US v. Steven Helton
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:12-cr-00134-1. [999557820]. [13-4412]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4412
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
STEVEN RUSSELL HELTON,
Defendant − Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.
Irene C. Berger,
District Judge. (5:12-cr-00134-1)
Argued:
December 11, 2014
Decided:
April 2, 2015
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by published opinion.
Judge Wilkinson wrote the
opinion, in which Judge Gregory and Judge Duncan joined. Judge
Gregory wrote a separate concurring opinion.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Lisa Grimes
Johnston, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.
ON BRIEF: Mary Lou Newberger, Federal
Public Defender, David R. Bungard, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, William B. King, II, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.
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WILKINSON, Circuit Judge:
Appellant Steven Helton pled guilty to one count of knowing
possession
of
child
pornography
in
violation
of
18
U.S.C.
§§ 2252A(a)(5)(B) and 2252A(b)(2). He was sentenced to 60 months
in prison followed by a lifetime term of supervised release.
Helton
now
whether,
appeals.
given
the
The
question
facts
of
presented
this
case,
to
a
this
court
is
term
of
lifetime
supervised release is procedurally and substantively reasonable.
For the following reasons, we think it is and now affirm.
I.
In October 2010, Sergeant D.C. Eldridge, a member of the
West
Virginia
Internet
determined
that
contained
several
peer-to-peer
a
Crimes
computer
child
software
Against
near
the
Task
Beckley,
West
videos
accessed
pornography
that
Children
Task
Force
was
Force,
Virginia,
through
monitoring.
Sergeant Eldridge, with assistance from the FBI, identified the
subscriber to the IP address associated with the computer as
Barbie Helton of Beaver, West Virginia. On December 29, 2010,
investigators executed a search warrant on the Helton residence
where Ms. Helton lived with her son, Steven. As part of this
initial
search,
Sergeant
Eldridge
discovered
several
files
containing child pornography on Steven Helton’s computer.
Defendant,
after
being
advised
of
his
constitutional
rights, gave a recorded statement to law enforcement, explaining
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that he regularly viewed adult and child pornography and would
download,
view,
and
then
delete
images,
and
then
return
to
download more images. Forensic investigators found a total of
961 individual images of child pornography on the hard drive of
the
computer,
viewing
at
although
the
time
only
of
42
the
were
search.
actively
In
the
accessible
for
course
his
of
interview, Helton admitted to downloading some of the images
onto his iPod for personal use, but denied trading or sharing
child pornography with any other users.
Many
of
prepubescent
the
minors
images
engaged
found
in
by
investigators
sexual
acts,
were
of
exhibition
of
genitals, or bondage, and at least one depicted a child engaged
in sadistic or masochistic acts. Helton explained that he had
been sexually abused by his stepfather when he was a child, and
that he had sought treatment in the past but had been unable to
stop viewing child pornography. He also admitted that he had
been caught viewing child pornography while he was a juvenile in
foster care and that he had been removed from a foster family
for sexually abusing a three-year old when he was thirteen years
old.
On June 12, 2012, a federal grand jury in the Southern
District of West Virginia issued a two-count indictment against
Helton
for
knowing
receipt
and
knowing
possession
of
child
pornography in violation of 18 U.S.C. §§ 2252A(a)(2), (a)(5)(B),
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and 2252A(b)(1)-(2). Helton pled guilty to one count of knowing
possession
of
child
§§ 2252A(a)(5)(B)
imprisonment
under
pornography
and
in
violation
2252A(b)(2).
the
statute
is
The
ten
of
18
maximum
years.
See
U.S.C.
term
18
of
U.S.C.
§§ 2252A(a)(5)(B), 2252A(b)(2). Under 18 U.S.C. § 3583(k), the
court must impose a term of supervised release of at least five
years and up to life for crimes under § 2252A.
The
presentence
investigation
report,
prepared
by
the
probation office, recommended a Guidelines range of 78 to 97
months of imprisonment based on a total offense level of 28 and
a criminal history category of I. The district court adopted the
presentence investigation report, after thoroughly reviewing it
at
the
sentencing
statutory
Guidelines
maximum
hearing.
and
See
walked
calculations.
As
J.A.
the
the
168-72.
It
defendant
trial
judge
noted
through
explained,
the
the
a
violation of § 2252A(a)(5)(B) has a Base Offense Level of 18.
See id. at 170; see also U.S.S.G. § 2G2.2(a)(1). A two-level
enhancement was added for using a computer to search for and
access child pornography. In addition, two levels were added for
material that depicts a prepubescent minor under the age of 12
and an additional four levels for material portraying sadistic
or
masochistic
conduct.
Lastly,
a
five-level
enhancement
was
added because the offense involved 600 or more images. Helton
received
a
three-level
reduction
4
for
acceptance
of
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responsibility, bringing his total offense level to 28. Because
this was his first conviction, his criminal history category, as
noted, was I.
At the sentencing hearing, neither party objected to the
Guidelines
calculation
included
in
the
presentence
report,
although the defendant provided a comment by way of additional
explanation that the majority of images were not sadistic or
masochistic in nature. See J.A. 158-59.
The sentencing judge
noted objections from the defense regarding several of the more
onerous conditions of supervised release and agreed to remove
some of the more burdensome terms where not applicable to the
nature
and
circumstances
of
Helton’s
offense.
She
also
considered the factors listed in 18 U.S.C. § 3553(a) and heard
argument from both the government and defense counsel regarding
the appropriate sentence for Helton. See id. at 172-91. Helton
also made a statement directly to the court. See id. at 198-99.
At
the
conclusion
defendant
to
departure
from
a
of
term
the
of
his
60
Guidelines
statement,
months
range,
the
court
imprisonment,
and
a
sentenced
a
lifetime
downward
term
of
supervised release, comprised of a number of conditions specific
to the defendant, including treatment for both substance abuse
and psychosexual mental health.
This appeal followed.
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II.
This court reviews a sentence imposed by a district court
for reasonableness. See United States v. Booker, 543 U.S. 220,
261 (2005). Sentencing is the province of the district court and
in reviewing the chosen sentence, we consider only whether the
sentencing judge abused her discretion rather than whether this
court
would
impose
the
same
sentence
on
a
defendant
in
the
appellant’s position. See Gall v. United States, 552 U.S. 38, 51
(2007). This court will affirm a sentence when it is “within the
statutorily prescribed range and is reasonable.” United States
v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). Defendant contests
only his term of supervised release, arguing that the lifetime
term is procedurally and substantively unreasonable and should
be vacated.
Even
though
the
Sentencing
Guidelines
are
now
advisory,
district courts “must consult those Guidelines and take them
into
account
when
sentencing.”
Booker,
543
U.S.
at
264.
A
sentence within the Guidelines range is presumed on appeal to be
substantively reasonable. See Rita v. United States, 551 U.S.
338, 347 (2007). Here, the lifetime term of supervised release
was within both the Guidelines range and the statutory maximum.
See 18 U.S.C. § 3583(k); U.S.S.G. § 5D1.2(b). However, that does
not end the inquiry. For a sentence to be procedurally sound, a
district judge must also consider the factors outlined in 18
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U.S.C. § 3553(a) and “articulate the reasons for selecting the
particular
outside
sentence,
of
the
especially
Sentencing
explaining
Guideline
why
range
[any]
better
sentence
serves
the
relevant sentencing purposes set forth in § 3553(a).” United
States v. Green, 436 F.3d 449, 456 (4th Cir. 2006).
A.
Helton
contends
that
his
lifetime
term
of
supervised
release is procedurally unreasonable because the district court
did
not
adequately
explain
why
it
chose
that
particular
sentence. However, we find that the sentencing judge carefully
and thoroughly explained the sentence at length.
The district court walked through the calculation of the
Guidelines
range
carefully
at
the
sentencing
hearing,
during
which neither party objected. It noted that defense counsel had
asked for the court to consider that the majority of images did
not depict sadistic or masochistic conduct, even though counsel
did not object to the four-level enhancement for such images.
See
J.A.
parties
158.
at
The
court
sentencing
considered
concerning
the
arguments
§ 3553(a)
made
by
factors
both
and
discussed the application of the factors in fashioning Helton’s
particular sentence.
The district judge granted a downward departure from the
recommended term of imprisonment of 78 to 97 months, sentencing
Helton to 60 months in prison. See J.A. 199, 172. She explained
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that the sentence of 60 months followed by a lifetime term of
supervised release “provide[d] just punishment for the crime for
which [Helton] pled guilty” because it both “reflect[ed] the
seriousness
the
offense”
and
would
criminal
committing
of
conduct
in
the
“deter
future.”
[Helton]
from
Id.
206.
at
Importantly, the judge further explained that given Helton’s age
and lack of prior criminal convictions, a sentence of longer
than 60 months “simply was not necessary,” id., especially in
light
of
“the
fact
that
[he
would]
be
required
to
be
on
supervised release for life,” id. at 207-08. Although Helton’s
prison term is not directly at issue before this court, the
judge made clear that the length of the prison term and the
length of the supervised release term were linked. She was only
comfortable
with
the
downward
departure
for
the
term
of
imprisonment because she knew that Helton would be subject to a
lengthy term of supervised release.
The
§ 3553(a)
judge
also
factors
gave
that,
full
she
and
fair
explained,
consideration
require
the
to
court
the
to
consider, among other factors, the “nature and circumstances of
the
offense,”
“the
history
and
characteristics
of
the
defendant,” and the need for the sentence imposed “to reflect
the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense,” as well as “to
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provide the defendant with needed . . . medical care, or other
correctional treatment.” 18 U.S.C. § 3553(a); see also J.A. 173. *
Although
individualized
the
court
assessment,
must
it
base
need
the
not
sentence
on
“robotically
an
tick
through” the § 3553(a) factors. United States v. Johnson, 445
F.3d 339, 345 (4th Cir. 2006). In crafting the sentence, the
*
Defense counsel argued before this court that the district
court’s consideration of the § 3553(a) factors focused primarily
on “the severity of [Helton’s] conduct, which is explicitly off
limits when it comes to consideration of the supervised released
term.”
Oral
Arg.
at
13:35.
We
disagree
with
this
characterization of the district court’s explanation. It is true
that 18 U.S.C. § 3583, which provides “factors to be considered
in including a term of supervised release,” 18 U.S.C. § 3583(c),
does not include “the need for the sentence imposed to reflect
the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense” or “the kinds of
sentences
available,”
18
U.S.C.
§ 3553(a)(2)(A),
(a)(3).
Notably, however, the statute allows for consideration of the
factors listed in § 3553(a)(1): “the nature and circumstances of
the offense and the history and characteristics of the
defendant.”
18
U.S.C.
§ 3553(a)(1);
see
also
18
U.S.C.
§ 3583(c). Here, we do not agree that the district judge focused
only on the severity of Helton’s conduct. While she did state
that she chose the 60 month sentence followed by a life term of
supervised release to “provide[] just punishment for the crime
for
which
[Helton]
pled
guilty”
and
to
“reflect[]
the
seriousness of the offense,” J.A. 206, she further noted that
she had considered “the nature and circumstances of [Helton’s]
offense, as well as [his] history and characteristics.” Id. She
specifically outlined how, in determining the proper sentence
and the conditions of supervised release, she had balanced his
youth and lack of criminal history against his admitted cycle of
downloading and deleting child pornography, the period of months
over which he had collected the images, his mental health
history, and his admitted history of viewing child pornography
and his sexual abuse of a three-year old child in foster care.
See id. at 207.
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took
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note
of
both
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individual
characteristics
of
the
defendant and the particular offense conduct in this case. She
considered
that
Helton
was
only
“21
years
old
and
appearing
[before the court] on [his] first criminal conviction.” J.A.
206. The court also considered Helton’s extensive “mental health
issues and [his] admissions to having viewed child pornography
as
a
child”
in
determining
“the
need
for
this
sentence
to
provide [Helton] with medical care and corrective treatment in
the most effective manner.” Id. at 207.
On the other hand, the judge explained that while “only 42
image
files
of
child
pornography
were
located
in
active
folders,” the defendant had “engaged in repetitive cycles of
downloading images, deleting them, and then searching for more,”
over the course of seven months, which is exactly the “type of
conduct [that] provides the market for child pornography which .
. . often results in the abuse of minors.” Id. at 206-07. She
also took notice of his admission that he had “sexually abused a
three-year-old” when he was previously in foster care. Id. at
207.
Furthermore,
individualized
the
judge
considerations
took
into
in
shaping
account
the
a
number
conditions
of
that
attach to defendant’s term of supervised release. Considering
the defendant’s admission to significant alcohol and marijuana
use, id. at 197, and noting that he did not have “a low risk of
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substance
abuse,”
future
id.
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at
200,
she
required
him
to
participate in a substance abuse treatment program. She also
required Helton to “submit to a psychosexual evaluation by a
qualified mental health professional,” “complete [any resulting]
treatment
recommendations,”
and
“take
all
medications
as
prescribed.” Id. at 201. She also imposed a number of conditions
regarding his status as a sex offender and limiting his ability
to interact with minors. Id. at 201-04.
However, the district court also, in response to a request
from defense counsel, removed several of the more onerous terms
of supervised release, finding them unnecessarily harsh in light
of the circumstances of the case. Id. at 165-68. The judge noted
that the “terms and conditions of supervised release should have
some reasonable basis given the facts and circumstances of the
offense such that they accomplish the purposes that are intended
by supervised release.” Id. at 166. Finding that there was “no
basis
in
this
“defendant
to
information”
something
particular
carte
unless
[such
as
case,”
blanche
there
a
she
afford
“is
some
computer
or
declined
access
to
to
his
indication
that
cell
phone
with
require
financial
there
is
internet
capacity] purchased that should not have been.” Id.
She
also
declined
to
impose
a
condition
preventing
the
defendant from purchasing cameras, explaining that there was “no
evidence
in
this
case
that
the
11
defendant
took
pornographic
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photos or videos of children.” Id. at 167-68. Despite objection
from defense counsel, she kept in place the condition preventing
defendant from purchasing or owning a cell phone with internet
capability, explaining that it was “appropriate given the facts
and circumstances of this case.” Id. at 167. Defense counsel
repeatedly requested a fifteen year term of supervised release,
but the judge rejected that in favor of a longer term coupled
with a downward departure in the length of Helton’s term of
imprisonment. See id. at 176, 190, 208.
In light of this lengthy explanation, we find no procedural
error in what the district court did. The Guidelines range was
properly calculated. The term of supervised release was within
the
Guidelines
range
and
within
the
permissible
statutory
authorization. The defendant received a downward departure in
his prison term, which was clearly linked to a longer term of
supervised release. The defendant wants additional explanation,
specific to the term of supervised release, but we find the
district
court
satisfactorily
explained
both
pieces
of
the
sentence at great length.
We do not dispute that there must be sufficient explanation
for a sentence to be procedurally reasonable. But we take no
issue
with
what
district
court’s
sentence
as
a
the
district
thorough
whole
and
court
explanation
the
12
term
did
here.
sufficient
of
We
find
the
on
both
the
supervised
release
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specifically.
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To
require
more
Pg: 13 of 26
explanation
would
unnecessarily
intrude upon the district court’s primary and unique role in the
sentencing process.
B.
Helton also contends that his lifetime term of supervised
release is substantively unreasonable because it is longer than
necessary to further the goals of supervised release itself and
was not justified by Helton’s offense. See Appellant’s Br. at
12.
We
disagree.
authorized
range.
by
See
A
lifetime
statute
18
and
U.S.C.
§
term
of
within
3583(k)
supervised
the
release
Sentencing
(“[T]he
Guidelines
authorized
supervised release for any offense under section
is
term
of
. . . 2252A .
. . is any term of years not less than 5, or life.”); see also
U.S.S.G.
§
5D1.2
release . . .
(“[T]he
length
of
the
term
of
supervised
may be up to life, if the offense is . . . a sex
offense.”).
Furthermore,
specifically
included
Guidelines
Manual
Sentencing
Commission
an
that
the
U.S.
advisory
suggests
that
in
policy
it
the
Sentencing
is
case
statement
the
of
Commission
judgment
sex
in
the
of
the
offenses
“the
statutory maximum term of supervised release is recommended.”
District courts are permitted to consider a wide variety of
information during the course of a sentencing proceeding. See
Alleyne
v.
(“[J]udges
United
may
States,
exercise
133
S.
Ct.
sentencing
13
2151,
2163
discretion
n.6
(2013)
through
‘an
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inquiry broad in scope, largely unlimited either as to the kind
of information [they] may consider, or the source from which it
may come.’”) (alteration in original) (quoting United States v.
Tucker,
404
considered
U.S.
the
pornography,
443,
446
defendant’s
his
admitted
(1972)).
Here,
lengthy
history
repetitive
the
district
judge
viewing
child
of
pattern
of
downloading
material, deleting it, and seeking out more. She also considered
that he admitted to abusing a three-year old when he was a minor
in foster care and that he had sought help for his compulsion to
view child pornography but had been unable to stop.
Furthermore,
the
district
court
granted
defendant
a
downward variance in his prison term, remarking that she was
comfortable doing so because he would be subject to a lengthy
term of supervised release. It would be almost unprecedented to
credit a defendant’s challenge to a sentence as substantively
unreasonable when the district court actually reduced the term
of
imprisonment
Moreover,
the
below
court
the
recommended
modified
the
Guidelines
conditions
of
range.
supervised
release, alleviating some of the more burdensome requirements
that she thought inappropriate for Helton given the offense and
circumstances of this case and this defendant.
Helton can still
petition
of
for
supervised
a
modification
release
at
any
or
time
termination
after
one
year
his
of
term
of
supervised
release, provided it is justified by his conduct and in the
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interest
of
§
Filed: 04/02/2015
n.5.
5D1.2
district
justice.
Given
court’s
See
these
Pg: 15 of 26
18
U.S.C.
§
circumstances,
conclusion
unreasonable
3583(e)(1);
we
that
cannot
a
U.S.S.G.
find
the
lifetime
of
supervised release was necessary to deter defendant, protect the
public from additional crimes by him, and provide him with the
mental health care and necessary corrective treatment he needs.
Trial courts have significant discretion in the sentencing
process, and we see nothing in this case to suggest that this
discretion
sentence
was
abused
substantively
in
or
a
manner
that
procedurally
would
render
this
unreasonable.
The
judgment is accordingly affirmed.
AFFIRMED
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GREGORY, Circuit Judge, concurring in the majority opinion:
I commend the district court’s exercise of its discretion
in fashioning Steven Helton’s sentence in this very difficult
case.
Five years in prison is well enough for the 21 year-old
with
no
sexually
prior
criminal
abused
by
his
convictions,
stepfather,
who
who
was
grew
physically
up
in
and
multiple
foster care homes since the age of six, and who was caught with
42 image files of child pornography on his computer. 1
206. 2
J.A. 195,
And, as the majority notes, the district court imposed the
supervised release portion of Helton’s sentence in conjunction
with a downward variance from the applicable advisory Guideline
range.
downward,
The
and
district
in
court
displayed
crafting
an
courage
in
varying
appropriate,
individualized
sentence
60
sentence.
I.
The
district
court
chose
a
of
months
of
imprisonment followed by a lifetime term of supervised release
for
Helton’s
knowing
possession
of
child
pornography
violation of 18 U.S.C. § 2252(a)(5)(B) and 2252A(b)(2).
1
in
Helton
As the majority notes, only 42 of the 961 image files
recovered by forensic investigators from Helton’s computer were
actively accessible for viewing. It appears the remaining files
were thumbnail-sized images automatically generated by the
Windows operating system.
2
Citations to the J.A. refer to the parties’ Joint Appendix
filed in this case.
Specifically, the facts referenced herein
are contained in the sentencing hearing transcript.
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appeals only the supervised release portion of his sentence.
I
agree with the majority that the district court committed no
procedural error by adequately explaining why it thought this
particular
punishment
sufficient
to
meet
the
goals
of
sentencing.
As is well known, reasonableness includes both procedural
and substantive components.
F.3d
325,
328
(4th
Cir.
See United States v. Carter, 564
2009).
“Procedural
errors
include
‘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)).
an
individualized
Above all, the district court “must make
assessment
Gall, 552 U.S. at 50.
based
on
the
facts
presented.”
In other words, the district court should
“consider every convicted person as an individual and every case
as a unique study in the human failings that sometimes mitigate,
sometimes
magnify,
the
crime
and
the
punishment
to
ensue.”
Carter, 564 F.3d at 328.
Among
the
human
failings
the
district
court
took
into
account at sentencing was that Helton’s father abandoned him as
a baby.
J.A. 195.
His mother suffered various mental health
18
Appeal: 13-4412
Doc: 40
problems.
Filed: 04/02/2015
J.A.
195.
When
Pg: 18 of 26
Helton
was
six
years
old,
his
stepfather physically and sexually abused him and his sister.
J.A.
195.
Both
were
placed
with
physically abused the children.
removed
to
foster
pornography.
care,
aunt
J.A. 195.
where
J.A. 195.
an
he
was
who
drank
and
Helton was then
found
viewing
child
It was during this time that Helton
also admits he sexually abused a minor child.
J.A. 195.
When
he was fourteen, Helton attended a mental health/sex offender
treatment facility for two and a half years.
he
moved
to
Methodist
facility
Services,
Burlington,
Fairmont
a
Helton
State
completing
the
and
called
things
obtained
College.
first
the
J.A.
semester,
Burlington
started
his
J.A. 195.
GED
to
even
He
however,
eighteen returned to his mother’s home. 3
look
and
195-97.
United
and
up;
Next,
Family
while
at
enrolled
in
withdrew
at
the
J.A. 196-7.
before
age
of
He became
his disabled mother’s caretaker and began abusing alcohol and
other drugs himself.
J.A. 196-97.
He was nineteen when the
police caught him in possession of child pornography.
It
is
against
this
backdrop
that
the
district
court
emphasized that it was careful to sentence Helton “only for the
3
According to Helton, upon matriculating he was
not completed the requisite financial aid forms.
adult assistance to navigate the system, and having
from foster care, he was forced to withdraw from
return to his mother’s residence.
19
told he had
Without any
“graduated”
college and
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Filed: 04/02/2015
Pg: 19 of 26
offense to which [he] pled guilty.”
The court explained that it
chose a sentence “sufficient to protect the public . . . and to
avoid
unwarranted
disparities
in
sentencing
of
similar backgrounds and similar violations.”
defendants
of
In doing so, the
court balanced Helton’s age and lack of criminal convictions
against
his
engaging
in
“repetitive
cycles
of
downloading,”
which “provides the market for child pornography” and “often
results in the abuse of minors.”
decided
simply
“a
is
sentence
not
of
In the end, the district court
incarceration
necessary
to
meet
the
longer
goals
than
of
60
months
sentencing,”
especially in consideration of the lifetime term of supervised
release.
sentence
The
to
treatment,”
court
further
provide
leading
“considered
. . .
to
the
medical
special
the
care
need
for
and
corrective
conditions
of
th[e]
release
including participation in medical evaluations and treatment.
There
district
is
no
court’s
doubt
that
this
painstaking
explanation,
recollection
following
of
the
Helton’s
unfortunate childhood, was sufficiently individualized to meet
the requirements of procedural reasonableness.
II.
Helton’s appeal of the substantive reasonableness of his
lifetime term of supervised release is a closer question.
As
the majority rightly recognizes, a district court enjoys wide
20
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discretion in sentencing.
Pg: 20 of 26
The district court “is in a superior
position to find facts and judge their import,” United States v.
Diosdado-Star, 630 F.3d 359, 366 (4th Cir. 2011), but appellate
courts nevertheless play an important role in reviewing whether
an
abuse
of
that
discretion
has
occurred.
In
reviewing
substantive reasonableness, we measure the sentence against the
statutory sentencing factors while “tak[ing] into account the
totality of the circumstances.”
United
States
v.
Montes-Pineda,
Gall, 552 U.S. at 51; see also
445
F.3d
375,
378
(4th
Cir.
to
meet
2006).
Helton’s
burden
on
appeal
is
a
difficult
one
considering that a lifetime term of supervised release is indeed
within
the
authorized
§ 3583(k).
advisory
by
Guidelines
statute.
See
range
and
U.S.S.G
the
maximum
§ 5D1.2;
18
term
U.S.C.
Ultimately the district court was faced with the
history and characteristics of someone who admitted to having
previously
viewing
abused
child
a
child
pornography
and
after
who
furthermore
having
completed
residential sex offender treatment program.
reverted
years
J.A. 195.
to
of
a
While
there is a continuing debate on the linkage between possession
of child pornography and sexual abuse of minors, it was not
improper for the district court to consider the need “to afford
adequate deterrence,” id. § 3553(a)(2)(B), and “to protect the
public
from
further
crimes
21
of
the
defendant,”
id.
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Filed: 04/02/2015
§ 3553(a)(2)(C).
Pg: 21 of 26
In the totality of the circumstances, it is
fair to say that Helton will benefit not from more time in
prison, but from long-term supervision and compliance with drug
dependency and psychosexual treatment programs.
Therefore, even
though I regret that Helton can see no redemptive light at the
end of his long road to recovery, I cannot say the district
court abused its discretion.
It is this same ambivalence, however, about offenders like
Helton never being able to fully rejoin society as rehabilitated
individuals that leads me to warn against undue deference to
what are only advisory Guidelines.
these
Guidelines
as
irrefutable
When we begin to accept
truths,
we
tend
to
give
ourselves to overgeneralizations like that made by the majority
when it writes:
defendant’s
“It would be almost unprecedented to credit a
challenge
to
a
sentence
as
substantively
unreasonable when the district court actually reduced the term
of imprisonment below the recommended Guidelines range.”
To the
contrary, it can be unreasonable for a twenty-one year old with
no prior criminal convictions to spend five years in prison even
when the Guidelines advocate for a minimum term of six and a
half years.
And it can be unreasonable for that young man to
have to ask his probation officer for permission to purchase a
toy when, some great day later in his lifetime of supervision by
the government, he becomes a grandparent.
22
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Pg: 22 of 26
The child pornography Guideline has been recognized as an
“eccentric Guideline of highly unusual provenance which, unless
carefully
applied,
can
easily
generate
unreasonable
results.”
United States v. Dorvee, 616 F.3d 174, 188 (2d Cir. 2010).
For
example, a defendant convicted of distributing child pornography
over the Internet but who has never had any contact with a minor
can receive a greater sentence than an individual who seeks out
a
minor
child.
online,
arranges
a
meeting,
See id. at 176, 187.
and
actually
abuses
the
The Guideline also frequently
punishes first time offenders with the same severity as more
culpable
offenders.
This
is
because
several
of
the
§ 2G2.2
enhancements of a defendant’s base offense level are broadly
defined and present in nearly all Internet child pornography
cases, like an enhancement for using a computer.
See, e.g.,
United States v. Burns, No. 07 CR 556, 2009 WL 3617448, at *7
(N.D. Ill. Oct. 27, 2009) (“[M]ost of the enhancements provided
for
in
§ 2G2.2
offenders.”).
are
of
little
use
in
distinguishing
between
Statistics show that in non-production cases in
fiscal year 2013, a two-level enhancement for using a computer
applied in 95% of cases, a two-level enhancement for involvement
of a child victim under the age of 12 (that is, a prepubescent
minor) applied in 96% of cases, and a five-level enhancement for
23
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600 or more images applied in 79% of cases. 4
Such realities have
led the Sentencing Commission to conclude that § 2G2.2 “places a
disproportionate emphasis on outdated measures of culpability,”
resulting
in “penalty
ranges
[that]
are
too
severe
for
some
offenders and too lenient for other[s].” 5
These limitations are the result of the Guideline having
been “developed largely pursuant to congressional directives,”
as opposed to the Sentencing Commission’s expertise.
United
States v. Grober, 624 F.3d 592, 608 (3d Cir. 2010); see also id.
(“[T]o say that the final product is the result of Commission
data,
study,
Congress
has
and
been
expertise
simply
“particularly
ignores
active”
in
the
facts.”).
directing
the
Commission to increase base offense levels and impose various
enhancements, which has resulted in a dramatic rise in penalties
over the years. 6
These changes have taken place in the face of
4
U.S. Sentencing Comm’n, Use of Guidelines and Specific
Offense
Characteristics
40-41
(2013),
available
at
http://www.ussc.gov/sites/default/files/pdf/research-and-publica
tions/federal-sentencing-statistics/guideline-applicationfrequencies/2013/Use_of_Guidelines_and_Specific_Offense_Characte
ristics_Guideline_Calculation_Based_Revised.pdf.
5
U.S. Sentencing Comm’n, Federal Child Pornography Offenses
xvii
(2012),
available
at
http://www.ussc.gov/
sites/default/files/pdf/news/congressional-testimony-and-reports
/sex-offense-topics/201212-federal-child-pornography-offenses/
Full_Report_to_Congress.pdf [hereinafter Report to Congress].
6
U.S. Sentencing Comm’n, The History of the Child
Pornography
Guidelines
1
(2009),
available
at
http://www.ussc.gov/sites/default/files/pdf/research-and-publica
(Continued)
24
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resistance by the Commission, and in the form of Congress taking
the
unprecedented
Thus,
like
pornography
the
step
of
former
Guideline
directly
crack
“do[es]
amending
cocaine
not
Guidelines. 7
the
Guidelines,
exemplify
the
the
child
Commission’s
exercise of its characteristic institutional role,” which is to
propose penalties “base[d on] its determinations on empirical
data and national experience, guided by a professional staff
with appropriate expertise.”
U.S. 85, 108-09 (2007).
Kimbrough v. United States, 552
For, what the data actually shows is
that 70% of district court judges in 2010 thought the Guideline
too severe for crimes of possession. 8
And, in fiscal year 2013,
district courts imposed a sentence below the Guideline range in
718 of 1,626 non-production cases. 9
This is why, when we talk about the slippery concept of
reasonableness,
we
should
be
cautious
of
presuming
that
the
tions/research-projects-and-surveys/sex-offenses/20091030_
History_Child_Pornography_Guidelines.pdf.
7
See Melissa Hamilton, The Efficacy of Severe Child
Pornography
Sentencing:
Empirical
Validity
or
Political
Rhetoric?, 22 Stan. L. & Pol’y Rev. 545, 556 (2011).
8
U.S. Sentencing Comm’n, Results of Survey of United States
District Judges January 2010 Through March 2010, Question 8
(2010), available at http://www.ussc.gov/sites/default/files/
pdf/research-and-publications/research-projects-and-surveys/
surveys/20100608_Judge_Survey.pdf.
9
U.S. Sentencing Comm’n, 2013 Sourcebook of Federal
Sentencing
Statistics,
Table
28,
available
at
http://www.ussc.gov/research-and-publications/annual-reportssourcebooks/2013/sourcebook-2013; see also id. app. A (defining
“Below Guideline Range with Booker/18 U.S.C. § 3553”).
25
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child
Filed: 04/02/2015
pornography
supervised
Guideline
release
of
Pg: 25 of 26
–
child
as
well
as
pornography
the
Guideline
offenders
–
for
always
provides a reasoned departure point from which to calculate a
sentence.
Like much of the judiciary, the Commission does not
view
Guideline
the
this
way
for
a
convicted of a non-production offense.
has
asked
Congress
to
give
it
the
defendant
like
Helton
In fact, the Commission
authority
to
amend
those
provisions resulting from the legislature’s directives. 10
believes
these
purposes
of
offenders’
amendments
punishment
by
culpability
recommended
in
2012,
necessary
and
“to
accounting
sexual
these
for
better
promote
the
the
variations
in
dangerousness.” 11
changes
are
It
still
Though
forthcoming.
Luckily, in the meantime, there are judges like Judge Berger who
understand
requires
that
a
the
totality
below-Guideline
of
the
term
to
circumstances
ensure
a
sometimes
sentence
is
substantively reasonable.
10
See Report to Congress, supra note 5, at 322.
Id. at xvii. The Commission is also considering revising
§ 5D1.2
so
that,
as
opposed
to
its
current
blanket
recommendation of the statutory maximum for child pornography
offenders, it would actually “provide[] guidance to judges to
impose a term of supervised release . . . that is tailored to
[an] individual offender’s risk and corresponding need for
supervision. Id. at xix.
11
26
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III.
We measure our humanity by the justice we mete to those
thought least deserving.
I join the majority in affirming the
district court, which I believe did an admirable job crafting an
individualized sentence.
Perhaps in the future, our Guidelines
will evolve to become truly proportional to the severity of our
crimes.
And perhaps then, a district court will not be in the
lamentable
downward
position
from
an
of
having
excessive
to
balance
Guideline
lifetime of supervision.
27
the
term
need
with
to
depart
an
entire
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