United States v. Larry Smith ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1477
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L ARRY G. S MITH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 05 CR 179—Rudy Lozano, Judge.
A RGUED JANUARY 9, 2009—D ECIDED A PRIL 17, 2009
Before M ANION, R OVNER, and S YKES, Circuit Judges.
M ANION, Circuit Judge. Larry G. Smith pleaded guilty
to one count of distributing child pornography in viola-
tion of 18 U.S.C. § 2252(a)(2) after law enforcement officers
discovered more than 3,000 images of child pornography
on Smith’s computer hard drives, which had been set up
to share the images over the internet. The district court
sentenced Smith to 240 months’ imprisonment. Smith
appeals his sentence. We affirm.
2 No. 08-1477
I.
Larry Smith first came to the attention of law enforce-
ment officials when an FBI agent entered an internet chat
room devoted to preteen sexual pictures. Inside the chat
room, the agent was able to exchange dummy files (files
that could not be opened but had names suggesting
that they contained child pornography) for actual images
and videos of child pornography. Further investigation
revealed that the computer operating the server which
distributed the child pornography was located at Smith’s
house.
When, in the early morning hours, agents executed the
warrant they obtained to search the house, they found
Smith in his bedroom with a 16-year-old girl. They also
found two books about Adolph Hitler and satanic
rituals, a loaded handgun, and six computers. One of the
computers’ hard drives contained approximately 3,114
images of child pornography, while another computer
had over 500 images on its hard drive. The pictures
included many of prepubescent children—as young as
two years old—violently being forced to engage in sexual
conduct, several of prepubescent children in bondage
with their genitals exposed, and two of an animal
engaging in a sex act with a young girl. In addition to
the images, the hard drives also contained 40 videos of
child pornography. One video featured two screaming
children being raped by an adult; another depicted a
naked three-year-old girl being forced to perform a sex
act on an adult male.
Smith was indicted and his trial scheduled for January
17, 2006. After several continuances, Smith moved on July
No. 08-1477 3
20, 2006, for funds under the Criminal Justice Act (“CJA”)
to retain a psychological expert. The court granted his
request on August 1, 2006. Following several more con-
tinuances, Smith pleaded guilty on March 2, 2007, to
the third count of the indictment, distributing child
pornography in violation of 18 U.S.C. § 2252(a)(2).
Smith’s sentencing proceeded in four parts over a four-
month span. At the first hearing, held October 4, 2007,
Smith presented the expert testimony of Robert Hundt, a
licensed clinical social worker and certified addictions
counselor. Relying upon a “psychosexual assessment” of
Smith he had previously completed, Hundt opined
that Smith was treatable and therefore should only be
incarcerated for a short time. Hundt admitted, however,
that little research—and no credible testing—was available
to aid in determining whether someone like Smith posed
a risk of committing future offenses involving child
pornography. He also stated that he had “absolutely no[ ]”
idea what the appropriate amount of punishment was
for Smith.
The district court held a second hearing on November 15,
2007. At that hearing, the district court determined
Smith’s guidelines offense level was 38, yielding a sen-
tencing range of 235 to 293 months’ imprisonment. The
court then invited Smith’s attorney to “address and
comment” on any of the 18 U.S.C. § 3553(a) factors. When
a discussion of the district judge’s role in sentencing
vis-à-vis the guidelines arose shortly thereafter, the
district court had the following exchange with Smith’s
counsel, Mr. Foster:
4 No. 08-1477
THE COURT: I say the Court can go higher or I can
go lower than the guidelines. That’s
not the party[.] I can go higher or
lower for several reasons, for no other
reason that I disagree that they’re
fair, or that there are reasons why
I should be higher or lower. But,
again, that’s not a departure.
MR. FOSTER: Right.
THE COURT: The word “depart” insinuates to me
that the guidelines are ironclad. I
don’t consider them to be ironclad.
Shortly after that exchange, Foster appeared to advocate
that the district court had the authority to completely
disregard the guidelines. The district judge jumped in:
THE COURT: Technically, Mr. Foster, I don’t know
that I agree with you on that. I think all
that tells me is that it’s up to me to
decide what’s a fair sentence.
MR. FOSTER: Up to you to decide what’s a fair sen-
tence with total disregard for the
guidelines. . . . And I believe that with
Rita and Miranda after that, that a
district court judge at this stage can
simply enter a sentence with no con-
cern—
THE COURT: I don’t think I have to ignore the guide-
lines, Mr. Foster.
No. 08-1477 5
MR. FOSTER: You don’t have to.
THE COURT: I can consult them. I can look at them.
I can determine whether they en-
lighten me as to what a fair sentence
is. Or if I want to ignore them, I still
have to—the bottom line, I have to
make a determination what a fair sen-
tence would be.
MR. FOSTER: Right.
THE COURT: The guidelines are advisory.
The discussion then turned to Hundt’s qualifications.
The district judge stated that he “had some difficulty
accepting” Hundt as an expert because Hundt was
neither a psychiatrist nor psychologist, and the defense
had not shown that he was “qualified to make the diagno-
sis and the prognosis that he was making.” The court
then gave Foster an opportunity to flesh out Hundt’s
qualifications and took a ten-minute recess. After the
break, Foster stated that he wanted to address why the
court should accept Hundt as a non-scientific expert. The
court responded:
You can address it. But like I said, I will go through it,
but if you are going to address why you think
Mr. Hundt is an expert, I want to know why he’s an
expert, what he said, and how he drew the conclu-
sion because there are a lot of comments that he made
from a self-answered questionnaire by the defendant.
And from that it appeared, at least—and I’m going
back from recollection right now, that one diagnosed
6 No. 08-1477
the problem which he may be able to do, psychologists
do that to some degree, and then talks about his cure
and everything else. I didn’t hear any expertise on
that, whether or not prison is going to be good for
him or bad for him, and whether or not he can be
cured in prison.
Having spelled out his concerns about Hundt’s qualifica-
tions, the district judge then launched into this aside:
Now, my experience from dealing with people that
I have sent to institutions is that the institutions have
experts in all these fields, and they determine
whether people are treatable, how long they’re treat-
able, and if they’re cured, then they can—they can
release somebody I had given life to at any time. I can’t
make them hold onto a person. Once he hits the
Bureau of Prisons, it’s up to the Bureau of Prisons
how long they’re going to keep them up to the maxi-
mum that I give.
Smith’s attorney quickly attempted to correct the district
judge, explaining that since the abolition of parole boards,
a person may not be released early from a federal prison
short of having served 85% of his sentence. The district
judge, referencing a pre-guidelines case as the basis of his
understanding, reiterated that he thought “the Bureau of
Prisons ha[s] a lot of say,” but noted “that’s neither
here nor there.”
The possibility of Smith being released earlier than the
85% threshold was discussed one more time near the
end of the November 16 hearing:
No. 08-1477 7
MR. FOSTER: Are we—and you said maybe they’ll
let him loose early. Judge, I don’t be-
lieve they will.
THE COURT: I said they could.
MR. FOSTER: They could. They could.
THE COURT: I don’t have any basis to say they’re
going to let him out early.
For the remainder of the sentencing proceedings, the
subject of whether Smith might be released earlier than
upon serving 85% of his sentence was never broached.
Unable to convince the court of Hundt’s qualifications,
Foster moved for a continuance to find another expert.
The court denied the motion:
THE COURT: Mr. Foster, respectfully, I’ve given
numerous continuances on this case.
I gave you time to go out and get an
expert. I even authorized funding for
the expert.
MR. FOSTER: Correct.
THE COURT: Every time I come up and tell you,
well, that expert is not believable or
does not meet the necessary qualifica-
tions based upon what he said, his
background didn’t impress me insofar
as his testimony is concerned, I’m
not going to keep giving you continu-
ances until, you know, you find some-
body either I get tired of saying I’m not
8 No. 08-1477
impressed by him or that, you know,
you’re satisfied with. That’s not the
way it works, Mr. Foster. I gave you a
chance to go there and get somebody.
Before the second sentencing hearing concluded, the
court and Foster had yet another discussion about 18
U.S.C. § 3553(a) and its relationship with the guidelines.
The court observed that, before Booker, “[i]t was a lot
stricter.” The court also pointed out “that the guidelines
[are] only advisory, and I can take a look at them as to
what a fair sentence will be.” To those observations, Foster
replied: “I guess what I’m saying is I couldn’t have
stood here pre-Booker and with integrity ask you to
ignore these guidelines, which is what I’m asking you to
do . . . .” The court responded: “You could’ve done it.
You may not have gotten as far as you do today. It might
be a polite way of saying we agree.”
The court held a third sentencing hearing the next day
and gave the government an opportunity to respond to
the sentencing issues raised by the defense. The court did
not convene again until nearly three months later when,
on February 11, 2008, it pronounced its sentence. The
court orally stated, in detail, its reasons for selecting its
sentence. It considered, among other things, the nature
and circumstances of the crime itself, including the dura-
tion of Smith’s operation of the child pornography-sharing
server, the planning that went into creating the server
and organizing the images, and the unusually appalling
nature of some of the images and videos depicting
violent sexual acts perpetrated on very young children.
No. 08-1477 9
The court also considered the resulting consequences of
the crime as well as the fact that Smith committed the
crime within a week of being freed on bond from state
custody. After discounting Hundt’s testimony because
of his lack of qualifications, the court found that a 240-
month sentence was “fair and reasonable given the
nature and circumstances of the crime” and would
“have a deterrent effect for others creating, down-
loading[,] and trading child pornographic images.” The
court noted that “the guideline range coincides with the
sentence and findings this Court has made and deter-
mined to be fair and reasonable.” Smith appeals his
sentence.
II.
On appeal, Smith presents four challenges to his sen-
tence. First, he argues that the district court should have
granted him a continuance to obtain another expert after
the court discredited Hundt. Smith does not, however,
challenge the district court’s rejection of Hundt’s qualifica-
tions—only the denial of the continuance to find a new
expert.
Whether to grant or deny a continuance is a matter
of case management. United States v. Tanner, 544 F.3d 793,
795 (7th Cir. 2008). Management decisions “are for the
district judge; we intervene only when it is apparent that
the judge has acted unreasonably.” Griffin v. Foley, 542
F.3d 209, 217 (7th Cir. 2008) (quoting N. Ind. Pub. Serv. Co.
v. Carbon County Coal Co., 799 F.2d 265, 269 (7th Cir. 1986)).
Accordingly, this court “will overturn a trial court’s
10 No. 08-1477
disposition of a motion to continue only for an abuse of
discretion and a showing of actual prejudice.” United
States v. Tingle, 183 F.3d 719, 723 (7th Cir. 1999) (quoting
United States v. Blandina, 895 F.2d 293, 297 (7th Cir. 1989));
see also Morris v. Slappy, 461 U.S. 1, 11–12 (1983) (“[B]road
discretion must be granted trial courts on matters of
continuances; only an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable
request for delay violates the right to the assistance of
counsel.” (internal quotations omitted)).
The district court did not abuse its discretion in
refusing to give Smith another bite at the expert apple. The
court had already afforded Smith a fair opportunity to
present expert testimony. It had authorized CJA funds to
retain an expert and had given him plenty of time—over
a year1 —to find a qualified expert. Cf. United States v.
J.H.H., 22 F.3d 821, 831 (8th Cir. 1994) (finding no abuse
of discretion where district court gave defendant a
month between trial and sentencing to obtain a psycho-
logical evaluation). Having given Smith a fair oppor-
tunity to retain a suitable expert, the court was under no
obligation to let him have another chance to present expert
testimony—especially when public money had already
been expended. “If at first you don’t succeed, try, try,
again” might make a memorable maxim, but it is ill-suited
as a principle for case management.
1
The presiding magistrate judge granted Smith’s motion
seeking CJA funds to retain an expert on August 1, 2006—more
than a year before sentencing began.
No. 08-1477 11
Additionally, Smith gave the district court no reason
to believe that he could ever succeed in finding a satisfac-
tory expert. See United States v. Rinaldi, 461 F.3d 922, 929
(7th Cir. 2006) (observing that, when considering whether
prejudice arises from the denial of a continuance, a
court can look to “the likelihood that additional time
would have yielded information useful at sentencing”).
Smith’s attorney told the court that he had shopped
around and that Hundt was the only person in North-
west Indiana who performed psychosexual assessments.
Moreover, Hundt himself admitted on the record that
not much research existed on the question of whether
someone like Smith was a potential risk to commit future
offenses involving child pornography. He also explained
to the district court that experts had yet to devise
testing that would provide insight into the question of
future risk. Given Hundt’s testimony about the dearth of
testing and studies on precisely the issue on which
Smith sought the aid of expert testimony, the district
court was well within the bounds of reason to conclude
that Smith had little chance of finding a credible expert.
Smith has submitted nothing to call into question the
reasonableness of that conclusion; he therefore has not
shown that he was prejudiced by the denial of the continu-
ance.
Next, Smith argues that the district court erred by
treating the guidelines as presumptively applicable.
Whether the district court followed the proper procedures
after United States v. Booker, 543 U.S. 220 (2005), in imposing
sentence is a question of law we review de novo. United
States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007). The
Supreme Court set forth the proper process for deter-
12 No. 08-1477
mining a sentence in Rita v. United States, 127 S. Ct. 2456(2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007).
First, the district judge will normally begin by con-
sidering the presentence report and its interpretation of
the guidelines. Rita, 127 S. Ct. at 2465. The Supreme
Court has stressed that “district courts must treat the
Guidelines as the ‘starting point and the initial bench-
mark.’ ” Kimbrough, 128 S. Ct. at 574 (quoting Gall v. United
States, 128 S. Ct. 586 (2007)). After considering the guide-
lines, the district court will then subject the defendant’s
sentence “to the thorough adversarial testing con-
templated by the federal sentencing procedure.” Rita, 127
S. Ct. at 2465. The district court accomplishes that task
by hearing arguments from the prosecution and defense
that a guidelines sentence should not apply—because the
case falls outside the heartland of the guidelines, or
because a guidelines sentence fails to reflect the § 3553(a)
factors, “or perhaps because the case warrants a different
sentence regardless.” Id. The Supreme Court stated that,
“[i]n determining the merits of these arguments, the
sentencing court does not enjoy the benefit of a
legal presumption that the Guidelines sentence should
apply.” Id.
To support his argument that the district court, contrary
to the Supreme Court’s proscription, applied a legal
presumption in favor of the guidelines, Smith cites an
exchange between his counsel and the district judge
during the first sentencing hearing:
MR. FOSTER: Right. But that’s where I’m headed.
I know that you have—yeah, there’s
No. 08-1477 13
certain parameters on that, and you’re
going to have a choice between the
mandatory minimum and whatever
the statutory limit is here.
THE COURT: No. I have to go back to the guide-
lines. You better tell me why the guide-
lines are improper.
That exchange occurred while the court was attempting
to understand the relevance of Hundt’s testimony to
Smith’s sentencing. At first blush, the court’s statements
may give the impression that the district judge misap-
prehended his role post-Booker and placed undue em-
phasis on the guidelines.
An examination of the sentencing proceedings in their
entirety, however, dispels any doubt that the district
court incorrectly understood, or improperly applied, the
procedural framework outlined in Rita. The district
judge’s statements during the second sentencing hearing
show that he understood the proper role the guidelines
play in sentencing. During the presentation of mitigating
factors by Smith’s counsel, the district judge stated that
he could go higher or lower than the guidelines “for no
other reason than I disagree that they’re fair, or that there
are reasons why I should be higher or lower.” He also
stated that he did not consider the guidelines to be “iron-
clad.” And when Smith’s counsel appeared to be insinuat-
ing that the district court could completely disregard
the guidelines, the district judge clarified that he did not
“have to ignore the guidelines,” while at the same
time recognizing that “it’s up to me to decide what’s a
fair sentence.” Cf. Kimbrough, 128 S. Ct. at 574.
14 No. 08-1477
The district court’s actions support its statements. The
court first calculated the guidelines range. It then gave
counsel for both sides an opportunity to address any of
the § 3553(a) factors they believed were relevant to sen-
tencing, as well as any objections they had to the guide-
lines range. When it pronounced its sentence, the district
court gave a whole host of reasons consistent with the
§ 3553(a) factors. See, e.g., 18 U.S.C. § 3553(a)(1) (nature
and circumstances of the offense and the history and
characteristics of the defendant); id. (a)(2)(A) (seriousness
of the offense and just punishment for the offense); id.(a)(2)(B) (adequate deterrence). It then noted that “the
guideline range coincides with the sentence and findings
this Court has made and determined to be fair and rea-
sonable.” Far from evincing a presumption that the guide-
lines applied, the district court’s statements and actions
show that the court arrived at a sentence it believed was
fair independently of the guidelines, though with due
consideration for what the guidelines prescribed.
Smith also argues that the district court failed to ade-
quately address the § 3553(a) factors. Specifically, Smith
takes issue with the district court’s failure to discuss all
of the mitigating circumstances surrounding the offense.
He contends that, as a consequence of that failure, the
sentence the district court imposed was not reasonable.
A district judge must allow a defendant to point out
any of the § 3553(a) factors that might justify a sentence
outside of the guidelines range, and must consider those
factors when determining the sentence. United States v.
Tyra, 454 F.3d 686, 687 (7th Cir. 2006). But the judge need
No. 08-1477 15
not “write a comprehensive essay applying the full pano-
ply of penological theories and considerations, which is
to say everything invoked or evoked by section 3553(a)—to
the case before him.” United States v. Dean, 414 F.3d 725,
729 (7th Cir. 2005). Instead, the district judge need only
give an “adequate statement of the judge’s reasons,
consistent with section 3553(a), for thinking the sen-
tence that he has selected is indeed appropriate for the
particular defendant.” Id.; see also United States v. George,
403 F.3d 470, 472–73 (7th Cir. 2005) (“Judges need not
rehearse on the record all of the considerations that 18
U.S.C. § 3553(a) lists . . . .”).
The district judge did so here. As mentioned above,
his stated reasons for the sentence conformed with the
considerations listed in § 3553(a). The district judge
also explicitly stated that he had taken into account all
the arguments and submissions of Smith’s counsel when
fashioning a sentence. Thus, between the district court’s
reasoned consideration of the § 3553(a) factors, its atten-
tion to the arguments and concerns presented by
Smith’s counsel, and the presumption of reasonableness
we apply on appeal, see United States v. Whited, 539 F.3d
693, 699 (7th Cir. 2008), we see no basis under 18 U.S.C.
§ 3553(a) to disturb Smith’s sentence.
Lastly, Smith asserts that reversal is warranted based
on the district court’s statements during the November 15
sentencing hearing about the possibility of an early
release. Recall that during a discussion of Hundt’s qualifi-
cations at the second sentencing hearing, the court men-
tioned its “understanding” was that the Bureau of
16 No. 08-1477
Prisons (“BOP”) had unfettered discretion to release
prisoners early if BOP experts determined that a prisoner
was cured. That understanding is incorrect. Since the
abolition of parole,2 the earliest the BOP may release a
prisoner is upon serving 85% of his sentence. See 18 U.S.C.
§ 3624(a)–(b). According to Smith, the district court’s
mistaken comments at the second sentencing hearing
affected his sentence.
Smith, however, bears the burden of showing that the
district court relied on the possibility of Smith’s release
prior to the 85% threshold when sentencing him. See
United States v. Williams, 503 U.S. 193, 203 (1992) (“[T]he
party challenging the sentence on appeal . . . bears the
initial burden of showing that the district court relied
upon an invalid factor at sentencing . . . .” (emphasis
added)). Smith cannot meet that burden. The record
provides no support for his claim that the possibility of
release prior to serving 85% of his sentence played any
role in the district court’s determination of his sentence.
The context in which the district judge made the com-
ments about early release is crucial. The district court
did not make them during the February 11, 2008 hear-
ing—the fourth and final hearing at which the district
court pronounced sentence and gave its reasoning for the
sentence it chose. Rather, the district judge’s aside about
early release occurred at the second sentencing hearing,
held on November 15, 2007, three months and two
2
See Sentencing Reform Act of 1984, Pub. L. No. 98-473, Title II,
98 Stat. 1987.
No. 08-1477 17
hearings prior to the pronouncement of sentence. More-
over, at the time the district judge made those comments,
he was not addressing Smith’s sentence. Rather, he had
been explaining his concerns about the basis of Hundt’s
expert testimony.3
Furthermore, while the fact that Smith could be
released upon serving 85% of his sentence (the correct
understanding of early release under current law) was
3
Our dissenting colleague asserts that the district judge’s
“mistaken belief” about early release played a role in his
decision to give Hundt’s testimony little weight because the
judge assumed that the BOP would do its own assessment of
Smith’s future dangerousness. Dissent at 26-27. It bears repeat-
ing that Smith has not challenged on appeal the district court’s
finding that Hundt’s testimony was entitled to little weight.
Nevertheless, the dissent’s assertion about the impact of the
court’s mistaken belief finds no support in the record. During
the February 2008 hearing—which, again, was the hearing
where the district judge explicitly gave his reasoning for
Smith’s sentence—the district court set forth on the record
several reasons for giving Hundt’s testimony little weight. The
court commented on Hundt’s lack of qualifications to opine
on Smith’s future dangerousness. The court also noted
Hundt’s complete reliance on Smith’s self-serving statements
from a self-answered questionnaire to support his conclu-
sions. Additionally, the court emphasized the lack of evidence
and testing from experts in the same field supporting Hundt’s
theories. None of the reasons given by the district court for
rejecting Hundt’s testimony was based on a belief that Hundt’s
testimony was unnecessary because BOP experts would
perform a similar analysis.
18 No. 08-1477
mentioned several times during the sentencing hearings
held thereafter, nothing was said at the later sentencing
hearings about the possibility of an earlier release for
Smith if the BOP determined that he was cured. Indeed,
the only other time the issue of early release was brought
up was later in that same November 15, 2007, hearing.
Smith’s lawyer, not the court, initiated the discussion of
early release that second time. And the district court short-
circuited the exchange, acknowledging that it did not
“have any basis to say they’re going to let him out early.”
Most importantly, the district judge—immediately after
the erroneous aside about early release—expressly dis-
counted the relevancy of the entire discussion to sen-
tencing, stating that it was “neither here nor there.” That
the district judge thought the discussion irrelevant to
sentencing was underscored at the final hearing three
months later. At that hearing, the judge pronounced
sentence and gave a detailed statement of reasons on the
record for the sentence he selected. Nowhere did he
make any mention of the possibility of early release for
Smith, much less a statement seeming to indicate that he
relied on that possibility when selecting his sentence.
Smith argues, however, that the court’s comments at
the final sentencing hearing about its hopes for Smith’s
psychological treatment and cure indicate its reliance on
a misunderstanding of early release. Those comments do
little more than express the district court’s desire that
No. 08-1477 19
Smith get psychological treatment while incarcerated.4
Yet Smith would have us divine from them an implied
reference to an aside about early release uttered at a
hearing nearly three months prior—an aside about which
the judge expressly said at the time was “neither here
nor there.” We see no need for such clairvoyance when
the record is as clear as it is here. The district court
offered many reasons at the February 2008 hearing for
sentencing Smith to 240 months’ imprisonment. The
possibility of an early release was not among them.
The district judge clearly stated his reasons at the last
sentencing hearing when he pronounced sentence; no-
4
Smith cites the following statement, made after the district
court had listed its reasons for the sentence and stated that it
found a sentence of 240 months “fair and reasonable”: “Hope-
fully this sentence will allow the defendant to be treated in an
effort to cure his psychological and medical problems in this
area, if possible.” Smith also points to the district court’s
statement towards the end of the hearing in response to
Smith’s request that he be placed at a BOP institution close to
Chicago:
Mr. Foster, you had contacted the Court by way of your
motion regarding the placement of the defendant. I do not
make a habit of putting a defendant at a specific institution.
It’s not like picking a hotel. In this case, I have concerns
that I would like to see the defendant receive some treat-
ment psychologically, and I think the Bureau of Prisons is
probably going to do that anyway. What I am willing to do
is to recommend an institution as close to Chicagoland
as possible given that they get him to an institution for
psychological treatment . . . and then the second object is
to get him as close to Chicagoland as possible.
20 No. 08-1477
where did he mention the possibility of early release. Yet
our dissenting colleague would hold that the district
judge’s side comments three months and two hearings
prior somehow impacted his determination of Smith’s
sentence. According to the dissent, the comments about
the possibility of early release infected the court’s decision-
making process because the district court never
expressly repudiated them on the record. We conclude
this was not necessary. We also assume the dissent does
not mean to imply that all the district court’s sentencing
decisions since the passage of the Sentencing Reform
Act of 1984 were inappropriate. We find it essential to
evaluate the reasons actually given by the district court
during the February 2008 hearing for Smith’s sentence.
As none of those reasons implicated early release,
Smith’s argument that the district court relied on the
possibility of early release in fashioning his sentence
must fail.
The dissent also would not credit the district court’s
dismissive statement about the discussion of early release
being “neither here nor there.” Dissent at 27. The dissent
correctly observes that just because a district court says
a decision is correct as a matter of law does not make it
so. The district judge’s musings during his detour into
early release were not correct as a matter of law. But that
is not the issue here. We must determine whether the
district judge relied on the misunderstanding in deter-
mining Smith’s sentence. See Williams, 503 U.S. at 203.
We conclude he did not. He discarded his inaccurate
observations at the end of his discussion on the reliabil-
ity of Smith’s proposed expert. The digression into early
No. 08-1477 21
release was “neither here nor there.” Consequently, there
is no need to remand this case for resentencing.
III.
The district court acted well within its discretion when
it denied Smith another continuance to allow him to try to
find a more acceptable expert after the court found
Hundt’s qualifications lacking. The court also correctly
applied 18 U.S.C. § 3553(a) when sentencing Smith, and
its statement of reasons supporting the 240-month sen-
tence was more than adequate under that section. Finally,
there is no evidence on the record that the district court’s
tangential statements about early release during the
second sentencing hearing played any role in the court’s
determination of Smith’s sentence at the fourth and
final sentencing hearing three months later. We A FFIRM .
R OVNER, Circuit Judge, dissenting. There is no doubt that
Larry G. Smith committed a heinous crime when he
decided to collect and trade child pornography. There is
no doubt that the images contained on his computer
were of the most horrific kind. There is no doubt that he
is a very disturbed young man. Unfortunately, there is
also no doubt that the district judge seriously misstated
the law regarding the role of the Bureau of Prisons (“BOP”)
22 No. 08-1477
in determining release dates for federal prisoners. The
majority seems to agree that the district court’s “under-
standing” that the BOP had unfettered discretion to
release prisoners early if BOP experts determined that
the prisoner was cured is “incorrect.” Supra at 16. The
majority finds that Smith has failed to demonstrate that
the district court relied on this misunderstanding of
the law in determining his sentence. I find it incompre-
hensible that such a misunderstanding could not
influence a judge’s sentencing decision.
The original exchange, which came after defense counsel
stated he would like to address the defense expert’s
testimony, is worth repeating in its entirety:
THE COURT: You can address it. But like I said,
I will go through it, but if you are go-
ing to address why you think
Mr. Hundt is an expert, I want to
know why he’s an expert, what he
said, and how he drew the conclusion
because there are a lot of comments
that he made from a self-answered
questionnaire by the defendant. And
from that it appeared, at least—and
I’m going back from recollection
right now, that one diagnosed the
problem which he may be able to do,
psychologists do that to some degree,
and then talks about his cure and ev-
erything else. I didn’t hear any exper-
tise on that, whether or not prison is
No. 08-1477 23
going to be good for him or bad for
him, and whether or not he can be
cured in prison.
Now, my experience from dealing
with people that I have sent to institu-
tions is that the institutions have ex-
perts in all these fields, and they deter-
mine whether people are treatable,
how long they’re treatable, and if
they’re cured, then they can—they can
release somebody I had given life to
at any time. I can’t make them hold
onto a person. Once he hits the Bu-
reau of Prisons, it’s up to the Bureau
of Prisons how long they’re going to
keep them up to the maximum that
I give.
MR. FOSTER:1 I’m not following you, Judge. You
sentence someone to X number of
months to the Bureau of Prisons, with
due respect, the Bureau of Prisons
can’t jockey your sentence around.
THE COURT: I’m sorry, Mr. Foster. That’s not my
understanding. I have had people that
I’ve sent to prison for 30 years, and 8,
9, 10 years they release them be it
overcrowding, be it whatever reasons
1
Mr. James Foster is Smith’s appointed counsel.
24 No. 08-1477
they want. It’s under their jurisdic-
tion.
Now, if I sentence somebody to 10 or
15 years, they can’t up it to 30 or 40
years. They don’t have that power,
I don’t think.
MR. FOSTER: I have just never in the years I’ve prac-
ticed, never been fortunate enough to
represent a person who was released
early from a federal prison short of the
85 percent since we got rid of parole
boards. I never saw it happen; never
read a case citing that they had the
authority to do that, but—
THE COURT: Mr. Foster, this is preguidelines. I think
you were involved in a drug case that
I had, the Bloom people.
MR. FOSTER: I remember that vaguely.
THE COURT: And several of those people received
very, very heavy sentences, and they
were released.
Don’t get me wrong, it wasn’t they
weren’t [sic] released in months, but
they were released far before the time
that, you know, I had sentenced them.
MR. FOSTER: And I do think that back there where
we used to say a rule of thumb was
one-third and where we still had pa-
No. 08-1477 25
role boards, I think it was possible.
But, boy, I think today they do 85 per-
cent of what you give them minus a
very—a lot of circumstance.
THE COURT: I lose track of them, Mr. Foster, after
they leave my court, but my under-
standing is that the Bureau of Prisons
have a lot of say. But that’s neither
here nor there.
R. 116, at 37-39 (emphasis added).
Of course, as the majority and the government concede,
the BOP does not “have a lot of say” in determining the
release dates for federal prisoners. Rather, release dates are
determined by statute. See 18 U.S.C. § 3624. Subsection (a)
provides that “[a] prisoner shall be released by the
Bureau of Prisons on the date of the expiration of the
prisoner’s term of imprisonment, less any time credited
toward the service of the prisoner’s sentence as provided
in subsection (b).” Subsection (b) governs credit toward
service of a sentence for “satisfactory behavior.” Under
that provision, a prisoner who has displayed “exemplary
compliance with institutional disciplinary regulations”
may receive a credit of up to fifty-four days per year
toward completion of the sentence. This amounts to a
fifteen percent reduction for a prisoner who earns the full
credit during each year of the term of imprisonment.
Acknowledging the district court’s error, the government
argues only that it was harmless. See Fed. R. Crim. P. 52(a)
(“Any error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded.”). I do not
believe such an error could be harmless.
26 No. 08-1477
There are two significant problems with the majority’s
analysis of this issue. First, a district judge who believes
the BOP can release a prisoner at any time, either because
the prisoner has been cured or because the prison is
overcrowded, mistakenly thinks he is sentencing a defen-
dant to a term of up to twenty years rather than a
straight twenty years. Any defendant can readily tell the
difference between a fixed term of twenty years (minus
fifteen percent for good behavior in the federal system) and
a term of up to twenty years. Most prisoners would prefer
the latter. If the judge did not understand that the defen-
dant would serve at least seventeen of the twenty years,
but instead thought that Smith could be released by the
BOP as soon as he was cured, then the court did not
understand the gravity of the sentence.
Second, because the court believed that BOP experts
would determine when Smith could be safely released, it
delegated to the BOP the court’s own responsibility for
determining how dangerous Smith is and whether he
could be rehabilitated. This mistaken belief also allowed
the court to be dismissive of Smith’s proffered expert
because the court assumed a BOP expert would “determine
whether people are treatable, how long they’re treatable,
and if they’re cured[.]” R. 116, at 38. With that assumption,
a court would have no need to seriously consider the
qualifications or testimony of the defendant’s expert on
those issues. Mr. Hundt, Smith’s proffered expert, testified
that he is a licensed clinical social worker and certified
addictions counselor. He received his graduate degree
from the University of Chicago, and has received addi-
tional training from the federal government in the treat-
No. 08-1477 27
ment of sex offenders. He had been treating sex offenders
for approximately ten years at the time of his testimony,
mostly for the Department of Corrections in Indiana.
Mr. Hundt also told the district judge that he often testifies
in court, predominantly for the prosecutor’s office.
These credentials are not easily dismissed, although the
district court could, in its discretion, reject them as inade-
quate. But the court may not reject an expert because it
mistakenly believes it can delegate to the BOP’s experts
the task of assessing Smith’s potential for rehabilitation.
As I read the sentencing transcript, it appears the district
court relied at least in part on that mistaken belief.2
The majority states that the district court “expressly
discounted the relevancy of the entire discussion of early
release to sentencing, stating that it was ‘neither here nor
there.’ ” Supra at 18. Why we should accept the district
court’s blithe dismissal of the significance of its own error
is mystifying. We have no obligation to defer to a district
court making an error of law. United States v. Wesley, 422
2
The majority correctly points out that Smith did not appeal
the district court’s finding that Hundt’s testimony was entitled
to little weight. I address the effect of the court’s misunderstand-
ing on the rejection of the expert to give context, to explain the
possible wide-ranging effects of such a misapprehension, and
because the government in its brief argues that the colloquy
concerning the “side-issues” (specifically, the early release
issue) was rendered “completely meaningless” once the court
discounted the expert. To the contrary, the court’s dismissal
of the expert was likely a side-effect of its misunderstanding
about the role of the BOP in early release.
28 No. 08-1477
F.3d 509, 512 (7th Cir. 2005) (review of an underlying
legal ruling is non-deferential).
The majority cites the district court’s later statement,
“I don’t have any basis to say they’re going to let him out
early,” supra at 18, as evidence that the court correctly
understood the law relating to the BOP’s authority. See
R. 116, at 93. But we must review this statement in the
context of the entire colloquy. As quoted above, defense
counsel attempted to correct the court’s error of law,
noting that under current federal law, all defendants
serve at least eighty-five percent of their sentences. R. 116,
at 38-39. Attempting to repeat this correction of the law
later, defense counsel said, “[Y]ou said maybe they’ll let
him loose early. Judge, I don’t believe they will.” R. 116,
at 93. The court then repeated its earlier error, countering
with, “I said they could,” meaning the court believed
that the BOP had the legal authority to release Smith
early. R. 116, at 93. When the court followed this error
with its statement that it did not “have any basis to say
they’re going to let him out early,” the court clearly
meant it had no factual basis to believe Smith would be
released early; there was, after all, no way for the court to
know whether the BOP would be able to treat Smith
and declare him cured. R. 116, at 93. There is no evidence
in this record that the court ever understood that the
BOP has no legal authority to release Smith early.
The majority also states that “the fact that Smith could be
released upon serving 85% of his sentence (the correct
understanding of early release under current law) was
mentioned several times during the sentencing hearings
No. 08-1477 29
held thereafter[.]” Supra, at 17-18. The only references to
the eighty-five percent figure that I could find in the record
after the errors cited above were: (1) defense counsel’s
statement that “[w]e can put him in there for 20 years, and
at 85 percent we know they’ll turn him loose, and there’s
a possibility you say of getting loose earlier.” R. 116, at 95;
(2) government counsel’s statement that “[e]ven a maxi-
mum sentence of 20 years, which means that he would
do 17 years of real time, gets him out when he’s 40.” R.
117, at 34; and (3) government counsel’s oblique
reference that “[w]e’re asking to impose lifetime super-
vised release given the fact that he’ll be 40 years old
when he gets out[.]” R. 117, at 43.
The majority contends that, although there were several
additional references to the correct understanding of early
release, “nothing was said at the later sentencing hearings
about the possibility of an earlier release for Smith if the
BOP determined he was cured.” Supra, at 18. But none
of those subsequent statements by counsel provide any
evidence that the court understood that its original state-
ment of the law was in error. Balanced against defense
counsel’s attempts to clear up the issue (government
counsel remained strangely silent as defense counsel
attempted to correct the court’s error), we have an alarm-
ingly confused statement from the court regarding the
authority of the BOP to release prisoners early. The
absence of any subsequent reference to the error during
the final sentencing hearing did not cure the problem.
I also see no need for “clairvoyance” (supra at 19) when
common sense tells us that this is the kind of error that
would pervade a judge’s decision-making process. More-
30 No. 08-1477
over, there is no special reason to require that the
judge repeat the error at the final sentencing hearing
before we treat it as a real error. An error is harmless if,
considering the record as a whole, “the error did not affect
the district court’s selection of the sentence imposed.”
Williams v. United States, 503 U.S. 193, 203 (1992). An error
that changed the court’s basic framework for deter-
mining the sentence cannot be called harmless.
Finally, citing the Supreme Court’s opinion in Williams,
the majority remarked that “Smith bears the burden of
showing that the district court relied on the possibility of
Smith’s early release prior to the 85% threshold when
sentencing him.” Supra at 16 (emphasis in original).
The Court’s full statement of the standard is instructive:
We conclude that the party challenging the sentence
on appeal, although it bears the initial burden of
showing that the district court relied upon an invalid
factor at sentencing, does not have the additional
burden of proving that the invalid factor was deter-
minative in the sentencing decision. Rather, once the
court of appeals has decided that the district court
misapplied the Guidelines, a remand is appropriate
unless the reviewing court concludes, on the record as
a whole, that the error was harmless, i.e., that the
error did not affect the district court’s selection of the
sentence imposed. See Fed. Rule Crim. Proc. 52(a).
No. 08-1477 31
Williams, 503 U.S. at 203.3 As I noted above, I believe
Smith has met his burden of demonstrating that the
district court relied on an invalid factor at sentencing.
Smith does not bear “the additional burden of proving that
the invalid factor was determinative in the sentencing
decision.” Williams, 503 U.S. at 203. In harmless error
analysis, it is the government’s burden to prove that the
error was not prejudicial. United States v. Mansoori, 480
F.3d 514, 523 (7th Cir. 2007). The government has failed
to meet that burden here.
The district court might well decide again to sentence
Smith to a term of twenty years, and I do not mean to
imply with my dissent that twenty years would not be a
reasonable sentence. But even defendants who commit
the most abhorrent crimes deserve a sentencing decision
that is not influenced by legal errors if we are to maintain
the rule of law.4 In light of the district court’s legal error,
3
Although the error in Smith’s case was one of law rather
than the result of a misapplication of the guidelines, the stan-
dard for harmless error is the same.
4
The majority assumes that I do “not mean to imply that all of
the district court’s sentencing decisions since the passage of
the Sentencing Reform Act of 1984 were inappropriate.” I make
no comment on cases that are not before us. I certainly hope
the district court judge has not held this mistaken belief since
the passage of that Act, and that this was a momentary lapse,
a blip of memory or speech that affects even distinguished
jurists from time to time. If we had remanded the case, the
district judge might have clarified that he was referring only
(continued...)
32 No. 08-1477
which went uncorrected by the court for the remainder of
the sentencing hearing, I believe we should vacate the
sentence and remand for a new sentencing. Therefore,
I respectfully dissent.
4
(...continued)
to pre-guidelines cases. We have only the transcript on which
to rely at this stage, however, and the transcript twice
indicates a mistaken belief that is never corrected.
4-17-09