Court nor during the course

of any of the hearings does the record reflect that the

government advocated for the application of U.S.S.G. §

2G2.1(b)(3). However, at the behest of the District Court, the

government provided an assessment of the law and the relevant

facts that would support application of the enhancement.

On May 24, 2006, the District Court conducted a Pre-

Sentence Conference during which it considered several

objections, made by Larkin, to the Pre-Sentence Report,

including an objection to the Probation Office’s

recommendation that an enhancement was warranted under §

2G2.1(b)(3). As a result of Larkin’s objection, the following

exchange took place:

THE COURT: Well, I guess the point is, you

know, is the government going to - - is the

government going to contest the - - I understand

the criminal history area, but that’s different. I

mean, we can’t - - it is what it is. But as to this

particular enhancement, this two level

enhancement, having looked at it briefly, and only

briefly, it appears that there is substantial

unclarity in this area and I’m going to have to

resolve it. But I don’t have to resolve it if you

don’t want to fight it, because I think it’s purely a

judgment call.

THE GOVERNMENT: And that’s the problem.

27

I think it’s so - - the lack of clarity, if the

Probation Office thinks it’s [the computer

enhancement] appropriate, we’ll explain their

views as to why it’s appropriate.

THE COURT: All right. Well, the bottom line is

it should be briefed and then we’ll allow you to do

that.

THE GOVERNMENT: I mean, if the Probation

Office, after this meeting, thinks it better to

withdraw that, that’s fine too. That’s their

position and we’ll explain to the court to the best

of our abilities their beliefs.

App. Vol. II at 140 (Pre-Sentence Conference May 24, 2006).

The government’s Sentencing Memorandum does not

request the application of the enhancement, but it does present

the correct legal standard and offers facts relevant to the

determination of whether U.S.S.G. § 2G2.1(b)(3) is applicable.

Paragraph 27 expressly permitted the government to respond to

the District Court’s request for briefing on any issue related to

the application of the guidelines to Larkin’s conduct, including

the relevancy of U.S.S.G. § 2G2.1(b)(3).

Larkin challenges this language as overly broad and

argues that it cannot be used in a manner to undermine the more

specific provisions in the agreement. See United States v.

Rivera, 357 F.3d 290, 295 (3d Cir. 2004) (citing Corbin on

28

Contracts § 24.23 (revised ed. 1998) (“If the apparent

consistency is between a clause that is general and broadly

inclusive in nature and one that is more limited and specific in

its coverage, the more specific should . . . be held to prevail over

the more general term”); see also Restatement (Second) of

Contracts § 203(c) (specific terms and exact terms are given

greater weight than general language)). In more specific terms,

Larkin submits that Paragraph 27 cannot be construed in a

manner that relieves the government of its burden to adhere to

the stipulation regarding U.S.S.G. § 2G2.1(b)(3).

We are not convinced that Paragraph 27 is overly broad

or was used in the manner described by Larkin. Importantly, the

government’s ability to provide information to the Court on

possible sentencing departures is contingent upon a request from

the District Court, and not the product of a catch-all provision

that allows the government to “take any position” as to

sentencing issues. This fact distinguishes the case sub judice

from the plea agreement in Rivera, relied upon by Larkin.

In Rivera, the inclusion of a general provision in the plea

agreement that “reserved the right to take any position with

respect to the appropriate sentence” did not permit the

government to argue in favor of a role enhancement where it had

stipulated to a specific Base Offense Level. 357 F.3d at 295.

Because the Offense Level was specifically

stipulated to, whereas the government’s right to

advocate a role enhancement was not, the

29

government’s endorsement of an enhancement

that would raise the Offense Level above the

stipulated level contravened the plea agreement.

Moreover, to the extent there is ambiguity caused

by the “little bit of poor draftsmanship” conceded

by the prosecutor, we must construe the

agreement against the government as drafter.

Id.

Here, Paragraph 27 does not give the government the

same unfettered authority as the language in the Rivera plea

agreement. Nothing in Paragraph 27 permitted the government

to abandon specific stipulations in its response to the District

Court’s request for briefing; as a result, unlike Rivera, the

government could not take “any position.” Cf. id.

Parsing the language in a plea agreement is more than a

semantical exercise, as we have consistently recognized the fine,

but important, distinction between a promise to “take no

position” and a promise to “make no recommendation.” See

United States v. Hall, 515 F.3d 186, 198 (3d Cir. 2008); United

States v. Hayes, 946 F.2d 230, 234 (3d Cir. 1991). “The

difference between the two terms is elementary, for the promise

not to recommend is narrow, speaking only as to the sentence to

be imposed, whereas a promise to take no position speaks to no

attempt at all to influence the defendant’s sentence.” Miller,

565 F.2d at 1275. The government’s obligations here were not

impeded by a promise to “take no position.” Instead, the

30

government agreed to recommend a sentence within the

applicable guideline range and it was obligated to inform the

District Court of “all information in its possession which it

deems relevant” to sentencing. App. Vol. II at 113, ¶ 11. The

government fulfilled its obligation to recommend a sentence

within the guideline range and the plea agreement specifically

permitted the government to supply the District Court with the

information relevant to U.S.S.G. § 2G2.1(b)(3). See United

States v. Horsfall, 552 F.3d 1275, 1282 (3d Cir. 2008)

(“Because the agreement permitted the government to introduce

such information and the government did not explicitly oppose

a sentence within the guideline range, the government did not

violate the plea agreement.”) (citation omitted).

Although Paragraph 27 permits the government’s

response to the District Court’s inquiry, it does create a tension

between the District Court and the parties because it leaves open

the possibility that a stipulation can become the subject of

discussion at the request of the District Court, thereby creating

an opportunity for the government to circumvent the plea

agreement. Here, the oral argument and the brief submitted by

the government do not cross the line between providing an

analysis, which is expressly permitted by Paragraph 27, and

impermissibly advocating for application of the enhancement.

Cf., United States v. Hawley, 93 F.3d 682, 693 (10th Cir. 1996)

(Finding statements “that do more than merely state facts or

simply validate those facts found in the Pre-Sentence report [but

rather] . . . provide a legal ‘characterization’ of those facts, and

31

‘argue the effect’ of those facts to the sentencing judge” violated

the terms of the plea agreement.).

The brief sets forth the proper legal considerations in a

straightforward manner. See United States v. Svacina, 137 F.3d

1179, 1185 (10th Cir. 1998) (“The government cannot be

penalized for correctly stating the legal issue to be addressed by

th[e] court.”). In addition, the facts identified in the

government’s brief were well known to the District Court, as

they were a boiled down recapitulation of the facts detailed in

Larkin’s Pre-Sentence Report.10 Viewed against the entire

factual backdrop of the proceedings in front of the District

Court, the government’s submission does not constitute a thinly

veiled attempt to otherwise influence the District Court to apply

the enhancement and did not offend its obligations under the

plea agreement. To the contrary, the government expressly

10

We reject the government’s argument that because the

District Court ultimately did not apply the enhancement, any

hypothetical overstep by the government is excused. We have

consistently held that “the doctrine that the government must

adhere to its bargain in the plea agreement is so fundamental

that even though the government’s breach is inadvertent and the

breach probably did not influence the judge in the sentence

imposed, due process and equity require that the sentence be

vacated.” Nolan-Cooper, 155 F.3d at 237 (internal quotations

omitted).

32

advocated for a sentence within the guidelines at various stages

in the proceedings before the District Court. App. Vol. II at 142

(Pre-Sentence Conference May 24, 2006); Supp. App. at 56

(Pre-Sentence Conference July 25, 2007); Id. at 107 (Sentencing

Memorandum); App. Vol. II at 216 (Sentencing).

We also find that the government’s conduct falls within

the realm of actions Larkin would reasonably expect under the

plea agreement. The government’s written and oral responses

to the District Court’s inquiry related to U.S.S.G. § 2G2.1(b)(3)

were contemplated by Paragraph 27 and did not infringe on its

obligations pursuant to Paragraph 11. See, Hall, 515 F.3d 186.

The plea agreement expressly permitted the government to

introduce the information it provided to the District Court and

the government never argued, explicitly or implicitly, that

U.S.S.G. § 2G2.1(b)(3) should be applied.

In sum, nothing the government did can aptly be

characterized as impermissibly advocating for the application of

U.S.S.G. § 2G2.1(b)(3) or violating the “spirit” of the

agreement. See Badaracco, 954 F.2d at 940. The government’s

actions were permitted by the plea agreement and we find no

breach. See Horsfall, 552 F.3d at 1282 (citing United States v.

Levy, 374 F.3d 1023, 1030-32 (11th Cir. 2004) (finding no

breach where the government was permitted by the plea

agreement to introduce certain evidence and it upheld its

obligation to make a specific sentencing recommendation)).

3. Upward Departure Arguments

33

Larkin’s final argument also implicates Paragraph 27 and

alleges that the government made an impermissible argument on

applicable upward departures in its Sentencing Memoranda.11

Although the parties each submitted two briefs to the District

Court, the record before us contains only the government’s

submissions, filed with the District Court on March 26, 2009

and April 17, 2009.

Larkin characterizes specific statements within these two

briefs as advocating for upward departures from the stipulated

guideline range. During its discussion on Larkin’s offense level,

the government’s brief informed the District Court that “other

pertinent details are not included in this assessment which are

worth noting when considering the seriousness of the offense

and the need to provide just punishment for the offense.” Supp.

App. at 14. The government then offered that “a factor not

considered by the guidelines but reflective of the seriousness of

the offense is its duration which spanned intermittently

approximately one year.” Id. at 15. Other examples in the brief

include the fact that Larkin sent the pictures for pecuniary gain

and that the victims of her crime suffered. Taken together,

11

Larkin also reiterates that Paragraph 27 is overly broad and,

therefore, cannot be invoked to undermine more specific

paragraphs. We dispose of Larkin’s argument regarding the

broad nature of Paragraph 27 for the reasons identified in our

analysis of the government’s conduct with respect to the

application of U.S.S.G. § 2G2.1(b)(3).

34

Larkin argues that the implicit message to the District Court was

that the applicable guideline range was inadequate.

All of these arguments were made with respect to the

non-guideline sentencing considerations set forth in 18 U.S.C.

§ 3553. See Gall v. United States, 552 U.S. 38, 49-50 (2007)

(directing that the sentencing of federal criminal defendants

must include detailed consideration of the factors set forth in 18

U.S.C. § 3553). While the plea agreement sets forth a

contemplated guideline range, the government never agreed to

recommend a specific sentence within that range. Thus, its

inclusion of other factors not considered by the guidelines is

consistent with its burdens under 18 U.S.C. § 3553(a) and can

fairly be construed as providing a factual basis for a sentence at

the higher end of the range. To the extent that these factors are

also the basis for upwardly departures, because the government

was responding to a request from the District Court consistent

with Paragraph 27, it did not step outside the bounds of the plea

agreement.12

Inasmuch as the government’s declarations do not

12

Larkin’s argument that the government provided this

argument under its own initiative is unpersuasive. While the

time line of the briefings initially appears to support Larkin’s

theory that there was no Paragraph 27 request by the District

Court, further review of the proceedings leads to the inevitable

conclusion that the government’s submissions were made in

response to a request by the District Court.

35

inherently violate its obligations under the plea agreement, the

fact that they were made in response to the District Court’s

request provides additional propriety for their inclusion in the

written submissions. Moreover, the government consistently

argued for a sentence within the applicable guideline range. For

all of these reasons, we find no breach of the plea agreement.

C. Whether the District Court Violated the Ex Post

Facto Clause of Article I of the United States

Constitution When it Upwardly Departed Five

Levels

The criminal conduct underlying Larkin’s indictment

occurred on September 15, 2003. Under the version of

U.S.S.G. § 2G2.1 (2002) in effect on the date of Larkin’s

criminal conduct, her base offense level totaled twenty seven

(27). Effective November 1, 2004, the United States Sentencing

Commission amended U.S.S.G. § 2G2.1, the sentencing

guideline that governs Larkin’s conduct, to include several bases

for enhancements.13 Direct application of the amended version

13

On April 30, 2003, prior to the date of Larkin’s offense

conduct, the Prosecutorial Remedies and Other Tools to end the

Exploitation of Children Today Act of 2003 (the “PROTECT

Act”), Pub. L. 108-21, was signed into law. The PROTECT Act

increased the mandatory minimum term of imprisonment for

violations of 18 U.S.C. § 2251 from ten to fifteen years. In part,

several amendments to the guidelines were in response to the

PROTECT Act and the perceived increase in the rate of

36

of U.S.S.G. § 2G2.1 (2009) results in a base offense level of

thirty two (32). Larkin was sentenced on May 22, 2009.14

Larkin claims that the District Court improperly relied upon the

2009 edition of the Guideline Manual in rendering its decision

to depart upward five levels pursuant to U.S.S.G. § 5K2.0 in

violation of the ex post facto clause of Article I of the United

States Constitution.15 We review this decision under a de novo

departures from the guidelines. United States v. Arrelucea-

Zamudio, 581 F.3d 142, 146 (3d Cir. 2009).

14

Generally, a sentencing court is required to apply the

guidelines in effect at the time of the defendant’s sentencing,

consistent with ex post facto considerations. See United States

v. Cherry, 10 F.3d 1003, 1014 (3d Cir. 1993); United States v.

Kopp, 951 F.2d 521, 526 (3d Cir. 1991); 18 U.S.C. §

3553(a)(4); U.S.S.G. § 1B1.11(a) (1993).

15

Pursuant to United States v. Koon, there are several

determinations that a sentencing court must make when

considering a departure pursuant to § 5K2.0. 518 U.S. 81, 96,

116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Namely:

1) What features of this case, potentially, take it

outside the Guidelines' ‘heartland’ and make of it

a special, or unusual, case?

2) Has the Commission forbidden departures

based on those features?

3) If not, has the Commission encouraged

37

standard.

Where an amendment to a section of the sentencing

guidelines occurs following the convicted offense conduct and

the amendment results in harsher penalties than were in effect at

the time of the conduct, the ex post facto clause and U.S.S.G. §

1B1.11(a) (1993) both require the District Court to apply the

sentencing guidelines in effect on the date that the offense of

conviction was committed. Miller v. Florida, 482 U.S. 423,

431-35, 107 S.Ct. 2446, 2451-54, 96 L.Ed.2d 351 (1987).

Because subsequent changes in the sentencing guidelines in

effect at the time of Larkin’s sentence would result in the

imposition of a harsher punishment, the District Court was

required to sentence Larkin according to the 2002 Guideline

Manual, which was in effect on the date of the charged offense

conduct on September 13, 2003.16 United States v. Menon, 24

F.3d 550, 566 (3d Cir. 1994); see also U.S.S.G. § 1B1.11(b)(1).

The District Court appropriately considered Larkin’s

departures based on those features?

4) If not, has the Commission discouraged

departures based on those features?

Id. (citing United States v. Rivera, 994 F.2d 942, 949 (1st Cir.

1993)).

16

However, the PROTECT Act, having been signed into law

prior to Larkin’s offense date of September 15, 2003, applies to

her sentence structure.

38

conduct under the 2002 edition of the Guideline Manual and

concluded that an upward departure was warranted pursuant to

U.S.S.G. § 5K2.0 on the ground that U.S.S.G. § 2G2.1 (2002)

did not adequately consider the severity of Larkin’s conduct.

Specifically, the applicable guideline did not account for the fact

that: 1) Larkin permitted pedophiles to have sexual contact with

M.M.; 2) Larkin distributed materials involving the exploitation

of a minor; 3) Larkin distributed these materials for pecuniary

gain; and 4) Larkin’s conduct was extreme.

In justifying the imposed sentencing enhancements, the

District Court relied upon, inter alia, the fact that the amended

version of U.S.S.G. § 2G2.1 (2009) specifically contemplated

enhancements for the identified conduct.17 We have consistently

held as improper the direct application of an amended guideline

to conduct that occurred prior to the amendment. See, e.g.,

United States v. Wood, 486 F.3d 781 (3d Cir. 2007).

Analogizing to an amended guideline, however, does not offend

the ex post facto clause.

We agree with the Seventh Circuit that a sentencing court

"may interpret the Commission's later addition of an aggravating

17

As amended, U.S.S.G. § 2G2.1 permits a two-level

enhancement “[i]f the offense involved the commission of a

sexual act or sexual contact” and a two level enhancement for

the distribution (Larkin was charged with possession) of

materials involving the exploitation of a minor. U.S.S.G. Supp.

to App. C, Amend 664.

39

element as a sentencing factor as evidence that a previous

version of the Guidelines did not adequately consider that factor

in the sentencing scheme" while cautioning that "subsequent

amendments are only to be used as tools in making a

well-reasoned, individualized determination of whether to

impose an upward departure in a particular case or to determine

the degree of departure that is warranted." See United States v.

Coe, 220 F.3d 573, 578 (7th Cir. 2000). We can find no better

evidence of the inadequacy of a sentencing guideline than a

subsequent amendment to that guideline to include and qualify

previously unmentioned components of the convicted offense.

For this reason, we recently joined the First, Fourth, and Seventh

Circuits in holding that reliance on Congress’s decision to

amend a guideline provision as evidence that the applicable

guideline is inadequate, is proper. United States v. King, 604

F.3d 125, 142 (3d Cir. 2010).

We are convinced, after a review of the record, that the

District Court’s sentence of Larkin did not improperly rely on an

amended version of § 2G2.1. See United States v. Kikumura,

918 F.2d 1084, 1113 (3d Cir. 1990) overruled on other grounds

by United States v. Fisher, 502 F.3d 293 (3d Cir. 2007)

(analogies to other guidelines is permissible). The District

Court’s analogy to the amendment to § 2G2.1 was proper and

did not violate the letter or the spirit of the ex post facto clause.

40

King, 604 F.3d 142.18

D. The Reasonableness of Larkin’s Sentence

Larkin’s final argument is that the imposed sentence of

thirty years imprisonment is unreasonable. In determining the

reasonableness of a sentence, we give great deference to “[t]he

sentencing judge [who] is in a superior position to find facts and

judge their import under § 3553(a) in the individual case. The

judge sees and hears the evidence, makes credibility

determinations, has full knowledge of the facts and gains

insights not conveyed by the record.” Gall, 552 U.S. at 51

(internal quotations and citations omitted); see also United

States v. Dragon, 471 F.3d 501, 506 (3d Cir. 2006) (we give

“deference to the District Court because it is in the best position

to determine the appropriate sentence in light of the particular

circumstances of the case.” (internal quotations and citations

omitted)). The reasonableness of the District Court’s sentence

18

At Sentencing, following its determination that an upward

departure was warranted, the District Court stated that “had I not

departed upward, under § 5K2.1, as I did in my prior order, I

would vary up to a sentence at the same level that I’m about to

give you.” App. Vol. II at 222. Having found no violation of

the ex post facto clause, we need not endeavor to determine

whether the District Court could have “varied up” to the

sentence it ultimately imposed. Therefore, we will not address

Larkin’s argument that the District Court failed to offer a basis

for a variance.

41

is reviewed under an abuse of discretion standard. United States

v. Jackson, 523 F.3d 234, 243 (3d Cir. 2008).

Consistent with our post-Booker19 precedent, District

Courts engage in a three step process when imposing a sentence.

United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006);

United States v. King, 454 F.3d 187 (3d Cir. 2006). First, as

was done in the pre-Booker era, the defendant’s guideline range

is calculated. See id. Second, the sentencing court must issue

formal rulings on any departure motions on the record and, to

the extent it grants a motion, it must then articulate “how that

departure affects the Guidelines calculations.” King, 454 F.3d

at 196. Third, the factors enumerated in 18 U.S.C. § 3553(a) are

considered “in setting the sentence they impose regardless

whether it varies from the sentence calculated under the

Guidelines.” Gunter, 462 F.3d at 247 (footnote omitted). The

§ 3553(a) factors are:

(1) the nature and circumstances of the offense

and the history and characteristics of the

defendant;

(2) the need for the sentence imposed-- (A) to

reflect the seriousness of the offense, to promote

respect for the law, and to provide just

punishment for the offense; (B) to afford adequate

19

United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005).

42

deterrence to criminal conduct; (C) to protect the

public from further crimes of the defendant; and

(D) to provide the defendant with needed

educational or vocational training, medical care,

or other correctional treatment in the most

effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range

established for-- (A) the applicable category of

offense committed by the applicable category of

defendant as set forth in the guidelines . . .

(5) any pertinent policy statement . . .

(6) the need to avoid unwarranted sentence

disparities among defendants with similar records

who have been found guilty of similar conduct;

and

(7) the need to provide restitution to any victims

of the offense.

Although Larkin complains about the overall

reasonableness of the sentence, her chief allegation is that the

District Court failed to sufficiently account for the similarity in

the sentence between herself and her co-defendant, Richard

King. Both Larkin and King received the same sentence despite

the fact that Larkin provided substantial assistance to the

government, as set forth in the government’s § 5K1.1 motion for

43

downward departure.20 Thus, Larkin’s complaint implicates

both procedural and substantive error.

“[W]here a district court’s sentence is procedurally

sound, we will affirm it unless no reasonable sentencing court

would have imposed that same sentence on that particular

defendant for the reasons the district court provided.” United

States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009). In

deference to this principle, we will first address the procedural

argument.

Procedural errors include “failing to calculate (or

improperly calculating) the Guidelines range, treating the

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

20

Even in the post-Booker landscape, we have consistently

declined to review the discretionary decision of the District

Court not to depart, unless there is a claim of legal error. See

United States v. Cooper, 437 F.3d 324, 332-33 (3d Cir. 2006)

(surveying the relevant precedent both pre and post Booker).

Larkin makes no claim for legal error in the District Court’s

refusal to grant the government’s § 5K1.1 motion. To the extent

that she is alluding that the refusal to grant that motion is a

factor in the unreasonableness of the sentence, the propriety of

the District Court’s refusal is not properly before us and we

decline to address it. See United States v. Pellulo, 399 F.3d 197,

222 (3d Cir. 2005) (“It is well settled that an appellant’s failure

to identify or argue an issue in his opening brief constitutes

waiver of that issue on appeal.”).

44

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.” Gall,

552 U.S. at 51. Based on our review of the record, we find no

procedural error. At the sentencing hearing, the District Court

expressly considered the similarity of Larkin’s sentence to

King’s sentence as required by § 3553(a)(6).

Finally, I want to address the sixth factor under

section 3553(a), which is the need to avoid

unwarranted sentencing disparities for defendants

with similar records and in particular, Mr. King,

the co-defendant in this case. As we know, he

pled guilty to interstate travel with a minor under

12. And that’s an offense with which you were

also charged.

Mr. King’s relevant conduct included

physical contact with your daughter, prior abuse

of his own daughter, distribution of child

pornography and obstructing the investigation.

But you solicited the sexual contact that Mr. King

had with your daughter. You were present for and

a participant in nearly all of the abuse that Mr.

King perpetrated on your daughter. And you

abused the second victim; just like Mr. King also,

your own child. And you distributed

pornography. And you obstructed justice by

asking others to commit perjury. And you

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directed others to destroy or conceal evidence of

your offense. Your first words to the

investigating agent in this case, and I’m

paraphrasing, were how do I get myself out of

this. Well, you didn’t and you can’t.

You engaged in substantially similar conduct to

Mr. King. And I might agree with the contention

that your conduct was worse. I don’t know how

you could be subject to less severe punishment

under the circumstances, and you won’t be.

App. Vol. II at 221-22.

In addition, even though the sentence imposed was

outside the applicable guideline range, it was procedurally sound

and not unreasonable. See Gall, 552 U.S. at 51 (“[I]f the

sentence is outside the Guidelines range, the court may not apply

a presumption of unreasonableness. It may consider the extent

of the deviation, but must give due deference to the district

court's decision that the § 3553(a) factors, on a whole, justify the

extent of the variance.”). Here, the District Court’s analysis of

factor (a)(6) consists of more than mere boiler-plate language

and demonstrates both thoughtful and meaningful consideration.

“The touchstone of ‘reasonableness’ is whether the record as a

whole reflects rational and meaningful consideration of the

factors enumerated in 18 U.S.C. § 3553(a).” United States v.

Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc).

We have long required that sentencing courts give

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“meaningful consideration” to all of the § 3553(a) factors.

“Meaningful consideration” requires more than mere recitation

that the factors have been considered. United States v. Cooper,

437 F.3d 324, 329 (3d Cir. 2006). A review of the entire record

demonstrates that the District Court gave thoughtful and

“meaningful consideration” of all of the circumstances that

impacted Larkin’s sentence, including subsection (a)(6) of §

3553. Id. (noting that a sentencing court need not “discuss and

make findings as to each of the § 3553(a) factors if the record

makes clear the court took the factors into account in

sentencing.”) We conclude that the District Court laid the proper

foundation and appropriately applied the § 3553(a) factors in

formulating Larkin’s sentence.

I have considered all of the 3553 (a) factors

carefully, dispassionately, although this is a case

that triggers passion. I have given great

consideration to all of the circumstances that I

have before me in the voluminous submissions by

counsel. I will note that had I not departed

upward under 5K2.1, as I did in my prior order, I

would vary up to a sentence at the same level that

I’m about to give you.

I take no joy in this. This is the worst case. This

is the ugliest, most difficult case I have ever seen

in my seven years on the bench. And in fact,

other than homicides, wanton killings, this is the

worst case that I have seen not only in the seven

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years on the bench but in 22 years of lawyering

before that.

App. Vol. II at 222.

The District Court’s sentence was procedurally sound and

therefore entitled to a presumption of reasonableness. The

District Court was free to, and did, exercise its discretion in

imposing sentence. Whether, as argued, there was room here for

a lower sentence, we have considered that argument and

conclude that the sentence imposed was not unreasonable. Our

decision today is reinforced by Gall, which reminds us that

“[t]he fact that the appellate court might reasonably have

concluded that a different sentence was appropriate is

insufficient to justify reversal of the district court.” Gall, 552

U.S. at 51. Therefore, we will affirm the sentence imposed by

the District Court.

V. CONCLUSION

We hold that the photographs of B.L. were sexually

explicit and, therefore, she was properly considered a second

victim in calculating Larkin’s sentence. We further hold that the

government did not breach the plea agreement by providing the

District Court with briefing on the applicability of §

2G2.1(b)(3)(B)(I). Finally, we hold that there was no violation

of the ex post facto clause by the District Court and that the

sentence imposed was reasonable.

For these reasons, we affirm the decision of the District

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Court.

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