United States v. Jonathan Stephens ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1463
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JONATHAN STEPHENS, also known as JOHNATHAN STEPHENS,
also known as JONATHAN WATTS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-CR-00044-1 — Ronald A. Guzmán, Judge.
____________________
ARGUED DECEMBER 15, 2020 — DECIDED FEBRUARY 2, 2021
____________________
Before KANNE, HAMILTON, and BRENNAN, Circuit Judges.
HAMILTON, Circuit Judge. Appellant Jonathan Stephens
pleaded guilty to transporting child pornography in violation
of 18 U.S.C. § 2252A(a)(1). The district court sentenced him to
151 months in prison, at the bottom of the applicable Sentenc-
ing Guideline range. On appeal, Stephens challenges his sen-
tence. He contends that the district court improperly disre-
garded the probation officer’s recommendation of a below-
2 No. 20-1463
guideline sentence, his own primary arguments in mitigation,
and the statutory sentencing factors set forth in 18 U.S.C.
§ 3553(a). We affirm.
I. Background
In December 2016, federal agents seized from Stephens’s
home fifteen electronic devices with over 184,000 porno-
graphic images and videos of children. Two years later, before
federal charges were filed, undercover officers discovered
that Stephens in the meantime had downloaded at least
10,000 more images and videos of child pornography. The
agents also determined that Stephens had used his computer
to share some of the files.
Stephens was charged with five counts of transporting and
possessing child pornography, and he ultimately pleaded
guilty to one count of transporting in violation of 18 U.S.C.
§ 2252A(a)(1). A probation officer calculated the guideline
range as 151 to 188 months in prison based on a total offense
level of 34, see U.S.S.G. § 2G2.2, and a criminal history cate-
gory of I. (Stephens had no criminal history points.)
Several offense characteristics increased the base offense
level, including Stephens’s use of a computer, knowledge of
distribution, collection of more than 600 images, images with
children under twelve years of age, and depictions of sadistic
or masochistic abuse of children. See § 2G2.2(b). The officer
separately recommended a below-guideline sentence of 108
months, however, reasoning that the two-level enhancement
for using a computer is outdated. But the officer also sug-
gested that an upward variance could be appropriate because
No. 20-1463 3
Stephens possessed such a large quantity of child pornogra-
phy and because the first search of his home had no deterrent
effect as he went on to re-establish his collection.
Stephens asked the court to sentence him to the five-year
mandatory minimum. In support, he relied on the probation
officer’s policy disagreement with the computer-based guide-
line enhancement. Stephens also argued that adopting a total
of fifteen offense levels’ worth of enhancements would result
in an artificially high sentence. See United States v. Dorvee,
616 F.3d 174, 184 (2d Cir. 2010). He also cited a psychosexual
evaluation he underwent with a clinical psychologist, who
concluded that, as a child-pornography only (i.e., “no-con-
tact”) offender, Stephens was unlikely to “sexually offend in
the future.” Finally, Stephens asserted, his autism spectrum
disorder, avoidant personality disorder, and depression diag-
noses reduced his need for deterrence.
At the sentencing hearing, Stephens agreed to the guide-
line calculation and briefly reiterated his written arguments.
He explained why he resumed amassing child pornography
after officers initially seized his collection. He said that he had
not yet been arrested and, at the time, believed: “I did nothing
wrong, and I … got bored.” More recently, his attorney ex-
plained, Stephens had taken “significant steps” to “make sure
he does not re-offend,” including participating in a cognitive
skills class, behavioral treatment, and reflection.
After adopting the PSR’s guideline calculations without
objection, reviewing the supplemental reports and submis-
sions, and hearing the parties’ arguments, the district court
sentenced Stephens to 151 months in prison. The court began
its reasoning with the “most blatant factor,” the “seriousness
of [Stephens’s] offense.” He collected “a staggering amount,
4 No. 20-1463
more than anything I’ve ever heard of.” (To be clear, trans-
porting or possessing one image of child pornography is a fel-
ony. The Guidelines increase the offense level by two levels
for 10 or more images, by three levels for 150 or more images,
by four levels for 300 images or more, and by five levels for
600 or more images. Stephens possessed more than 320 times
the 600 images needed to max out on the guideline factor.)
And the images went beyond “mere” child pornography,
which is awful enough to warrant some of the most severe
penalties under federal criminal law. These images depicted
violent, traumatic, and sadistic abuse. The court’s overriding
apprehension was with “[t]he number of children seriously
and irreversibly traumatized by the making of these pictures
and videos.”
The court was also “very concerned about [Stephens’s]
ability to rehabilitate.” The initial seizure, “despite Stephens
statements … had no deterrent effect whatsoever as [Ste-
phens] found the means to collect yet another 10,000 images.”
And, although the court doubted that Stephens could “realize
the pure evil of these images,” it emphasized that his pro-
fessed inability to understand was “chilling because it tells us
that in the future, there is nothing to prevent him from con-
tinuing to do this.” The court noted that Stephens was begin-
ning to understand the consequences of his actions but said
“it would be a grave risk” to impose a below-guideline sen-
tence. The court also considered general deterrence, hoping to
signal “that anyone who engages in this voluntary behavior
is risking grave consequences.”
No. 20-1463 5
II. Analysis
Stephens raises three procedural challenges to his sen-
tence, which we review de novo. United States v. Gill, 889 F.3d
373, 377 (7th Cir. 2018).
A. The Probation Officer’s Recommendation
Stephens first argues that the district court erred when it
did not explicitly address on the record the probation officer’s
separate recommendation of a below-guideline sentence. He
contends that the court must articulate reasons for disregard-
ing such a recommendation, at least if the defendant relies on
it.
This argument is profoundly mistaken, and we are pub-
lishing this as a precedential opinion to make this point. A
district court need not address a probation officer’s recom-
mendation at sentencing. Our ruling is not intended as any
disrespect for the valuable work that probation officers do. All
members of this panel have benefited from thoughtful advice
from probation officers. A big part of the work of federal pro-
bation officers is to provide invaluable information and in-
sight to district courts for sentencing decisions. Ultimately,
however, probation officers work for the court. It is then up to
the court to decide whether even to disclose their recommen-
dations (as distinct from the PSR and its guideline calcula-
tions). The court also decides how to weigh those recommen-
dations.
We have explained before that district courts are not re-
quired to give any deference to a probation officer’s recom-
mendation in a PSR, let alone to explain a disagreement on
the record. See United States v. Schuler, 34 F.3d 457, 461
6 No. 20-1463
(7th Cir. 1994) (court not required to make findings about “in-
appropriateness of [the probation officer’s] recommenda-
tion”); United States v. Guadagno, 970 F.2d 214, 224 (7th Cir.
1992) (same, regarding a probation officer’s acceptance-of-re-
sponsibility endorsement); United States v. Heilprin, 910 F.2d
471, 474–75 n.7 (7th Cir. 1990) (court is “at all times perfectly
free to disagree with the probation officer's position”).
The probation officer’s recommendation may be persua-
sive and even compelling on its merits. But there is no legal
reason for requiring the court to give it any particular weight
apart from its inherent persuasiveness. Defendants are not le-
gally entitled to know probation officers’ recommendations.
See Heilprin, 910 F.2d at 474 (no constitutional or statutory
right to be informed of a probation officer’s sentencing recom-
mendation); Fed. R. Crim. P. 32(e)(3) (“By local rule or by or-
der in a case, the court may direct the probation officer not to
disclose to anyone other than the court the officer’s recom-
mendation on the sentence.”). The district judge here was free
to disclose the recommendation, but that disclosure did not
trigger a new procedural requirement that the judge discuss
the recommendation on the record.
Stephens contends that this court overturned the Heilprin
line of cases in United States v. Petersen, 711 F.3d 770, 778–79
(7th Cir. 2013), where in dicta we urged courts to consider re-
leasing confidential sentencing recommendations to the par-
ties. Different judges have different perspectives on the dis-
cretionary choice whether to disclose confidential recommen-
dations. There are reasonable arguments on both sides of that
question, and the better course may differ from case to case.
But there is no legal conflict here. Petersen reiterated that a de-
No. 20-1463 7
fendant does not have a legal right to see the confidential rec-
ommendation, at least as long as the recommendation does
not put new factual information before the court. Id. at 778.
And Petersen reinforced that the choice about disclosing a rec-
ommendation is up to the judge. Id. at 779. 1
Returning to this case, the district court did release the rec-
ommendation to the parties, and Stephens was able to com-
ment on it. He did so, saying that the probation officer had
considered a minimum sentence. But the officer increased the
recommendation (though still below the range) because Ste-
phens had committed new child pornography crimes after the
first seizure. The district court did not commit a procedural
error when it did not address the probation officer’s recom-
mendation when explaining Stephens’s sentence.
B. Addressing Arguments in Mitigation
Stephens next argues that the district court ignored his pri-
mary mitigation arguments: his mental illnesses, his minimal
risk of re-offending, and his policy disagreement with the
child pornography sentencing enhancements. Resentencing
may be required when the district court’s discussion of a prin-
cipal mitigation argument is “so cursory that we are unable to
1 The qualification about not putting new factual information into the
recommendation is critical. A defendant has a due process right not to be
sentenced on the basis of incorrect factual information. See, e.g., United
States v. Tucker, 404 U.S. 443, 447 (1972); United States v. Miller, 900 F.3d
509, 514 (7th Cir. 2018); United States ex rel. Welch v. Lane, 738 F.2d 863,
864−65 (7th Cir. 1984). A confidential recommendation should not be
turned into a back-channel for unreliable information that the defendant
never has a chance to address. Federal Rule of Criminal Procedure 32 is
designed to ensure procedural fairness in sentencing, particularly in par-
agraphs (e) through (i), to prevent such errors.
8 No. 20-1463
discern the court’s reasons for rejecting the argument.”
United States v. Vidal, 705 F.3d 742, 744 (7th Cir. 2013).
Before we address the argument, we repeat our advice that
at the end of every sentencing hearing, the court should spe-
cifically ask whether it addressed sufficiently the defendant’s
main arguments in mitigation. See United States v. Hancock,
825 F.3d 340, 343–44 (7th Cir. 2016); United States v. Donelli,
747 F.3d 936, 941 (7th Cir. 2014); United States v. Garcia-Segura,
717 F.3d 566, 569 (7th Cir. 2013) (encouraging courts to ask
“whether [defendants] are satisfied that the court has ad-
dressed their main arguments in mitigation” and if they as-
sent, “a later challenge … would be considered waived”).
This approach allows courts to correct possible procedural er-
rors immediately, while their thinking is fresh, rather than
wait for “correction after appellate review, a year or more of
delay, and a new hearing after remand.” See United States v.
Brown, 932 F.3d 1011, 1020 (7th Cir. 2019), quoting Donelli,
747 F.3d at 941. We also encourage defense attorneys and
prosecutors to speak up proactively if a district court over-
looks a major argument. District judges rightly rely on advo-
cates to raise and emphasize the points that warrant their at-
tention.
As for Stephens’s mitigating arguments, the district court
did not designate them each for separate discussion, but the
transcript does not leave us questioning whether the court
considered them adequately. First, the court said that it re-
viewed the PSR and read the parties’ submissions and sup-
plemental reports, which is often enough to show that it con-
sidered the mitigation arguments. See United States v. Graham,
915 F.3d 456, 459 (7th Cir. 2019); United States v. Ramirez-
Gutierrez, 503 F.3d 643, 646 (7th Cir. 2007). With respect to the
No. 20-1463 9
mental illnesses and recidivism risk, the court thoroughly ad-
dressed these while considering the factors under 18 U.S.C.
§ 3553(a).
Stephens maintains that the district court silently passed
over his recidivism and diminished-capacity arguments sup-
ported by the report on his psychosexual evaluation. We read
the record differently. The court concluded that Stephens’s di-
minished capacity and risk of re-offending were aggravating
factors, not mitigating factors. That signaled its unmistakable
rejection of these contentions as mitigating. See United States
v. Wade, 890 F.3d 629, 632 (7th Cir. 2018). While the court
never explicitly mentioned Stephens’s diagnoses, it con-
cluded that imposing a below-guideline sentence was a
“grave risk” based, in part, on Stephens’s inability to under-
stand the seriousness of his offense.
Instead of crediting the psychologist’s finding that Ste-
phens had a low risk of “sexually offending” as a pornogra-
phy-only offender, the court looked at Stephens’s recent his-
tory. The court emphasized that, “despite his statements and
explanation in open court,” Stephens’s actions demonstrated
that the initial seizure “had no deterrent effect whatsoever as
[he] found the means to collect yet another 10,000 images.”
Although the district court only “implicit[ly] or impre-
cise[ly]” noted the psychologist’s evaluation at the hearing, its
discussion still shows that the court “considered the argu-
ment.” See United States v. Patel, 921 F.3d 663, 670 (7th Cir.
2019), quoting United States v. Tounisi, 900 F.3d 982, 987
(7th Cir. 2018).
The district court was also not required to address Ste-
phens’s policy argument that the guideline enhancements re-
sulted in an artificially high sentence for his no-contact child
10 No. 20-1463
pornography offense. First, he never mentioned his (or the
probation officer’s) policy view at the hearing. It was not a
central argument. Second, a sentencing court may pass over
generalized policy disagreements with the Guidelines.
E.g., United States v. Schmitz, 717 F.3d 536, 541–42 (7th Cir.
2013). We have rejected appellate arguments based on a dis-
trict court’s failure to address policy disagreements with the
child-pornography guidelines. E.g., United States v. Grisanti,
943 F.3d 1044, 1053–54 (7th Cir. 2019); United States v. Oberg,
877 F.3d 261, 264 (7th Cir. 2017); United States v. Hancock,
825 F.3d 340, 344–45 (7th Cir. 2016). Stephens did not object to
any specific increase to his guideline range; he agreed to the
calculations. The court explained why it was appropriate to
impose a sentence within that applicable range: Stephens’s of-
fense went beyond “mere” child pornography because he col-
lected a “staggering amount” of images depicting violent,
traumatic, and sadistic abuse.
C. Section 3553(a)
Finally, Stephens argues that the district court did not
meaningfully analyze the 18 U.S.C. § 3553(a) sentencing fac-
tors. He contends that the court focused “solely” on the seri-
ousness of his crime and did not inquire into his personal his-
tory and characteristics, including his upbringing, lack of
criminal history, age, mental health diagnoses, and his pre-
payment of his large restitution obligation. At a sentencing,
the judge must correctly calculate the range, address the par-
ties’ principal arguments, consider the statutory factors, and
explain the sentence. See Gall v. United States, 552 U.S. 38, 51
(2007). But the court need not march through “every factor
under § 3553(a) in a checklist manner;” only an “adequate
No. 20-1463 11
statement” of the applicable factors is needed. United States v.
Barr, 960 F.3d 906, 914 (7th Cir. 2020).
The district court sufficiently analyzed the § 3553(a) fac-
tors that “determined the sentence” it imposed. See
United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). The
court expressly addressed the nature and seriousness of Ste-
phens’s offense, § 3553(a)(1) & (2)(A), the likelihood of recidi-
vism, § 3553(a)(2)(C), and general deterrence, § 3553(a)(2)(B).
It is not correct that the entire argument for affirming this sen-
tence rests on the court “implicitly” addressing the factors.
The court was not required to dwell on other factors that it
did not find meaningful in this case. See Barr, 960 F.3d at 914.
Stephens’s insistence that the court was required to specifi-
cally mention his “history and characteristics” echoes the oft-
rejected argument that the court must tick off each factor in-
stead of drawing attention to those most important for the
specific case. See id.
Further, while Stephens’s written submission explored his
personal history and characteristics at great length, he barely
touched on them at the sentencing hearing. Although we
have not said that only an oral presentation triggers a district
court’s obligation to address an argument, it is hard to fault
the court for not discussing in the hearing a topic the defend-
ant scarcely mentioned in that hearing. See Grisanti, 943 F.3d
at 1052 (“A party may not ‘invite’ error.”). For example, Ste-
phens discusses on appeal the impact of his mother’s suicide
when he was 16 and other aspects of his background. At the
hearing, his attorney said that his upbringing was “not horri-
ble” but “possibly not the best.” His attorney also briefly
noted Stephens’s mental disorders and his ability to admit,
12 No. 20-1463
albeit belatedly, that he “has sexual feelings for female chil-
dren.” From there, however, his attorney emphasized that the
“basic thing” that should drive the sentence was the “likeli-
hood of recidivism” and said that Stephens posed a lower risk
based on recent behavioral treatment and time to “realize the
magnitude and seriousness” of what he did. The attorney ad-
mitted that Stephens would submit to a lifetime of supervised
release to “make sure that there was someone to check on him,
that somebody was monitoring him.” In the face of this
presentation and the overall facts of the case, it is not hard to
see why the district court focused primarily on the nature of
the crime and the risk of recidivism.
Stephens is correct that the district court did not specifi-
cally discuss much of what he argued in writing before the
hearing. But the procedural protections are designed “to al-
low for meaningful appellate review and to promote the per-
ception of fair sentencing.” Gall, 552 U.S. at 50. Here, the rec-
ord shows clearly why the court imposed a within-guideline
sentence. Stephens collected a vast quantity of images, some
portraying sadistic abuse. He continued to amass them de-
spite the previous seizure. His inability or unwillingness to
understand his conduct and how it affected the victims made
it more likely that he would reoffend. Because the district
court expressed a clear view on Stephens’s rehabilitative po-
tential, we have no reason to seek further explanation. As we
said in United States v. Castaldi, 743 F.3d 589, 595 (7th Cir.
2014), “the district judge made his thinking clear enough.”
AFFIRMED.