NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
Argued July 8, 2010
Decided July 28, 2010
Before
WILLIAM J. BAUER, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 09‐3788
UNITED STATES OF AMERICA, Appeal from the United States
District Court for the Northern
Plaintiff‐Appellee, District of Illinois, Eastern Division.
v. No. 08 CR 588‐1
WILLIAM FERNANDES, Robert M. Dow, Jr., Judge.
Defendant‐Appellant.
O R D E R
William Fernandes pleaded guilty to obstruction of justice,
18 U.S.C. § 1512(c)(1),
for disposing of a computer hard drive during a criminal investigation of his
distribution of child pornography. He was sentenced to 78 months’ imprisonment, the
bottom of the guidelines range. He appeals only his sentence, arguing that the district
court committed procedural error by speculating about the contents of the unrecovered
hard drive, by failing to address adequately mitigating factors that he believes
warranted a below‐guidelines sentence, and by failing to explain the sentence
sufficiently.
No. 09-3788 Page 2
Fernandes challenges the sentence only for procedural error, so it is not
necessary to examine the substantive reasonableness of the sentence. See Gall v. United
States,
552 U.S. 38, 51 (2007). We review sentences for procedural errors under a non‐
deferential standard of review. United States v. Johnson,
534 F.3d 690, 695 (7th Cir. 2008).
To avoid procedural error, a district court must calculate the advisory guidelines range
correctly, apply the factors set forth in
18 U.S.C. § 3553(a), rely on properly supported
facts, United States v. Jackson,
547 F.3d 786, 792 (7th Cir. 2008), and “adequately explain
the chosen sentence to allow for meaningful appellate review and to promote the
perception of fair sentencing,” Gall,
552 U.S. at 50. When explaining the chosen
sentence, a sentencing court should discuss the effect of mitigating factors when those
factors have a factual basis and recognized legal merit. United States v. Cunningham,
429
F.3d 673, 679 (7th Cir. 2005).
Fernandes principally argues that the district court procedurally erred by
speculating about additional evidence that might have been on the missing hard drive.
Elaborating on this point, he contends that, because the court characterized his offense
as a “hybrid of obstruction and child pornography,” the court sentenced him based on
unsubstantiated child‐pornography accusations. (Sent. Tr. at 32:1‐4.)
Contrary to Fernandes’s argument, the district court did not sentence Fernandes
for what may have been on the missing hard drive or as if he had been convicted of (or
pleaded guilty to) a child‐pornography crime. True, the court said at sentencing that
Fernandes “cut a break” by destroying evidence that might have otherwise led to child‐
pornography charges. (Sent. Tr. at 11:4‐7.) But this merely means, unremarkably, that
Fernandes might have been in greater legal jeopardy had the government been able to
charge him with a child‐pornography crime in addition to obstruction. The record
shows that the court explicitly refused to speculate about what may have been on the
missing hard drive. And the court’s description of the offense’s guideline as a “hybrid
of obstruction and child pornography” was apt. (Sent. Tr. at 32:1‐4.) The obstruction
guideline contains a cross‐reference that required incorporation of the child
pornography guideline. See U.S.S.G. § 2J1.2(c)(1).
Fernandes also argues that because the court viewed him as having received a
sentencing break by avoiding a child‐pornography charge, the court refused to consider
whether mitigating factors warranted a below‐guidelines sentence. The record again
belies Fernandes’s contention. The court did consider a below‐guidelines sentence
based on Fernandes’s mitigating factors (such as his work and military history, skills,
No. 09-3788 Page 3
and attempted rehabilitation from alcoholism), which it said were persuasive reasons
for a lower sentence. But the court concluded that his carefully planned obstruction‐‐he
diverted government agents to his mother’s home so that he could destroy all evidence
on the hard drive that was stored at his sister’s apartment‐‐demonstrated a serious
disregard for the law and warranted a sentence within, but at the bottom of, the
guideline range. Accordingly, the court considered and balanced Fernandes’s
mitigating factors in formulating his sentence.
Last, Fernandes argues that the court failed to explain how his one‐time
destruction of evidence was characteristic of the behavior of someone deserving a
within‐guidelines sentence. But the court did so. It reasoned that Fernandes’s actions
were not the result of spur‐of‐the‐moment decisions, or a product of drunkenness, but
were “a calculated effort to mislead the agents and to have them go one way while the
defendant was going the other way.” (Sent. Tr. at 33:24 ‐ 34:3.) A more comprehensive
explanation is not required, United States v. Dean,
414 F.3d 725, 729‐30 (7th Cir. 2005),
because these reasons are enough to assure this court that the sentencing judge gave
proper consideration of Fernandes’s behavior, see United States v. Smith,
562 F.3d 866,
873 (7th Cir. 2009).
AFFIRMED.
