Sentencing — child pornography

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U.S. Court of Appeals for the 7th Circuit

Criminal

Sentencing — child pornography

Even though the Sentencing Commission has asked Congress to lower the guideline sentence under U.S.S.G. 2G2.2 for child pornography, the district court did not err in applying the guideline.

“The Eleventh Circuit recently addressed and rejected a very similar argument from a defendant challenging the continued validity of section 2G2.2 in light of the Report: We agree with the government that the Commission’s 2013 report does not render the non-production child pornography guidelines in § 2G2.2 invalid or illegitimate. Rather, the Commission recommends that Congress enact legislation providing the Commission with express authority to amend [§ 2G2.2]” The publication of the 2013 report does not change the statutory sentencing scheme, the applicable sentencing guidelines, or the binding precedent about § 2G2.2 in this Circuit. United States v. Cubero, — F.3d —, —, 2014 WL 2595781, *9 (11th Cir. June 11, 2014). In Cubero, the court commented that, although the district court was certainly free to consider the Report in choosing the ultimate sentence, the Report did nothing to invalidate section 2G2.2. Nor did the court’s use of section 2G2.2 render Cubero’s sentence procedurally or substantively unreasonable because the absence of empirical evidence is not an independent ground that compels the invalidation of a guideline. Cubero, 2014 WL at *9. See also United States v. Grigsby, 749 F.3d 908, 910–12 (10th Cir. 2014), petition for cert. filed, — U.S.L.W. — (U.S. July 10, 2014) (No. 14- 3146) (rejecting a similar categorical challenge to guideline 2G2.1 based on the Report). We are inclined to agree with our sister circuits. Congress and the Commission are responsible for altering the guidelines, and the absence of an empirical basis does not render a guidelines provision per se unreasonable or irrational. Grigsby, 749 F.3d at 911 (citing United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011), cert. denied, 132 S. Ct. 2773 (2012)). The district court was free to consider the Report but using the guideline in its current form did not render McLaughlin’s sentence substantively unreasonable. ‘[D]istrict courts must treat the Guidelines as the starting point and the initial benchmark.’ Kimbrough v. United States, 552 U.S. 85, 108 (2007). Contrary to McLaughlin’s contention, then, the district court was obligated to consider the properly calculated guidelines sentence in determining the appropriate sentence. The court was clearly aware that it was free to reject the guidelines sentence; the court in fact sentenced McLaughlin twenty-one months below the low end of the guidelines range. In short, there is nothing substantively or procedurally amiss with McLaughlin’s sentence. Rita, 551 U.S. at 341–49; Anobah, 734 F.3d at 736; Mykytiuk, 415 F.3d at 608 (sentences that are within the properly calculated guidelines range are entitled to a rebuttable presumption of reasonableness).” Affirmed.

12-3255 U.S. v. McLaughlin

Appeal from the United States District Court for the Northern District of Illinois, Gúzman, J., Rovner, J.