United States v. Blaine Handerhan , 739 F.3d 114 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-3500
_____________
UNITED STATES OF AMERICA
v.
BLAINE R. HANDERHAN,
Appellant
______________
Appeal from the United States District Court
For the Middle District of Pennsylvania
(D.C. Cr. Action No. 10-cr-00298-1)
District Judge: Honorable William W. Caldwell
______________
Argued September 11, 2013
______________
Before: RENDELL, JORDAN, GREENAWAY, JR., Circuit
Judges.
(Opinion Filed: January 7, 2014)
______________
James T. Clancy, Esq. [ARGUED]
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee The United States of America
Philip Gelso, Esq. [ARGUED]
Briechle & Gelso
63 Pierce Street
Kingston, PA 18704
Marissa A. McAndrew, Esq.
Briechle & Gelso
41 North Main Street
Suite 310
Carbondale, PA 18407
Matthew R. Gover, Esq.
Brian W. Perry, Esq.
Gover, Perry & Shore
2411 North Front Street
Harrisburg, PA 17110
Counsel for Appellant Blaine Handerhan
______________
OPINION
______________
GREENAWAY, JR., Circuit Judge.
2
Blaine Handerhan (“Appellant” or “Handerhan”)
appeals the District Court’s August 21, 2012 judgment of
sentence of 96 months’ imprisonment. Appellant argues that
the sentence he received for possessing thousands of images
of child pornography was both procedurally and substantively
unreasonable. Specifically, Appellant contends that the
District Court erred by failing to (a) explicitly address his
request for a downward departure based on mental health
issues and (b) meaningfully consider the factors enumerated
in 18 U.S.C. § 3553(a), including Appellant’s arguments
regarding the unreasonable nature of the relevant Sentencing
Guidelines provision, U.S.S.G. § 2G2.2. Although we affirm
the District Court’s sentence, finding it both procedurally and
substantively reasonable, we feel compelled to remind the
District Court that motions seeking departure should be
formally decided. A reviewing court must know from the
record whether a district judge is indeed exercising his or her
discretion.
I. FACTUAL AND PROCEDURAL HISTORY
In late 2005, an undercover investigation by the
Internet Crimes Against Children Task Force–a joint
organization of federal, state, and local law enforcement
agencies–determined that a single computer was sharing over
“1400 images and/or video files of child pornography”
through a file-sharing program. (Presentence Investigation
Report (“PSR”) ¶ 5.) The Pennsylvania State Police were
notified and conducted an investigation and learned that the
computer in question was located in the residence of
Handerhan, a retired Lieutenant, who served for 25 years in
the Mount Carmel Police Department. Thereafter, a search
warrant was executed on Handerhan’s residence and his
computer was seized. An evaluation of the computer
3
revealed that it contained over 6,000 images and video files of
child pornography, including images of pre-pubescent
children and other images depicting sadomasochism and
bondage. In addition, the forensic analysis of Handerhan’s
computer revealed that he had configured Shareza, a file
sharing program, in order to distribute some of the images.
Appellant was charged in a two-count indictment in
October 2010 with distribution of child pornography, in
violation of 18 U.S.C. §§ 2256(8)(A) and 2252A(2)(a), and
with possession of child pornography, in violation of 18
U.S.C. § 2256(8)(A). Handerhan subsequently pled guilty to
a single count of possession of child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B). In the plea
agreement, the Government agreed to dismiss the distribution
charge and recommended that Appellant “receive a three-
level reduction in the defendant’s offense level for acceptance
of responsibility.” (App. 71.) The Government otherwise
reserved the right “to recommend a sentence up to and
including the maximum sentence of imprisonment and fine
allowable, together with the cost of prosecution.” (Id. at 72.)
Prior to Handerhan’s sentencing, both parties were
given copies of the PSR. The probation officer calculated
Appellant’s guidelines range as being 151 to 188 months’
imprisonment based on an offense level of 34 and a criminal
history category of 1. 1 “[H]owever, because the statutory
1
The offense level calculation reflected several additions
to the base offense level, including the fact that some of the
material involved pre-pubescent minors, that the offense
involved portrayals of “sadistic or masochistic conduct or
other depictions of violence,” that “the defendant used a
computer for the possession” of the child pornography, and
4
maximum penalty [was] 10 years, the guideline sentence”
was set at 120 months. (PSR ¶ 63.) The PSR also stated that
there were no identifiable “factors warranting a departure
from the guideline range.” (Id. at ¶ 79.) Appellant filed a
sealed Sentencing Memorandum in response, requesting that
“the Court apply a downward departure” and arguing that a
sentence of 60 months was more appropriate. (App. 28, 38.)
Appellant requested the downward departure under U.S.S.G.
§ 5H1.3 2 and argued that the proposed 120-month sentence
was unreasonable in light of the 18 U.S.C. § 3553(a) factors. 3
that “the offense involved 600 or more images.” (PSR ¶¶ 18-
23.)
2
In relevant part, U.S.S.G. § 5H1.3 states: “Mental and
emotional conditions may be relevant in determining whether
a departure is warranted, if such conditions, individually or in
combination with other offender characteristics, are present to
an unusual degree and distinguish the case from the typical
cases covered by the guidelines.”
3
In relevant part, 18 U.S.C. § 3553(a) includes the
following factors: “(1) [T]he nature and circumstances of the
offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed [in light of the
defendant’s and society’s interests]; (3) the kinds of sentences
available; (4) the kinds of sentence and the sentencing range
established for [the applicable category of offenses]; (5) any
pertinent policy statement [by the Sentencing Commission];
(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.”
5
Appellant argued that a downward departure pursuant
to U.S.S.G. § 5H1.3 was appropriate “in light of the fact that
he suffers from a mental health condition and has taken
extraordinary measures to rehabilitate himself.” (Id. at 28.)
According to Appellant, and supported by various medical
documents submitted to the District Court, he suffers from
obsessive compulsive disorder coupled with an “internet
addiction,” manifesting itself in an uncontrollable urge to
download and catalogue pornographic images of all kinds.
(Id. at 17-18.) Appellant’s mental illnesses resulted in
Appellant giving into the urge to download thousands of child
pornographic images and video, and to store and
“meticulously catalogue[]” them on his home computer. (Id.
at 18.) Shortly after the police searched his home, Appellant
sought treatment from multiple psychiatrists, searching for
the most effective treatment. According to all of his
psychiatric evaluations, Appellant did not exhibit any sexual
attraction to children, nor did he apparently seek out the
images in question for purposes of gratifying his sexual urges.
(See id.)
Appellant also argued that the proposed Guidelines
sentence was inappropriate in light of the § 3553(a) factors.
Specifically, Appellant argued that the sentence was
inappropriate because: (a) he recognized that what he did was
wrong; (b) he acted under compulsion of his mental disorder;
(c) he sought treatment for his malady; (d) the Government’s
proposed sentence was appropriate in the “ordinary” case, not
in Appellant’s unique circumstances; and (e) Appellant’s
status as a father and devoted son militated against his long-
term incarceration. (See id. at 33-38.)
The District Court subsequently held a sentencing
hearing in August 2012. At the hearing, both parties argued
6
the merits of Appellant’s request for a downward departure,
as well as the evaluation of the § 3553(a) factors, with the
Government suggesting that if the District Court were
inclined to agree, that it should “exercise its discretion to
deny the downward departure, but consider all of [Appellant’s
arguments] in the context of the § 3553(a) factors for a
variance.” (Id. at 120.) After both sides made their
respective arguments, the District Court ruled as follows:
Well, needless to say, this is a very very
unfortunate situation for you, Mr. Handerhan.
You did the right thing at least, you
acknowledged your participation in this ugly
crime. And what I am concerned about in all of
these child pornography cases is the fact that it
is people who view this and download it and
distribute it or just look at it, they’re the people
who perpetuate the ongoing abuse of children
who are the subjects of these pornography
images.
....
The Government is asking for a 10-year
sentence, which is the statutory maximum and
is less than the guidelines would provide for
this offense. In considering [Appellant’s
counsel’s] presentation, I am somewhat
impressed under 3553(a) factors that a variance
could be granted in this case based upon what
we’ve discussed here this morning and those
factors that have been mentioned.
7
Considering all of those factors, I will
make a slight variance from the statutory
maximum penalty in imposing a sentence this
morning. I’m sorry that you have to endure
imprisonment, and I hope that you will be able
to do that and come back to the community and
be a law-abiding citizen.
Pursuant to the Sentencing Reform Act,
it is the judgment of the Court on Count 2 that
the Defendant, Blaine R. Handerhan, is hereby
committed to the custody of the Bureau of
Prisons to be imprisoned for a term of 96
months.
(Id. at 125-27.)
Appellant subsequently appealed his sentence, arguing
that it was procedurally and substantively unreasonable.
Specifically, Appellant posits that the District Court’s failure
to explicitly rule on his request for downward departure, and
its allegedly inadequate treatment of the § 3553(a) factors,
renders his sentence procedurally unreasonable. According to
the Appellant, this, in turn, renders his sentence substantively
unreasonable as well.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a).
We review both the procedural and the substantive
reasonableness of a district court’s sentence for abuse of
8
discretion. Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en
banc). “Appellate review is limited to determining whether
the sentence is reasonable.” United States v. Friedman, 658
F.3d 342, 360 (3d Cir. 2011) (citation omitted). Our review
for reasonableness proceeds in two stages. First, we must
“ensure that the [D]istrict [C]ourt committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the [U.S. Sentencing] Guidelines range, treating
the Guidelines as mandatory, failing to consider the [18
U.S.C.] § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence . . . .” Gall, 552 U.S. at 51. Second, if we
find that the sentence is procedurally sound, we then consider
if it is substantively reasonable given the “totality of the
circumstances.” Id. If the sentence is within the applicable
Guidelines range, we may presume that the sentence is
reasonable. Rita v. United States, 551 U.S. 338, 350-51
(2007). “[I]t is not the role of an appellate court to substitute
its judgment for that of the sentencing court as to the
appropriateness of a particular sentence.” Solem v. Helm, 463
U.S. 277, 290 (1983).
III. ANALYSIS
A. Procedural Unreasonableness
When imposing a sentence, a district court must follow
a three-step process. First, “[c]ourts must determine to
calculate a defendant’s Guidelines sentence precisely as they
would have before [United States v. Booker, 453 U.S. 220
(2005)].” United States v. Gunter, 462 F.3d 237, 247 (3d Cir.
2006) (citations omitted). Second, district courts “must
formally rul[e] on the motions of both parties, and stat[e] on
9
the record whether they are granting a departure and how that
departure affects the Guidelines calculation, and tak[e] into
account our Circuit’s pre-Booker case law, which continues to
have advisory force.” Id. (alterations in original) (citation
omitted) (internal quotation marks omitted) (emphasis added).
Third, districts courts must “exercise[] [their] discretion by
considering the relevant [§ 3553(a)] factors in setting the
sentence they impose regardless [of] whether it varies from
the sentence calculated under the Guidelines.” Id. (alterations
in original) (citation omitted) (internal quotation marks
omitted). “During the third step, district courts should engage
in ‘a true, considered exercise of discretion, including a
recognition of, and response to, the parties’ non-frivolous
arguments.’” United States v. Friedman, 658 F.3d 342, 359
(3d Cir. 2011) (quoting United States v. Jackson, 467 F.3d
834, 841 (3d Cir. 2006)).
These steps ensure “that the District Court’s decision-
making process is both logical and fair,” and we therefore
recommend that the District Court “consider the steps
separately and sequentially.” Id. at 361. Failure to adhere to
this process may result in a procedurally unreasonable
sentence, United States v. Merced, 603 F.3d 203, 214-15 (3d
Cir. 2010), and may even “risk the substantive reasonableness
of any decision [the district court] reache[s],” United States v.
Goff, 501 F.3d 250, 256 (3d Cir. 2007).
Appellant contends that the District Court’s sentence
was procedurally unreasonable because it failed to adhere to
the second and third steps of the Gunter process. 4 Appellant
4
Appellant does not challenge the District Court’s initial
calculation of his Guidelines range pursuant to step one of the
Gunter process. At the sentencing hearing, Appellant’s
10
also challenges his sentence as substantively unreasonable,
arguing that the District Court’s alleged procedural errors
render the substance of his sentence unreasonable or that, in
the alternative, “no reasonable sentencing court would have
imposed the same sentence on [Appellant] for the reasons the
district court provided.” Tomko, 562 F.3d at 568 (3d Cir.
2009). For the reasons discussed below, we affirm the
District Court’s sentence and find it both procedurally and
substantively reasonable.
1. Gunter Step 2 - Failure to Formally Rule On
Downward Departure Request
Appellant challenges his sentence by asserting that the
District Court did not formally rule on his motion for a
downward departure. As previously stated, step two of the
Gunter process requires district courts to “formally rul[e] on
the motions of both parties, and stat[e] on the record whether
they are granting a departure . . . .”Gunter, 462 F.3d at 247
(internal quotation marks omitted). The need for a clear
ruling is particularly acute regarding a motion for a
downward departure from the Guidelines because “[o]ur
Court’s jurisdiction to review the denial of such departures
depend[s] on a district court’s reason for denial.” Jackson,
467 F.3d at 838. That is, if the court denied the motion
because it “believed [it] could not legally depart on the
ground asserted, we [have] jurisdiction to review for legal
error; if, instead, [the court] recognized [its] authority to
depart but chose not to do so, we lack[] jurisdiction to review
that decision.” Id. at 838.
attorney conceded that they did not wish to “dispute a point
addition on the guidelines calculation,” because “it is really
not important for today’s purposes.” (App. 109.)
11
As a result, we generally require that district courts
“state expressly whether [their] denial of [a] defendant’s
departure request was based on legal or discretionary
grounds.” Id. at 838-39 (internal quotation marks omitted)
(noting that the rule is still applicable, even post-Booker).
Thus, where the “district court’s stated reasons are
ambiguous–so that the record does not reflect whether the
court’s denial is based on legal or discretionary grounds–then
the proper remedy is to vacate the sentence and remand for
the district court to clarify the basis for its ruling.” Stevens,
223 F.3d at 247 (3d Cir. 2000) (internal quotation marks
omitted).
The admonition against ambiguous rulings on
downward departure requests is not ironclad, however. Both
before and after Booker, this Circuit has recognized its ability
to “infer meaning from the District Court’s actions” in a case.
Jackson, 467 F.3d at 840. Thus, even where the district court
does not explicitly rule on a motion for downward departure,
this Court has held that it will “not remand for re-sentencing
when the Government’s arguments to the district court
concede[d] the plausibility of the downward departure.” Id.
at 839 (alteration in original) (citations omitted) (internal
quotation marks omitted). In Jackson, and in similar
circumstances, we found it “quite likely that the district
court’s refusal to depart . . . was discretionary, and thus [this
Court could] infer that the departure motion had been denied
by the [district] court in recognition of its ability to depart had
it chosen to do so.” Id. at 839 (citations omitted) (internal
quotation marks omitted). While we have applied this
rationale several times since the 2006 opinion in Jackson,
“having to infer the District Court’s thinking is not our
12
preferred course.” Id. at 840 (internal quotation marks
omitted).
In this case, Appellant argues that the District Court
erred in failing to (1) acknowledge that it had discretion to
depart; (2) consider the substance of Appellant’s downward
departure request; and (3) formally rule on that request.
(Appellant Br. 23.) “By failing to consider and formally rule
upon Mr. Handerhan’s argument that the addiction itself was
sufficiently contributory to his commission of the offense to
entitle him to a downward departure, the District Court
created no record to support a thorough consideration of [the]
motion for downward departure.” (Id.) We agree with the
Appellant that the District Court did not explicitly deny
Appellant’s request for a downward departure. Nonetheless,
we are able to infer that the District Court used its discretion
because it was fully informed on the issues prompting the
request, and the Government requested that “the Court
exercise its discretion to deny the downward departure . . . .”
(App. 120.) This demonstrates that the Government
acknowledged that the District Court had discretion to grant a
possible departure. As a result, we find that the District Court
did use its discretion to deny the request for a downward
departure, choosing instead to grant a slight variance.
As previously noted, this Court’s jurisdiction to
consider Appellant’s arguments depends on the basis for the
District Court’s ruling. See Stevens, 223 F.3d at 247-48 (3d
Cir. 2000). “If the ruling was based on the district court’s
belief that a departure on the grounds proffered by the
defendant was legally impermissible, we have jurisdiction to
determine whether the district court’s understanding of the
law was correct. By contrast, if the district court’s ruling was
based on an exercise of discretion, we lack jurisdiction.” Id.
13
at 247 (citation omitted) (internal quotation marks omitted).
Therefore, it is imperative that this Court understand the basis
for the District Court’s ruling. In this case, because we find
that the District Court utilized its discretion, “[w]e do not
have jurisdiction to review [the] discretionary decision[] by
[the] district court[] to not depart downward.” United States
v. Vargas, 477 F.3d 94, 103 (3d Cir. 2007) (citation omitted).
2. Gunter Step 3 – Procedural Unreasonableness
While we do not have jurisdiction to review the
District Court’s resolution of Appellant’s downward
departure request, “[o]ur lack of review on this issue . . . goes
no further than step two of Gunter, as step three requires our
review of the sentence against the several § 3553(a) factors,
only one of which is the Guidelines range.” Jackson, 467 F.3d
at 839 n.6. The District Court “need not ‘discuss and make
findings as to each of the § 3553(a) factors,’” Id. (quoting
United States v. Kulick, 629 F.3d 165, 176 (3d Cir. 2010)),
but we do inquire as to whether the District Court gave
“‘meaningful consideration to the relevant § 3553(a)
factors.’” Id. (quoting United States v. Wise, 515 F.3d 207,
216 (3d Cir. 2008)). See also United States v. Lofink, 564
F.3d 232, 238 n.13 (3d Cir. 2009) (“Although district courts
must consider all of the § 3553(a) factors, they need not
explicitly comment on every factor if the record makes clear
the court took the factors into account in sentencing.”
(internal quotation marks omitted)). Though we “can
articulate no uniform threshold for sufficiency because of the
fact-bound nature of each sentencing decision, we certainly
always demand more than a rote recitation of the § 3553(a)
factors . . . .” Tomko, 562 F.3d at 567.
14
Here, Appellant argues that the District Court
neglected to address his arguments “(1) that the Sentencing
Commission did not employ its characteristic empirical
approach in setting guideline ranges for crimes involving
child pornography and (2) that the enhancements in the
Sentencing Guidelines, which were applicable in this case,
are inherent in almost all offenses involving child
pornography.” (Appellant Br. 25.) The Government
contends that while “the district court did not recite every
sentencing factor verbatim, the record clearly demonstrates
that the court took all of the factors into consideration.”
(Appellee Br. 15.)
We find that the District Court did consider
§ 3553(a)(1): “the nature and circumstances of the offense
and the history and characteristics of the defendant.” The
District Court took into account that Appellant had been a
productive member of society having served as a police
officer, as well as the fact that he made “a serious and sincere
effort to overcome” his mental illnesses by seeking therapy.
(See App. 126.)
Likewise, the District Court also considered many
aspects of § 3553(a)(2): “the need for the sentence imposed
[in light of the defendant’s and society’s interests].” The
District Court considered the broader societal ills flowing
from the possession of child pornography, and in large
measure the District Court focused its sentencing discussion
on the need to “reflect the seriousness of the offense,” 18
U.S.C. § 3553(a)(2)(A), and to “deter others generally from
engaging in this crime.” (See App. 125-26.) This suggests
that the District Court also considered § 3553(a)(3) – “the
kinds of sentences available.”
15
The Government also argues that the District Court
adequately considered two other factors – § 3553(a)(4) and
§ 3553(a)(6). The first, § 3553(a)(4), looks to the “kinds of
sentence and the sentencing range established for [the
applicable category of offenses].” The District Court
observed that although Handerhan’s sentence was statutorily
capped at ten years, the advisory guidelines range for his
offense before the statutory cap was actually higher.” (Id.)
The second, § 3553(a)(6), looks to “the need to avoid
unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar
conduct.” The Government posits that the following District
Court statement suffices: “[E]ight years . . . is a long time
. . . . But in light of all the circumstances that I have learned
in this case, in fairness to the other people that I sentence . . .
a penalty that is significant is appropriate in this case.” (Id. at
131.) We agree that this statement appears to consider
§ 3553(a)(6) because of the reference to the appropriateness
of the sentence as it relates to similarly situated defendants
sentenced by this District Court.
Appellant also argues that his sentence is procedurally
unreasonable “because the District Court failed to consider
and formally rule upon Mr. Handerhan’s motion for
downward variances based on flaws in the sentencing
guidelines.” Specifically, “the Sentencing Commission’s
failure to enact guidelines based on empirical research,
focusing instead on Congressional directives, as is not its
institutional role.” (Appellant Br. 13.) Appellant argues that
United States v. Sevilla, 541 F.3d 226 (3d Cir. 2008) should
govern. In Sevilla, this Circuit found the sentencing
procedure of the district court to be unreasonable because it
failed to address the defendant’s arguments regarding his
16
childhood and the crack/powder disparity within the
Sentencing Guidelines. Id. at 232.
However, as Appellant acknowledges, the District
Court did state, “I think that some of these penalties for this
offense are more serious than they need to be.” (App. 131.)
The District Court then went on to say, “But in light of all the
circumstances that I have learned in this case . . . I think . . .
that a penalty that is significant is appropriate in this case.”
(Id.) This demonstrates, albeit not as formally as we would
prefer, that the District Court did consider arguable problems
in the sentencing guidelines but found the sentence, when
coupled with the variance ultimately granted, to be
appropriate.
Here, the District Court’s consideration of the
§ 3553(a) factors appears to be more comprehensive than in
Jackson where we found sufficient the district court’s
statement that it considered the defendant’s prior convictions
for crimes of violence, circumstances of defendant’s
upbringing, and financial circumstances was sufficient
discussion of the § 3553(a) factors. Jackson, 467 F.3d at 841-
42.
The District Court said, “I am somewhat impressed
under the § 3553(a) factors that a variance could be granted in
this case based upon what we’ve discussed here this morning
and those factors that have been mentioned. Considering all
of those factors, I will make a slight variance from the
statutory maximum penalty . . . .” (App. 126.) The District
Court granted Appellant a 24-month downward variance, in
apparent recognition of Appellant’s mental health issues and
his efforts at treatment, stating, “I think you have made an
effort to overcome your addiction.” (Id. at 125-26.) We find
17
that the District Court’s consideration of the § 3553(a) factors
was “more than a rote recitation of the § 3553(a) factors . . . .”
Tomko, 562 F.3d at 567. Accordingly, the District Court did
not err in its consideration of the § 3553(a) factors applicable
to Appellant. The totality of the record demonstrates that at
Gunter step three, all of the factors were sufficiently
considered by the District Court and reflected in the variance
ultimately granted. We find that the District Court did not
commit procedural error in its sentencing.
B. Substantive Unreasonableness
Having concluded that the District Court committed no
procedural error, we now review the substantive
reasonableness of the sentence under an abuse of discretion
standard. Tomko, 562 F.3d at 567. We will affirm a
procedurally sound sentence as substantively reasonable
“unless no reasonable sentencing court would have imposed
the same sentence on that particular defendant for the reasons
the district court provided.” Id. at 568. In reviewing the
substantive reasonableness of a sentence, we look to “whether
the final sentence, wherever it may lie within the permissible
statutory range, was premised upon appropriate and judicious
consideration of the relevant factors.” United States v.
Young, 634 F.3d 233, 237 (3d Cir. 2011). “We focus on the
totality of the circumstances, and the party challenging the
sentence bears the burden of proving the sentence’s
unreasonableness.” Friedman, 658 F.3d at 360.
Appellant argues that “based upon the totality of the
circumstances in this case, no reasonable sentencing court
would have imposed a sentence of 96 months considering all
of the 18 U.S.C. § 3553(a) factors as advocated by
[Appellant] at sentencing.” (Appellant Br. 37.) In the instant
18
case, the correct procedure was employed and a reasonable
conclusion reached given the evidence presented. The facts
do not suggest that no other court would impose a similar
sentence. Appellant is a former police officer who–by his
own admission–was aware that the images he downloaded
were illegal. (App. 18 (noting, in the Sentencing
Memorandum, that Appellant “knew child pornography was
wrong”).) Moreover, his avowed explanation–that his
obsessive compulsive disorder, coupled with his “internet
addiction” drove him to download thousands of images of
child pornography–does not account for why some of those
images were then subsequently shared online by Appellant
via the Shareza software. (Id. 17-18.) Finally, while it is true
that Appellant sought treatment for his condition (a factor that
the District Court considered in sentencing Appellant), he
expended such efforts only after his arrest. (Id. 17-22.) Due
to these factors, we find that a reasonable sentencing court
could have imposed the same sentence upon Appellant.
Furthermore, reviewing courts are entitled to presume
that a sentence within the advisory Guidelines is reasonable.
Rita, 551 U.S. at 364. In this case, Appellant received a
below Guidelines sentence of 96 months’ imprisonment.
Under the deferential standard of review, the challenge to the
length of imprisonment fails.
VI. CONCLUSION
Today we affirm the District Court’s ruling and find
that Handerhan’s sentence was neither procedurally nor
substantively unreasonable. Nonetheless, having to infer that
the District Court used its discretion to deny a downward
departure on the basis that the Government addressed the
downward departure is not our “preferred course.” Jackson,
19
467 F.3d at 839-40. We should not have to venture down that
path only to conclude that we have no jurisdiction to review
the district court’s discretionary denial of a downward
departure. We want to be certain of the reason a district court
judge denied a downward departure. We have provided
specific guidance in Gunter and its progeny and that
precedent must be followed.
20